Category Archives: Marshall

Lockhart v. Nelson

488 U. S. 33

November 14, 1988

Criminals could be sentenced to extra time if they could be proved ‘habitual offenders’ by the introduction of four prior convictions. Four prior convictions were offered for burglar Johnny Lee Nelson, but it was later discovered that one of those convictions had been pardoned by Governor Orval Faubus. Nelson argued that he could not be retried because of the Double Jeopardy clause. A case called Burks v. United States held that Double Jeopardy applied when a sentence was overturned on the basis of insufficient evidence. The government argued that introducing the pardoned conviction was a simple trial error, and that the rule against Double Jeopardy for insufficient evidence did not apply.

The Court held 6-3 that introducing the pardoned conviction was a trial error, and that a new trial was possible. Rehnquist stated that Burks was about protecting suspects when the government had totally failed to prove its case in the original trial. Here, a seemingly valid conviction had been introduced at trial, and Nelson’s sentence was later overturned because that conviction’s admission was in error. Rehnquist said that simple errors in admission of evidence were not the same as a simple lack of evidence, erroneous or not. He thus allowed the government to retry Nelson, and introduce four valid prior convictions.

Marshall, joined by Brennan and Blackmun, dissented. Marshall stressed that pardons totally expunge the conviction. Thus, the admission of that conviction into evidence was effectively like admitting a blank piece of paper into evidence. That, he contended, would certainly be a simple instance of insufficient evidence. The government needed to produce four prior convictions, and they produced only three. Marshall also complained that the majority was hasty and conclusory in its opinion, quite in contrast to the careful consideration usually found in the Court’s other Double Jeopardy cases.

Shell Oil Co. v. Iowa Dept. of Revenue

488 U. S. 19

November 8, 1988

Shell extracted much of its oil from the outer continental shelf, which is all the land beneath the first three miles of coastal waters. Iowa imposed an income tax on Shell for the business it did in Iowa, but Shell contended that it was partially immune from the tax due to the oil it sold there from the continental shelf. Shell said that the Outer Continental Shelf Lands Act (OCSLA) exempted all oil and gas extracted from state taxation laws.

The Supreme Court unanimously ruled that Iowa’s tax was not preempted by OCSLA. Marshall said that when the text of OCSLA is carefully parsed, it only bans taxation by states adjacent to the continental shelf itself. Marshall showed that this was the correct interpretation through recourse to legislative history. While a state like California could not tax the business activity of extracting oil just off its coast, all states remained free to tax the refined oil and gas that was eventually sold within state lines. Thus, Iowa’s income tax on all the oil and gas sold by Shell within the state was just fine.

While this ruling was pretty trivial, the day it was announced was momentous. That evening, Bush slaughtered Dukakis in the Electoral College. Reportedly, Brennan, Marshall, and Blackmun watched stonily as the election results rolled in. They had all stubbornly stayed on the Court throughout the eight Reagan years, but now they faced either four or eight years from the Bush-Quayle team. The future of the liberal bloc looked grim indeed.

Pennsylvania v. Bruder

488 U. S. 9

October 31, 1988

A police officer stopped a car that was driving erratically and ran a red light. During the stop, the police officer observed signs of intoxication, and asked if the driver had been drinking. He answered in the affirmative, and subsequently failed a sobriety test. The driver was then arrested and given the Miranda warning. The issue was whether the officer’s question about drinking before the arrest was unconstitutional without a prior Miranda warning.

The Supreme Court ruled 7-2 that the officer’s question was Constitutionally sound. In a per curiam opinion, the Court said that the facts of the case were almost identical to those in Berkemer v. McCarty. In Berkemer, the Court had ruled that questioning during a traffic stop was not custodial investigation, and did not require prior administration of the Miranda warning. The same principle applied in the case at hand.

Marshall filed his customary dissent against any and all summary judgments by the Court. Stevens, joined by Marshall, whined that certiorari should not have been granted, because the case involved absolutely no novel question of law. In his view, the Court should never take a case without a doctrinal aim in mind, and should never reverse a judgment merely because it’s erroneous.

Justice Stevens is colossally and staggering wrong. The Court’s mandate is not to resolve interesting doctrinal puzzles, but impartially administer justice. Real people are affected by lawless lower court rulings, and the Supreme Court is often their only hope of vindication. Telling them that their cases aren’t doctrinally interesting enough to reverse is the height of banally unjust cruelty.

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.

Murray v. United States

487 U. S. 533

June 27, 1988

Police entered a warehouse without a warrant and saw several suspicious looking bales in plain view. Not mentioning any of this in their request, these officers got a warrant, and seized the bales, which contained marijuana. An earlier case called Segura allowed for evidence seized with a warrant to stand, even if the police had earlier made an illegal entry, provided that the warrant was not based on any evidence gained from the previous entry. The question was whether the Segura doctrine applied in this case, where apparent evidence had been in plain view.

The Court ruled 4-3 that such evidence need not be suppressed (Brennan and Kennedy did not participate). As long as the warrant was in no way based on evidence from the previous entry, it made no difference whether the evidence ultimately seized had been previously visible or not. He found support for the conclusion in the inevitable discovery doctrine, which allowed for even illegally seized evidence to come in if it would have inevitably been found by legal means. Scalia did not think this rule would encourage bad police behavior, but did remand to determine whether the policemen would have applied for a warrant without seeing the bales.

Marshall, joined by Stevens and O’Connor, dissented. He thought it almost certain that the police only applied for a warrant because they saw the bales. He thought this extension of the Segura rule would positively encourage bad conduct by the police. Just do an illegal search, and don’t bother getting a warrant unless you see evidence of wrongdoing. The potential for abuse was simply too high, and greater deterrence was needed. Stevens, in his own dissent, registered his continuing belief that Segura itself was wrongly decided and should be overruled.

Kadrmas v. Dickinson Public Schools

487 U. S. 450

June 24, 1988

In North Dakota, rural school districts were urged to “reorganize” or consolidate. A law passed by the legislature allowed non-reorganized school districts to charge a fee for school bus transportation. The Kadrmas family, who lived near poverty level, objected to paying the bus fee in their non-reorganized school district. They argued that it violated the Equal Protection clause because reorganized school districts did not require a fee, and that it violated a more general right to education.

The Supreme Court disagreed in a 5-4 vote. O’Connor began by brushing aside a truly asinine and meritless standing challenge. Turning to the merits, she said that there was no Constitutional right to public schooling, and that laws which cast a greater burden on the poor were not inherently unconstitutional. The law served a rational purpose of helping public schools cover transportation costs, and that was enough. Although the Court had previously ruled that certain judicial proceedings be provided free of charge, O’Connor distinguished those by saying that no other remedy existed. In contrast, there were other means of getting to school apart from buses, and indeed, Sarita Kadrmas had never missed a day of school. The Equal Protection challenge was turned back because the state had a valid reason for distinguishing between reorganized and non-reorganized districts – namely, encouraging the non-reorganized ones to reorganize.

Stevens, joined by Blackmun, asserted that encouraging reorganization was not a good enough reason to allow for the charging of bus fees. He would find an Equal Protection violation. Marshall, joined by Brennan, huffed about how insensitive the Court was being to poor people. Because of the paramount social importance of education, Marshall felt that law which imposed heavy burdens on poor pupils needed to be struck down. He also felt that the majority was not following the principles of the 1982 Plyler v. Doe ruling, which required states to accept illegal immigrants into the school system.

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.

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.

Ross v. Oklahoma

487 U. S. 81

June 22, 1988

When an Oklahoma court failed to excuse a potential juror from a capital sentencing panel, as required by Witherspoon, the defense lawyer eliminated this potential juror through a peremptory challenge. The defense ultimately used up all its peremptory challenges. When a death sentence was returned, Ross argued that it violated the Eighth Amendment because he lost one of his peremptory challenges to correct the court’s erroneous decision not to exlude an unqualified juror. Under last year’s Gray ruling, any errors that affected jury composition required overturning a death sentence.

The Court ruled 5-4 that the death sentence could stand. Rehnquist stressed that the final jury was conceded to be impartial and free of unqualified jurors, and that such a jury’s decision deserved the Court’s deference. With some unease, Rehnquist distinguished Gray as follows: “We decline to extend the rule of Gray beyond its context: the erroneous “Witherspoon exclusion” of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Finally, Rehnquist observed that losing one peremptory challenge was no great loss, because states could vary the precise amount of peremptory challenges, because Oklahoma law explicitly noted that they could sometimes be used to strike jurors for cause, and because Court precedents had allowed states to impose various limits on their usage.

Marshall, joined by Brennan, Blackmun, and Stevens, would have none of this. Gray controlled the case, plain and simple. Gray said that any error which could potentially affect the final jury composition required overturning the death sentence. Because Ross might have used his wasted peremptory challenge on another juror, the jury’s composition was potentially affected. Marshall found the majority’s grounds for distinguishing Gray totally unconvincing. He also said that peremptory challenges, once given, should be seen as entitlements that the state could not force the sacrifice of in order to correct a judge’s error.

This is one of those instances where the majority reached the right result for the wrong reasons. Gray obviously controlled, and could not be adequately distinguished. The majority should have had the courage and intellectual honesty to overrule it. Instead, they were a bunch of intellectually dishonest cowards, and they did the ‘we confine the reach of this precedent to its immediate facts’ thing. Screw that – Gray deserved to be overruled. In my final roundup of the 1986-1987 term, I even rated it as one of the four worst decisions of the entire year.

The Supreme Court never wants it to be thought that previous decisions can be overruled entirely on the basis of membership changes. This is, I’m fairly certain, the key to the majority’s intellectual dishonesty. Powell was gone, and Kennedy was his replacement. Gray would have been overruled based on a mere membership change. Yet again, here is a creepy prefiguring of Planned Parenthood v. Casey, in which Roe was reaffirmed, in part, because of the worry that overruling it would be accounted wholly to membership changes.

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.