Category Archives: 6-2

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.



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).

Arizona v. Roberson

486 U. S. 675

June 15, 1988

When arrested for burglary, the suspect invoked his Edwards v. Arizona right to not be questioned without a lawyer. Later, the police gave him another Miranda warning, and questioned him about a different burglary. Roberson moved that his incriminating statements about the different burglary be excluded from trial because his original request to not be questioned without a lawyer still stood. The Court had to decide whether the Edwards rule extended to questioning about unrelated crimes.

The Court ruled 6-2 that the rule did extend that far (O’Connor did not participate). Stevens distinguished some seemingly contrary precedents because they did not precisely involve the Edwards right to have no custodial questioning after a request for a lawyer. That the Miranda warning was re-administered did not matter, because the coercive pressures of several days in custody might weaken the suspect’s resolve. Stevens felt that a suspect who had requested a lawyer once should be properly resumed to desire one in other cases.

Kennedy, joined by Rehnquist dissented. Because Edwards was a prophylactic rule, rather than a Constitutional command, and because the dangers Edwards meant to address did not seem present, Kennedy did not think the rule properly covered the police conduct. There was no reason to presume that a Miranda warning would not assure a suspect that he could re-invoke his right to a lawyer. Neither should it be presumed that one suspect will necessarily want a lawyer for every single case.

Kennedy is probably right. It’s surprising to see Scalia going along with the majority. A few years later, he would dissent in another case about extending prophylactic rules, saying that the various extensions had created “a veritable fairyland castle of imagined constitutional restriction.”

Webster v. Doe

486 U. S. 592

June 15, 1988

The Director of the CIA fired an employee upon finding that his homosexuality was a danger to the agency. The employee charged that this both violated the Administrative Procedure Act (APA), and a grab bag of Constitutional protections. The CIA argued that the statutes governing the CIA gave the director full, and unreviewable discretion to dismiss employees when he finds cause.

The Court ruled 8-0 that the firing could not be challenged on APA grounds, but held 6-2 that a Constitutional challenge could at least be entertained (Kennedy did not participate). Rehnquist said that for an APA challenge to firings, the laws and regulations relevant to the agency need to have some meaningful standards. The CIA, by its governing statutes and policies, really did seem to give the Director practically unreviewable discretion in personnel decisions. Rehnquist did not think the governing statute clearly preempted Constitutional challenges though. A remand would be necessary to get the record developed further on just what the exact Constitutional issues were.

O’Connor dissented from the Constitutional portion. She felt that the CIA’s business was too top secret for a Constitutional challenge to a firing to be appropriate. Scalia concurred in judgment on the APA portion, but he thought the majority set the bar too high in how few governing policies there needed to be before the Court would accept unreviewable agency discretion. He strongly dissented about the Constitutional portion. There was no statutory evidence that the Director’s unbounded discretion was to exclude Constitutional issues. Indeed, Scalia claimed the right to Constitutional challenges should not be lightly presumed. The decision could open Pandora’s box on a number of fronts – would it mean that the president could not dismiss a cabinet member because he disliked the cabinet member’s religion?

While I’m not too upset about the ruling, Scalia is definitely more tightly reasoned about the Constitutional issue. I also enjoyed a digression of his, where he debunked the notion that Constitutional safeguards are necessarily more important or sacred to a person than other safeguards. “A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause.” This is a great, and usually unappreciated point. The legal system does care about stupid procedures in the Bill of Rights far more than actual injustices.

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.

Goodyear Atomic Corp. v. Miller

486 U. S. 174

May 23, 1988

At a federal government owned nuclear power plant, an employee got injured due to an unsafe scaffolding that violated Ohio regulations. Although established preemption law exempted federally owned power plants from all state regulations, the employee wanted a worker’s compensation bonus that Ohio provided when the injury was directly caused by violation of a state regulation. The question was whether this bonus payment was preempted too.

The Court ruled 6-2 that this bonus was not preempted (Kennedy did not participate). Marshall first brushed aside a stupid justiciability challenge which questioned whether the lower court ruling was final. Turning to the merits, Marshall admitted that all state regulation whatsoever was preempted unless Congress gave “clear and unambiguous” blessing to extra state regulation. In this case, Congress did, in the form of a law that allowed all worker’s compensation schemes to continue unabated. Marshall stressed that different states had all kinds of zany and strange worker’s compensation rules at the time this law was passed. Ohio’s bonus for a workplace violating a regulation certainly qualified, even if the underlying safety regulation itself could not be imposed against the power plant.

White, joined by O’Connor, dissented. He saw the Ohio bonus rule as essentially a backdoor to the state imposing all its power plant regulations. He did not want the states doing indirectly what they could not do directly. Although there was the federal statute which allowed worker’s compensation schemes to operate on federal property, White did not think it unambiguously extended to weird rules like the Ohio bonus one. Far more illustrative of Congressional intent, he thought, was that body’s continuing reluctance to subject federally owned plants to direct state safety regulation.

Cases like this are the reason why being a Supreme Court Justice is hard. There’s really no one good answer here. Both Marshall and White have perfectly reasonable and defensible arguments. I’m at a loss to say which is more right, and which is more wrong.

California v. Greenwood

486 U. S. 35

May 16, 1988

Greenwood was arrested on drug charges after police found evidence in the garbage bags he left at the curb. Although California law prohibited police from searching garbage without a warrant, state law also said there was no exclusionary rule for illegally obtained evidence. As a last resort, Greenwood argued that the evidence obtained from warrantless garbage search should be excluded based on the US Constitution.

But the Court ruled 6-2 that searching trash left at curbside did not require a warrant (Kennedy did not participate). Justice White said that there was no reasonable expectation of privacy for garbage bags because anyone – an animal, a snoop, to say nothing of garbage collectors themselves – could easily rummage through the trash and take something. Furthermore, loads of lower courts had already ruled that no warrant was needed to search garbage. White also smacked down two Hail Mary arguments as obviously incorrect – first, that the US Constitution should ban warrantless trash searches if a state’s law does, and second, that it was unconstitutional for California to have no exclusionary rule for state law violations.

Brennan threw a huge hissy fit in dissent, and was joined by Marshall. He said that virtually any other closed container is afforded an expectation of privacy, and that garbage bags should not be treated differently. Even if garbage bags can easily be opened by third parties, Brennan said, that’s still an insulting invasion of your privacy. Honestly, Brennan could have potentially convinced me, but his apocalyptic tone makes it hard to take him seriously. In the end, I do think warrantless searches of curbside garbage are probably a good thing.

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.

Business Electronics Corp. v. Sharp Electronics Corp.

485 U. S. 717

May 2, 1988

Two Houston retailers sold calculators manufactured by Sharp. Because one retailer (Business Electronics) was selling them way cheaper, the other retailer asked Sharp to cut off the supply to the first retailer. Sharp did so, and Business Electronics sued, citing the Sherman Antitrust Act. After being told that cutting off one retailer because of its lower prices was always illegal if done at the bidding of a more expensive retailer, a jury ruled for Business Electronics. Sharp contended that this was not always illegal, and should be judged by the antitrust ‘rule of reason.’

Scalia, writing for the Court, agreed that the ‘rule of reason’ must be used. The Court thus ruled 6-2 that the jury instruction was erroneous, and a new trial would have to be held (Kennedy did not participate). According to antitrust precedent, tacit agreements between suppliers and retailers were only per se illegal if they fixed prices. Because the second retailer remained free to set prices as they wished, there was no price fixing here. Citing the Sylvania case from 1977, Scalia said that the Court should be extremely cautious before finding any other collusion between supplier and retailer inherently anti-competitive. Because there were arguable pro-consumer reasons for wanting only one, more expensive retailer, Sharp was in the clear pending a new trial.

Stevens, joined by White, dissented. He found no evidence in the record that Sharp and the more expensive retailer had any noble purpose – instead, the facts showed that they were just blatantly attempting to line their own pockets by leaving the cheaper retailer high and dry. Because this restraint of competition had no noble purpose, Stevens felt the agreement was per se illegal. Furthermore, antitrust precedents held that retailer boycotts of suppliers were per se illegal. Stevens argued that by threatening to sever ties if Sharp did not cut off the cheaper retailer, the more extensive retailer was effectively doing a one-business boycott.

Stevens made a really good argument, but reading the jury instruction again, I do think a new trial was probably warranted. That said, I also think that the jury should still find for Business Electronics, even after being properly instructed.