Category Archives: O’Connor

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.

 

Advertisements

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.

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.

Thompson v. Oklahoma

487 U. S. 815

June 29, 1988

William Wayne Thompson committed a brutal murder and was sentenced to die. But Thompson was only 15 years old at the time, and argued that the death penalty would be cruel and unusual punishment. While 15 year olds had been routinely executed long ago, the Supreme Court had long since established that it would strike down sentences which did not comport with the nation’s “evolving standards of decency.” The Court had to decide whether or not to strike down Thompson’s sentence on that basis.

The Court struck down his sentence 5-3 (Kennedy did not participate). Stevens, writing for a plurality with Brenna, Marshall, and Blackmun, said that the nation’s “evolving standards of decency” flatly prohibited execution for a murder committed at age 15. Nearly two thirds of the states banned the practice, and the remaining third only allowed it by tacit implication. He doubted that many of those states explicitly intended to allow it. Executions for under-16 murderers had become vanishingly rare, and none had occurred in 40 years. Stevens stressed that 15 was still a tender age, and that children of that age were denied the right to smoke, marry, drive, or vote in all or most states.

O’Connor concurred in judgment, and provided the fifth vote to vacate the death sentence. She was hesitant to find a national consensus against executing under-16 murderers, finding the answer to that question murky rather than obvious. Nevertheless, like Stevens, she wasn’t sure whether Oklahoma, by allowing 15 year olds to be tried as adults in rare circumstances, had really intended to allow for the imposition of the death penalty in these rare cases. Unless a state explicitly spelled out that 15 year olds were eligible for capital punishment, she refused to allow executions.

Scalia, joined by Rehnquist and White, wrote a valiant dissent. He showed that Oklahoma had carefully weighed the propriety of sentencing Thompson to death in every stage in the proceedings. Given this extensive consideration by the prosecutors, judge, and jury, it made no sense to hold that the jury’s ruling was somehow contrary to a national consensus. Many state laws allowed execution as a punishment for under-16s, and there was no reason to presume that these states didn’t know what their own laws meant. Furthermore, the rarity of the penalty’s imposition meant nothing, or else one could just as easily argue that a national consensus existed against executing women. Scalia pointed out the undeniable fact that many 15 year olds clearly understand the consequences of committing murder. As for O’Connor’s concurrence, it was a totally lawless attempt to split the baby. Finally, he quickly disposed of an alternate ground for vacating the sentence which the majority did not address.

I absolutely agree with everything in Scalia’s dissent, with the exception of his disheartening admission that even he accepts the awful “evolving standards of decency” test. It’s one of the worst constitutional distortions ever; Trop v. Dulles deserves to be near the very top of any shortlist of the Warren Court’s blatant activism. Logically, the “evolving standards of decency” test cannot possibly be correct, because it would hypothetically permit the most torturous of punishments to be imposed if society “evolved” to find them no longer cruel.

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.

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.

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.

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.

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.

Franklin v. Lynaugh

487 U. S. 164

June 22, 1988

In Texas, a defendant is sentenced to death if the jury answers ‘yes’ to two questions focused on the defendant’s substantial guilt, and his future danger to the community. The Supreme Court upheld this sentencing process in a case called Jurek. Nonetheless, one convict challenged his sentence by claiming that the jury did not have adequate opportunity under the two questions to consider his good behavior in prison, and any lingering doubts about his guilt. Under the Lockett-Eddings line of cases, juries had to be given the chance to weight any mitigating evidence.

The Court ruled 6-3 that the jury had an adequate opportunity to consider all the mitigating evidence. White, joined by Rehnquist, Scalia, and Kennedy, said that there is no Eighth Amendment right to have the jury consider lingering residual doubt over the defendant’s guilt (indeed, all nine Justices agreed with this proposition). Turning to the prison behavior issue, White said that this would naturally be considered under the jury question about the defendant’s future danger to the community. Since the Court had found the Texas system Constitutional in Jurek, White was loath to entertain doubts about it now. And indeed, it was quite appropriate for states to have preexisting systems in place to channel and foster proper consideration of mitigating evidence.

O’Connor, joined by Blackmun, said that the Jurek framework would sometimes be insufficient for certain mitigating factors. Nonetheless, she agreed that good prison behavior did go directly to the question of the defendant’s future danger. Thus, in the facts of this particular case, the jury questions allowed for the consideration of all relevant mitigating evidence.

Stevens, joined by Brennan and Marshall, dissented. He contended that the prison behavior issue communicated two different things about the defendant. First, it communicated that he would not be a danger in the future. But it also communicated that he was a decent person in the past. A precedent calledĀ SkipperĀ had recognized this subtle distinction. The Jurek system did not allow for proper consideration of mitigating evidence relevant to a defendant’s good behavior in the past. Stevens stressed that the Jurek case only upheld the system against a facial challenge, and that in the facts of this case, the jury was indeed denied the opportunity to weigh all of the facets of the prison behavior evidence.

With prosecutors having to deal with junk appeals like this, it’s a wonder that anyone gets executed at all. The most appalling part of the decision was a footnote where we learn that defendant Franklin had been sentenced to death three separate times for the same murder. The first two sentences, we can safely assume, were overturned on the basis of some similarly trivial BS.