Category Archives: 5-3

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.


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.

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.

Sun Oil Co. v. Wortman

486 U. S. 717

June 15, 1988

Landowners who leased property to a gas company were seeking additional interest on royalties due to them. They brought suit in Kansas state court, even though they were variously from Texas, Oklahoma, and Louisiana. Kansas had a longer statute of limitations than those states. The gas company charged that Kansas had no business applying their own statute of limitations under the Full Faith and Credit clause, and also that Kansas had not properly followed the interest rate laws from TX, OK, and LA.

The Court ruled unanimously that Kansas could apply its own statute of limitations, and ruled 6-2 that the Kansas courts had adequately interpreted the interest laws of TX, OK, and LA (Kennedy did not participate). Scalia started out by showing how statutes of limitations had always been seen as procedural rules which could be used without violating the Full Faith and Credit clause. International law (which was used to interpret the clause in the early days) had allowed the forum state to use its own limitations statutes for centuries, and nothing could overthrow the force of this history. A small number of dissonant cases from the Erie line were distinguished.

Brennan, joined by Marshall and Blackmun, sharply disagreed with Scalia’s reasoning. He hated majority’s undertones of originalism, bright lines between substantive and procedural rules, and recourse to history. Instead, Brennan would look at whether using the forum state’s limitations statute was arbitrary or fundamentally unfair. Upon reviewing the case’s facts, and finding no fundamental unfairness, Brennan concluded that Kansas could use its own statute of limitations.

On the issue of the interest rate laws of the other states, Scalia said the Full Faith and Credit clause was not breached unless the forum state’s interpretation was blatantly incorrect. Although Kansas allegedly misinterpreted laws from TX, OK, and LA, there were minimally plausible arguments to be made for the odd interpretations advanced by Kansas.

O’Connor, joined by Rehnquist, would have none of this. The laws of TX, OK, and LA were pretty clear, and Kansas did an obviously slipshod job of trying to get around them. She closed her opinion with this hilarious summation of what the Kansas courts essentially did: “Faced with the constitutional obligation to apply the substantive law of another State, a court that does not like that law apparently need take only two steps in order to avoid applying it. First, invent a legal theory so novel or strange that the other State has never had an opportunity to reject it; then, on the basis of nothing but unsupported speculation, “predict” that the other State would adopt that theory if it had the chance.”

This case sure has a number of interesting storylines. First, it’s great to see Brennan whine in dissent that the majority is using originalism. While he may hate historical practice, it’s surely a better standard than his solution of unelected Justices randomly deciding what procedures are “fundamentally unfair.” Then there’s O’Connor, who (along with Rehnquist) is the only Justice with the guts to say that the Kansas courts were on an abusive and lawless power trip. It’s a shame Scalia didn’t have the courage to admit this (he’s disappointed several times in recent cases).

Loeffler v. Frank

486 U. S. 549

June 13, 1988

A Postal Service employee named Loeffler challenged his firing as discrimination under the 1964 Civil Rights Act. He was reinstated with back pay, but he wanted prejudgment interest too. Traditionally, government agencies have been immune from prejudgment interest, but Loeffler was undaunted, and argued that the postal reorganization of 1970 had waived interest immunity.

The Court ruled 5-3 that Loeffler could obtain prejudgment interest (Kennedy did not participate). Blackmun stressed that the postal reorganization had allowed the agency to “sue and be sued,” a clause that has the effect of making government agencies basically like private companies when it comes to lawsuits. The reorganization thus waived interest immunity for all time. True, in a case against the Library of Congress, the Supreme Court had ruled that the Civil Rights Act, standing alone, did not waive interest immunity, but the Library of Congress had no such “sue and be sued” provision like the Postal Service did. Blackmun said that legislative history supported all of these conclusions.

White, joined by Rehnquist and O’Connor, filed one of those annoying dissents which effectively said ‘I agree with what the lower court judges said, but will not repeat their reasoning here – so go find the lower court ruling and read that instead.’

McCoy v. Court of Appeals of Wis., Dist. 1

486 U. S. 429

June 6, 1988

If a criminal client with court-appointed representation wishes to file a frivolous appeal, the lawyer has an ethical obligation to inform the appeals court that the filing is frivolous. A Wisconsin law mandated that court-appointed lawyers explain precisely why the appeal would be frivolous when informing the court of their professional judgment. One lawyer thought this law was unconstitutional, because it seemed to require the client’s lawyer to effectively act as advocate against the client.

Nonetheless, the Supreme Court upheld the Wisconsin law in a 5-3 vote (Kennedy did not participate). Stevens stressed that lawyers already had the obligation to warn appeals courts of frivolous appeals. Surely, he thought, it did no harm to a client to merely explain the basic reasoning behind this legally mandated disclosure. Indeed, the process of writing an explanation would force the lawyer to review the case very carefully in search for any colorable claim. Such a careful review might even convince the lawyer that non-frivolous grounds for appeal existed – thus, the explanation requirement could even work to the benefit of clients in some cases.

Brennan, joined by Marshall and Blackmun, dissented. He agreed that a court-appointed lawyer had to inform the court about frivolous appeals, but found the written explanation law contrary to the Sixth Amendment. For one thing, it discriminated against the poor, because a paid lawyer was never required to file such a written explanation. For another thing, a written explanation effectively did the prosecutor’s work, throwing the client under the bus by openly offering extended legal arguments against their interests. In any event, striking down the Wisconsin law would be no great loss, contended Brennan, because a truly frivolous appeal will almost always be immediately apparent to appeals courts anyway.

Here’s another one of those rare cases where Brennan is actually right. Cases like this really frustrate me. If moderates like Powell or White are determined to give Brennan a majority in a criminal case every now and then, why don’t they choose one like this, instead of horrible rulings like Mills?

Satterwhite v. Texas

486 U. S. 249

May 31, 1988

In a case called Estelle v. Smith, the Supreme Court ruled that it was Constitutional error to allow psychiatric examination of a defendant in a capital case without notifying the defendant’s counsel. John Satterwhite was examined without notification of his counsel. The doctor who examined him testified at trial that Satterwhite was irredeemably dangerous, and he was sentenced to death. The question was whether this violation was harmless error, given that many other witnesses had provided ample evidence of how dangerous and sociopathic Satterwhite was.

The Court ruled unanimously that the error was not harmless (Kennedy did not participate). O’Connor, writing for a five Justice majority, said that violation of Estelle could sometimes be genuinely harmless, because the error only infects a small portion of the trial rather than the whole ordeal. Nonetheless, the harmlessness of the error had to be beyond a reasonable doubt. Because of the especially impressive and authoritative nature of the doctor’s court testimony, O’Connor was not prepared to conclude that it had not affected the jury’s final decision.

Marshall, joined by Brennan and Blackmun, said that any violation of Estelle should always result in the death sentence being vacated. Because it was usually too difficult to determine whether or not the error was harmless, harmless error analysis should never be undertaken. Furthermore, Estelle itself, and other precedents suggested that harmless error analysis was inappropriate for this particular violation. In a section not joined by Blackmun, Marshall went farther, and contended that absolutely any Constitutional violation in a capital case, even if harmless, must result in the death sentence being overturned. In a separate opinion, Blackmun briefly registered his continuing skepticism of psychiatric testimony in general.

Even though I usually favor upholding death sentences on the basis of harmless error, I must agree with the unanimous Court that this error might not have been harmless. Nevertheless, I’m not at all sure that Estelle was correct in deeming the psychiatric evaluation error in the first place. Certainly, it’s best practices to notify the defendant’s counsel, but to call it a Sixth Amendment violation might go a bit too far.

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.

Department of Justice v. Julian

486 U. S. 1

May 16, 1988

For federal crimes, a pre-sentence report is prepared after conviction for the benefit of the judge, prison staff, and parole board. The convicted person is allowed an opportunity to read the report prior to sentencing, and prior to a parole evaluation, but is otherwise not given access to it. Two prisoners eventually tried to obtain their pre-sentence reports under the Freedom Of Information Act (FOIA).

The Court ruled 5-3 that FOIA gave the prisoners the right to get copies of the reports (Kennedy did not participate). In the majority opinion, Rehnquist showed that two exceptions to FOIA did not apply. Documents which were statutorily protected from disclosure could not be obtained under FOIA, but this exception did not apply because prisoners did indeed have two legal opportunities to read the reports. Another FOIA exception barred disclosure if the documents would ordinarily protected from discovery during a legal case. While third parties are ordinarily banned from getting access to pre-sentence reports, Rehnquist said this exception did not apply either, because the prisoner himself is given a legal right of access.

Scalia, joined by White and O’Connor, dissented for two reasons. First, the statues tacitly implied that the subjects of pre-sentence reports were never allowed to retain copies of it. Thus, because permanent access was indeed prohibited, the first FOIA exception most certainly applied. Second, previous FOIA cases made plain that FOIA disclosure should never turn on the identity of the requesting party. Thus, because third parties could not get pre-sentence reports, the second exception applied as well. Scalia definitely had the better opinion of the two, though he himself wondered whether there was any good policy reason to ban prisoners from having a personal copy of the report.

Kungys v. United States

485 U. S. 759

May 2, 1988

A man named Juozas Kungys lied several times about his biography when applying for a visa, and later when applying for citizenship. When this came to light decades later (together with the suggestion that he might have been a Nazi criminal), a denaturalization process was begun. At issue was whether his biographical lies were “material” for the procurement of naturalization, and whether the lies were sufficient to show bad moral character – in either event, his citizenship could then be revoked.

With Kennedy not participating, there was a confusing tangle of opinions. Scalia, had a majority for two points, joined by Rehnquist, Brennan, White, and O’Connor. First, by looking at the standards and definitions from the perjury context, Scalia held that lies were “material” if they had a natural tendency to influence the decisions of the naturalization decisionmakers. Second, lies need not be “material” to show bad moral character, because the plain language of the statute did not require it. While a similar statute had previously been interpreted to require that lies be “material,” it contained the word “misrepresentation,” which Scalia said was shorthand for material lies. Scalia hastened to add that, according to government policy, lies (whether material or immaterial) only showed bad character if they were made with the exact purpose of gaining immigration benefits.

In a portion joined by only Rehnquist, Brennan, and O’Connor, Scalia said that the case needed to be remanded to determine whether or not Kungys had lied for the exact purpose of gaining immigration benefits. This effectively became the Court’s final judgment on the matter. In a portion joined by only Rehnquist and Brennan, he said that the biographical lies were irrelevant enough to be immaterial. He also contended that if material lies are made, and citizenship is subsequently obtained, there is then a rebuttable presumption that the material lies procured the naturalization, which the naturalized person can then rebut through the preponderance of the evidence standard. Brennan, in a concurrence, emphasized that government would need to do a really thorough job in alleging that a material lie helped to procure naturalization.

Stevens, in an opinion joined by Marshall and Blackmun, found denaturalization a horrific punishment, and read the statutes to make it really hard. With reference to tort law, he interpreted “material” to mean that naturalization would not have been granted but for the lies. He also stressed that every single burden of proof in denaturalization cases should fall on the government. With respect to the requirement of good moral character, Stevens, by citing an analogous statute, contended that the lies would indeed need to be “material” (as he defined that word), to show bad moral character on the part of the applicant.

O’Connor, though joining most of Scalia’s opinion, wrote in a short dissent that the lies made by Kungys really were material. White, in his own dissent, was even more forceful that Kungys ought to be denaturalized. His long pattern of biographical lies, all made while trying to gain citizenship, clearly showed bad moral character. Furthermore, the lies were material because the immigration decisionmakers would surely have investigated more closely had they seen the change in biographical facts between the visa application and the citizenship application. White also expressed hope that the lower court, on remand, would look more seriously into the Nazi allegation.

… as I said, it’s an awful tangle of opinions and legal points. I hope I rarely have to write posts this long in the future.