Category Archives: 4-4

EEOC v. Commercial Office Products Co.

486 U. S. 107

May 16, 1988

After a discriminatory event, you have 300 days to file with the EEOC, provided that you first file with a state agency, and 60 days pass after that filing (unless the state agency terminates proceedings first). Suanne Leerssen filed with a Colorado agency 290 days after the alleged discriminatory event. The Colorado agency waived the 60 day waiting period to let the EEOC step in immediately. The company alleged to have discriminated against Leerssen said that the Colorado agency had not “terminated” its proceedings, and that the law dis not permit waiver of the 60 day period. Thus, since 290 plus 60 goes way past 300, the EEOC could not investigate the claim.

The Court ruled 5-3 that Leerssen’s complaint was within the EEOC’s 300 day limit (Kennedy did not participate). Marshall said that the word “terminate” was ambiguous, and that a waiver could certainly qualify as a termination. He thought it would be silly to make the 300 day limit effectively a 240 day limit, especially when the law wanted the EEOC and state agencies to work together, and allocate cases efficiently. Waivers, though not specifically provided for in the law, were a good means of helping this cooperation. Finally, Marshall was unimpressed that Leerssen’s filing was not timely under Colorado law (which had a 180 day limit). The EEOC, he said, need not care about state deadlines when figuring out its own 300 day deadline.

O’Connor joined much of Marshall’s opinion, but based her concurrence in judgment solely on the fact that the EEOC interpreted the waiver as valid. Had the EEOC not recognized the waiver, she would have deferred to that interpretation too. Stevens, joined by Rehnquist and Scalia, dissented. He contended that a waiver was not a “termination” simply as a matter of plain language. I’m not sure I agree though. I’d probably go with Marshall on this one – his opinion is certainly far closer to the spirit of the law.


Trans World Airlines, Inc. v. Flight Attendants

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.

Marino v. Ortiz

484 U. S. 301

January 13, 1988

Groups representing blacks and hispanics sued the New York Police Department because racial minorities were underrepresented in the ranks. All parties involved sat down and came up with a settlement decree, which instituted an affirmative action policy. The District Court gave its blessing to this decree. Then, some white police officers sued, charging that this affirmative action plan was unconstitutional race discrimination.

Some officers tried to appeal from the decree itself. The Court unanimously ruled that this was impermissible. The per curiam opinion stated that one must be a party to a lawsuit to appeal it. Other officers simply attacked the decree in a new suit. Since the decree was intended as a settlement to the controversy, there was doubt as to whether the new suit should be allowed. With no ninth Justice present, the Court split 4-4 on the issue. The answer would have to wait until the 1989 case of Martin v. Wilks.

Hartigan v. Zbaraz

484 U. S. 171

December 14, 1987

An Illinois law required a minor to wait 24 hours before having an abortion. A circuit court declared this provision unconstitutional, and the Supreme Court affirmed in a tie vote. In tie votes, the lineup of the Justices is not revealed, but with greater than 90% certainty, we can guess that it was Brennan, Marshall, Blackmun, and Stevens to affirm, and Rehnquist, White, O’Connor, and Scalia to reverse. This tie vote underscored the importance of the incoming ninth Justice. In fact, the nomination hearings on Anthony Kennedy began on the very same day!

The most notable thing about this case is how strongly it suggests that the Court did not want to have a full-blown abortion decision. By December 14, the Court surely knew that Kennedy would be confirmed, and would join in the near future. And indeed, just as Kennedy was joining, Illinois asked for the case to be reheard. The request was denied. Three other cases during the term would confront abortion at the edges, but it wasn’t until 1989 that the Court would be forced to have a full-blown decision on the issue.

Carpenter v. United States

484 U. S. 19

November 16, 1987

R. Foster Winans wrote a column for the Wall Street Journal where he offered stock trading news and advice. The Journal had a strict rule against him leaking the contents ahead of time, but for years he did so anyway with some friends. Large piles of cash were made on the resulting insider trading. All parties involved were charged with fraud against the Journal under the Securities Exchange Act, and the mail fraud statute. Winans argued that the Journal itself had been defrauded of nothing, and so neither law applied.

The Court’s consideration of the Securities Exchange Act resulted in a tie vote. With regard to the mail fraud question, the Court unanimously affirmed its application. Justice White wrote that confidential news information was a type of defraud-able property within the law’s meaning; a long series of precedents made that clear. That the information was still relatively unknown prior to publication did not matter, for the Journal had the right to completely pristine columns. Finally, White said that sending the newspapers in the mail satisfied the law, since publication in the newspaper was essential to the insider trading scheme succeeding.

White’s attempt to distinguish the case from last term’s McNally ruling wasn’t entirely convincing. I don’t understand why disclosing secret information is fraud, but government graft isn’t. In fact, the more I think about it, McNally was one of the most baffling decisions of the entire term. It has to be one of the strangest incidents ever of White and Rehnquist voting in favor of criminal defendants.

Pension Benefit Guaranty Corporation v. Yahn & McDonnell, Inc.

481 U. S. 735

May 18, 1987

Tie vote! Justice White did not participate, and the other eight Justices split evenly. According to Court rules, this means that the lower court’s judgment is affirmed. The underlying case dealt with the Constitutionality under the due process clause of some law about pension plans. The lower court ruling looks extraordinarily boring, complex, and hard to understand, so I’m actually quite grateful for the tie vote, which relieves me of the need to describe the case in greater detail.