484 U. S. 554
February 23, 1988
A prison guard named John Foster was brutally assaulted in an attack which resulted in enormous memory loss. One day at the hospital though, Foster was briefly able to identify a man named Owens as the assailant. At trial, Owens objected to the introduction of this identification under the confrontation clause, and the Rule of Evidence against hearsay. Even though Foster was available for cross-examination, Owens argued that it was useless because he had no real memory of making the identification.
The Court ruled 6-2 that the identification was admissible (Kennedy did not participate). Scalia cited precedents which showed that forgetfulness of a witness had never been considered a confrontation clause violation. And indeed, because cross-examination allowed Owens to show that Foster’s identification was potentially untrustworthy, Owens was able to use his confrontation clause rights to great effect. With respect to the hearsay argument, it was once again basically dispositive that Foster was there for cross-examination. Although the Federal Rules of Evidence were slightly murky on the point, allowing for Foster’s out-of-court statement was, in the end, the most straightforward reading of them.
The two dissenters were Brennan and Marshall (but you already knew that, didn’t you?). Brennan argued that because virtually all of Foster’s memories were gone, he really shouldn’t be considered the same person who had made the out-of-court identification. Because Owens could get nothing out of Foster in court except ‘I don’t remember,’ the cross-examination was basically useless. While the Court had allowed for fading and dimming memories in past cases, Brennan said that Foster’s memory loss was simply a different order of magnitude. Thus, he found a confrontation clause violation.
As is par for me, I find myself agreeing with the inclusionists in a ruling about evidence. Whether the piece of evidence favors the alleged victim or the defendant (see, e.g. Rock), I think a judge or jury should be apprised of all relevant information, provided that they are told when the information could be dubious.
484 U. S. 539
February 23, 1988
A concrete company was in a collective bargaining agreement that required it to make regular contributions to employee benefit plans. When this collective bargaining agreement expired in 1983, the concrete company decided not to renew it, and ceased paying benefits. Arguably, under the NLRA, the company had a duty to continue making payments anyway, and the question before the Court was whether ERISA created a remedy for a company’s failure to make payments after contract expiration.
Unanimously, the Court ruled that ERISA provided no such remedy (Kennedy did not participate). As Stevens explained, the ERISA language was quite plain: only a contractual duty under a collective bargaining agreement entitled a complainant to remedies. Alleged breaches of the NLRA did not, and as Stevens showed, Congress was aware of the difference. Because the language was so clear, Stevens thought little of arguments that allowing such a gap in remedies was bad public policy. This was a good textualist ruling. I heartily endorse the venerable principle of Pacta Sunt Servanda, but when there is no longer any ‘Pacta’ to serve, you better have a really clear basis for legal redress.
484 U. S. 518
February 23, 1988
Thomas Egan was hired by the federal government to work on repairs for nuclear submarines. This position requires security clearance. Egan was denied clearance because of some old criminal history and drug abuse problems. Due to this denial of clearance, the government moved to terminate his employment. Egan appealed to a Board set up to arbitrate disputes, and there was a question as to whether this Board could independently evaluate the decision to deny Egan security clearance.
In a 5-3 ruling (Kennedy did not participate), the Court held that a security clearance decision could not be questioned, at least under the code provision Egan had sued under. Blackmun said that security clearance was inherently a discretionary decision, and was closely linked to the President’s largely unreviewable power as Commander-in-Chief. What’s more, clearance decisions were traditionally made with high standards required to obtain it. This made clearance decisions hardly amenable to second guessing by a review board operating on a preponderance standard. Another code provision that Egan’s challenge did not proceed under might have allowed for more inquiry into the clearance decision, but this alone did not mean that that the route of review which did occur needed to have such a similarly searching inquiry.
White, joined by Brennan and Marshall, dissented. He found the alternate review route in the code to be convincing. Because second-guessing of a security clearance decision was thus allowed in some cases, White felt that Egan deserved a hearing in the administrative review route which did occur. Personally, I think the statutory text is fairly ambiguous, and in the face of such ambiguity, I would decline to give Egan any extra legal protections that aren’t clearly in the text.