Category Archives: Powell

Burger v. Kemp

483 U. S. 776

June 26, 1987

In 1977, Christopher Burger and Thomas Stevens kidnapped a taxi driver named Roger Honeycutt. Honeycutt was eventually locked in the trunk of his taxi, and then Burger drove the taxi into a pond, where Honeycutt was left to drown. Both Burger and Stevens were sentenced to death at separate trials, but Alvin Leaphart, Burger’s lawyer, was the law partner of Stevens’ lawyer. Burger argued that this was an impermissible conflict of interest, and that Leaphart failed to present adequate mitigating evidence at sentencing.

The Court affirmed Burger’s conviction 5-4. Justice Stevens started with the conflict of interest argument, and pointed out that a single lawyer could Constitutionally represent co-defendants. Stevens was unmoved by claims that certain strategic decisions were not taken by Leaphart because of his relationship with the other lawyer; these claims, he said, were mere speculation. Moving on to the inadequate representation issue, Stevens showed that Leaphart had pursued several avenues in a search for mitigating evidence, and had decided not to use several witnesses at trial only because he thought they would harm Burger’s case. While some stones had not been turned over, Leaphart had clearly met the Constitutional minimum.

Blackmun wrote a dissent joined by Brennan and Marshall. His arguments were very fact specific, and they basically amounted to little more than a metric ton of Monday morning quarterbacking. In short, Leaphart’s relationship with Stevens’ lawyer did create a prejudicial conflict of interest, and Leaphart did fail to do a decent job amassing mitigating evidence during the sentencing phase. Powell joined the section about mitigating evidence, and tossed off a dissent of his own which was joined by Brennan. It stressed that Burger had a crappy childhood, was only 17, and had a mental age of about 12. None of this was brought up as mitigation by Leaphart.

I must admit, even when I was 12, I knew that it was unvarnished evil to drown a kidnapping victim in a locked car trunk. It’s bad enough that the four dissenters did not believe Burger deserved death, but it’s made all the worse by the fact that attempted tried to throw a decent lawyer under the bus as a means to save the monster. This was Powell’s final opinion ever, and he closed on a low note. Sadly, it was a note that his replacement has been all too eager to sound in the years since.


Greer v. Miller

483 U. S. 756

June 26, 1987

While on trial for murder with two other defendants, Charles Miller testified that he had not been a part of the murder, but was merely told about it afterward. The prosecutor asked why Miller had never made this claim prior to trial. This question was overruled by the judge, because under Doyle v. Ohio, post-Miranda silence cannot be used against a defendant at trial. After conviction, Miller argued that the prosecutor’s question was a non-harmless Doyle violation that required overturning the trial verdict.

The Supreme Court ruled 5-4 that no Doyle violation had occurred, and that regardless, the prosecutor’s question was harmless error. Powell said that Doyle violations only occurred when questioning silence was allowed, not when it was immediately overruled and never mentioned again. While asking the question was improper, it was only a few seconds in an extensive trial, and the Illinois Supreme Court had concluded that it did not constitute harmful error. Following their lead, Powell held that the prosecutor’s error was harmless.

Stevens said that commenting on postMiranda silence is still a Doyle violation, even if immediately overruled by a judge. He also thought this error was not harmless. But because the case was before the Court on collateral, rather than direct review, Stevens thought the Court should refrain from voiding the conviction. Brennan, joined by Marshall and Blackmun, railed at length about how harmful even a brief and overruled question about silence could be to a defendant’s case. He concluded that a Doyle violation had clearly occurred. Strangely, Brennan didn’t even address the harmless error issue (it was the last day of the term – my guess is that he simply ran out of time).

The majority got it right. We shouldn’t be making mountains out of molehills. Voiding a conviction over an overruled five second question is asinine. But what most struck me about the case was how terrible the Stevens concurrence is. Whether a conviction stands or not shouldn’t depend on the arcane direct v. collateral distinction! If a conviction shouldn’t have happened, it shouldn’t stand – period.

San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.

483 U. S. 522

June 25, 1987

The Amateur Sports Act gave the United States Olympic Committee (USOC) an ultra-strong tradmark in the word “Olympic.” Anyone wishing to use the word would have to get permission from the USOC first, even if the usage would not be confusing, as is usually required for a trademark violation. The Special Olympics was one organization which got proper permission from the USOC. But when a San Francisco group tried to get authorization to call an event the “Gay Olympic Games,” the USOC took exception. The San Francisco groups sued, citing First Amendment concerns.

The Court ruled 5-4 that the USOC was in the clear. Powell first answered the objection that the law did not dispense with the confusion requirement; a quick look at legislative history proved otherwise. Turning to the First Amendment, Powell said “Olympic” was not too generic to merit protection, since the modern Olympics were such a universally recognized and understood phenomenon. Since 1896, a clear and unique secondary meaning had developed. Powell further held that the special distinctiveness of the Olympic games could justify the super-strong nature of the trademark. All of this was a 7-2 decision – in the final 5-4 section, the Court held that the government had not discriminated, because the USOC made the calls, and it was a private organization.

Brennan and Marshall dissented from the entire ruling. Brennan disagreed that the USOC was not really a government entity. At the Olypmics, it effectively functioned as a representative agent of the government. Furthermore, the Amateur Sports Act had required the USOC to put a number of important provisions in its charter, and mandated that the USOC provide reports to Congress. Finally, the USOC received a massive amount of government funding. “It would certainly be “irony amounting to grave injustice” if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech.” O’Connor, in an opinion joined by Blackmun, said she largely agreed with these arguments, and would have required a remand.

Brennan went further, finding the entire act unconstitutional. It was overbroad, because it prohibited even non-commercial expressive speech without providing good reasons for this vast reach. Moreover, there was no other good word left to convey certain expressive messages. “[A] title such as “The Best and Most Accomplished Amateur Gay Athletes Competition” would not serve as an adequate translation.” The USOC’s rejection of the San Francisco group was indeed viewpoint discrimination. And finally, the government had offered no compelling reason for making this one particular trademark super strong.

This decision was an {censored}-sized blunder. You know the intellectual property law is messed up when it has me agreeing with every word in a Brennan opinion, and even quoting it twice! The hubris and selfishness shown by the USOC is large enough to win an {censored} gold medal. The greatest irony of all is that the USOC and the IOC acquired the word “Olympic” by blatant theft in the first place. The word properly belongs to the Greeks. I’m not one to indulge in oppression {censored}, but I’d say Greece has a pretty legitimate grievance.

Welch v. Texas Dept. of Highways and Public Transp.

483 U. S. 468

June 25, 1987

Jean Welch, while working for the State of Texas, was injured on a ferry dock. She tried to sue Texas in admiralty law under a federal tort claim statute called the Jones Act. Texas protested that being sued violated the state’s sovereign immunity under the Eleventh Amendment. The Supreme Court had decided a century ago in Hans that sovereign immunity could protect a state from being sued by its own citizen, and more recent decisions had suggested that Congress could not create a statutory right to sue a state unless the law provided this expressly. The Jones Act had no such express provision.

The Court ruled against Welch 5-4, with Powell writing. After backing Texas for the reasons just stated, he turned to the dissent’s arguments that the Eleventh Amendment was misinterpreted, and that Hans was wrongly decided. Powell said that, at worst, the historical evidence of sovereign immunity’s original scope was ambiguous, and stare decisis foreclosed the possibility of overruling Hans on the basis of some inconclusive historical arguments. In response to the dissent’s claim that suing in admiralty was outside of the Amendment’s purview, Powell again showed that the history did not unequivocally support such a reading. The majority stressed that Welch could still sue state officials, and that sovereign immunity served crucial federalism concerns.

White’s concurrence emphasized that the Jones Act did indeed give Welch some alternate relief. Scalia concurred in judgment. He creatively argued that even if the dissent was right about Hans, Congress had passed the Jones Act on the assumption that Hans was correct, and thus, the law couldn’t possibly abrogate sovereign immunity. Brennan’s dissent, joined by Marshall, Blackmun, and Stevens, first said that admiralty was never part of state sovereign immunity. Lots of early case law backed him up, or so he claimed. Next, Brennan said that the Eleventh Amendment, by its literal text, only protected states against suits from non-citizens of that state. Again, history was his great sword of argumentation. Out of his grab bag, Brennan also pulled the claims that the Eleventh Amendment only applied to cases in diversity, and that the majority improperly discounted a recent Warren Court precedent.

This is one of those fun cases where everyone on the Court – left, right, and center – suddenly becomes a dyed-in-the-wool originalist. I don’t really know who’s history is better, and given the ambiguity I have to side with Powell due to the stare decisis concerns. I particularly liked Scalia’s elegant argument. All this in spite of the fact that I personally disagree with the concept of sovereign immunity. The Eleventh Amendment is one the USA could do without. No one, not even a state, should be above the law, and above accountability.

Rankin v. McPherson

483 U. S. 378

June 24, 1987

Ardith McPherson had a job in a police office doing clerical work. On March 30, 1981, she heard the news of the Reagan assassination attempt while at work. After speculating that a fellow black had shot him due to cutbacks in welfare, she added “If they go for him again, I hope they get him.” The head of the police office fired her for that remark, but McPherson sued, arguing that the firing violated her First Amendment rights.

The Court held 5-4 that the firing was unconstitutional. Justice Marshall said that McPherson’s remarks were essentially political in nature, because they involved policies like welfare, and the identity of who should be president – precisely what the First Amendment was intended to protect. Marshall then turned to whether any interests outweighed the free speech interest. The Court stressed that McPherson’s job was merely secretarial and ministerial, that her remark was idle private chatter not intended for the general public, and that the police had offered no evidence that her words had interfered with the normal functioning of the office.

Powell’s smarmy concurrence passive-aggressively whined about being forced to decide such an insignificant case. Scalia’s dissent, joined by Rehnquist, White, and O’Connor, disputed that hoping for the president to be murdered was really political speech connected with a legitimate public concern. And even if her bloodthirsty remark was political, Scalia did not think a police station’s interest in firing such employees was minimal. He did not believe, for example, that “employees of the Equal Employment Opportunity Commission must be permitted to make remarks on the job approving of racial discrimination.” Or, as the police station’s lawyer even more memorably put it, the First Amendment doesn’t mean one can “ride with the cops and cheer for the robbers.”

I’ve got to say, this was one of the most depressing cases ever. Not the holding – just the underlying facts. I want to see genuine racial reconciliation. In this case, we learn of a black teen who thought a statesman should be murdered if he didn’t agree with her political beliefs. Where the crap do you go from that? How do you even begin to have constructive conversations? You can’t. Worse yet, some black church leaders will flatly ignore the Bible (“love your enemies, and pray for those who persecute you”), and outright encourage this way of thinking.

It’s just so sad.

Commissioner v. Fink

483 U. S. 89

June 22, 1987

Hoping to attract some outside buyers, Mr. and Mrs. Fink, who were majority shareholders in a small Michigan company, gave up thousands of company shares (they still retained majority ownership though). On their tax return, they claimed several thousand dollars worth of deductions due to the surrendered shares. The IRS said that giving up the shares was not a ‘loss’ entitling them to a tax reduction, because it was done with the direct aim to increase the value of their remaining shares.

The Court sided with the IRS in an 8-1 ruling. Powell admitted that for a long time lower courts had allowed the actions taken by the Finks, but found these precedents not controlling. Powell observed that a voluntary infusion of capital into a corporation does not entitle an owner to a deduction, and thought that voluntarily surrendering stock was little different. In both instances, the goal is to realize long term personal monetary gains. As a policy matter, the Fink scheme would encourage owners of failing companies to dump shares en masse.  On the facts of this case, the Court found it especially significant that the Finks remained majority shareholders, and that the surrender was clearly aimed at making the company more profitable.

White’s short concurrence stated his belief that the Fink’s continued status as majority shareholders was completely irrelevant to the legal analysis. Scalia concurred in judgment. He hated the analogy to an infusion of capital, and simply found a deduction inappropriate under the internal revenue code’s literal language. Blackmun concurred in the result without opinion. And thus, left to be the lonely voice of reason was… Justice Stevens!??

Yes, Justice Stevens. He showed that the IRS had allowed deduction for stock surrenders for more than three decades, and only changed its mind after the Finks filed their tax return. This was a paradigmatic case, Stevens demonstrated, where stare decisis is the only fair and just judicial response. The statutory language was ambiguous, and people like the Finks had a right to rely on a longstanding judicial gloss.

One of the biggest surprises for me in reading through all the term’s cases is how often Stevens has the best opinion. He’s still the worst Justice overall, but he truly can get it emphatically right on occasion. I normally dislike stare decisis, but if there’s ever a time when it’s a practical necessity, it’s in cases like this. The majority opinion here was especially horrible because it left the door wide open to legal abuse and harassment of taxpayers by the IRS. Nearly three decades later, ordinary citizens are still reaping the bitter consequences of this decision.

Goodman v. Lukens Steel Co.

482 U. S. 656

June 19, 1987

Several black workers in a steel factory felt repeatedly discriminated against, and so they sued under the Civil Rights Act, and Section 1981. They sued not only the company, but also their union, on the theory that the union’s failure to stand up and fight for their rights was also discrimination. A dispute arose as to whether the statute of limitations for the suit was six years as provided by a Pennsylvania law, or the two years allowed for 1983 suits.

The Court ruled 6-3 that the Section 1983 time limit of two years should be followed. White said that a uniform national time limit was needed, and that 1981 violations were more analogous to personal injuries than economic and contractual harms (which would merit a far longer statute of limitations). White thought this limitation could be applied retroactively to the plaintiffs, since there was no other limit with enough judicial recognition to merit reliance. A completely different alignment of Justices then ruled 6-3 that the union was guilty of discriminating against the black workers. The union did nothing affirmatively, but the very act of refusing to fight for the black employees in case after case after case ultimately added up to sufficient discrimination for liability under the laws. Rehnquist and Stevens assented to White’s opinion in full.

Brennan, joined by Marshall and Blackmun, dissented from the statute of limitations holding. He reviewed the purpose, background, and legislative history of Section 1981 at length, and concluded that protection against economic injuries was at its heart. Brennan further observed that the kind of activity which the section banned had a tendency to take place over long periods of time, in marked contrast to usually discrete violations of Section 1983. All three Justices agreed wholeheartedly with the holding that the union had discriminated.

Powell, joined by O’Connor and Scalia, had precisely the opposite opinion. He agreed with the statute of limitations holding, but dissented from the discrimination holding. After extensively reviewing the evidence, he concluded that the union had acceptable neutral reasons for not pursuing most of the grievances alleged by the black employees. Powell felt that actual discriminatory intent, and not disparate treatment alone, was required to make a finding of liability. He wrapped up by arguing that imposing a positive duty on unions to address racial grievances would encourage frivolous litigation, and was thus unwise as a policy matter. In a brief concurrence, O’Connor said that she was troubled by the two year limitation, and the retroactivity analysis, but ultimately accepted the Court’s holding on those issues anyway.

What bloc was most correct legally? After reading all the opinions, I have to go with the one combination that no Justice took: Brennan was right about the statute of limitations, but Powell was right about the finding of discrimination. In terms of voting records, this case is fascinating because it represents a rare instance of Brennan and Marshall actually voting against a union. Most disturbing of all though, this case is yet another instance of a union not caring about employee welfare as much as it claims to (see Hechler for an even more cynical example).

Edwards v. Aguillard

482 U. S. 578

June 19, 1987

In 1981, Louisiana passed a law requiring creation science to be taught whenever evolution was taught in public school science classes. The state legislature said that this law’s purpose was preserving academic freedom. Immediately, a federal court enjoined the act’s enforcement, on the theory that it had no valid secular purpose, and thus violated the establishment clause’s Lemon test.

The Court ruled 7-2 that Louisiana’s law was unconstitutional. Brennan wrote the majority opinion, which stressed the particular importance of keeping religion out of public schools. Turning to the act’s alleged purpose of academic freedom, he declared it a sham. By forcing educators to either avoid teaching evolution or teach it alongside creation science, the act notably constricted rather than expanded academic freedom. Brennan then reviewed some statement’s of the law’s sponsor and leading proponents, and surmised that the law was really intended to bring God into school, and to discredit evolution on the basis of Christian opposition. To conclude, he defended the lower court’s decision to issue summary judgment without a trial, claiming that the law’s unconstitutionality was plain and undeniable.

Powell, joined by O’Connor, concurred, and gave some additional snippets from legislative history which illustrated the plainly religious motivations and doctrines at the heart of ‘creation science.’ Then, in a feeble attempt to play good cop, he added a few paragraphs about how schools could still teach about religion in certain appropriate contexts. White concurred in judgment. Two lower courts with Louisianans as judges had found a religious purpose, and White did not feel it was the Supreme Court’s place to second guess their interpretation. And then there was the Scalia dissent, which was joined by Rehnquist.

Scalia’s dissent is a dazzling tour de force which cannot be done full justice in only a few sentences. He first reviewed Lemon precedents to show that a pro-religious motivation does not automatically make a law unconstitutional. Next, he reviewed the legislative history in excruciating detail, and proved that Louisiana legislators could conceivably have believed that the law’s purpose was totally secular. Parsing the record further, Scalia explained that the “academic freedom” justification simply meant that students ought to be able to hear the pros and cons of evolution, and be given the ability to make up their own minds on the issue. Finally, Scalia lambasted the Lemon test’s purpose inquiry, arguing that discerning a law’s objective purpose was impossible. He demonstrated that no reliable or principled method existed to ascertain the actual purposes in the heads of state legislators.

This last section is an absolute joy to read. I wish I could quote more of it, but here’s one of the best bits: “If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility or were simply attempting to “balance” the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill’s sponsor is alone enough to invalidate it – on a theory, perhaps, that even though everyone else’s intent was pure, what they produced was the fruit of a forbidden tree?”

Edwards v. Aguillard is probably the most well remembered case from 1987; justly so too, for what a national education system teaches children about the origins of mankind is of foundational and paramount importance. Scalia was correct that the majority acted prematurely in finding a religious purpose. Nonetheless, despite Scalia’s valiant legalistic defense, I must admit as a realistic matter that the law almost certainly was religious at heart. Simply stated, Louisiana wanted God in schools. America’s legal ruling class wanted Him out.

As great theologians throughout history have pointed out, the concept of ‘neutrality’ is largely a mirage. To quote Christ, “he who is not with Me is against Me; and he who does not gather with Me scatters.” When schools teach non-theistic evolution as the origin of mankind, they are not neutral toward Christianity – they oppose it. Abraham Kuyper, a Dutch Prime Minister from the early 1900s, was one of the first politicians to figure this out. He knew that public schools were not religiously neutral, but inherently anti-theistic, and accordingly advocated for government funding of religious schools in the interest of fairness.

Justice Hugo Black actually grasped much of this logic back in 1968, when he dissented from the Court’s decision that states could not ban the teaching of evolution. He wrote “If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines?”

One great irony of the case is that the Louisiana legislature was not actually honoring God. God merits preeminence, but Louisiana was only willing to give Him equal time. The law was like ancient Israel declaring that they would equally celebrate both God and Ba’al. The American culture of pluralism is so strong that not even the devout Baptists and Catholics of Louisiana dared to recognize God’s dominion. So long as the establishment clause exists, Christians will never be able to completely live out their faith. As Kuyper explained, God is sovereign over absolutely everything – politics included. A faithful Christian cannot leave behind their allegiance to God in the voting booth, or in the statehouse. A faithful Christian cannot simply turn off his or her faith while deciding what laws to pass. But as Justice Brennan makes clear, this is precisely what the establishment clause directs Christians to do.

Booth v. Maryland

482 U. S. 496

June 15, 1987

In 1983, John Booth broke into the home of Irvin and Rose Bronstein, and he murdered them in gory fashion. When it came time for sentencing, the prosecution introduced statements from the children and grandchildren of the Bronsteins. Even months and years later, the family remained broken, scarred, and frightened by the senseless and barbaric evil. The murder had happened days before one granddaughter’s wedding. After a marriage filled with grieving rather than joy, the newlyweds left the reception for the funeral rather than their honeymoon. After Booth was given the death penalty, he claimed that introducing this victim impact evidence made the sentencing unfair under the Eighth Amendment.

Justice Powell wrote for a bare 5-4 majority, which agreed that victim impact statements rendered the death sentence invalid. He argued that these statements shift the focus of the trial from the defendant to the victim, and that the happenstance of a victim having a large and articulate family was not relevant to the blameworthiness of a murderer. Powell also thought the possibility of cross-examining victims was unsavory, and that victim impact statements had an inflammatory quality that clashed with the deliberative atmosphere a trial ought to have.

White and Scalia filed remarkably restrained dissents, each of which was joined by the other, along with Rehnquist and O’Connor. Both pointed out that criminal law has always allowed for harsher punishments based on consequences that the culprit had no control over, like whether an attempted murder succeeds, or whether reckless driving kills a bystander. Both also denounced the double standard of allowing the defendant to offer an avalanche of mitigating evidence unrelated to the instant crime, while letting the victims say nothing. Both saw that the Court was imposing its own value judgments rather than letting the legislatures do so.

White further showed that the decision was not just a value judgment, but the wrong value judgment. “The affront to humanity of a brutal murder such as petitioner committed is not limited to its impact on the victim or victims; a victim’s community is also injured, and in particular the victim’s family suffers shock and grief of a kind difficult even to imagine for those who have not shared a similar loss… There is nothing aberrant in a juror’s inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused… At bottom, the Court’s view seems to be that it is somehow unfair to confront a defendant with an account of the loss his deliberate act has caused the victim’s family and society.”

It is darkly amusing to see liberals lecturing about the unfairness of a crime’s impact determining its perpetrator’s fate. In the realm of torts, these same liberals are more than happy to stick innocent men and women who did absolutely nothing wrong with ruinous multi-billion dollar punishments (see ‘strict liability’ and ‘res ipsa loquitur’). This case also shows how screwed up the remedies are for Constitutional violations. Not all violations can be said to genuinely merit the overturning of a sentence as a remedy – and this case is a paradigmatic example. Booth’s crime was depravity incarnate, and no subsequent procedural blip can possibly make his execution “cruel and unusual.”

The five Justices in the majority flatly ignored the Bible’s command against showing partiality to the wicked. They would silence a community and its victims, and denigrate the generational effects of sin, and do so in the name of ‘justice.’ The majority’s evident belief that Booth himself was somehow victimized by his own victim’s anguish, grief, and brokenness debases and mutilates the concept of justice beyond recognition. The prophets of the Old Testament wrote beautifully poetic laments of sin’s corrosive and destructive effects on the human community. Doubtless, Powell would have all this scrubbed from the scripture, and have it replaced by a parade of advocacy showing how ‘misunderstood’ and ‘good at heart’ Assyria and Babylon were, despite their respective ‘mistakes’ of brutally obliterating Israel and Judah.

Booth died of natural causes in prison on April 27, 2014, more than three decades after his barbaric murders. His death sentence was reinstated and overturned several more times after this one decision, always on specious grounds that caustically mocked the concept of justice. Until the day of his death, he was unrepentant, and felt that he was the greater victim. God is his judge now.

Houston v. Hill

482 U. S. 451

June 15, 1987

A Houston ordinance made it a crime to “in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Raymond Wayne Hill, a gay rights activist who had been charged with this offense four times, sued to have the ordinance invalidated under the First Amendment. After some early losses in the lower courts, Houston argued that the Supreme Court should ask the Texas courts for a clarifying interpretation, and abstain from interpreting the act by its own lights.

The Court ruled 6-3 that certifying the case to Texas courts for clarification was inappropriate, and ruled 8-1 that the ordinance did violate the First Amendment. Brennan wrote for the majority, and he stressed the law’s overbroad nature, citing precedents that had recognized the need for citizens to be free to blow off some steam against policemen. The ordinance could easily have been written narrower, and it allowed officers too much discretion, since the mere act of talking had been sufficient to sustain convictions in practice. Brennan rejected the argument that Pullman abstention was necessary. Because he found the meaning of the ordinance plain, he did not think state courts could put any spin on the act which would render it Constitutional.

Powell, joined by Rehnquist and O’Connor, wrote to say that certification to Texas courts was a good idea. He believed that the state courts might be able to narrow its reach, especially through requiring those who violate it to have the intent to do so. Having lost this argument to Brennan though, Powell admitted that abstention would otherwise be inappropriate, since getting an authoritative construction from state courts in the absence of certification would be difficult. Examining the law, he found that it might be seen merely as prohibiting obstructive conduct rather than speech, but ultimately concluded that its vagueness and reckless pattern of enforcement compelled the conclusion of unconstitutionality.

Rehnquist did not join that last section of Powell’s opinion, and found the ordinance wholly proper. He offered no argument of his own, but cited a dissent from a similar previous case. Scalia joined all of Powell’s opinion except the certification bit, and wrote a brief concurrence stating that he agreed with Brennan on that question. All in all, I think the Court struck the right balance. The only shame is that the logic of this case hasn’t yet been extended to a judge’s power to impose summary contempt of court, that power being perhaps the most egregiously unconstitutional fixture in our criminal justice system today.