Category Archives: 1986-1987

Griffin v. Wisconsin

483 U. S. 868

June 26, 1987

Joseph Griffin, a Wisconsin resident on probation, had his home searched, and a gun was discovered. The search was pursuant to a state law which gave police the right to search the houses of probationers without warrant upon reasonable grounds for suspicion. Griffin charged that this violated the Fourth Amendment, as neither a warrant nor probable cause were required.

The Court ruled 5-4 that the search was valid. Scalia said that it was a ‘special needs’ search justified by the unique nature of probation. In probation, close supervision is essential, and probation officers have official custody of men like Griffin, just as parents have custody of children. The Wisconsin statute was held to be a valid means for the state to curtail the rights of probationers, and the notions of requiring probable cause and/or a warrant for a search were held to be unduly burdensome on the probationary landscape.

Blackmun wrote a dissent joined by Brennan and Marshall. He started out by conceding that a search might be permissible with less than probable cause (Brennan did not join this part). Nonetheless, the special needs doctrine had never been held to extend inside actual homes, as opposed to schools or offices. Furthermore, Blackmun did not believe getting a warrant would be all that burdensome for probation officers. Finally, in a section also joined by Stevens, he argued that the ‘reasonable grounds’ standard of suspicion in the statute was vague and utterly toothless, and pointed out that even the statute’s minimal procedures had not been entirely followed in Griffin’s case.

Stevens, joined by Marshall, filed a infantile dissent stating only that he “simply [did] not understand how five Members of this Court” could rule against Griffin. With those childish words, October Term, 1986 finally came to a merciful end. And then came the great shock: Powell announced his retirement. The term had closed on a high note: Rehnquist, White, O’Connor and Scalia won all five cases announced on the last day. As Powell was the weakest link in the conservative chain, hopes were high that his replacement could create a solid right wing majority for years to come.


Nollan v. California Coastal Comm’n

483 U. S. 825

June 26, 1987

The Nollan family sought to tear down a small house on California beachfront property, and build a much bigger one which would block view of the ocean. State regulators conditioned the right to build the new house on the Nollans granting the public easement to pass across the beach. The state claimed this was necessary because the bigger house served to separate the general public from seeing the ocean. The Nollans protested that the regulations violated the takings clause.

The Court ruled 5-4 that the condition was invalid. Scalia, writing for the Court, conceded that the government could in theory condition rebuilding on the granting of an easement. However, there would have to be an appropriate nexus between the condition and the government’s goal. But there was no such nexus, and Scalia explained this more succinctly than I ever could. “It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.” To buttress his conclusion that the beach viewing goal had nothing to do with the easement requirement, Scalia string cited over 20 state and federal decisions!

Brennan’s dissent, joined by Marshall, was a great grab bag of objections. The California Constitution, he said, granted citizens a right of access to waters that was superior to any private property rights. The Nollans knew about the easement restriction when they bought the property, and thus essentially assented to adhering to it. Lack of visual access to a beach is alleviated by greater physical access, and thus there was in a fact a close nexus between the goal and the regulation. Finally, Brennan said that requiring such a close fit did not comport with a good deal of takings clause precedent.

Blackmun’s brief dissent stated the he could see a clear correlation between the regulatory goal and the burden imposed. Stevens, joined by Blackmun, lamented that the decision was the inevitable result of the Lutherglen case. His opinion was a thinly veiled ‘I-told-you-so’ directed at Brennan and Marshall. It really is quite amazing how statist the dissenters were. Whether or not they admitted it, a total blank regulatory check was what they wished to give the government.

Burger v. Kemp

483 U. S. 776

June 26, 1987

In 1977, Christopher Burger and Thomas Stevens kidnapped a taxi driver named Roger Honeycutt. Honeycutt was eventually locked in the trunk of his taxi, and then Burger drove the taxi into a pond, where Honeycutt was left to drown. Both Burger and Stevens were sentenced to death at separate trials, but Alvin Leaphart, Burger’s lawyer, was the law partner of Stevens’ lawyer. Burger argued that this was an impermissible conflict of interest, and that Leaphart failed to present adequate mitigating evidence at sentencing.

The Court affirmed Burger’s conviction 5-4. Justice Stevens started with the conflict of interest argument, and pointed out that a single lawyer could Constitutionally represent co-defendants. Stevens was unmoved by claims that certain strategic decisions were not taken by Leaphart because of his relationship with the other lawyer; these claims, he said, were mere speculation. Moving on to the inadequate representation issue, Stevens showed that Leaphart had pursued several avenues in a search for mitigating evidence, and had decided not to use several witnesses at trial only because he thought they would harm Burger’s case. While some stones had not been turned over, Leaphart had clearly met the Constitutional minimum.

Blackmun wrote a dissent joined by Brennan and Marshall. His arguments were very fact specific, and they basically amounted to little more than a metric ton of Monday morning quarterbacking. In short, Leaphart’s relationship with Stevens’ lawyer did create a prejudicial conflict of interest, and Leaphart did fail to do a decent job amassing mitigating evidence during the sentencing phase. Powell joined the section about mitigating evidence, and tossed off a dissent of his own which was joined by Brennan. It stressed that Burger had a crappy childhood, was only 17, and had a mental age of about 12. None of this was brought up as mitigation by Leaphart.

I must admit, even when I was 12, I knew that it was unvarnished evil to drown a kidnapping victim in a locked car trunk. It’s bad enough that the four dissenters did not believe Burger deserved death, but it’s made all the worse by the fact that attempted tried to throw a decent lawyer under the bus as a means to save the monster. This was Powell’s final opinion ever, and he closed on a low note. Sadly, it was a note that his replacement has been all too eager to sound in the years since.

Greer v. Miller

483 U. S. 756

June 26, 1987

While on trial for murder with two other defendants, Charles Miller testified that he had not been a part of the murder, but was merely told about it afterward. The prosecutor asked why Miller had never made this claim prior to trial. This question was overruled by the judge, because under Doyle v. Ohio, post-Miranda silence cannot be used against a defendant at trial. After conviction, Miller argued that the prosecutor’s question was a non-harmless Doyle violation that required overturning the trial verdict.

The Supreme Court ruled 5-4 that no Doyle violation had occurred, and that regardless, the prosecutor’s question was harmless error. Powell said that Doyle violations only occurred when questioning silence was allowed, not when it was immediately overruled and never mentioned again. While asking the question was improper, it was only a few seconds in an extensive trial, and the Illinois Supreme Court had concluded that it did not constitute harmful error. Following their lead, Powell held that the prosecutor’s error was harmless.

Stevens said that commenting on postMiranda silence is still a Doyle violation, even if immediately overruled by a judge. He also thought this error was not harmless. But because the case was before the Court on collateral, rather than direct review, Stevens thought the Court should refrain from voiding the conviction. Brennan, joined by Marshall and Blackmun, railed at length about how harmful even a brief and overruled question about silence could be to a defendant’s case. He concluded that a Doyle violation had clearly occurred. Strangely, Brennan didn’t even address the harmless error issue (it was the last day of the term – my guess is that he simply ran out of time).

The majority got it right. We shouldn’t be making mountains out of molehills. Voiding a conviction over an overruled five second question is asinine. But what most struck me about the case was how terrible the Stevens concurrence is. Whether a conviction stands or not shouldn’t depend on the arcane direct v. collateral distinction! If a conviction shouldn’t have happened, it shouldn’t stand – period.

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air

483 U. S. 711

June 26, 1987

After several years of legal wrangling, a group of annoying environmentalist busybodies forced Pennsylvania to take some green measures. Lawyers for the Council had worked on a contingent basis, and after victory, the court granted the Council attorney fees. The court tried to adjust the amount of fees dramatically upward to reflect the risky and contingent nature of the litigation. Pennsylvania protested that this upward adjustment was not within the court’s discretion.

The Court unanimously vacated the lower court’s fee award, but broke into three blocs about what to do next. White, also writing for Rehnquist, Powell, and Scalia, said that no adjustments should be allowed. Computation of fees already took into account lengthiness and difficulty of the litigation. Furthermore, deciding what cases are “risky” is totally arbitrary. Finally, the adjustment system would unfairly punish parties who lost very legally strong cases. White concluded by questioning whether the lawsuit even involved as much risk as was claimed, and said that in any event the upward adjustments were far too high.

Blackmun, joined by Brennan, Marshall, and Stevens, said that court-awarded contingency fees needed to be at least roughly equal to fees in the overall legal marketplace; otherwise, many good cases will never attract counsel. Blackmun then tried to explain how upward adjustment could be done in a fair and arbitrary manner that avoided most of the plurality’s doubts and what-ifs. He felt courts could come up with appropriate multipliers. Nonetheless, he still felt the factual record was underdeveloped, and thought the lower court should start from scratch in determining the appropriate amount of fees.

O’Connor’s opinion is an infuriating attempt to split the baby. She agreed with Blackmun that upward adjustment was sometimes necessary, and that having the fees be competitive with the general marketplace was of great importance. She agreed with White that multipliers should not be used, that “risk” should not be considered, and that some concerns about arbitrariness were well founded.

This case was argued twice, and it still failed to receive a half-decent conclusion. O’Connor should have picked a side. Her hemming and hawing only makes for more judicial headaches. I pity the poor judge who had to deal with this case on remand. With regard to the merits, I can only say that I’m in favor of anything that cuts down on massive attorney fees.

United States v. Stanley

483 U. S. 669

June 25, 1987

While in the Army, James Stanley was involuntarily given large quantities of LSD to study the drug’s effect on humans. It had an effect all right: his life was destroyed. He attempted to sue the army officials who had done this, under both the Federal Tort Claims Act (FTCA), and under the Bivens doctrine, which allowed for redress against government agents in some circumstances. The government argued that the need for military discipline was an interest important enough to foreclose any Bivens claim for military-related matters.

The Court unanimously rejected Stanley’s FTCA claim on some ticky-tacky procedural grounds. Then, with Scalia writing, it rejected his Bivens claim 5-4. There were indeed ‘special factors’ in military life that counseled against allowing Bivens suits. The Constitution gave Congress extensive power to control the military, and military discipline would fall apart if everything could be second guessed in court. For these reasons, Scalia said that the FTCA ‘incident to service’ test established in Johnson should be adopted in the Bivens realm as well.

Brennan, joined by Marshall, began his dissent by pointing out that no less an authority than the Nuremberg Tribunal had condemned involuntary scientific testing in the strongest terms. He then observed that Bivens liability judgments were almost analytically identical to immunity judgments. Brennan argued that the military had never been granted absolute immunity in other legal contexts, and thus total shielding from Bivens was inappropriate. He also showed that the Court’s new rule was ahistorical. In a section joined by Stevens, Brennan found the worries about military discipline overblown, and criticized the majority for blindly adopted the FTCA standard. In a brief dissent of her own, O’Connor expressed agreement with the majority’s interpretative framework, but claimed that LSD experimentation could not legitimately be considered ‘incident to service.’

I seem to have hit a long string of cases where either Brennan or Stevens hits it out of the park in dissent. Hope it doesn’t last much longer! Favorite quote: “I cannot comprehend a policy judgment that frees all federal officials from any doubt that they may intentionally, and in bad faith, violate the constitutional rights of those serving in the Armed Forces.” As I said in the last case, I really hate governmental immunity, especially when people like Stanley have had their lives ruined.

As a side note, this is one of the many reasons why I have no desire to ever be a part of the military. When you join the military, you place yourself under the authority of superiors who have as great a capacity for evil as for good. And quite often, as Stanley’s case and countless other incidents show, the capacity for evil gets exercised.

Anderson v. Creighton

483 U. S. 635

June 25, 1987

Officer Anderson made a warrantless search of the Creighton house in pursuit of a bank robber, but the search was fruitless. The Creighton family wanted to sue Anderson for violation of the Fourth Amendment, but Anderson claimed he had immunity from lawsuits under the Harlow principle, which barred suits when the legality or illegality of an action wasn’t firmly established.

The Court ruled 6-3 that Anderson could claim immunity. Scalia first rehearsed the government’s interest in not being bogged down by time-consuming suits against it. He then said that federal officers could obtain immunity as a matter of law when they could have reasonably believed that the search was valid. Scalia was not moved by the linguistic argument that “unreasonable searches and seizures,” to quote the Fourth Amendment, could never be considered “reasonable” for immunity purposes. Neither did he have much use for some arguments from British Common Law, observing that American Common Law had simply gone in a different direction. Thus, on remand, Anderson was free to argue that exigent circumstances were sufficient to create a reasonable belief of the warantless search’s validity.

The Stevens dissent, joined by Brennan and Marshall, began by positing that the Harlow immunity applies only when legal standards and doctrines are themselves undefined. In this case, the question was only whether Anderson had complied with well-established legal standards. The Harlow doctrine was meant to shield high level government officials in uncharted water; it was not meant to give policemen broad immunity when they violated the Fourth Amendment. Stevens felt that there should not be two different standards for search reasonability – the Constitutional one, and the looser immunity one. He closed by stressing the importance of protecting the privacy rights of ordinary Americans.

What swayed me most was Footnote 21 in the dissent, which described the search. If its description is true, Officer Anderson acted atrociously, and deserves every punishment he can get. But more than than, I really I hate governmental immunities that are not available to everyday citizens. No ordinary criminal defendant can argue that he was reasonably mistaken about the law. Why are they held to a higher standard of legal acumen than policemen? No one should be above the law, least of all government officials.

Bowen v. Gilliard

483 U. S. 587

June 25, 1987

To simplify things things slightly, a 1984 law had altered welfare, so that the amount of welfare money a family would receive was reduced according to how much money that family received in child support payments. Obviously, this meant that many poor families had their overall incomes reduced. Gilliard, a mother of seven, contended that the new law violated both Due Process, and the Fifth Amendment’s takings clause, as it created undue coercion on families to make hard choices, and deprived individual children of their untrammeled right to child support.

The Court, with Stevens writing, upheld the law 6-3. When deciding how to spend money, Congress had broad discretion, and the desire to save millions of tax dollars was a rational reason for altering welfare. That the law sometimes affected family living arrangements did not subject it to higher scrutiny, so there was no Due Process violation. Stevens held it was not a taking either. Although the accounting had some confusing labels, the child support still belonged to the child. Moreover, neither welfare nor child support was an inalienable right under the Constitution, and each one individually was generally accepted to be liable to alteration through law. While the law could sometimes be harsh, it was the job of Congress to change it, not the courts.

Brennan’s dissent, joined by Marshall, largely talked past the majority opinion. Picking up on his theme in Rivera regarding the importance of parent-child relationships, he lambasted the law because under its accounting process, the child support money was designated as “state” money. Because the state rather than the parent was now the ‘official’ dispenser of the cash, Brennan argued that the law essentially severed the parent-child bond. He then recounted sob stories of a father who stopped paying child support after the law’s passage, and a child who went to live with her father so her mother and siblings could better share welfare money. Brennan could not stomach a law which caused families to make these sorts of gut-wrenching decisions.

Toward the end of his opinion, Brennan offered a detailed description of a potential welfare law that he would deem Constitutional. In one of the most transparent lies all year, he added that his prescriptions did “not represent an effort to second-guess Congress as to the most effective use of its funds, nor does it represent a threat to the discretion that program officials must inevitably exercise.” Blackmun said in his dissent that he mostly agreed with Brennan’s arguments.

This, by far, was the most depressing case of the entire term. Your heart has to break for all of the children in impoverished single parent homes. It’s hard to take Brennan’s angry moralizing about the poor children seriously though, because it was liberals like him who put so many million innocent children in these terrible situations in the first place. It was liberals like him who worked feverishly to destigmatize divorce, fornication, single parenthood, and monogamy. They remained silent in the face of the mass resulting family destruction, and then belatedly spoke up only when the government didn’t provide as much aid as it probably should have in the brutal aftermath.

Rivera v. Minnich

483 U. S. 574

June 25, 1987

Gregory Rivera was the alleged father of Jean Marie Minnich’s baby. When Minnich sought to establish his paternity in court, Rivera protested that the ‘preponderance of the evidence’ standard (i.e. more likely than not) was far too low. In a case called Santosky, the Supreme Court had held, on the basis of the Due Process clause, that parental rights could only be terminated upon the showing of ‘clear and convincing evidence’ – a much higher standard. Rivera argued that the standard for establishing paternity should be the same as that for ending it.

The Court ruled 8-1 that ‘preponderance of the evidence’ was an acceptable standard. Stevens emphasized that most states used that standard to establish paternity, and accordingly the Court should be wary of demanding a higher standard. He also rejected the claim that Santosky required legal symmetry in the burden of proof. Destroying the parent-child relationship is an extraordinary step, since it interferes with a familial bond of paramount importance. Requiring a father to own up to a familial bond which has already been created was very different in character. Stevens also said that the low proof standard was necessary to protect the interests of the mother and child.

O’Connor concurred in judgment – she had disagreed even with Santosky’s imposition of the ‘clear and convicing’ standard for termination. Brennan was the lonely dissenter. The financial consequences of paternity were so profound, and the penalties for shirking them so severe, that he felt a higher standard of proof was warranted. Furthermore, Brennan pointed out that parenthood possesses ineffable moral and emotional dimensions. Such an important relationship should not be formed based on mere 51%-49% probability. He concluded by observing that lying does occur in contested paternity suits, and that existing technology to determine parenthood was now 99% accurate.

Despite its brevity, and its surprisingly restrained dissent, this is easily one of the worst decisions of the entire term. Brennan was totally right, and he should have been far more forceful (Digression: for four pages in United States Reports, we saw the rarest of all sights – William Brennan actually acting like a Roman Catholic. Passenger Pigeon sightings may or may not be more common). Parenthood is far too important to play probability games with, especially when technology can now provide definitive answers. Quite apart from the rights of the alleged father, a child ought to have the right to know for certain that the man the legal system calls his father truly is so.

San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.

483 U. S. 522

June 25, 1987

The Amateur Sports Act gave the United States Olympic Committee (USOC) an ultra-strong tradmark in the word “Olympic.” Anyone wishing to use the word would have to get permission from the USOC first, even if the usage would not be confusing, as is usually required for a trademark violation. The Special Olympics was one organization which got proper permission from the USOC. But when a San Francisco group tried to get authorization to call an event the “Gay Olympic Games,” the USOC took exception. The San Francisco groups sued, citing First Amendment concerns.

The Court ruled 5-4 that the USOC was in the clear. Powell first answered the objection that the law did not dispense with the confusion requirement; a quick look at legislative history proved otherwise. Turning to the First Amendment, Powell said “Olympic” was not too generic to merit protection, since the modern Olympics were such a universally recognized and understood phenomenon. Since 1896, a clear and unique secondary meaning had developed. Powell further held that the special distinctiveness of the Olympic games could justify the super-strong nature of the trademark. All of this was a 7-2 decision – in the final 5-4 section, the Court held that the government had not discriminated, because the USOC made the calls, and it was a private organization.

Brennan and Marshall dissented from the entire ruling. Brennan disagreed that the USOC was not really a government entity. At the Olypmics, it effectively functioned as a representative agent of the government. Furthermore, the Amateur Sports Act had required the USOC to put a number of important provisions in its charter, and mandated that the USOC provide reports to Congress. Finally, the USOC received a massive amount of government funding. “It would certainly be “irony amounting to grave injustice” if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech.” O’Connor, in an opinion joined by Blackmun, said she largely agreed with these arguments, and would have required a remand.

Brennan went further, finding the entire act unconstitutional. It was overbroad, because it prohibited even non-commercial expressive speech without providing good reasons for this vast reach. Moreover, there was no other good word left to convey certain expressive messages. “[A] title such as “The Best and Most Accomplished Amateur Gay Athletes Competition” would not serve as an adequate translation.” The USOC’s rejection of the San Francisco group was indeed viewpoint discrimination. And finally, the government had offered no compelling reason for making this one particular trademark super strong.

This decision was an {censored}-sized blunder. You know the intellectual property law is messed up when it has me agreeing with every word in a Brennan opinion, and even quoting it twice! The hubris and selfishness shown by the USOC is large enough to win an {censored} gold medal. The greatest irony of all is that the USOC and the IOC acquired the word “Olympic” by blatant theft in the first place. The word properly belongs to the Greeks. I’m not one to indulge in oppression {censored}, but I’d say Greece has a pretty legitimate grievance.