Monthly Archives: March 2015

United States v. Fausto

484 U. S. 439

January 25, 1988

A very low level government employee named Joseph Fausto was suspended without pay for 30 days for misconduct. He tried to challenge this suspension in court under some old laws, but the government agency responded that the 1978 Civil Service Reform Act (CSRA) took away his right to judicial or administrative review.

In a 5-3 ruling, the Court held that the CSRA did indeed foreclose outside review of his suspension. Scalia said that the CSRA was intended as a comprehensive regulation of the hiring and firing of government employees, and that it superseded all old legal actions that had been available. The CSRA did not have a provision for really low level employees to challenge suspensions. Scalia demonstrated that the CSRA’s structure was inconsistent with Fausto’s claimed right of judicial review. This was not repeal by implication, because the old laws he wanted to sue under still stood – only their breadth of application had changed. In a concurring opinion, Blackmun lightly hinted that there might yet be a judicial remedy for Fausto.

Stevens, joined by Brennan and Marshall, dissented. He felt that if CSRA was meant to foreclose outside review for low level workers, it should have said so directly. He further claimed that the Act’s purpose was far narrower than the majority thought – it was mainly intended to set out standards for higher level workers, and not act as the complete set of standards for all of them. Stevens contended that the majority’s reading was indeed an effective repeal by implication, and noted that Congress had directly amended many other laws whose operation was directly touched by the CSRA.

It’s cases like this where I don’t know who to believe. It almost makes you wish that the Supreme Court could gather all the surviving members of the 95th Congress together and poll them on the legal question in this case. As absurd as that sounds, it does seem like the fairest and most accurate way to figure out the CSRA’s true intended effect. When statutes are clear, everything is cool. When they’re not clear, trying to discern the correct interpretation can be nigh impossible.


Taylor v. Illinois

484 U. S. 400

January 25, 1988

In a trial for attempted murder, the defense counsel sprung a surprise witness on the court at the last minute. The judge, who was highly annoyed by this, heard the witness give some testimony away from the jury. Not finding the witness credible, the judge precluded him from testifying to the jury. When the defendant was convicted, he argued that the exclusion of the witness violated his Sixth Amendment rights.

In a 5-3 vote, the Court held that the judge was within his discretion to exclude the witness. Although the Sixth Amendment generally granted a defendant the right to have his witnesses heard, the right could be circumscribed if abused. In this case, bringing in an unreliable witness at the 11th hour crossed the boundary. Justice Stevens said that courts must be able to take harsh measures to preserve their integrity, and thus was unmoved by claims that a lesser remedy such as a continuance should have been imposed instead. Finally, Stevens rejected the claim that the defendant was being punished for the lawyer’s mistake, noting that clients suffer all the time due to ill-conceived trial tactics.

Brennan, joined by Marshall and Blackmun, dissented. As a preliminary matter, he noted that the the case’s justiciability was iffy, but wisely brushed these worries aside (I badly wish this would happen more often). He took great offense at the notion of a judge determining the credibility of a witness. Furthermore, since the outcome of the trial hung in balance, Brennan felt exclusion was a horrendously unfair remedy, disproportionate to the offense. He also stressed at length that there was no proof the defendant was behind the late disclosure of the witness; it was simply wrong to effectively punish the defendant when his lawyer was guilty of not merely poor tactics, but outright legal misconduct. Blackmun’s brief dissent noted that there could be rare cases where exclusion would be warranted.

This is a case where I’m genuinely torn. As I’ve said before, I’m very much in favor of as much evidence as possible coming in, and hate it when arbitrary rules keep important testimony out. On the other hand, the words of Justice Stevens about preserving a court’s integrity had an unexpected resonance. When a defense lawyer starts using amoral, juvenile, and hardback stalling tactics that make a mockery of the judicial system, one does start to want a truly effective remedy. Ultimately, I think I lean slightly to Brennan’s side, if only because there probably are other remedies out there to effectively deter surprise witness abuse.

Virginia v. American Booksellers Assn., Inc.

484 U. S. 383

January 25, 1988

Virginia had long prohibited selling obscene books to juveniles, and in 1985 the law was amended to prohibit the displaying of these books to juveniles too. Bookstores protested that keeping kids from seeing obscene books was simply not feasible. Shielding the books from the kids would be costly, and would inevitably prevent adults from seeing them too. The bookstores also argued that a surprisingly high percentage of books sold were obscene under the statute. As an example, they cited a collection of classic love poems.

The Supreme Court unanimously decided to punt. Brennan certified two questions to the Virginia Supreme Court, which had the power to authoritatively interpret the law. First, were the books like the love poem collection really inappropriate for juveniles under the law? This was asked because the Commonwealth’s lawyer emphatically claimed they were not. Second, is the law violated if the books are physically displayed, but the bookstore still prevents kids from perusing them?

Stevens objected that the first question treated all the books at issue as a package deal. He said that the Virginia Supreme Court ought to give individual judgment on each book that the bookstores complained of being covered by the law. In any event, certification was a good idea, and it’s a shame that it’s not used more often. As to the case itself, it’s a clear relic of the sadly long gone days when it was still possible to fight obscenity. I’ll be the first to admit that the internet has been a wonderful tool for good; but it’s also indisputably been a powerful tool for evil.

United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd.

484 U. S. 365

January 20, 1988

An apartment landlord was given a loan of over $4 million, and the apartment complex he owned was to be used as collateral, even though it’s total value was somewhat less than the loan. A few years later, the landlord filed for bankruptcy, which automatically prevents any loaner from foreclosing on the collateral (i.e. the apartment). Under a provision in the bankruptcy code, the loaner asked the apartment owner to pay large sums of interest for the duration of the bankruptcy proceedings. The question was whether the code allowed for this when the collateral was less than loan amount.

In a mercifully unanimous decision, Scalia said the code did not allow for the imposition of interest payments in that situation. In all honesty, I could barely make heads or tails of the opinion, so if you want a better summary you’ll have to read it yourself. Basically, he thought the creditor’s reading of the code was inconsistent with other code provisions, and that the provisions the creditor relied upon for the support weren’t very strong. Finally, Scalia tried to demonstrate that the ruling was in line with the intent of Congress. As I’ve noted before, decisions involving securities, banking, and high finance are absolutely brutal for me. I just hope that I don’t run into too many cases like this as I continue through the Rehnquist Court.

Carnegie-Mellon Univ. v. Cohill

484 U. S. 343

January 20, 1988

Carnegie-Mellon fires William Boyle, and he gets all sore and sues the University using both federal and state law. Because all the legal questions were related, a federal court would hear the case. Then, Boyle decided to drop the only federal claim. The question was whether the federal court had the power to remand the state claims to state court, or whether it could only dismiss the suit altogether.

With Marshall writing, the Court ruled 5-3 that a remand was possible. He stressed that without a remand, some of the state claims could be barred by the statute of limitations. He admitted that federal statutes did not appear to authorize a remand in these circumstances, but said that courts retained a power to do so anyway in the interest of comity and economy. Marshall pointed out that a federal court’s power to dismiss state claims was totally uncontested, and that dismissal really wasn’t all that different from a remand. A precedent from 1976 was distinguished on the grounds that federal jurisdiction of the state claims had not been required in the first place.

White, joined by Rehnquist and Scalia, dissented. If courts, he argued, really had the inherent power to remand in the interests of economy and comity, then the authorization of remanding in federal statutes was completely superfluous. Worse yet, the majority misrepresented the decade old precedent, which had in fact held that remands not specifically authorized by statute would not be allowed. I have a sinking feeling that White is right, and that this ruling was activism. But you know what? This decision is dang good public policy, and if it was activism, it was good activism.

Honig v. Doe

484 U. S. 305

January 20, 1988

The Education of the Handicapped Act (EHA) required that disabled students receive competent eduction, and mandated that in a dispute over a student’s placement, he could never be removed from his current school without parental consent. The San Francisco public schools tried to expel, without parental consent, two disabled students because they were physically dangerous to their classmates. The main question was whether dangerousness was an exception to the general rule about removal.

With Brennan writing, the Court held 6-2 that it was not. It first addressed the issue of mootness. One student was 24, and thus too old to take advantage of the EHA any longer. The other student no longer lived in San Francisco, but Brennan said that the same thing could happen to him in another school district, so the case was one ‘capable of repetition, yet evading review.’ On the merits, Brennan saw no reason to deviate from the literal language of the EHA. Furthermore, he showed that Congress emphatically knew about the problem of dangerousness, so the absence of such an exception was not an oversight. On a final minor question of whether courts could order a state to take remedial action when local school districts failed to do so, the Court was tied.

Rehnquist wrote his first ever concurrence as Chief Justice, and in it he lamented how annoying mootness arguments were. He thought the Court had Article III jurisdiction to hear all moot cases, and thought it was especially important to do so when the case was live for the District and Appeals courts. Scalia, joined by O’Connor, dissented solely on mootness grounds. Because there was no evidence that the suing student would try to go to public school again, and because there was no reason to believe that another public school would also attempt to expel him, Scalia did not think the case was really ‘capable of repetion.’ And after doing his traditional digging through musty old 19th century rulings, he proclaimed that mootness was a genuine Article III bar against jurisdiction.

As ought to be apparent by now, I really hate justiciability doctrines like mootness. What I hate even more is the Court’s interminable schizophrenia on the ‘advisory’ vs. ‘cases and controversies’ debate. It’s brutally obvious that the Court decides to hear cases based on what important doctrinal questions it wants to address. In this sense, the Court is already a de facto advisory body. At the same time, it’s still a de jure cases-and-controversies body, and so it still adheres to all the dopey justiciability rules. Instead of this ‘worst of both worlds’ mixture, I would prefer the Court picking just one approach, and going all the way with it. Either become a full blown advisory court, and don’t even pretend to wait for the cases, or become a truly non-advisory court, and concentrate earnestly on reversing all lower court rulings which are in error, no matter how trivial they are doctrinally.

Marino v. Ortiz

484 U. S. 301

January 13, 1988

Groups representing blacks and hispanics sued the New York Police Department because racial minorities were underrepresented in the ranks. All parties involved sat down and came up with a settlement decree, which instituted an affirmative action policy. The District Court gave its blessing to this decree. Then, some white police officers sued, charging that this affirmative action plan was unconstitutional race discrimination.

Some officers tried to appeal from the decree itself. The Court unanimously ruled that this was impermissible. The per curiam opinion stated that one must be a party to a lawsuit to appeal it. Other officers simply attacked the decree in a new suit. Since the decree was intended as a settlement to the controversy, there was doubt as to whether the new suit should be allowed. With no ninth Justice present, the Court split 4-4 on the issue. The answer would have to wait until the 1989 case of Martin v. Wilks.

Westfall v. Erwin

484 U. S. 292

January 13, 1988

William Erwin was working at an Army Depot when he he came into contact with some improperly stored soda ash, and suffered horrific injuries. When Erwin attempted to sue the Depot supervisors, they claimed tort immunity as government officials. Erwin argued that such low level government officials only had immunity when they exercised discretionary functions.

Unanimously, the Supreme Court agreed. Marshall reiterated the importance of government officials being shielded from vexatious litigation, but acknowledged the sad tradeoff that meritorious claims were also barred. He held that only discretionary actions should be shielded, because they offered the most potential for frivolous suits. Marshall also rejected the claim that all actions not specifically mandated by statute were discretionary, and said that the term ‘discretionary’ should be interpreted in a more narrow fashion.

As I said in my year-end review of the previous term, it’s extremely hard to get me to root for expanding tort liability. But if this expansion comes at the expense of government immunity, I am 100% for it. As Marshall succinctly put it: “absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct.” Those simple words of truth cannot be repeated often enough. I expect this case to be a strong contender for this year’s Deuteronomy 16:20 Prize.

Hazelwood School Dist. v. Kuhlmeier

484 U. S. 260

January 13, 1988

A high school published, at its own expense, a newspaper written by students in a journalism class. In one 1983 issue, the principal ordered the removal before publication of articles about student pregnancy and divorce, citing several compelling concerns over anonymity, journalistic ethics, and the mature subject matter. The students claimed that this violated their First Amendment rights from the Tinker case. If this were a Hollywood movie, the dewy-eyed, idealistic kids would have taken that mean ol’ killjoy of a principal all the way to the Supreme Court and won.

Thankfully, it was not a Hollywood movie, and the Supreme Court smacked the snotty little kids down. White wrote for the Court, which ruled 5-3 that the principal had acted reasonably. Because the newspaper was published by the school, and part of the school’s education mission, school administrator’s had a right to oversee its content, and ensure that it met proper standards for distribution to the student body. The school had not intended to create a forum for unsupervised free speech, and the speech exercised in the paper was not private as in Tinker. White concluded by showing that the principal’s censoring had been eminently reasonable (it had even been commended by the editor of a real newspaper).

Brennan, joined by Marshall and Blackmun, quite evidently wanted the Hollywood ending. He moaned that Tinker hadn’t said anything about the effect of school sponsorship, and so it shouldn’t matter. He ominously intimated that the principal was a prude who was hellbent on brutally squashing anything that promoted sexual promiscuity. And he threw in a hearty helping of Monday morning quarterbacking about alternative options the school could have taken when faced with the troubling articles. Hazelwood was predictably greeted by an avalanche of sententious tut-tutting from the press, who also wanted the Hollywood ending badly. Lost in most commentary on the decision was the fact that the principal was totally on point in all his objections.

Lowenfield v. Phelps

484 U. S. 231

January 13, 1988

So, this bad guy murders five people all in one go. Then, at sentencing, the jury seems to be at an impasse. Twice the judge polls the jury on whether more deliberation will help, and both times a majority of jurors say it will. The judge asks them to reach a conclusion if they can, and reminds them that the murderer will get life imprisonment if the jury cannot agree. Finally, the jury comes back with the death sentence. The aggravating circumstance that merited death was the five-fold nature of the murder – precisely what allowed the crime to be charged as first degree murder at all.

Rehnquist wrote for the Court that the death sentence was sound. The Court held 5-3 that the jury had not been coerced by the judge’s actions, and held 6-2 that the aggravating circumstance used was appropriate. Rehnquist noted that the judge never pressured the jurors to choose one sentence over another, just to come to a decision. He distinguished the case factually from other jury coercion rulings. What’s more, the defense counsel did not even object to the judge’s actions during the trial, so obviously any illicit coercion must have been extremely subtle. With regard to the aggravating circumstance being one of the factors that allowed for a first degree murder charge to be brought, Rehnquist noted that this was perfectly consistent with the 1976 death penalty cases. The point of the aggravating circumstance was only that it narrowed the field of death penalty candidates.

Marshall wrote the dissent, which Brennan joined in full, and Stevens joined on the coercion issue. He argued that a jury would only come to a verdict after 22 hours of deliberations if a judge was exerting pressure. He further noted that the judge’s repeated statement about life imprisonment must have functioned as tacit coercion to return with a death sentence. Finally, Marshall found it significant that the judge was informed which jury members were the most intransigent. On the issue of aggravating circumstances, Marshall blankly asserted that letting an element of the crime also function as a aggravating circumstance was unfair. It’s cases like this that give me an ever so slight appreciation for Justice Blackmun. As much as he hated the death penalty, he was sometimes willing to let sentences stand when the only argument against them were idiotic minutia.