Category Archives: Kennedy

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.


Sheridan v. United States

487 U. S. 392

June 24, 1988

Some soldiers failed to keep control of another soldier who was drunk and had a gun. He drunkenly shot some people in a car. The injured people in the car sued. The Federal Tort Claim Act (FTCA) barred torts against government agents where the claim arose out of assault and battery. The government claimed that the drunken soldier’s assault and battery was the fount of the claim, so it had to fail, even if the other soldiers had acted negligently. The injured people claimed that the assailant was not acting within the scope of his employment, so the only true government action did in fact arise from negligence.

The Court ruled 6-3 that the FTCA did not bar the tort claim. Stevens argued that a negligence claim against the government would not “arise” from assault and battery if the assailant had not been connected with the government at all. Because the assailant was not acting within the scope of his employment, there seemed no reason to distinguish the two cases merely due to the accident that the assailant happened to be on the government payroll. Thus, if negligence was the only alleged government action, a FTCA claim could go forward even if it incidentally involved assault and battery that was not government action.

In a concurrence, White confessed that he had once joined an opinion which suggested the opposite of what the majority ruled. Nonetheless, White gamely admitted that he had changed his mind. Kennedy, concurring in judgment, worried that the majority was on the road to obliterating the assault and battery exception from the FTCA entirely, but felt that the facts of the current case warranted allowing the claim to proceed. He also faulted the dissent for its contention that all claims involving assault in their fact patterns would have to be barred.

O’Connor, joined by Rehnquist and Scalia, dissented. She contended that when assault and battery were the direct cause of the injuries complained of, the FTCA flatly banned any claims. She charged the majority with both ignoring and twisting precedents to support its conclusion, and also argued that legislative history supported her own point of view.

I’ve stated my views on these kinds of cases a few times already, but I will do so again. I really hate torts and broad tort liability. But, even so, I hate government immunity even more. Thus, I can only cheer on the majority, and even congratulate Justice White for owning up to a change of heart.

Bank of Nova Scotia v. United States

487 U. S. 250

June 22, 1988

A prosecutor led a grand jury on a lawless witch hunt against a bank and several associated individuals. The prosecutor violated several grand jury rules to secure 27 indictments. A District Court dismissed all the indictments because of the violations, using its supervisory power as a court of law. The government tried to salvage the case by claiming that the District Court could not exercise such a supervisory power unless the defendants were prejudiced by the violations, and that the alleged violations were all harmless error.

Regrettably, the Supreme Court agreed in an 8-1 vote. Kennedy said that Rule 52(a) very strongly implied that indictments could only be dismissed upon a finding of harmful error to the defendant. The indictments could be dismissed only if the abuses had substantial likelihood of pushing the grand jury to indict. Kennedy then went through an impressively long listing of prosecutorial abuse. For each and every instance, Kennedy found a way to argue that it probably would not have affected the grand jury’s final decision. Because all the errors were somehow harmless, the indictments had to be reinstated.

Scalia, concurring, noted that a District Court’s supervisory powers should generally be construed narrowly. Marshall filed a lonely dissent. He pointed out that it was extremely difficult to discover instances of prosecutorial abuse during a grand jury phase because of all the attendant secrecy. He contended that insulating prosecutors even further with a harmless error analysis was unfair. “Today’s decision reduces [grand jury rules] to little more than a code of honor that prosecutors can violate with virtual impunity.”

I think what really bothered me about this case was not the legal holding, but the majority’s application of it. I’m all for a single instance of harmless error being forgiven. What strained my credulity were the majority’s casual assurances that every single one of the long list of errors were all coincidentally harmless.


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 before 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.


Braswell v. United States

487 U. S. 99

June 22, 1988

Randy Braswell was served with a subpoena to turn over records of a corporation which was basically his alter ego. Braswell argued that producing the requested documents would be a testimonial act, and that it might incriminate himself. He therefore sought to avoid producing the documents under the Fifth Amendment. At a minimum, he said, he had to be afforded immunity for the production. The government responded that under the collective entity rule, he could not assert such a privilege.

The Supreme Court ruled 5-4 that the Fifth Amendment could not be invoked. Rehnquist admitted that the Court had previously found that producing documents was testimonial, but that this rule only applied when the documents of a sole proprietorship were sought. When the documents of a corporation were sought, the custodial of the documents acted as an agent of the corporation – in other words, Braswell would not be asserting a privilege for himself, but for the corporation as a whole. And under a long line of cases, the collective entity rule had been established that corporations could not defeat subpoenas by invoking Fifth Amendment rights.

A case called Curcio where the Fifth Amendment protected a custodian from orally disclosing the location of documents was distinguished, because it involved verbal testimony. Rehnquist said that requiring a grant of immunity was a bad idea because it would make prosecuting certain crimes more difficult. Finally, he added a disclaimer that the government could never inform a judge or jury of the custodian’s personal identity.

Kennedy, joined by Brennan, Marshall, and Scalia, dissented. Everyone knew that the production of documents was a form of testimony, and Court precedents had held as much. Furthermore, Curcio could not be adequately distinguished because all testimony, verbal and non-verbal, gets Fifth Amendment protection. While corporate documents could not be shielded by the Amendment, none of the previous collective entity cases had held that the act of production itself was not self-incrimination. Kennedy said the majority stretched agency law too far, and that the government seemed to have targeted Braswell by the subpoena far more than his corporation. He also noted that the majority’s final disclaimer seemed to have no legal foundation. With respect to the majority’s public policy concerns, Kennedy replied that the Constitution’s text trumped them.

Kennedy eviscerated the majority opinion. It’s shameful that Rehnquist got five votes for his bit of pro-prosecution activism. It’s no fun to see made up rights, with no basis in the Constitution get recognized in some cases, and then see the actual text and substance of the Constitution ignored in others.


United States Catholic Conference v. Abortion Rights Mobilization, Inc.

487 U. S. 72

June 20, 1988

An abortion rights group sued the IRS to get the Roman Catholic Church’s tax exempt status revoked. It served a subpoena on the United States Catholic Conference, demanding evidence to be used in the suit. The Catholic Conference refused, and the court held them in contempt. The Conference challenged the contempt on the grounds that the court had no subject matter jurisdiction in the underlying suit. The question before the Supreme Court was whether a non-party witness could challenge a contempt ruling because of an alleged lack of subject matter jurisdiction.

The Court ruled 8-1 that such a challenge could be mounted. As Kennedy explained, subject matter jurisdiction was absolutely fundamental to all workings of any Article III court. Without such jurisdiction, any and all actions of the court were absolutely void. An old precedent about grand juries was easily distinguished, and concerns that challenges to jurisdiction might be abused were brushed aside as irrelevant. Anyone, even a non-party witness, was allowed to point out that the court had no legal grounds for being in session. Marshall dissented, and did the ‘read what the lower court judge said’ thing in lieu of explaining why.

The Court’s decision was obviously correct; elementary in fact. The underlying legal dispute though, is the very face of evil. Not content with murdering babies, the abortion rights group was trying to cripple the Catholic Church for daring to speak up in defense of those babies. If anyone wants to know why Donald Trump has pledged to overturn the horrific Johnson amendment on religious involvement in politics, this is the reason why.

Civil politics is an intrinsically spiritual domain. The nation who uses its laws to honor God and do good is blessed. The nation who uses its laws to dishonor God and do evil is cursed. It is Christian churches, above all other organizations, who ought to be involved in civil politics the most. No other group is so well equipped to discern when a legal policy is murderous and reprobate. Back in the late 1960s, when states first began legalization abortion for rape, incest, and birth defects, the Catholic Church stood almost alone in opposition. They alone perceived the beginning of a great genocide, and they alone raised the prophetic voice of alarm.

God will judge America one day for its legal system’s open embrace of sin. And God will also judge those who tried to cripple and silence the lonely voices in the wilderness who tried to fight back.


Supreme Court of Va. v. Friedman

487 U. S. 59

June 20, 1988

Virginia allowed lawyers licensed in other states to skip the Virginia Bar Exam if they lived in Virginia. Myrna Friedman, licensed by Illinois and DC, had worked in Virginia for many years, but lived across the river in Maryland. She applied for admission without the Bar Exam, but was denied because of her Maryland residency. Friedman charged that this rule violated the Privileges and Immunities clause, especially because a recent Supreme Court ruling prohibited states from denying non-residents a law license if they passed the state bar exam.

The Court ruled 7-2 that Virginia could not enforce its rule. Kennedy claimed that the Privileges and Immunities clause protected the rights of citizens to practice law regardless of state residency, and that laws burdening this were suspect. That Friedman could still be licensed by passing the Virginia Bar Exam was irrelevant, because it was a needless extra burden. Kennedy was unimpressed by Virginia’s argument that the rule was necessary to ensure the familiarity with Virginia law of those who got licensed. Friedman was clearly familiar with Virginia law. In any event, a different rule that Virginia lawyers had to practice in Virginia was sufficient for all the ends the state wished to achieve.

Rehnquist, joined by Scalia, dissented. He refused to accept that requiring residency for a law license violated the Privileges and Immunities clause (and he referred to a previous dissent for a more in depth explanation of why). He concluded that the Court’s dumb ruling could very well encourage Virginia to eliminate all reciprocity, and thus require all applicants to take the Bar Exam.

Supreme Court activism might be most blatantly visible not when it’s applied toward an evil end like abortion, but when it’s applied toward a merely dumb end like bar admission. When activism serves an evil cause, it’s easy to care more about the terrible real world effects of the decision than the reasoning behind the decision itself. Conversely, when activism is employed to reach a stupid but basically harmless result, the activism sticks out far more prominently.


Stewart Organization, Inc. v. Ricoh Corp.

487 U. S. 22

June 20, 1988

A contract dispute from Alabama went to federal court. The contract said that venue would be in New York, but Alabama had a state policy against putting binding venue selection in contracts. The question was whether Alabama’s federal court had to follow the state policy, or if it could consider it preempted by federal jurisdiction rules. The dispute centered on Section 1404(a). It said “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

The Supreme Court ruled 8-1 that 1404(a) governed the situation. Marshall identified the key issue as whether or not 1404(a) was meant to cover the general topic of forum selection clauses. He said it was, because forum selection clauses bear heavily on any possible transfers, and the interests of justice in ordering them. Marshall thought 1404(a) was a perfectly reasonable housekeeping rule, and allowed it to preempt any Alabama policies on the topic. He stressed that the federal courts would still weigh the equities of transfer – they would make neither state policies nor forum selection clauses dispositive, but would consider both along with other factors.

Kennedy, joined by O’Connor, concurred to say that federal courts should almost always follow venue selection clauses, unless there was a really strong reason not to. Scalia dissented. He felt the wording of 1404(a) was too vague to¬† conclude that it covered forum selection clauses, especially given that other federal jurisdiction rules covered arbitration clauses far more specifically. Scalia also felt that the majority’s interpretation was inconsistent with the policy goals of the Erie doctrine. It wouldn’t, he contented, stop forum shopping, and it could produce inequitable administration of the law.

I really hate lawyers who will fight to the death over every single stupid little jurisdictional thing. These meta-lawsuits – lawsuits about lawsuits – clog up way too much of the Supreme Court’s valuable time. After I read this case’s first sentence (“This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.”) I actually said aloud “Oh, for crap’s sake.” The Court did, at least, make the right decision. When you agree to a venue selection clause in a contract, pacta sunt servanda should prevail.


Bendix Autolite Corp. v. Midwesco Enterprises, Inc.

486 U. S. 888

June 17, 1988

Ohio had a 4 year statute of limitations on contract disputes. But that time limit was tolled if the corporation being sued was out-of-state, unless the corporation had a designated agent in Ohio. When an Illinois corporation without an Ohio agent was sued six years after a contract, it argued that Ohio’s strange law discriminated against interstate commerce. It forced a choice between being subject to Ohio’s general jurisdiction, or being subject to contract disputes without any time limit.

The Supreme Court ruled 8-1 that Ohio was violating the Commerce clause. Kennedy said that being subject to general Ohio jurisdiction was a significant burden, and that not being able to take advantage of a statute of limitations was another significant burden. Because only out-of-state corporations had to choose between these two burdens, and because there was little compelling interest for Ohio’s law, there was clear discrimination against interstate commerce, and the law had to go.

Scalia concurred in judgment. He had difficulty assessing just how burdensome the alleged burdens were. He absolutely hated the ‘balancing’ that the Supreme Court did in state commerce cases. “[T]he scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.” He would leave all balancing to Congress, where it belonged. Nonetheless, he did agree that in this case Ohio’s law did blatantly discriminate against foreign corporations.

Rehnquist filed a cryptic dissent, which argued that Ohio’s law had some non-obvious similarities to other state laws that the Supreme Court had upheld. His argument is a bit too subtle and underdeveloped for me to fairly evaluate it.


Mackey v. Lanier Collection Agency & Service, Inc.

486 U. S. 825

June 17, 1988

Creditors tried to obtain money by garnishing an ERISA employee welfare plan. A Georgia law banned garnishing ERISA plans, but this law was said to be pre-empted by ERISA itself. Additionally, the debtors argued that even without the Georgia law, the suits for garnishing were also pre-empted by ERISA. ERISA did openly say that state laws about ERISA were pre-empted, and it did prohibit any garnishment of employee pension plans, but it was murkier about employee welfare plans.

The Court unanimously ruled that the Georgia law was pre-empted, but split 5-4 about the garnishment. White said the Georgia law was flatly banned by the text of ERISA, and that was that. With respect to the garnishment question, White observed that the law did seem to tacitly assume in a few places that employee welfare plans might be sued. He also emphasized that the part of the law explicitly protecting pension plans from garnishment would be surplusage if all plans were meant to be implicitly protected from garnishment. Finally, White rejected the argument that Congress seemed to reject the possibility of welfare plan garnishment when they amended ERISA in 1984. He contended that the intent of the original drafters was what mattered, and not latter amending legislators.

Kennedy, joined by Blackmun, O’Connor, and Scalia, dissented. He argued that some of the law’s features that implicitly pointed to allowing garnishment suits were being wrongly construed. He stressed that garnishment was extremely disruptive to ERISA plans. ERISA pre-empted state laws relating to plans, and if garnishment was so disruptive, then Kennedy felt that state laws allowing the procedure qualified. While the text specifically exempting pension plans was mildly redundant, Kennedy said that the majority’s refusal to come to grips with the 1984 amendments constituted far worse violence against the statutory text. The intent behind the amendment could not be ignored or dismissed on the argument that only the original drafters were relevant.

I’m all in favor of debts being paid, but Kennedy really is right about the effect of the 1984 amendments. The majority’s treatment of that argument is clearly cavalier, and I’m surprised that White got five votes for it.