Category Archives: 1987-1988

Coy v. Iowa

487 U. S. 1012

June 29, 1988

In cases of alleged sexual assault against children, Iowa allowed a screen to be put up in a courtroom when the children testified. It allowed the accused to see the children, but not the other way around. One defendant argued that the screen placement violated his confrontation clause rights – it literally took away his ability to confront the witness face to face. Iowa responded that face to face confrontation was not a core guarantee of the clause, and that it was justified by the need to protect deeply traumatized child victims.

The Court ruled 6-2 that the screen violated the confrontation clause (Kennedy did not participate). Scalia waxed poetic about the ineffable value of having to make an accusation to someone’s face, and how it would be helpful in letting the jury assess witness credibility. He found that this face to face confrontation was, in fact, a core central value of the Sixth Amendment that the state could not so easily escape with its vague contention that some child victims will be traumatized by seeing their abuser. He remanded the case for harmless error analysis.

O’Connor, joined by White, concurred, and noted that Iowa might use alternative methods of protecting child witnesses like closed circuit television. She also said that the presumption of a face to face right could be overcome in extreme cases for an especially traumatized witness. Blackmun, joined by Rehnquist, dissented. Reviewing precedents, he found no basis for concluding that face to face confrontation was a core value of the Sixth Amendment. He noted that protecting terrified child witnesses was a compelling interest, and observed that the screen actually burdened it far less than the admission of hearsay evidence under various hearsay exceptions. He also slapped down an argument not reached by the majority that the screen would cause the jury to draw an inference of guilt.

 

Watson v. Fort Worth Bank & Trust

487 U. S. 977

June 29, 1988

A black bank employee was passed over for promotions on four separate occasions. She eventually launched a wide-ranging class action lawsuit, alleging that the bank discriminated not just against her, but against other blacks. Promotion decisions were made based on subjective criteria, and lower courts held that decisions based on subjective criteria were not amenable to a disparate impact suit. Instead, only objective criteria like tests or educational requirements could be challenged as discriminatory because of their disparate impact on minorities.

Unanimously, the Court held that subjective criteria could be attacked in a disparate impact suit (Kennedy did not participate). O’Connor stressed that it would frustrate the goals of the Civil Rights Act if only objective criteria counted, because that could leave a large swath of discriminatory practices beyond remedy. If plaintiffs could show that a minority group was disadvantaged in promotions through subjective means, there would be a prima facie case of discrimination.

In a portion joined by Rehnquist, White, and Scalia, O’Connor noted that this new standard would have to be carefully guided, or else employers would probably resort to quotas just to protect themselves from potential suits. She noted that the plaintiff would always have the ultimate burden of proof in disparate impact cases, that employers would be able to attack bare statistics as not persuasive enough, and that employers would have to be able to argue that its subjective criteria were geared toward legitimate business purposes.

Blackmun, joined by Brennan and Marshall, did not like O’Connor’s attempt to cabin the reach of the ruling. He said that, based on precedents, the employer would shoulder the burden of proof once the plaintiff made a prima facie case. And he thought O’Connor’s solicitude to an employer’s plea of legitimate business motivation was also unfounded in prior disparate impact precedents. Blackmun felt that a very robust disparate impact standard was necessary to stop employers from hiding discrimination behind a smokescreen of subjective evaluation. Stevens concurred in judgment. He agreed with the central point that subjective criteria could be attacked, but declined to spell out the implications as all the other Justices had tried to do.

Disparate impact theory is a hopelessly manipulable stratagem. It’s easy for plaintiffs to prove, and almost impossible for employers to conclusively disprove. It’s a great scheme if you’re an unscrupulous trial lawyer looking to make some quick bucks. In college, I had a friend whose dad had to leave a business because of one of these BS disparate impact suits. As she explained to me, her dad actually hired more women than men overall, and even promoted more women than men overall. But because the percentage of women who got promoted was smaller than the percentage of men who got promoted, his business was accused of sex discrimination, and he knew that fighting the suit was a losing battle. Until there’s a way to cut down on cynical manipulation of the system like this, I have no use for disparate impact claims.

United States v. Kozminski

487 U. S. 931

June 29, 1988

The Kozminski family ran a dairy farm, and they brought two mentally retarded people to work on it. The family made these two work extremely long hours seven days a week without pay, and used a variety of psychological manipulation techniques to keep them from leaving. The family was ultimately charged under two federal laws, which banned involuntary servitude, and conspiracy to practice involuntary servitude – obviously in reference to the Thirteenth Amendment. Jury instructions stated that involuntary servitude could be created exclusively through psychological coercion, as opposed to physical or legal coercion. The Kozminski family contended that this definition of involuntary servitude was far too broad.

The Court agreed in a 7-2 vote, but split 5-4 about the correct definition of involuntary servitude. O’Connor, writing for the majority, looked at various Thirteenth Amendment precedents, and concluded that only threats of legal or physical coercion could create the practice of involuntary servitude. The legislative history of various acts enacted on the basis of the Amendment also confirmed this more restrictive definition. O’Connor stressed that expanding the definition to include psychological manipulation would sweep too broadly, possibly making someone like a charismatic religious leader guilty under the statutes. She left it to the lower court to determine whether there was enough evidence in the record to convict the Kozminskis even under the narrower definition.

Brennan, joined by Marshall, agreed that the jury instructions swept too broadly, but felt O’Connor’s test was too narrow. His test was whether the means of coercion actually reduced someone to a slavelike state. Long hours, no pay, no days off, and squalid conditions added up to a slavelike condition, and that was what the Amendment and the enforcing statutes were meant to ban. Brennan noted that psychological coercion was very often far more effective than legal or physical coercion – the threat of having your house burned down is no less convincing than the threat of being beaten.

Stevens, joined by Blackmun, thought it unwise for the Court to attempt to formulate a precise definition. He trusted prosecutors, judges, and juries to intelligently apply, on a case by case basis, the broad Thirteenth Amendment terms of involuntary servitude. Based on the facts in the record, he thought the jury instructions were fine, and that a new trial was not warranted.

Here is another case where Brennan actually got the better of the more conservative Justices. While the majority was rightly concerned about limiting the legal reach of involuntary servitude, Brennan had exactly the right legal test to address those concerns. His points seem pretty well unanswerable, and I wish his opinion had been the majority one.

Bowen v. Massachusetts

487 U. S. 879

June 29, 1988

This case involved a dispute between the Department of Health and Human Services (HHS) and Massachusetts about the HHS disallowing a reimbursement for Massachusetts health expenditures. Massachusetts wanted the claim heard in District Court, as ostensibly allowed by the Administrative Procedure Act (APA). HHS contended that the APA did not allow suits against it in District Court for “money damages,” and that, in any case, Massachusetts had an adequate remedy through suing in Claims Court under the Tucker Act.

The Court ruled 6-3 that a District Court could have jurisdiction. Stevens said that the phrase “money damages” was a legal term of art referring to monetary compensation for other harm done. By contrast, seeking merely to gain an amount of money legally due was known as asking for “monetary compensation.” Stevens said that legislative history, as well as a lower court opinion by no less of an authority than Robert Bork, proved this distinction. Thus, Massachusetts could still ask for a money judgment against HHS in District Court. Stevens also found that the Claims Court would not offer an adequate remedy. Those courts did not provide equitable relief, such as the declaratory and injunctive relief Massachusetts was also seeking. Furthermore, there was reason to believe that the Medicaid administration questions involved in the case were really beyond the scope of the Claims Court’s wheelhouse.

White concurred in judgment. He cryptically noted that he agreed with all of the majority’s ultimate conclusions, except for its statement that Massachusetts could request monetary compensation in District Court. He said that they would have to settle for mere declaratory and injunctive relief. Scalia, joined by Rehnquist and Kennedy, dissented vigorously. He thought the majority’s distinction between “money damages” and “monetary relief” was total crap, and utterly unsupported by legal history. Almost any suit, he argued, to obtain money is a suit for “money damages.” Thus, the APA barred District Court jurisdiction. He also claimed that the majority’s reasons for holding that the Claims Court could not provide an adequate remedy were completely specious. The Claims Court was more than capable of taking the case and providing an adequate solution for Massachusetts.

Scalia made particular note that both of the case’s major holdings would effectively deprive the Claims Court of most of its docket, and cause a ream of other policy problems. He even predicted that lower courts would probably confine the ruling to its immediate facts, because trying to apply it would cause total chaos in the Claims Court. He closed with these words which I could not more heartily agree with: “Nothing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law. Today’s decision is a potential cornucopia of waste.”

Thompson v. Oklahoma

487 U. S. 815

June 29, 1988

William Wayne Thompson committed a brutal murder and was sentenced to die. But Thompson was only 15 years old at the time, and argued that the death penalty would be cruel and unusual punishment. While 15 year olds had been routinely executed long ago, the Supreme Court had long since established that it would strike down sentences which did not comport with the nation’s “evolving standards of decency.” The Court had to decide whether or not to strike down Thompson’s sentence on that basis.

The Court struck down his sentence 5-3 (Kennedy did not participate). Stevens, writing for a plurality with Brenna, Marshall, and Blackmun, said that the nation’s “evolving standards of decency” flatly prohibited execution for a murder committed at age 15. Nearly two thirds of the states banned the practice, and the remaining third only allowed it by tacit implication. He doubted that many of those states explicitly intended to allow it. Executions for under-16 murderers had become vanishingly rare, and none had occurred in 40 years. Stevens stressed that 15 was still a tender age, and that children of that age were denied the right to smoke, marry, drive, or vote in all or most states.

O’Connor concurred in judgment, and provided the fifth vote to vacate the death sentence. She was hesitant to find a national consensus against executing under-16 murderers, finding the answer to that question murky rather than obvious. Nevertheless, like Stevens, she wasn’t sure whether Oklahoma, by allowing 15 year olds to be tried as adults in rare circumstances, had really intended to allow for the imposition of the death penalty in these rare cases. Unless a state explicitly spelled out that 15 year olds were eligible for capital punishment, she refused to allow executions.

Scalia, joined by Rehnquist and White, wrote a valiant dissent. He showed that Oklahoma had carefully weighed the propriety of sentencing Thompson to death in every stage in the proceedings. Given this extensive consideration by the prosecutors, judge, and jury, it made no sense to hold that the jury’s ruling was somehow contrary to a national consensus. Many state laws allowed execution as a punishment for under-16s, and there was no reason to presume that these states didn’t know what their own laws meant. Furthermore, the rarity of the penalty’s imposition meant nothing, or else one could just as easily argue that a national consensus existed against executing women. Scalia pointed out the undeniable fact that many 15 year olds clearly understand the consequences of committing murder. As for O’Connor’s concurrence, it was a totally lawless attempt to split the baby. Finally, he quickly disposed of an alternate ground for vacating the sentence which the majority did not address.

I absolutely agree with everything in Scalia’s dissent, with the exception of his disheartening admission that even he accepts the awful “evolving standards of decency” test. It’s one of the worst constitutional distortions ever; Trop v. Dulles deserves to be near the very top of any shortlist of the Warren Court’s blatant activism. Logically, the “evolving standards of decency” test cannot possibly be correct, because it would hypothetically permit the most torturous of punishments to be imposed if society “evolved” to find them no longer cruel.

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.

Communications Workers v. Beck

487 U. S. 735

June 29, 1988

A union forced non-member employees to pay dues. Under the law, the union had this right, but the non-members objected to the fact that some of the dues went not toward collective bargaining activity, but to political causes and activism. They contended that this usage of union dues violated, among other things, section 8(a)(3) of the National Labor Relations Act (NLRA). As non-members, they argued that they should only have to pay the money necessary for core activities like being represented in collective bargaining.

The Supreme Court agreed 5-3 (Kennedy did not participate). Brennan began by unanimously brushing aside the usual whining about justiciability, and turned to the merits. The case, he contended, was squarely controlled by a precedent from 1961, which held that a nearly identical provision in the Railway Labor Act (RLA) meant that unions could not force non-members to pay for more than the cost of core union activities. Indeed, the language was nearly identical precisely because Congress wanted the RLA and the NLRA to operate under the same rule. The goal, in both cases, was to address the ‘free rider’ problem of non-members paying nothing, but reaping the benefits of the union’s bargaining with the employer. Brennan was unimpressed by various contrary arguments based on legislative history.

Blackmun, joined by O’Connor and Scalia, dissented. He noted that the actual text of 8(a)(3) really didn’t support the majority’s interpretation. Instead, it meant that non-members could be required to pay the full amount of union dues, including any amount used for political activities. Blackmun stressed that, despite the superficial similarity of the sections in the RLA and the NLRA, the motivations behind their enactment were slightly different, and that the interpretation of one should not necessarily control the interpretation of the other.

This has one of the weirdest voting lineups ever. True, there are rare occasions where Brennan and Marshall vote against unions, but never when O’Connor and Scalia are voting for them! I don’t quite understand Brennan’s motivations here, but I’m certainly pleased with the result. While the dissent may have a stronger legal argument, the majority opinion was at least good public policy.

Morrison v. Olson

487 U. S. 654

June 29, 1988

When Ted Olson of the Justice Department was investigated by Independent Counsel Alexia Morrison, Olson challenged, on separation of powers grounds, the law that created the Independent Counsel. Under the law, the Attorney General was required to request a special court to appoint an Independent Counsel if there were reasonable grounds to believe that investigation of a government official could be warranted. The Independent Counsel could be removed by the Attorney General for cause, but would have virtually complete power as a federal prosecutor. The special court had some extra supervisory powers as well.

The Court ruled 7-1 that the law was not in any way unconstitutional (Kennedy did not participate). As is usually the case, Rehnquist first had to brush aside an excrementally stupid justiciability challenge. On the merits, Rehnquist said that the Independent Counsel was an inferior office (i.e. one that could be appointed by someone other than the president) because the Attorney General could dismiss the Counsel, and because the office’s scope and tenure were limited. He also said that appointment by a court rather than an executive official was perfectly consistent with the literal text of the Constitution’s appointments clause. Next, he found that the special court had not been given powers that exceeded the bounds of Article III. Its appointment and supervisory powers were in line with those of other courts. While conceding that some of the special court’s actions might have been ultra vires, Rehnquist said they could be addressed in separate lawsuits.

Rehnquist then addressed the argument that restricting the Attorney General to removing the Counsel for cause interfered with the President’s control of the executive branch, as defined in Myers and Humphrey’s Executor. While the Counsel did perform executive functions, Rehnquist contended that a for cause removal policy did not unduly trammel the Presidential authority, and was a reasonable limitation. The law did not contradict broad principles regarding separation of powers because it was the Attorney General’s decision to request appointment of Counsel in the first place, and because power to dismiss the Counsel still resided with the Attorney General.

Scalia dissented. In hisĀ tour de forceĀ of an opinion, he showed that the law was a naked encroachment on the President’s authority, and a horrendous distortion of the separation of powers. He noted that, realistically, the Attorney General would have no choice but to request appointment of Independent Counsel if asked to by Congress, because he could only refuse if there were absolutely no reasonable grounds for further investigation. Going on, he contended that any removal of prosecutorial power from the president’s control was far from a trivial encroachment. Prosecution was a core executive duty that no other branch had the slightest right to intrude on. And the president’s right to oversee his branch’s efficient functioning meant that the mere right to dismiss for cause was not enough

Scalia went further, and argued that the Counsel was not an inferior office. It had nearly all the powers of the Attorney General, and had no superior officer in any real sense. Worse yet, the majority relied on no real precedent to conclude that it was an inferior officer. Scalia said the majority also treated Myers and Humphrey’s Executor shabbily, as neither ever suggested that an officer with pure executive functions should be insulated from removal. He contended that the majority’s test for whether good cause restrictions could be implemented was hopelessly arbitrary. Not content to rest there, Scalia showed how the Independent Counsel was terrible public policy. While most prosecutors are forced to use discretion because of the infinite amount of potential cases, special prosecutors have every incentive to keep digging until they find something. Also, by taking away ultimate responsibility from the President, the law ensures that no one can really be held accountable for an out-of-control Independent Counsel.

Conventional wisdom has it that this was Scalia’s greatest dissent ever, and it’s easy to see why. It’s a masterpiece of legal argumentation, and it’s almost unbelievable that no other Justice joined it. Although best remembered for the quote “this wolf comes as a wolf,” I think that barely even makes the top five quotes in the opinion. Even better are:

  • This is somewhat like referring to shackles as an effective means of locomotion.
  • Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.
  • It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.

Scalia’s dissent is more timely than ever in light of the ongoing attempts by the deep state, assisted by an evil media and a pliable Congress, to stage a coup against President Donald Trump. The malicious bureaucratic cabal that’s out to get Trump needs to be annihilated, once and for all. Trump needs to have ultimate authority and control, or presidential elections will become meaningless, and Americans will be ruled forever by an unelected deep state hellbent on destroying anyone who tries to restore power to the people.

This is a fight nearly as important as the fight against the destruction of the family through abortion, divorce, and premarital sex. The darkest day of the 1970s was January 22, 1973, when the Roe v. Wade decision was announced. But the second darkest day was August 9, 1974, when President Richard Nixon resigned in the face of vicious, abusive, and amoral ruling class clique. He should have fought to the bitter end, because the nation was crippled forever when he let the bad guys win. In the 43 years since, the godless deep state cabal has only grown more emboldened, more powerful, and more eager to force another resignation on the basis of some BS makeweight ‘scandal.’

All prayers to Trump and Pence in the years to come, for their battles are not merely “against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places” – Ephesians 6:12.

Bowen v. Kendrick

487 U. S. 589

June 29, 1988

In the Adolescent Family Life Act (AFLA), Congress allowed grants to be given to organizations for the education of children. The children would be encouraged toward premarital chastity and adoption instead of premarital sex and abortion. Grant applicants were required to state how they could involve religious organizations (among other community organizations) in the program). Some religious affiliated groups received grants, and some allegedly used the grant money to teach religious doctrines about sex and pregnancy to children. The AFLA was thus attacked both facially and as-applied.

The Supreme Court upheld the act 5-4. Rehnquist considered the facial challenge first, under the Lemon test. It had an obvious secular objective, and it did not illicitly advance religion. Though the statute referred to religious organizations, they were merely among many community players to be brought in for the education of children. Even though funds sometimes went directly to religious organizations, this had been allowed in other cases, such as aid to Catholic hospitals, or aid to nominally religious colleges. Looking at the record, Rehnquist did not think most grant recipients could be described as ‘pervasively sectarian’ in the way that parochial elementary schools were. Although the law did not specifically prohibit teaching religious doctrines, Rehnquist trusted grant recipients to abide by the Constitutional separation of church and state, and noted that recipients had to check in with the government from time to time.

Rehnquist summarily added that these check ins would not result in excessive entanglement – the final, much maligned Lemon prong. Finally, he turned to the as-applied challenge, and said that a remand would be necessary to determine which grant recipients had actively taught religious doctrines. O’Connor, in concurrence, denied that the Court was retreating from a strong commitment to the Establishment clause. Kennedy, joined by Scalia, noted that even ‘pervasively sectarian’ organizations should be able to receive grant money so long as they refrained from using it to teach religious doctrines.

Blackmun, joined by Brennan, Marshall, and Stevens, wanted to strike the law down altogether. He felt that discrete violations on the record should be considered in a facial challenge, and that any law which so easily allowed for the smuggling in of religious teaching should be struck down. He argued that the majority found, without proper analysis, that most recipients were not ‘pervasively sectarian,’ and that the record suggested the opposite. He noted that the Court had usually required much stronger safeguards against money flowing to any religious teaching, and that the statute’s lack of a ban on religious teaching was inexcusable. He contended that the education of young children was much different than a hospital healing the sick, or even a college teaching less impressionable minds. Finally, he showed that policing grant recipients to ensure that no religious doctrines were imparted would certainly involve excessive entanglement.

Here is another case where the dissent was definitely right on what the various precedents had established, but I would still vote with the majority because those precedents are wrong and stupid. I wish the majority had the courage to overrule the entire Everson-Lemon line, but they didn’t. Instead, we got yet another confusing and contradictory twist in the miserable world of Establishment clause jurisprudence – albeit one that at least had the correct final result.

Ever since Everson, the Court’s liberals have displayed a fierce, sickening, and (I dare say it) religious sort of mania in Establishment clause cases. Here, for example, Blackmun speaks of the Court’s duty to show “unwavering vigilance” in any cases potentially involving government money going to religious activity (just try to imagine a liberal Justice talking about “unwavering vigilance” with respect to, say, the Interstate Commerce clause). He exhorts the reversed District Court judge to “not grow weary” on remand, after all his noble “labors thus far.” Liberals don’t use this really creepy tone for any clause other than the Establishment clause. They despise the God of Israel with a passion, and despise the very thought that even a single cent of tax money might accrue, however remotely or indirectly, to His honor.

The AFLA is one of those very rare pieces of government legislation that truly fights evil. There is not a single social phenomenon more destructive to contemporary civilization than premarital sex. When it comes to generating more abortions, more divorces, more poverty, more sexual assaults, more broken hearts, and more souls turned away from God, nothing else even comes close. For decades, our culture has been poisoned unto death by the lie that sex before marriage is no big deal. The AFLA was one of the few initiatives which actually fought back against the lie.

Pierce v. Underwood

487 U. S. 552

June 27, 1988

A law allowed citizens to recover attorneys fees against the government if the government’s position was not “substantially justified.” The attorneys fees awarded would be capped at $75 per hour, but that could be adjusted upward based on “special factors.” A lower court found for citizens who were suing the Department of Housing and Urban Development. The court found that HUD’s position was not substantially justified, and awarded large attorneys fees, ballooned greatly by “special factors.”

Scalia wrote the majority opinion, and Kennedy did not participate. It concluded 6-2 that lower courts findings that government positions were not “substantially justified” should be reviewed under an abuse of discretion standard. It concluded 5-3 that “substantially justified” meant that the position was basically reasonable, plausible, and arguable. It concluded 6-2 that the lower court did not abuse discretion in finding that the government’s position was not substantially justified. And it concluded 5-3 that the “special factors” cited by the lower court were not quite special enough, and it vacated the greatly ballooned award of attorneys fees. In the 6-2 parts, Scalia was joined by Rehnquist, Brennan, Marshall, Blackmun, and Stevens. In the 5-3 parts, he was joined by Rehquist, White, Stevens, and O’Connor.

To very briefly summarize, Scalia felt that abuse of discretion was better than allowing de novo review because of how weird the legal question of substantial justification was. He defined “substantially justified” by looking at how the word ‘substantial’ was used in other legal contexts. He noted that HUD’s string of losses in lower courts, together with some tough legal criticisms of HUD’s position, foreclosed any possibility that the lower court judge abused his discretion. Finally, he thought the lower court’s expansive reading of “special factors” was so broad as to virtually eliminate the $75 limit.

Brennan, joined by Marshall and Blackmun, though Scalia was too forgiving to the government in how it defined “substantially justified.” To Brennan, the government’s position had to be more than just reasonable – there had to be some true force and persuasion to the government’s position. He also felt Scalia was not recognizing enough “special factors,” and that things like the difficulty of the litigation should be reflected in an upward adjusted fee. White, joined by O’Connor, contended that questions of law were always reviewed de novo, and that questions of whether a government’s legal position was “substantially justified” ought to be no different. He further contended that, under a de novo standard, he would find enough justification for HUD’s position to absolve them of the duty to pay attorneys fees.