485 U. S. 175
March 2, 1988
The collective bargaining agreement between Trans World Airlines and a union of flight attendants ended. There was a dispute as to whether certain provisions of the agreement remained in effect even though the agreement itself had lapsed. The Court of Appeals agreed with the union that the provisions at issue were still in effect. With Kennedy still not participating, the Supreme Court divided four to four, thus affirming the lower Court by a tie vote. Off all the tie votes so far this term, this one is easily the most frustrating. Kennedy was finally on the Court! Would have really been so frickin’ impossible to have re-argument, and get a clear ruling? Apparently so.
485 U. S. 112
March 2, 1988
There was an architect in St. Louis on the government payroll named Praprotnik. He was the annoying type who files grievances about everything, so his immediate superiors shuffled him around and eventually get him laid off. To make a long story short, Praprotnik tried to hold St. Louis liable under Section 1983 because his superior officers were out to get him for exercising his First Amendment rights. St. Louis argued that it could not be liable because only misconduct by the highest policy making authorities could render the city itself subject to a 1983 suit.
The Supreme Court agreed with St. Louis in a 7-1 vote (Kennedy did not participate). O’Connor wrote the plurality opinion, which first turned back the aggravating argument that the questions before the Court weren’t properly preserved for appeal. In a refreshing display of good sense, O’Connor said that this was an area of the law which badly needed more judicial definition, and thus brushed aside the dumb preservation claims. Then, looking at the municipal laws, the plurality concluded that only actions by the Mayor, Alderman, and the Civil Service Commission could render the city itself liable to 1983 actions. Because none of these authorities were linked with the alleged persecution against Praprotnik, the city was immune.
Brennan, joined by Marshall and Blackmun, had a few minor quibbles in a concurrence in judgment. They thought the plurality placed too much emphasis on statutory law in figuring out the highest authorities in cities. They also thought that presence of scanty superior review did not mean that an officer was not a policy making authority. But Brennan still agreed that the officers which Praprotnik sued were, in any event, not ones that would open up St. Louis to liability. In all honesty, the two opinions were very close, and Brennan made a mountain out of some rather small disagreements.
In dissent, Stevens wanted to play trial judge, and he reviewed a bunch of court transcripts in order to conclude that the Mayor and his immediate subordinates had played an important role in screwing over Praprotnik. He also would have come out differently on the preservation for appeal question. Pressing forward anyway, he eschewed the search for the proper authorities that the two other opinions conducted. Instead, he saw a deep conspiracy by a wide network of officials throughout St. Louis, and thought it perfectly right to hold the entire municipality accountable. This opinion is an example of Stevens at his worst – so far off the reservation that not even the ultra-liberals Brennan and Marshall could fathom his bizarre thought process.
485 U. S. 94
March 1, 1988
A doctor from Ghana was ordered to be deported in 1982. In 1985, that Doctor moved to reopen the case, and asked for asylum because of alleged political persecution he would face back in Ghana. The Board of Immigration Appeals (BIA) denied his request, saying that Dr. Abudu had not even made a prima facie case for reopening. A Court of Appeals thought he had made a prima facie case, and ordered the BIA to reconsider. The BIA contended that their decisions could only be reviewed under an abuse-of-discretion standard, rather than the summary judgment standard that the Court of Appeals thought applicable.
Unanimously, the Court agreed with the BIA (Kennedy did not participate). The legal issue before the Court was very confused, and Justice Stevens spent most of the opinion trying to pin down exactly what was being decided. In the end, the ultimate final word was that BIA decisions about reopening or granting asylum were to be reviewed under an abuse-of-discretion standard, and under the facts of the case, discretion had clearly not been abused. This demanding standard was necessary, said Stevens, because there needs to be some finality in immigration adjudication. This was the correct ruling, but even so, I was surprised to see Brennan and Marshall concurring in it. I guess there are some cases where not even bleeding heart liberals can find a legal excuse to back the ‘underdog.’
485 U. S. 88
March 1, 1988
First, a word about the case name. The official citation is “United States v. Louisiana,” but the case does not involve Louisiana at all. United States Reports uses the more colloquial “Alabama and Mississippi Boundary Case,” but Alabama is likewise not involved at all. Well over a decade before, the federal government had began fighting with all three states about their territorial reach into the Gulf of Mexico, but by 1988 only Mississippi was still fighting. At issue was an area of water known as the Chandeleur Sound. The Special Master in charge of arbitrating the territorial disputes claimed that dealing with the Chandeleur area was beyond the scope of his charge.
Justice Blackmun wrote for a unanimous Court, and agreed with the Special Master (Marshall and Kennedy did not participate). Blackmun observed that Mississippi and the United States were substantially in accord about the area which was within the Special Master’s purview. He thus directed that an ultimate settlement be finally made for the areas within that purview, and allowed that the parties could come back later and institute new action to deal with the Chandeleur Sound dispute.
485 U. S. 80
February 24, 1988
A man named Peralta was sued in order to recover a debt. Peralta was never served with notice of the suit though. He did not appear, and default judgment was entered against him. He moved to set aside the decision because of the faulty notice, but the Texas courts refused, reasoning that he needed to show that he could have won the case even with proper notice. Peralta said that this reasoning violated the Due Process clause.
With White writing, the Supreme Court unanimously agreed (Kennedy did not participate). White found it an easy case, as service with notice is a bedrock requirement of due process. That Peralta would have had no legal defense did not matter, because he might have been able to settle the case before trial, and he was unfairly caught off guard when a lien was attached to his property to satisfy the debt. The Court made the legally correct ruling, but I’m not sure how right it was as a matter of natural justice. The American system cares far too much about processes, rights, and checking off boxes, and far too little about truth, justice, and righteousness. If Peralta really did owe the debt, he ought to have to pay it, and not get let off the hook for a procedural quirk.
One other thing – (a thing which I could just as easily have first brought up in any number of cases) – what the heck is Peralta’s first name? After giving his last name in the opening sentence of the decision, Justice White calls him “appellant” for the remainder of the opinion. I hate that. Every single Supreme Court case affects real living humans. They should not be de-personalized into oblivion. As I said sometime ago, laws were created for men, not men for laws.
485 U. S. 74
February 24, 1988
Mary Alice Galbreath successfully sued for $8,000 of extra Social Security money under Title XVI of the program. Her lawyer, Anthony Bartels, asked the court to award him one-fourth of the money for attorney’s fees. When this was awarded, the HHS Secretary protested that attorney’s fees could only be awarded under Title II actions.
Justice Brennan agreed, and wrote for a unanimous Court (Kennedy did not participate). Title II textually allowed for attorney’s fees, and Title XVI did not. A review of legislative history strongly suggested that this difference was intentional, and good public policy. In light of the textual differences, Brennan thought little of the argument that courts would always have an inherent power to award attorney fees. An old case had found such an inherent power, but the Social Security law had been amended so often since then that the will of Congress as to the court’s authority was now perfectly clear. I was glad to see straight textualism carry the day, and heartily support any ruling that cuts down on the rights of money-grubbing attorneys.
485 U. S. 58
February 24, 1988
When a guy was put on trial for bribery, he tried to argue both that he hadn’t been bribed, and that if he had, the government had entrapped him into doing so. The question was whether a court could prohibit him from making these two defenses that necessarily involved inconsistent testimony. The government argued that a defendant must choose either one story or the other.
The Supreme Court disagreed in a 6-2 vote (Kennedy did not participate). Rehnquist, writing for the majority, noted that some lower courts had allowed inconsistent defenses, and that a defendant should be able to advance any reasonable argument to avoid conviction. Although the Federal Rules of Criminal Procedure did not formally authorize it, Rehnquist did not see its silence as a bar. He was also unmoved by the argument that allowing two defenses would encourage perjury, reasoning that good lawyers could work around that potential problem. The majority finally observed that inconsistent testimony would be largely self-penalizing for the defendant.
Brennan, in concurrence, said that he now acquiesced in the majority’s statement that the defendant’s state of mind was a crucial element of the entrapment defense (previously, he had argued that only the actions of the government mattered). Scalia, concurring in judgment, thought admitting to commission of a crime ought not be considered an element of entrapment. Even with the majority considering it an element, Scalia thought that inconsistent testimony for an entrapment defense was rare enough and self-penalizing enough to be allowed.
White, dissenting with Blackmun, argued that the Court had no legal leg to stand on. Entrapment defenses were not a privilege granted by the Constitution, statutes, or Federal Rules, so White found no ground for telling a lower court concerned about perjury and truth that couldn’t bar such a defense. White felt that the perjury concerns were much stronger than the majority admitted, and said that a court’s role as truth-seeker needed to be remembered. I personally still side with Rehnquist. In an ideal world, consistent testimony should be given, but juries will not always believe the truth, and so to guard against wrongful convictions, I would allow inconsistent stories.
485 U. S. 46
February 24, 1988
In 1983, the pornographic magazine Hustler published a fake ‘parody’ interview with Jerry Falwell where he admits to having drunk sex with his mother in a fly-ridden outhouse (for you young’uns out there, Falwell was a prominent socially conservative Baptist minister of the era). Falwell successfully sued Hustler for the tort of intentional infliction of emotional distress. In return, the magazine argued that, as a parody, the interview should be protected from such a suit under the First Amendment.
Rehnquist wrote for a unanimous Court (Kennedy did not participate), which set aside the emotional distress finding on First Amendment grounds. Rehnquist recited how free and open discourse about public figures like Falwell was critical for the health of a liberal democracy, and how highly exaggerated and fictionalized parodies of public figures were part and parcel of America’s commitment to free speech. Although the Falwell ‘parody’ was disgusting and outrageous, and had little redeeming quality, Rehnquist did not see how a bright line between it and a Thomas Nast cartoon could be drawn. Thus, magazines like Hustler should be able to publish without fear of expensive emotional distress suits.
White, concurring in judgment, took exception to the majority’s unnecessary and misleading mention of New York Times v. Sullivan and libel law. Myself, I would go further, and call the entire majority opinion sloppy and misguided. The Hustler ‘parody,’ unlike a political cartoon, made no actual political statement. It merely bullied a famous person in a crude and vicious manner. Much like the rest of the contents of Hustler, the Falwell ‘parody’ was simply obscene, and really doesn’t deserve First Amendment protection. As scholar John Kang put it in his half-joking/half-serious nomination of this ruling as the ‘Worst Case in the History of the World,’ the majority opinion was a sad blow against basic civility and human decency in American society.
485 U. S. 25
February 24, 1988
At a mail fraud trial, the defense attorney claimed in closing arguments that his client had been denied an opportunity to tell his side of the story several times, including, ostensibly, at the trial itself. The prosecutor argued in response that the defendant had a perfect opportunity to tell his side at trial, but declined to do so. At the time, no objection was made to the prosecutor’s arguments. Later though, it was said that they violated the Griffin rule against commenting on a defendant’s silence.
The Court ruled 5-3 that no Constitutional rights were violated by the comment (Kennedy did not participate). Rehnquist said that the prosecutor was merely refuting a bad-faith argument by the defense attorney, and not attempting to suggest that the silence was evidence of guilt – the main harm that the Griffin rule was intended to guard against. Marshall, joined by Brennan, argued forcefully in dissent that the plain text of Griffin, and another case called Wilson, flatly prohibited all comment on trial silence, even if it was not intended to suggest the defendant’s guilt. From a textual matter, Marshall is surely right, but I still side with Rehnquist because the original Griffin rule was too broad, and ought not to have applied to situations like this.
The annoying wild card in all this was that there had been no objection to the prosecutor’s comment. Thus, the conviction could only be overturned if the error was “plain.” Rehnquist found no error at all, and thus sidestepped the issue. Marshall did not directly offer an opinion on this question either. Blackmun, writing for himself, agreed with Marshall that the comment constituted error, but wasn’t sure about plain error. He thought the lower court had gone completely astray on the issue, and that it needed to try again after getting better instruction from the Supreme Court. Like every Justice except Blackmun, I’m happy to simply sidestep this issue entirely.
485 U. S. 1
February 24, 1988
A rent control ordinance in San Jose laid out several objective tests which limited the rent increases that a landlord could charge. But in addition to these tests, rent increases were also to be limited if a hearings officer concluded that they caused “hardship” to tenants. Landlords objected that this violated the takings clause, the due process clause, and the equal protection clause. The thrust of the protest was that the ordinance asked landlords to outright subsidize poor tenants, rather than to merely charge a fair price.
The Court upheld the ordinance 6-2 (Kennedy did not participate). Chief Justice Rehnquist first turned back a standing challenge. There was no definite instance yet of a landlord being denied a rent increase on the hardship basis, but Rehnquist accepted that it was indeed a very likely possibility in the immediate future. The lack of a developed record was enough of a roadblock though that the Court declined to address the takings clause issue. Moving on to the due process and equal protection clauses, Rehnquist said that protection of the consumer’s welfare and interest was a rational end of legislation, and thus allowing certain tenants to be charged below the objective reasonable price was not Constitutionally troublesome.
Scalia, joined by O’Connor, agreed with the majority on everything except the takings clause. A close reading of recent takings clause decisions showed that an underdeveloped record was no impediment to considering the issue. Moving to the merits, Scalia said that forcing a landlord to charge less than the ‘fair’ price to needy tenants was indeed a regulatory taking. He compared it to forcing grocery stores to sell its food at lower prices to those suffering economic hardship. If San Jose wanted to alleviate hardship to the poor, Scalia said they could do so through welfare or public housing. I think this opinion is right, and the Court should have addressed the takings clause challenge on the merits (of course, I’ve never really been one for abstention based on standing issues).