Category Archives: 8-0

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.


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.

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).

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.

FERC v. Martin Exploration Management Co.

486 U. S. 204

May 31, 1988

A 1978 law provided a timetable by which different types of natural gas would transition from having a price ceiling to having no price ceiling (i.e. being deregulated). If there was any ambiguity about where certain gas fell on the timetable, it would be treated in the way “which could result in the highest price.” As it turned out, deregulated gas ended up selling for considerably less than regulated gas in the market. Thus, many gas providers contended that the regulated price ceiling classification was the one “which could result in the highest price.”

The Supreme Court unanimously disagreed (White did not participate). Brennan said it was a simple textual case. The gas that theoretically could have the highest price of all was the deregulated gas, and not the gas with price ceilings. That market conditions currently deemed deregulated gas less expensive did not matter. Congress did not intend, Brennan showed, for market conditions to be inquired into in the course of classifying gas. Gas producers also argued that a regulatory agency had abused its authority in putting forth certain rules defining how gas would be classified. To the contrary, said Brennan, the agency had perfect statutory authority to do so, even if they had no affirmatively imposed obligation to do so. All in all, a good textualist ruling.

Patrick v. Burget

486 U. S. 94

May 16, 1988

When a hospital doctor named Timothy Patrick decided to also work as an independent medical provider, the other doctors at the hospital started being total jerks to him. Using peer-review proceedings, the other doctors disciplined Patrick, and got ready to fire him, and all of this was done, according to Patrick, in bad faith. Patrick resigned rather than risk being fired, and sued the other doctors for antitrust violation, since they were ultimately trying to squelch his independent practice. Because the peer-review processes were mandated and controlled by state laws, the other doctors argued that they were immune from antitrust suits under the state action doctrine.

The Supreme Court unanimously found otherwise (Blackmun did not participate). Marshall explained that the state action exemption only existed when the state had active supervision over any proceedings. While the state laid down basic principles of medical peer-review, it did not actively supervise the discipline or firing decisions in any real way. Marshall was even less impressed by the argument that the peer-review decisions were subjected to legal review. Minimal judicial review did not trigger the state action doctrine either. I liked this ruling, but mostly because the other doctors really were a bunch of petty bullies who needed to be taken down several notches.

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

485 U. S. 568

April 20, 1988

Unions distributed leaflets urging customers to boycott an entire mall, because just one business there had hired just one construction company which allegedly was mean to unions. A labor board found that this union activity broke a law, even though that law arguably violated the First Amendment’s guarantee of free speech. A Court of Appeals disagreed with the labor board’s interpretation of the law, and held that the law did not actually ban peaceful leafletting, so the union was in the clear.

Unanimously, the Supreme Court backed up the Court of Appeals (Kennedy did not participate, and Scalia and O’Connor concurred in judgment without opinion). While the labor board’s interpretation would normally get Chevron deference, there was an exception when an agency’s interpretation might violate the Constitution. In those cases, courts could look for and adopt a narrower reading. White said that the law was written to stop practices that might “threaten, coerce, or restrain” potential consumers. Because peaceful leafletting, unaccompanied by picketing, arguably did not do this, White adopted the narrower interpretation of the law.

Legislative history was similarly murky on the law’s reach, and a much analyzed colloquy between Senators Kennedy and Goldwater failed to yield a definite answer either. White also pointed out that under the labor board’s interpretation, even a private meeting which urged a boycott would be considered illegal. I would have liked to have at least read a dissent, but this ruling doesn’t bother me too much. The underlying facts of the case however, are just more proof that American unions are frequently unhinged and totally irrational.

Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.

485 U. S. 495

April 19, 1988

Congress passed price and allocation controls on oil in response to the oil crisis of 1973. This legislation clearly preempted any state legislation in the area. Some years later, when the oil market went back to normal, Congress took away basically all the regulation, apparently leaving things to the free market. Puerto Rico then tried to put some price controls into law, and it was disputed whether the preemption from the now repealed federal legislation still stood.

With Scalia writing, the Court ruled 8-0 that Puerto Rico could regulate (O’Connor did not participate). Scalia said that the Court wants to see specific textual evidence of preemption before finding such. Because there was no positive indication that state legislation would be preempted even after repeal, the Court was loath to find it. Statements by some in Congress indicating that unregulated free markets were intended by the repeal were not deemed clear enough. In short, “repeal of [oil] regulation did not leave behind a pre-emptive grin without a statutory cat.”

Texas v. New Mexico

485 U. S. 388

March 28, 1988

A year earlier, the Supreme Court had ruled that New Mexico had cheated Texas out of some water, and needed to repay it. Whether this repayment would be through money or specific performance was left undetermined, and the Court said a River Master would be appointed to help settle everything. Now, a year later, a new decree was ready to be entered. This new decree chose specific performance as the remedy required of New Mexico. It also appointed Neil S. Grigg (a water expert) to be River Master, and defined his duties with some detail. Stevens did not participate in the formulationĀ  of this decree.