Category Archives: 7-1

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.


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.

INS v. Pangilinan

486 U. S. 875

June 17, 1988

In 1942, Congress passed a law that made it really easy for Filipino veterans to get naturalized. The law explicitly said that you had to apply before the end of 1946 though. Furthermore, there was a period of several months from late 1945 to mid 1946 when applications were not being accepted. Several Filipinos tried to take advantage of this law decades after the fact. And the 9th Circuit ruled in their favor, ordering naturalization as a matter of equity.

The Supreme Court unanimously slapped down this nonsense (Kennedy did not participate). Scalia observed that the Constitution gave Congress the power to set all rules of naturalization. The 1942 law was brutally explicit that you had to apply before the end of 1946. This equitable power that the 9th Circuit relied upon had quite simply no authority to override the clear command of a Congressional statute. They were being blatant activists. Scalia was not moved by the fact that applications were not accepted for a period of several months, and noted that there was ample opportunity both before and after the gap to have made an application. He also briefly rejected some even more ridiculous arguments. Blackmun did not join the majority opinion, but silently concurred in judgment.

As a lower court, you know you’re acting lawlessly when even Brennan and Marshall are forced to admit it. What the 9th Circuit did in this case was shameful and disgraceful. When judges so brazenly ignore the statutory law, I dare say impeachment and removal are warranted. Judicial oaths to rule in accordance with the Constitution have to mean something.

Pinter v. Dahl

486 U. S. 622

June 15, 1988

Pinter sold unregistered securities to Dahl. Dahl successfully urged friends and family to also buy securities from Pinter. But the venture failed, and Dahl and his friends sued Pinter for selling them fraudulent securities. Pinter countered that Dahl had fraudulently induced the selling, and that the doctrine of in pari delicto (i.e. ‘you’re just as much at fault!’) barred a successful claim. Additionally, Pinter said that Dahl was also a seller with respect to the securities sold to the friends and family.

The Supreme Court gave a collective shrug, and remanded the case 7-1 after clearing up some of the worst legal muddles (Kennedy did not participate). Blackmun started out by asserting that in pari delicto defenses could, according to Court precedent, be asserted in securities lawsuits. But the defense would only hold if the plaintiff was at least equally at fault, and if the defense would not frustrate the broader purposes of securities law. Blackmun said the record was too sparse to determine whether Dahl was really equally at fault because of his assurances to Pinter that the sale would be a good one.

On the issue of whether Dahl was a seller, Blackmun said that securities law did allow a mere solicitor, rather than a titleholder, to be regarded as a seller. Nonetheless, he took issue with the contention of lower courts that any inducement to third parties, no matter how disinterested or gratuitous, could count as solicitation. Such tests ran afoul with the actual statutory text of securities law. Once again though, the facts behind Dahl’s inducements to his friends and family were too murky, so a remand was given.

Stevens, in dissent, had the decency to offer some answers instead of more questions. Examining all the lower court proceedings, he found no reason to believe that Dahl could possibly be equally at fault, so the in pari delicto claim was no good. On the question of Dahl’s status as a seller, Stevens though the Court was being advisory. Stevens addressed the issue anyway, and wrote that Dahl should not be held liable as a seller because he received no money as a result of any purchases he induced.

For finality and clarity, if nothing else, I would have joined the Stevens dissent. The last thing an overly complex case like this needs is a remand to determine a bunch of probably unanswerable factual questions.

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.

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.

South Carolina v. Baker

485 U. S. 505

April 20, 1988

Because unregistered bonds were often used for tax evasion, Congress imposed a heavy tax on income from unregistered bonds. This made unregistered bonds so unattractive that it no longer seemed reasonable for several states to even issue them. South Carolina said this squelching of unregistered bonds violated the Tenth Amendment, as well as the historic intergovernmental tax immunity given to state-issued bonds.

Nonetheless, the Court upheld the new tax law 7-1 (Kennedy did not participate). Brennan reminded poor South Carolina that, under the Garcia case from 1985, the Tenth Amendment was all but eviscerated. Moving on to a more specific claim of commandeering – that states were being conscripted to pass new laws on bonds – he said that as long as the states passed the new laws out of indirect coercion rather than direct forcing, there was no Tenth Amendment problem. Finally, Brennan faced the bond tax immunity argument from the 1895 case Pollock v. Farmers’ Loan & Trust Co., and simply overruled Pollock. It used to be that every tax on a contract with the government was thought immune, but that doctrine had faded away decades ago, and bonds were the last surviving vestige of it.

Stevens said in a brief concurrence that even without Garcia, the Tenth Amendment argument still would have failed. Scalia joined the majority opinion except for the Tenth Amendment part. He wrote that he agreed with the conclusion, but disagreed with the majority’s almost gleeful minimizing of the Amendment. Rehnquist concurred in judgment. A Special Master had concluded that the bond tax would not be a big burden on states, and that essentially concluded the case for him.

O’Connor dissented sharply. She would not tolerate the continued evisceration of the Tenth Amendment, and also objected to overruling Pollock. The erosion of the doctrine underlying Pollock was based on the non-burdensome nature of the tax on government contracts. Contra Rehnquist, she interpreted the Special Master to conclude that the bond tax would indeed be burdensome to states. Thus, state issued bonds still deserved immunity. This is one of those odd cases where O’Connor was substantially more ‘conservative’ than Scalia and Rehnquist. Whatever else might be said about her, she truly was possibly the best federalist the Court has ever had in the post-Four Horsemen era.

Gardebring v. Jenkins

485 U. S. 415

April 19, 1988

A new rule for welfare recipients said that welfare payments would be temporarily suspended if the recipients received a large lump sum of money from another source. The Jenkins family was unaware of this rule, and when it got a large Social Security payout, it spent the money all at once, not realize that they wouldn’t get regular welfare payments again for several months afterward. The Jenkins family claimed that a regulation required the government to give them much better notice of the new lump sum rule.

The Court ruled 5-3 that the regulation had not been violated (Kennedy did not participate). Looking closely at the regulation’s language and structure, Stevens said it only mandated that new applicants for welfare be apprised of the general terms and conditions of the program. It did not mandate that continuing recipients be informed of every significant rule change. Also compelling to Stevens was that the Secretary running the welfare program did not interpret the regulation to require the extra notice. While the result was harsh for the Jenkins family, there just wasn’t enough evidence to second guess the Secretary’s reading of the regulation.

O’Connor wrote a dissent joined by Brennan in full, and by Marshall in its conclusion. She felt that the Secretary had agreed to a broader reading of the regulation in an interrogatory, and was now changing his mind about interpretation. Because this broader reading required more notice, and because the regulation was ambiguous, O’Connor wanted to hold the Secretary to this earlier interpretation. Despite this conclusion, she disagreed with the lower court’s demand that the Secretary make truly herculean and exhaustive efforts to give notice to every recipient. She thought a more limited effort was sufficient (this is probably the part that Marshall disagreed with).

Gulfstream Aerospace Corp. v. Mayacamas Corp.

485 U.S. 271

March 22, 1988

Another day, another court case about court cases (this is why I go for months between updates so often). Two companies enter into a contract for manufacturing airplanes, and then they get mad at each other. One company files a suit in state court, and the other files a suit in federal court. The former company (Gulfstream) then tries to get the federal case dismissed on the grounds that the state case can handle the additional legal issues. But the federal District Court refuses to dismiss the case. Then Gulfstream tries to immediately appeal this refusal to dismiss, before the District Court can make a decision on the actual case. And the question before the Supreme Court is whether or not you’re allowed to immediately appeal in these circumstances.

The Supreme Court said no in a mercifully unanimous ruling (Kennedy did not participate). Marshall said that usually you can only appeal when the District Court is done with a case, but that a 1949 ruling makes an exception when the District Court makes a very important final determination on an ancillary issue. Because the District Court could change its mind later and dismiss the case, the refusal to dismiss was not ‘final’ enough to fall within this exception.

Then Marshall turned to a statutory exception which allowed for immediate appeal of District Court orders which denied requests for injunctions. Under a horrifically complicated rule known as the Enelow-Ettelson doctrine, a request for case dismissal could be deemed a request for an injunction if: 1) the underlying case was ‘legal’ in nature, and 2) the dismissal was sought as an ‘equitable’ measure. This doctrine dated back to the 1930s, before Law and Equity had been merged in federal courts. Because the doctrine was so impossibly convoluted, outdated, and hard to apply, Marshall just said that the doctrine was hereby overruled.

Finally, there was an argument that the Court of Appeals should have issued a writ of mandamus demanding that the District Court dismiss the case because the need for dismissal was so obvious. Marshall casually responded that the need to dismiss was not at all legally obvious. In a brief concurrence, Scalia said that denial of immediate appeal was in some ways a ‘final’ decision, but that the relatively small hardship to the thwarted would-be-appellant did not justify allowing an appeal to go forward. I have no real comment on this ruling other than that there’s a special place in Hell for lawyers like those from Gulfstream who fight to the death over every stupid little thing.

St. Louis v. Praprotnik

485 U. S. 112

March 2, 1988

There was an architect in St. Louis on the government payroll named Praprotnik. He was the annoying type who files grievances about everything, so his immediate superiors shuffled him around and eventually get him laid off. To make a long story short, Praprotnik tried to hold St. Louis liable under Section 1983 because his superior officers were out to get him for exercising his First Amendment rights. St. Louis argued that it could not be liable because only misconduct by the highest policy making authorities could render the city itself subject to a 1983 suit.

The Supreme Court agreed with St. Louis in a 7-1 vote (Kennedy did not participate). O’Connor wrote the plurality opinion, which first turned back the aggravating argument that the questions before the Court weren’t properly preserved for appeal. In a refreshing display of good sense, O’Connor said that this was an area of the law which badly needed more judicial definition, and thus brushed aside the dumb preservation claims. Then, looking at the municipal laws, the plurality concluded that only actions by the Mayor, Alderman, and the Civil Service Commission could render the city itself liable to 1983 actions. Because none of these authorities were linked with the alleged persecution against Praprotnik, the city was immune.

Brennan, joined by Marshall and Blackmun, had a few minor quibbles in a concurrence in judgment. They thought the plurality placed too much emphasis on statutory law in figuring out the highest authorities in cities. They also thought that presence of scanty superior review did not mean that an officer was not a policy making authority. But Brennan still agreed that the officers which Praprotnik sued were, in any event, not ones that would open up St. Louis to liability. In all honesty, the two opinions were very close, and Brennan made a mountain out of some rather small disagreements.

In dissent, Stevens wanted to play trial judge, and he reviewed a bunch of court transcripts in order to conclude that the Mayor and his immediate subordinates had played an important role in screwing over Praprotnik. He also would have come out differently on the preservation for appeal question. Pressing forward anyway, he eschewed the search for the proper authorities that the two other opinions conducted. Instead, he saw a deep conspiracy by a wide network of officials throughout St. Louis, and thought it perfectly right to hold the entire municipality accountable. This opinion is an example of Stevens at his worst – so far off the reservation that not even the ultra-liberals Brennan and Marshall could fathom his bizarre thought process.