Category Archives: Blackmun

Rhodes v. Stewart

488 U. S. 1

October 17, 1988

Two prisoners sued to get magazines in prison. By the time the suit was decided, one prisoner was dead and the other had been paroled. Nonetheless, the living plaintiff sought to get attorneys fees under section 1988 as the prevailing party. The government argued that he could not be the prevailing party since the case was effectively moot and he had obtained effectively no relief.

The Supreme Court agreed that no 1988 fees could be awarded in a 6-3 per curiam decision. With reference to Hewitt v. Helms, the Court stated that declaratory judgment does not make you a prevailing party if you obtain no actual relief regarding your original complaint. As the plaintiff was out of prison, he got nothing by winning his court case. Marshall dissented because of his steadfast belief that the Court should never make summary judgment rulings. Blackmun, joined by Brennan, disagreed with the majority’s reading of Hewitt. Blackmun said that the ex-prisoner was still literally a prevailing party, even if he obtained no real relief for winning.


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.


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.

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.

Bowen v. Kendrick

487 U. S. 589

June 29, 1988

In the Adolescent Family Life Act (AFLA), Congress allowed grants to be given to organizations for the education of children. The children would be encouraged toward premarital chastity and adoption instead of premarital sex and abortion. Grant applicants were required to state how they could involve religious organizations (among other community organizations) in the program). Some religious affiliated groups received grants, and some allegedly used the grant money to teach religious doctrines about sex and pregnancy to children. The AFLA was thus attacked both facially and as-applied.

The Supreme Court upheld the act 5-4. Rehnquist considered the facial challenge first, under the Lemon test. It had an obvious secular objective, and it did not illicitly advance religion. Though the statute referred to religious organizations, they were merely among many community players to be brought in for the education of children. Even though funds sometimes went directly to religious organizations, this had been allowed in other cases, such as aid to Catholic hospitals, or aid to nominally religious colleges. Looking at the record, Rehnquist did not think most grant recipients could be described as ‘pervasively sectarian’ in the way that parochial elementary schools were. Although the law did not specifically prohibit teaching religious doctrines, Rehnquist trusted grant recipients to abide by the Constitutional separation of church and state, and noted that recipients had to check in with the government from time to time.

Rehnquist summarily added that these check ins would not result in excessive entanglement – the final, much maligned Lemon prong. Finally, he turned to the as-applied challenge, and said that a remand would be necessary to determine which grant recipients had actively taught religious doctrines. O’Connor, in concurrence, denied that the Court was retreating from a strong commitment to the Establishment clause. Kennedy, joined by Scalia, noted that even ‘pervasively sectarian’ organizations should be able to receive grant money so long as they refrained from using it to teach religious doctrines.

Blackmun, joined by Brennan, Marshall, and Stevens, wanted to strike the law down altogether. He felt that discrete violations on the record should be considered in a facial challenge, and that any law which so easily allowed for the smuggling in of religious teaching should be struck down. He argued that the majority found, without proper analysis, that most recipients were not ‘pervasively sectarian,’ and that the record suggested the opposite. He noted that the Court had usually required much stronger safeguards against money flowing to any religious teaching, and that the statute’s lack of a ban on religious teaching was inexcusable. He contended that the education of young children was much different than a hospital healing the sick, or even a college teaching less impressionable minds. Finally, he showed that policing grant recipients to ensure that no religious doctrines were imparted would certainly involve excessive entanglement.

Here is another case where the dissent was definitely right on what the various precedents had established, but I would still vote with the majority because those precedents are wrong and stupid. I wish the majority had the courage to overrule the entire Everson-Lemon line, but they didn’t. Instead, we got yet another confusing and contradictory twist in the miserable world of Establishment clause jurisprudence – albeit one that at least had the correct final result.

Ever since Everson, the Court’s liberals have displayed a fierce, sickening, and (I dare say it) religious sort of mania in Establishment clause cases. Here, for example, Blackmun speaks of the Court’s duty to show “unwavering vigilance” in any cases potentially involving government money going to religious activity (just try to imagine a liberal Justice talking about “unwavering vigilance” with respect to, say, the Interstate Commerce clause). He exhorts the reversed District Court judge to “not grow weary” on remand, after all his noble “labors thus far.” Liberals don’t use this really creepy tone for any clause other than the Establishment clause. They despise the God of Israel with a passion, and despise the very thought that even a single cent of tax money might accrue, however remotely or indirectly, to His honor.

The AFLA is one of those very rare pieces of government legislation that truly fights evil. There is not a single social phenomenon more destructive to contemporary civilization than premarital sex. When it comes to generating more abortions, more divorces, more poverty, more sexual assaults, more broken hearts, and more souls turned away from God, nothing else even comes close. For decades, our culture has been poisoned unto death by the lie that sex before marriage is no big deal. The AFLA was one of the few initiatives which actually fought back against the lie.

United States v. Taylor

487 U. S. 326

June 24, 1988

The Speedy Trial act requires trial within 70 days of indictment. The day before that time limit expired, the suspect ran away. When he was finally recaptured, the government wasted two months before it brought him to trial again. The District Judge found that the 70 day limit had expired, and also found that the “lackadaisical” attitude of the government after recapturing him was responsible for the great delay. The judge dismissed the case with prejudice. The question was whether the judge had abused her discretion in so doing.

The Court ruled 6-3 that she had abused her discretion. Blackmun said that the Speedy Trial act allowed for dismissal without prejudice, and that to dismiss with prejudice, a judge had to weigh several factors. Among those were the seriousness of the charges, and the degree to which the defendant was responsible for the delay. The judge barely addressed these factors, and concentrated only on the “lackadaisical” actions of the government, which she didn’t even explain all that well. Blackmun resorted to legislative history to show that the various different factors really did need to be considered. Scalia joined everything except the legislative history part. In his concurring opinion he sounded his old notes about the importance of sticking to clear statutory text.

White concurred to say that a delay initially caused by the suspect absconding should almost always be dismissed without prejudice. Stevens, joined by Brennan and Marshall, dissented. Dismissing with prejudice was a judgment call where reasonable judges could differ, and Stevens found no grounds to conclude that the judge had abused her discretion. He noted that the judge gave the runaway a harsh 5 year sentence for absconding, which was intended to compensate for the lost opportunity to prosecute the underlying charge. Allowing the case to be brought again risked essentially punishing him twice for the same drug charge. Stevens also said that the government’s delays were far more egregious than the “lackadaisical” label would leave you to believe.

I might be with Stevens on this one. The judge should not have dismissed with prejudice, but it probably wasn’t an abuse of discretion.

Patterson v. Illinois

487 U. S. 285

June 24, 1988

A gang member was indicted for murder. Subsequently, but before he received a lawyer, this gang member made inculpatory statements upon being given the Miranda warning. At trial, he moved to suppress these statements on the grounds that his Sixth Amendment right to counsel had been violated by the interview, and that he had not been duly informed of the consequences of waiving his right to a lawyer by the Miranda warning.

The Supreme Court ruled 5-4 that his confessions were admissible. White said that there was nothing wrong with initiating an interview with an indicted suspect as long as he was always free to cut off the interview by requesting a lawyer. This was the rule in Edwards, and White would not disturb it. As to the sufficiency of the waiver, White pointed out that the Miranda warning summarized the dangers of making statements without counsel quite accurately and succinctly. He further noted that no one had been able to come up with a better warning that the suspect could have been presented with before making the decision to waive his rights. White concluded with the argument that indictment did not make the need for a lawyer more weighty than the need for a lawyer in the pre-indictment investigation context.

Blackmun, in dissent, said that a lawyer must be appointed before any post-indictment questioning begins. Stevens, joined by Brennan and Marshall, argued that questioning a party in a case without their lawyer is universally considered unethical in the civil context. Once the indictment occurs, there are formal adversarial proceedings, and taking advantage of an unrepresented party requires a very well informed waiver. Stevens said that Miranda’s bare warnings were not sufficient to really alert the suspect of the dangers of talking without a lawyer. Furthermore, he found a conflict of interest in the police offering the Miranda warning at all after an indictment. He said it was effectively the prosecution offering the defense legal advice.

There’s something messed up about being so dead set against voluntary confessions. Voluntary confessions are something to be encouraged, and not something to be thwarted at every turn. There’s very little gain to society in making it needlessly difficult to convict people who will openly admit to their guilt.

Florida v. Long

487 U. S. 223

June 22, 1988

In the 1978 ruling Manhart, the Court ruled that pension contributions which differ based on sex are illegal. In the 1983 ruling Norris, the Court ruled that pension payouts which differ based on sex are illegal. Until the Norris decision, Florida had pension payouts which differed based on sex. There were two questions. First, could sex-based underpayment between Manhart and Norris be retroactively recouped. Second, could pension plans that started paying out beforeĀ Norris be prospectively adjusted upward.

The Court answered these questions in the negative, in a 5-4 vote. Kennedy said that Manhart in no way implied that sex-based pension payouts were clearly illegal. Because that question remained entirely unsettled before Norris, there could be no liability for extra payment before the date of the latter decision. Kennedy explained that retroactive liability could destroy the fiscal workability of pension plans, and that it punished states for flaws that they had no way of knowing about. Moving on to the question of prospective adjustment, Kennedy claimed that it was still a retroactive remedy. It threw the balance of contributions and payouts off-kilter, and thus still punished states for violations they could not have known about.

Blackmun, joined by Brennan and Marshall, though Manhart clearly implied that all sex-based pension workings were illegal, be they contributions or payouts. Because Florida should have understood the implications of Manhart, he felt that workers should be entitled to retroactive payments since the Manhart decision, and an increase in payments going forward. Blackmun did concede that pensioners who began receiving payments prior to Manhart were out of luck. Stevens was bolder. He felt that every unequal paycheck was a new violation. Thus, even pensioners who began receiving payments before Manhart deserved to have all payments since that decision (and all payments going forward) adjusted upward.

This was a very good decision – once which favored prudential concerns over fiscally irresponsible utopianism. In fact, those ‘discriminated’ against in the payouts were men, not women, and the ‘discrimination’ was only present in some payout plans out of all those offered. This ruling was also good because it refused to penalize an institution for not correctly guessing the Supreme Court’s next doctrinal move. The Supreme Court has this horrendously annoying shtick of being ultra coy and cagey on a specific issue; but then, when it finally makes a direct ruling, it will pretend that this ruling should have been obvious for years beforehand. This is what the dissent tries to do to the Norris ruling – pretend that it was totally obvious from Manhart. It wasn’t, and I’m glad the majority slapped them down.

Doe v. United States

487 U. S. 201

June 22, 1988

The government suspected that ‘John Doe’s’ offshore bank accounts contained incriminating documents. Unfortunately for the government, the banks refused to turn over anything without Doe’s signed consent. The government prepared a broadly worded statement, which said that Doe granted consent for any offshore banks to turn over documents in their possession. Doe said that signing this would be testimonial self-incrimination banned by the Fifth Amendment.

The Supreme Court, with Blackmun writing, disagreed in a 8-1 ruling. The statement did not mention any specific banks, accounts, documents, or anything that could be considered testimonial. He was not vouching for the existence, relevance, or authenticity of anything – all of those judgments would be made by the banks and the government. In the end, it was no more compelled testimony than an order for a defendant to turn over a hair or blood sample.

Stevens, in dissent, disagreed. He thought it was more analogous to an order that a defendant “reveal the combination to his wall safe – by word or deed.” Stevens contended that any order requiring the defendant to use his mind to assist the prosecution could count as testimonial self-incrimination. As for me, this one’s a close call, and I’m not sure who I side with.

West v. Atkins

487 U. S. 42

June 20, 1988

When a prisoner received insufficient care from a doctor contractually employed by a prison, he tried to sue the doctor under Section 1983. The question was whether the doctor could be legally described as “acting under color of state law.” The lower courts did not think so, and cited a 1981 ruling called Dodson where public defenders were held immune from 1983 suits.

The Supreme Court unanimously disagreed. Blackmun said that the doctor was working for the state prison, and that the prisoner could not choose another doctor. The fact that the doctor worked for the prison only by contract was totally irrelevant. He was a state actor with respect to the prisoner. Blackmun distinguished Dodson because public defenders have a unique adversarial relationship with the government. Though doctors exercise independent professional judgment, their interests are in no way adversarial to the prison.

Scalia concurred in judgment. He disagreed with the Court’s assumption that the right the doctor allegedly violated “under color of law” was the Eighth Amendment. Scalia thought it would be the 14th Amendment, if anything, that the doctor violated. Frankly, I’m not sure the doctor violated either one. I can certainly accept this ruling that prison doctors are state actors. I’m less certain that insufficient medical care violates any Constitutional right.