Category Archives: Brennan

United States v. Kozminski

487 U. S. 931

June 29, 1988

The Kozminski family ran a dairy farm, and they brought two mentally retarded people to work on it. The family made these two work extremely long hours seven days a week without pay, and used a variety of psychological manipulation techniques to keep them from leaving. The family was ultimately charged under two federal laws, which banned involuntary servitude, and conspiracy to practice involuntary servitude – obviously in reference to the Thirteenth Amendment. Jury instructions stated that involuntary servitude could be created exclusively through psychological coercion, as opposed to physical or legal coercion. The Kozminski family contended that this definition of involuntary servitude was far too broad.

The Court agreed in a 7-2 vote, but split 5-4 about the correct definition of involuntary servitude. O’Connor, writing for the majority, looked at various Thirteenth Amendment precedents, and concluded that only threats of legal or physical coercion could create the practice of involuntary servitude. The legislative history of various acts enacted on the basis of the Amendment also confirmed this more restrictive definition. O’Connor stressed that expanding the definition to include psychological manipulation would sweep too broadly, possibly making someone like a charismatic religious leader guilty under the statutes. She left it to the lower court to determine whether there was enough evidence in the record to convict the Kozminskis even under the narrower definition.

Brennan, joined by Marshall, agreed that the jury instructions swept too broadly, but felt O’Connor’s test was too narrow. His test was whether the means of coercion actually reduced someone to a slavelike state. Long hours, no pay, no days off, and squalid conditions added up to a slavelike condition, and that was what the Amendment and the enforcing statutes were meant to ban. Brennan noted that psychological coercion was very often far more effective than legal or physical coercion – the threat of having your house burned down is no less convincing than the threat of being beaten.

Stevens, joined by Blackmun, thought it unwise for the Court to attempt to formulate a precise definition. He trusted prosecutors, judges, and juries to intelligently apply, on a case by case basis, the broad Thirteenth Amendment terms of involuntary servitude. Based on the facts in the record, he thought the jury instructions were fine, and that a new trial was not warranted.

Here is another case where Brennan actually got the better of the more conservative Justices. While the majority was rightly concerned about limiting the legal reach of involuntary servitude, Brennan had exactly the right legal test to address those concerns. His points seem pretty well unanswerable, and I wish his opinion had been the majority one.

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.

Communications Workers v. Beck

487 U. S. 735

June 29, 1988

A union forced non-member employees to pay dues. Under the law, the union had this right, but the non-members objected to the fact that some of the dues went not toward collective bargaining activity, but to political causes and activism. They contended that this usage of union dues violated, among other things, section 8(a)(3) of the National Labor Relations Act (NLRA). As non-members, they argued that they should only have to pay the money necessary for core activities like being represented in collective bargaining.

The Supreme Court agreed 5-3 (Kennedy did not participate). Brennan began by unanimously brushing aside the usual whining about justiciability, and turned to the merits. The case, he contended, was squarely controlled by a precedent from 1961, which held that a nearly identical provision in the Railway Labor Act (RLA) meant that unions could not force non-members to pay for more than the cost of core union activities. Indeed, the language was nearly identical precisely because Congress wanted the RLA and the NLRA to operate under the same rule. The goal, in both cases, was to address the ‘free rider’ problem of non-members paying nothing, but reaping the benefits of the union’s bargaining with the employer. Brennan was unimpressed by various contrary arguments based on legislative history.

Blackmun, joined by O’Connor and Scalia, dissented. He noted that the actual text of 8(a)(3) really didn’t support the majority’s interpretation. Instead, it meant that non-members could be required to pay the full amount of union dues, including any amount used for political activities. Blackmun stressed that, despite the superficial similarity of the sections in the RLA and the NLRA, the motivations behind their enactment were slightly different, and that the interpretation of one should not necessarily control the interpretation of the other.

This has one of the weirdest voting lineups ever. True, there are rare occasions where Brennan and Marshall vote against unions, but never when O’Connor and Scalia are voting for them! I don’t quite understand Brennan’s motivations here, but I’m certainly pleased with the result. While the dissent may have a stronger legal argument, the majority opinion was at least good public policy.

Pierce v. Underwood

487 U. S. 552

June 27, 1988

A law allowed citizens to recover attorneys fees against the government if the government’s position was not “substantially justified.” The attorneys fees awarded would be capped at $75 per hour, but that could be adjusted upward based on “special factors.” A lower court found for citizens who were suing the Department of Housing and Urban Development. The court found that HUD’s position was not substantially justified, and awarded large attorneys fees, ballooned greatly by “special factors.”

Scalia wrote the majority opinion, and Kennedy did not participate. It concluded 6-2 that lower courts findings that government positions were not “substantially justified” should be reviewed under an abuse of discretion standard. It concluded 5-3 that “substantially justified” meant that the position was basically reasonable, plausible, and arguable. It concluded 6-2 that the lower court did not abuse discretion in finding that the government’s position was not substantially justified. And it concluded 5-3 that the “special factors” cited by the lower court were not quite special enough, and it vacated the greatly ballooned award of attorneys fees. In the 6-2 parts, Scalia was joined by Rehnquist, Brennan, Marshall, Blackmun, and Stevens. In the 5-3 parts, he was joined by Rehquist, White, Stevens, and O’Connor.

To very briefly summarize, Scalia felt that abuse of discretion was better than allowing de novo review because of how weird the legal question of substantial justification was. He defined “substantially justified” by looking at how the word ‘substantial’ was used in other legal contexts. He noted that HUD’s string of losses in lower courts, together with some tough legal criticisms of HUD’s position, foreclosed any possibility that the lower court judge abused his discretion. Finally, he thought the lower court’s expansive reading of “special factors” was so broad as to virtually eliminate the $75 limit.

Brennan, joined by Marshall and Blackmun, though Scalia was too forgiving to the government in how it defined “substantially justified.” To Brennan, the government’s position had to be more than just reasonable – there had to be some true force and persuasion to the government’s position. He also felt Scalia was not recognizing enough “special factors,” and that things like the difficulty of the litigation should be reflected in an upward adjusted fee. White, joined by O’Connor, contended that questions of law were always reviewed de novo, and that questions of whether a government’s legal position was “substantially justified” ought to be no different. He further contended that, under a de novo standard, he would find enough justification for HUD’s position to absolve them of the duty to pay attorneys fees.

Boyle v. United Technologies Corp.

487 U. S. 500

June 27, 1988

A helicopter manufactured by a military contractor crashed, and the pilot died due to design flaws. The pilot’s family wanted to bring a tort action against the manufacturer under Virginia law. The manufacturer contended that the Virginia law was preempted, and that it had immunity from any tort suit because of its status as a government contractor. This government contractor defense had never been explicitly established by the Supreme Court before, and it was now their job to figure out if it existed or not.

The Court ruled 5-4 that the manufacturer was protected by government contractor immunity. Scalia began by explaining that in a few legal areas of “uniquely federal interests” the courts had the ability to fashion federal common law that could preempt state law. Scalia said that the efficient operation of federal contracts was of sufficient importance to render it subject to the courts common lawmaking power. State laws could be preempted if their was a significant conflict between them and the government’s ability to cheaply contract.

A precise formulation of the immunity and range of preemption was needed. The Federal Tort Claims Act exempted from liability all discretionary functions of government employees. Therefore, Scalia reasoned that government contractors were immune from state laws if they manufactured products that reflected the specifications given to them by the government. The pilots family said that the lower court had not used this precise formulation, but Scalia responded that a jury would probably not rule differently if the lower court had.

Brennan, joined by Marshall and Blackmun, was outraged. The majority violated Erie by fashioning common law that was not necessary at all. The burdens suffered by the government when its contractors got sued were minimal, and the losses to those victimized by defective product designs was great. Brennan said that precedents never intimated that contractors ought to have immunity, and instead suggested that they were perfectly liable to state law claims. He argued that the FTCA had no real relevance to the issue at hand. Simply put, the majority was creating immunity without any green light from Congress, and without any compelling policy reasons to do so. Stevens, in a short dissent of his own, also argued that any contractor immunity should be imposed by Congress and not the courts.

I know I must sound like a broken record by now, but I’ll say it yet again: I hate extensive tort liability, but I hate governmental immunity even more. This decision is very frustrating. All term long, there were less than ten occasions when the solid bloc of 5 conservatives beat the solid bloc of 4 liberals. Why did this stupid ruling have to be one of the rare wins, instead of Mills or Liljeberg?

Frisby v. Schultz

487 U. S. 474

June 27, 1988

A large group of pro-life activists peacefully picketed the home of an abortion doctor for several days, until the town passed an ordinance to ban residential picketing. The ordinance was passed with the expressed intent of protecting people in their homes from unwanted psychological harassment. The pro-life activist sued to have this ban struck down by the First Amendment. They argued in a facial challenge that it was overbroad, not narrowly tailored, and not written in service of a compelling interest.

The Supreme Court ruled 6-3 that the ordinance could survive a facial challenge. O’Connor once again slapped down an especially asinine justiciability argument, and moved to the merits. Because it targeted speech on the public fora of roads and sidewalks, the ordinance would have to meet strict scrutiny. Lower courts said the ban was content neutral, and O’Connor interpreted the statute to ban only picketing in front of a single residence, and not mobile picketing throughout an entire residential area. So interpreted, the ban was not overbroad, and O’Connor found that protecting people in their home from unwanted messages was a compelling interest. And because the Court construed the ban to only apply to picketing at a single house, O’Connor felt the ordinance was narrowly tailored to meet the harm it purported to address.

White, concurring in judgment, did not like how the majority unilaterally interpreted the ordinance to not apply to mobile picketing throughout a larger residential vicinity. He thought the ordinance might have a broader reach, but ultimately felt that it was still barely within the limits of constitutionality. Stevens, dissenting, felt the ordinance was overbroad becaue it could, literally read, forbid a kid from holding a sign that said “GET WELL CHARLIE – OUR TEAM NEEDS YOU.” Brennan, joined by Marshall, did not think the ordinance was narrowly tailored. If the state wished to protect people in homes from being harassed, it could allow some picketing, but limit the crowd size, time duration, and noise level. That would serve the compelling interest while suppressing the least amount of speech.

This is, without a doubt, the worst abortion ruling ever made by a conservative majority. O’Connor’s opinion has some shocking language that I can hardly believe Scalia joined. She charged the pro-life activists with behaving in “an especially offensive way.” She was horrified by the “devastating effect” the picketing had on “the quiet enjoyment of the home.” Furthermore, she contended that “the offensive and disturbing nature” of the behavior “could scarcely be questioned.”

Evil loves darkness and hates light because it loves to stay hidden, and hates exposure. The brave pro-life activists were piercing the darkness and exposing evil when they picketed the doctor’s house. The town had a right to know of the serial murderer in its midst, and of his quiet life free from any legal trouble. An intense spotlight was shone on the banality of evil. The town council, loving darkness, and hating the light, twisted justice, and passed an ordinance to silence the latter day prophets. The lonely voices crying in the wilderness were made lonelier still.

Let’s be clear – if you’re a doctor who murders babies, you have no right to complain of emotional trauma and harassment when a light is shone on your demonic barbarity. When you have so much blood on your hands, you have forfeited the right to comfort and peace in your home. God detests nations that spill innocent blood.

Schweiker v. Chilicky

487 U. S. 412

June 24, 1988

For a few years in the early 1980s, the Social Security administration was denying meritorious disability claims left and right. Congress finally stepped in to correct this by passing two different laws in consecutive years. Chilicky and others who temporarily lost their benefits during this era were not satisfied with the remedies provided by Congress. They sought a Bivens remedy – a judicially created cause of action that allowed for citizens to get monetary judgments against government agents who violated Constitutional rights. The question was whether a Bivens remedy should be created to address the alleged Due Process violations of the Social Security administration.

The Court ruled 6-3 that such a remedy would be inappropriate. O’Connor stressed that the Court should treat cautiously when creating new Bivens rights. They should not be created when Congress is capable of addressing the harm, and has decided against allowing redress. O’Connor said that Congress had considered the problem of erroneously denied disability claims several times in the 1980s, and never once hinted that claims against government agents themselves were the solution. Furthermore, allowing claims to proceed would bog down a Social Security administration that was already deeply bogged down in its duties. In a footnote, O’Connor dismissed as moot the question of whether one statute explicitly barred the creation of a Bivens remedy for Social Security violations.

In a concurring opinion, Stevens said that the statue referred to in the footnote did not explicitly bar a Bivens remedy. Brennan, joined by Marshall and Blackmun, was aghast at the majority’s contention that mere backpay of erroneously denied benefits was sufficient compensation for the harms suffered by Chilicky. They deserved extra remedies for the horrendous pain and suffering they endured before getting their disability payments back. Brennan could find no policy reasons for not creating a Bivens remedy. Congress had not, by its silence, communicated an intent to bar a Bivens remedy. Nor was Social Security a domain in which the expertise of Congress ought to be deferred to. He was also unsympathetic to the argument that Bivens suits would bog down the agency.

In the other Bivens case I’ve reviewed so far, I felt the majority was wrong to not allow for the claim. This one, I’m not so sure about. You do feel sorry for what Chilicky endured, but I’m not certain Bivens should be extended to cases where the right violated is partially government created. There is no unadorned Constitutional right to disability payments – it’s very much also a statutory one. I think that’s the place I’d draw the line.

Mississippi Power & Light Co. v. Mississippi ex rel. Moore

487 U. S. 354

June 24, 1988

This was probably the most brutal case I’ve ever confronted. Quite honesty, I couldn’t even read the whole thing because I was so lost, and I had to rely on the syllabus to get the gist. Apologies.

Basically, FERC, a federal energy agency told a Mississippi power company how much electricity it needed to buy, and at what rate. A Mississippi agency then set retail rates based on what would enable the company to recover its expenditures. But it was argued that the company had imprudently wasted money building a nuclear power plant, and that only prudent expenditures could be passed on to consumers. The question was whether FERC’s setting of  wholesale rates preempted state agencies from considering whether the expenditures of power companies were prudent, and adjusting retail rates accordingly.

The Court ruled 6-3 that there was preemption. Stevens said that the case was pretty much controlled by a precedent called Nantahala, which generally disallowed state agencies from setting retail rates that wouldn’t allow power companies to recoup the investment made in buying the set quota of energy at rates set by FERC. Stevens said that any differences between that case and the instant case were negligible. He thought that FERC was entitled to take the prudence of a power company’s projects and expenditures into account when setting wholesale rates, and that states could not attack FERC’s final judgment by re-litigating the question of prudence after the fact, and monkeying with the retail rates to relieve consumers.

Scalia concurred in judgment. To him, it was a simple Chevron case. FERC had asserted the power to review the prudence of the decisions of power companies when setting wholesale rates, and since this was not flatly inconsistent with the underlying statutes, FERC deserved the Court’s deference. Brennan, joined by Marshall and Blackmun, did not find any statutory authority for FERC to deal with questions of prudence, and contended that it was still the domain of states, at least as it related to setting retail rates. It was simply beyond agency purview, and thus not entitled to Chevron deference. Furthermore, the central question of prudence served as an adequate basis to distinguish Nantahala, which did not squarely address that precise issue.

Torres v. Oakland Scavenger Co.

487 U. S. 312

June 24, 1988

Jose Torres was one of 16 people who was appealing a District Court ruling. Unfortunately, due to clerical error, his name was left off the list of people in the formal appeal. The Appeals Court refused to allow him to be part of the case, reasoning that without formal notice of appeal, it quite simply had no jurisdiction pertaining to him. Torres countered that the appeal rules were not meant to penalize minor errors and technicalities.

The Supreme Court left Torres high and dry in an 8-1 ruling. Marshall said that appeal rules should be interpreted liberally, but that this liberality could not be extended to instances where no jurisdiction existed. Without his name in the official appeal, a court could simply offer Torres no cognizance. Scalia, concurring in judgment, didn’t even like Marshall’s assertion that any spirit of liberality should animate application of the rules.

Brennan waged a lonely dissent. Rather than sum it up, I’ll quote the final paragraph. “After today’s ruling, appellees will be able to capitalize on mere clerical errors and secure the dismissal of unnamed appellants no matter how meritorious the appellant’s claims and no matter how obvious the appellant’s intention to seek appellate review, and courts of appeals will be powerless to correct even the most manifest of resulting injustices. The Court identifies no policy supporting, let alone requiring, this harsh rule, which I believe is patently inconsistent not only with the liberal spirit underlying the Federal Rules, but with Rule 2’s express authorization permitting courts of appeals to forgive noncompliance where good cause for such forgiveness is shown. Instead, the Court simply announces by fiat that the omission of a party’s name from a notice of appeal can never serve the function of notice, thereby converting what is in essence a factual question into an inflexible rule of convenience.”

All right, NOW I’m mad at the majority in Houston. If you’re going to be activist about jurisdiction, at least be consistent about it. Worse yet, Brennan makes a great case that pleading the case of Jose Torres wasn’t even activism, but just what the law demanded. I myself would have joined Brennan’s opinion. Torres got screwed over badly, and if a majority of the Justices were going to press the case of Houston, they should have pressed his case too.

Houston v. Lack

487 U. S. 266

June 24, 1988

A prisoner without a lawyer mailed off a Habeas appeal. Although he put it in the prison mail three days early, it arrived at the clerk’s office one day late. Under the Habeas jurisdiction statute, the 30 day filing deadline for an appeal was completely mandatory. In a desperate bid to save his appeal, the prisoner, Prentiss Houston, argued that the appeal should be considered filed when placed in the prison’s mail.

The Supreme Court agreed in a 5-4 vote. Brennan said that the word “filed” was slightly ambiguous – just ambiguous enough to allow a new rule that placing an appeal in the prison mail system constituted filing. Brennan stressed that in non-prison contexts, the standard rule of the appeal needing to reach the clerk’s office still applied. This special rule was necessary because a prisoner without a lawyer has no way to take extra precautions, and has to trust everything to the prison mailbox.

Scalia, joined by Rehnquist, O’Connor, and Kennedy, dissented. He said what everyone really knew: that “filed” meant filed in the clerk’s office, and that Brennan’s plea of ambiguity fooled no one. He felt Brennan was especially going rogue in making “filed” have a different definition solely for the prison system. Scalia contended that the word ought to have just one meaning. He also rejected some additional arguments put forth by Houston that the majority did not address. His answer to all of them was essentially ‘rules are rules.’ Scalia noted that the Supreme Court itself had the power to change this particular rule, and should have done so rather than resort to an activist judicial ruling.

So, let’s be honest, this ruling was blatant activism. And yet, I’m finding it absolutely impossible to get angry at the majority. As Charles Dickens once wrote, here’s an instance where “the law is a ass.” Scalia’s dissent is obviously correct on the merits, but it’s really missing some empathy in its tone.