1986-1987: Conservative Victories

Whenever I finish a term, my plan is to wrap it up with three final closing posts: Conservative Victories, Voting Patterns, and Mega Colossal Retrospective Bonanza! The purposes of each will be explained at the beginning of each.

In legal academia, it’s common to hear unsubstantiated claims thrown around that the Rehnquist Court represented an era of swaggering doctrinaire conservatism (one hears the same charges leveled against the Roberts Court). Because I review every single decision in a term, I have the ability to test these claims, and discover on a purely empirical basis just how conservative or liberal the Court really was. In “Conservative Victories,” I will list and describe every decision in a term which could plausibly be cited as an example of swaggering doctrinaire conservatism.

I now set out my methodology. I collect every case which had at least some substantive portion of the decision not joined by any of the following Justices: Brennan, Marshall, Blackmun, Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan. An exception will be made for the first three terms of Souter (October Terms, 1990 – 1992), because he was still a moderate throughout that period. By the time October Term, 1993 began though, he was plainly allied with the liberals. In any event, it’s my belief that any ruling joined by one of these nine Justices cannot really be described as doctrinaire or activist conservatism.

Admittedly, this is a somewhat imperfect methodology. In the late 1980s especially, Blackmun and Stevens were still prone to occasionally cast what appear to be pretty conservative votes. But this is my system, and I’m sticking with it. Anyone who believes the list of conservative conquests should be much broader remains free to create their own methodology and lists.

Total Victories: 24 (14.9%)

Colorado v. Connelly – Criminal prosecutors can prove that a defendant waived his Miranda rights by a preponderance of the evidence standard (i.e. a ‘more likely than not’ standard).

International Paper Co. v. Ouellette – The Clean Water Act pre-empts state environmental nuisance suits, unless the pollution actually originated from the state whose law is used.

California v. Brown – Before a jury deliberates over the sentence in a capital case, it may be instructed not to be swayed by “mere sentiment, conjecture, sympathy,” or other irrelevant factors.

Newton v. Rumery – Deals where criminal charges are dropped in exchange for the accused’s promise not to file a 1983 civil rights action against the police afterward are not per se invalid.

O’Connor v. Ortega – In a government work environment, warrantless ‘special needs’ searches of an employee’s office space are not per se unreasonable.

Pennzoil Co. v. Texaco Inc. – In accordance with the Younger doctrine, federalism demands that federal courts must not interfere with state courts enforcing their civil judgments, such as Texaco being ordered to pay $11 billion by a Texas court.

Tison v. Arizona – A criminal defendant may be sentenced to death when he participates in a felony that ends with a co-conspirator independently committing a homicide, provided that he demonstrates reckless indifference to human life during this participation.

McCleskey v. Kemp – Statistics, showing that murderers of white victims are far more likely to be sentence to death than murderers of black victims, do not prove that a state’s capital punishment system is unconstitutional.

Pope v. Illinois – When community standards rather than the ‘reasonable person’ standard is used in an obscenity trial, the case is susceptible to harmless error analysis.

Arizona v. Mauro – After a suspect cuts off interrogation, it is not unconstitutional to openly record a conversation at the police station between a suspect and his wife, and then introduce the recording into evidence.

Pennsylvania v. Finley – Pennsylvania is not required to provide a public defender for someone who is challenging a conviction on collateral review.

Turner v. Safley – A prison may have a rule prohibiting inmates from corresponding with other (non-relative) inmates.

Shearson/American Express Inc. v. McMahon – Contracts which subject Exchange Act disputes to arbitration rather than litigation are enforceable.

ICC v. Locomotive Engineers – In the absence of special factors, agency decisions refusing to issue a clarification and refusing to reconsider a completed ruling are non-reviewable.

O’Lone v. Estate of Shabazz – Denying a Muslim prisoner the right to participate in Jumu’ah due to alleged prison security concerns does not violate the Free Exercise clause.

Hewitt v. Helms – When a court holds that a due process violation occurs, but does not actually afford the complainant any relief whatsoever, the complainant is not a “prevailing party” entitled to Section 1988 fees.

Ricketts v. Adamson – When a convict states an intention to not testify against co-defendants at their retrial, that can be considered a breach sufficient to void a plea agreement which spares the convict the death penalty so long as he testifies against his co-defendants. If in breach, the convict may be retried.

Tanner v. United States – When evidence comes forward that members of a jury abused alcohol, marijuana, and cocaine, there cannot even be so much as an evidentiary hearing to potentially set aside the jury’s verdict.

Solorio v. United StatesO’Callahan is overruled, and military courts can try all offenses committed by members of the military, and not just offenses that are military service related.

Welch v. Texas Highways & Public Transp. Dept. – The Jones Act, a federal tort claim statute, does not give a resident of a state the legal power to sue that state.

Pennsylvania v. Del. Valley Citizens’ Council – When courts award attorney fees in contingency pay cases, they should not give bonuses for the ‘riskiness’ of the litigation, or use multipliers to increase the base amount.

Greer v. MillerDoyle is not violated when a single question at trial about a defendant’s silence is immediately overruled, and that single question can be considered harmless error.

Nollan v. California Coastal Comm’n – When a state has a goal of allowing the public to see the beach from a street, conditioning a building permit for a large beach house on allowing easement through the beach itself violates the Taking Clause. There must be a stronger connection between the goal and the regulation.

Griffin v. Wisconsin – A statute allowing a probationer’s home to be searched without a warrant, and upon mere reasonable grounds of suspicion, does not run afoul with the Fourth Amendment.


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