1987-1988: Mega Colossal Retrospective Bonanza!

I’m glad to have this year out the way, because I’m ready for the much more fun 1988-1989 term. This was a weird, transitory, and not particularly ideological term without too many compelling storylines. The next term overflows with amazing storylines.

But, to return to this term, let’s get a rundown of the Justices.

Rehnquist: He continued his trend from last year of being practically invisible. He wrote the grand majority opinions in Bowen v. Kendrick and Morrison v. Olson, but neither one was really memorable as an opinion. Beyond those two towering works, you’re barely even aware that the guy exists. I hope he distinguishes himself more in the coming years, because it would be a shame if the Rehnquist Court contains practically no Rehnquist.

Brennan: He was a bit less annoying this term than last term. There seemed to be a lot fewer quixotic criminal case dissents. There was that ridiculously over the top majority opinion in Lakewood v. Plain Dealer, but the dissent was over the top too. As before, I did find some of his dissents compelling, and thought he had it right. He’s very good at the art of portraying precedent as favorable to his argument – probably better than any other Justice. He wrote less than I thought he would, leaving Blackmun or Stevens to dissent for him in a great many cases. The man was in his twilight.

White: Like Rehnquist, White was also pretty invisible during this term. He loved to toss off cryptic concurrences that were no more than a few sentences long. As bare as those concurrences were, even they were more memorable than any majority or dissenting opinions. While clearly the weakest link of the conservative coalition, he didn’t have too many terrible deciding votes this term other than Mills v. Maryland.

Marshall: Much of what I said about Brennan applies to him too. He was less annoying, had a few really convincing dissents, and was far more silent than I would have expected. He too was in his twilight.

Blackmun: Blackmun was the year’s breakout star. After near invisibility last year, he became, to a large extent, the vanguard of the liberal wing this year. Even so, he was still more than capable of joining the conservative bloc when he felt compelled to do so.

Stevens: Stevens was the surprise conservative savior of the year, salvaging a vast number of wins that would have otherwise been ties. All things considered, he wasn’t that bad this year at all. He did tend to lard up his opinions with long, unending footnotes, but we were spared the awful eminent domain opinions that characterized his output last year. He’s very trusting of institutions, very pragmatic, and very unwilling to rock the boat (with some weird exceptions like Praprotnik). I wish every term’s Stevens could be like 1987-1988 Stevens

O’Connor: O’Connor is still in her generally reliable conservative vote phase. While she wouldn’t dissent alone, she was quite the fixture when there were multiple conservative dissenters. Nonetheless, we saw one of the earliest warning signs of the awful squishiness to come in her terrible and illogical Thompson v. Oklahoma concurrence. I must stress though that her Thompson opinion was very unusual for her at the time. Indeed, part of the ‘fun’ of going through the next few terms will be seeing her decline in real time.

Scalia: He was a bit of a disappointment this term, quite honestly. He joined the liberals in a lot of cases, and he was far less prone to going hyper-originalist like he occasionally did in the previous term. Still, there was his utterly epic Morrison v. Olson dissent, which really redeems the term for him. And he certainly retained his status as the Justice most likely to whip out a hilarious or memorable turn of phrase.

Kennedy: From what little we saw of him, he was a bland and generic conservative. But the 1988 Kennedy is a far cry from the one we have today. 1988 Kennedy’s writing is precise, logical, studious, and welcomely unemotional. The pompous, grandiose blather that characterizes him today is nowhere to be found. Like O’Connor, it will be interesting to watch his decline over the next few terms.

Some things which became extremely apparent during this term include how much I hate governmental immunity, even when it limits tort liability. Also, that meta-lawsuits are the worst things ever. Even Scalia said, in one dissent, that nothing is more wasteful than litigating about where to litigate. Immunity and meta-lawsuits can both join the exclusionary rule in the realm of things that drive me nuts.

A lot of the best, worst, and most important cases of the year were not decided by ideological lineups. Yes, there was Bowen v. Kendrick, but that was the exception rather than the rule. You had Stevens crossing over in a slew of important cases. Scalia was memorably in lonely dissent for Olson. And then there were scores of unanimous cases, some of which were really awful. Clark v. Jeter, though not bad enough to contend for the Proverbs 18:5 Prize, gets my vote as the ‘sleeper’ terrible decision of the year – and it was unanimous!

As stated above, Scalia had all the best quotes during the year. I’m too lazy to link to all of them, but you can click on the “Scalia” category and scroll through to find some of the highlights. Other than him, O’Connor’s brutal summation of the majority’s irresponsible holding in Sun Oil v. Wortman really stands out.

My sample size is only two years, so I could be proven wrong, but I’ve been struck by how infrequently certain topics come up in Supreme Court decisions. For one, you usually don’t see them trying to invent a new liberty right like abortion or gay sex all that often. For all the attention that Griswold v. Connecticut gets, there may only be a handful of cases since 1965 that really build on it. Another thing is the limitations of Congressional lawmaking power. You just don’t see cases that ask whether or not a federal law violates the spending clause, or interstate commerce clause, or necessary and proper clause. Last year’s South Dakota v. Dole gets so much attention because it was one of the few which actually addressed the issue.

Without further ado, let’s award the two prizes, and get on to the next term. As with last year, there were more candidates for the dishonor of worst decision than for the honor of best decision. My preliminary list for the worst decision had something like 14 cases on it, about half of which were death penalty ones. Two rulings fell short of winning the prize, but merited dishonorable mention.

Commissioner v. McCoy: It’s cases like this one which demonstrate why Americans rightfully hate the IRS. After Robert McCoy’s father died, Robert missed an administrative deadline which could have saved him $20,000 in taxes. The IRS not only refused to waive this deadline for the grieving son, but imposed a penalty fine, and interest on the total amount owed. McCoy won in the lower court because the judges recognized how heartless, abusive, and a$$holish the IRS was acting. Why the Supreme Court felt the need to review this case, out of the thousands on the docket, and overturn the lower court is unfathomable.

Maynard v. Cartwright: This was the worst death penalty ruling of the entire term, and sadly, it was one of the unanimous ones. Here, Cartwright committed a murder which was especially heinous, atrocious, and cruel. Then, the Supreme Court vacated his death sentence because they claimed to not know what the words “especially heinous, atrocious, or cruel” meant. The bitter irony here is that the Justices were so danged sure that executing Cartwright in the face of this allegedly vague statutory language would be “cruel and unusual” – language which is, if anything, even vaguer.

Winner of the October Term, 1987 Proverbs 18:5 Prize:

Phillips Petroleum Co. v. Mississippi

Much like last year, the death penalty cases were bad, but a property seizure case was ultimately far worse. Property owners who had lived on and paid taxes on lands for over 150 years were summarily told “Whoops! Actually the State of Mississippi acquired title to your land in 1817, and didn’t get around to realizing this and asserting its property ownership until now.” This was done not on the basis of indisputable law, but on the basis of some ancient and highly ambiguous dicta. The equitable rights of the landowners were callously and casually brushed aside by the five Justice majority. In a truly free country, a government would not behave this way, and show such sociopathic disrespect toward the property rights of its own people.

As for the best case of the year, Berkovitz and Westfall were excellent anti-immunity decisions. Lyng v. Automobile Workers upheld a great number of unpopular Biblical principles. But in the end, one stood above all others.

Winner of the October Term, 1987 Deuteronomy 16:20 Prize:

Buchanan v. Stanships, Inc.

Last year, Carrie Rose was the oppressed widow that the Supreme Court delivered, despite the lack of novel legal issues in her case. This year, the role of oppressed widow saved by the Court was filled by Mercilyn Buchanan. Her quest for relief was being illegally frustrated by an abusive shipping company. The case involved no novel legal questions, but the Court still stepped in to reverse the terrible lower court ruling through summary judgment. This is precisely what the Supreme Court should be doing – squelching obvious injustice in the lower courts. I hope to see more cases like this one in years to come.

And now, we’re finally off to the legendary October Term, 1988. It was this term which would finally give the Rehnquist-White-O’Connor-Scalia-Kennedy bloc a chance to prove how conservative it could be.


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