Category Archives: reviews

1987-1988: Mega Colossal Retrospective Bonanza!

I’m glad to have this year out the way, because I’m ready for the much more fun 1988-1989 term. This was a weird, transitory, and not particularly ideological term without too many compelling storylines. The next term overflows with amazing storylines.

But, to return to this term, let’s get a rundown of the Justices.

Rehnquist: He continued his trend from last year of being practically invisible. He wrote the grand majority opinions in Bowen v. Kendrick and Morrison v. Olson, but neither one was really memorable as an opinion. Beyond those two towering works, you’re barely even aware that the guy exists. I hope he distinguishes himself more in the coming years, because it would be a shame if the Rehnquist Court contains practically no Rehnquist.

Brennan: He was a bit less annoying this term than last term. There seemed to be a lot fewer quixotic criminal case dissents. There was that ridiculously over the top majority opinion in Lakewood v. Plain Dealer, but the dissent was over the top too. As before, I did find some of his dissents compelling, and thought he had it right. He’s very good at the art of portraying precedent as favorable to his argument – probably better than any other Justice. He wrote less than I thought he would, leaving Blackmun or Stevens to dissent for him in a great many cases. The man was in his twilight.

White: Like Rehnquist, White was also pretty invisible during this term. He loved to toss off cryptic concurrences that were no more than a few sentences long. As bare as those concurrences were, even they were more memorable than any majority or dissenting opinions. While clearly the weakest link of the conservative coalition, he didn’t have too many terrible deciding votes this term other than Mills v. Maryland.

Marshall: Much of what I said about Brennan applies to him too. He was less annoying, had a few really convincing dissents, and was far more silent than I would have expected. He too was in his twilight.

Blackmun: Blackmun was the year’s breakout star. After near invisibility last year, he became, to a large extent, the vanguard of the liberal wing this year. Even so, he was still more than capable of joining the conservative bloc when he felt compelled to do so.

Stevens: Stevens was the surprise conservative savior of the year, salvaging a vast number of wins that would have otherwise been ties. All things considered, he wasn’t that bad this year at all. He did tend to lard up his opinions with long, unending footnotes, but we were spared the awful eminent domain opinions that characterized his output last year. He’s very trusting of institutions, very pragmatic, and very unwilling to rock the boat (with some weird exceptions like Praprotnik). I wish every term’s Stevens could be like 1987-1988 Stevens

O’Connor: O’Connor is still in her generally reliable conservative vote phase. While she wouldn’t dissent alone, she was quite the fixture when there were multiple conservative dissenters. Nonetheless, we saw one of the earliest warning signs of the awful squishiness to come in her terrible and illogical Thompson v. Oklahoma concurrence. I must stress though that her Thompson opinion was very unusual for her at the time. Indeed, part of the ‘fun’ of going through the next few terms will be seeing her decline in real time.

Scalia: He was a bit of a disappointment this term, quite honestly. He joined the liberals in a lot of cases, and he was far less prone to going hyper-originalist like he occasionally did in the previous term. Still, there was his utterly epic Morrison v. Olson dissent, which really redeems the term for him. And he certainly retained his status as the Justice most likely to whip out a hilarious or memorable turn of phrase.

Kennedy: From what little we saw of him, he was a bland and generic conservative. But the 1988 Kennedy is a far cry from the one we have today. 1988 Kennedy’s writing is precise, logical, studious, and welcomely unemotional. The pompous, grandiose blather that characterizes him today is nowhere to be found. Like O’Connor, it will be interesting to watch his decline over the next few terms.

Some things which became extremely apparent during this term include how much I hate governmental immunity, even when it limits tort liability. Also, that meta-lawsuits are the worst things ever. Even Scalia said, in one dissent, that nothing is more wasteful than litigating about where to litigate. Immunity and meta-lawsuits can both join the exclusionary rule in the realm of things that drive me nuts.

A lot of the best, worst, and most important cases of the year were not decided by ideological lineups. Yes, there was Bowen v. Kendrick, but that was the exception rather than the rule. You had Stevens crossing over in a slew of important cases. Scalia was memorably in lonely dissent for Olson. And then there were scores of unanimous cases, some of which were really awful. Clark v. Jeter, though not bad enough to contend for the Proverbs 18:5 Prize, gets my vote as the ‘sleeper’ terrible decision of the year – and it was unanimous!

As stated above, Scalia had all the best quotes during the year. I’m too lazy to link to all of them, but you can click on the “Scalia” category and scroll through to find some of the highlights. Other than him, O’Connor’s brutal summation of the majority’s irresponsible holding in Sun Oil v. Wortman really stands out.

My sample size is only two years, so I could be proven wrong, but I’ve been struck by how infrequently certain topics come up in Supreme Court decisions. For one, you usually don’t see them trying to invent a new liberty right like abortion or gay sex all that often. For all the attention that Griswold v. Connecticut gets, there may only be a handful of cases since 1965 that really build on it. Another thing is the limitations of Congressional lawmaking power. You just don’t see cases that ask whether or not a federal law violates the spending clause, or interstate commerce clause, or necessary and proper clause. Last year’s South Dakota v. Dole gets so much attention because it was one of the few which actually addressed the issue.

Without further ado, let’s award the two prizes, and get on to the next term. As with last year, there were more candidates for the dishonor of worst decision than for the honor of best decision. My preliminary list for the worst decision had something like 14 cases on it, about half of which were death penalty ones. Two rulings fell short of winning the prize, but merited dishonorable mention.

Commissioner v. McCoy: It’s cases like this one which demonstrate why Americans rightfully hate the IRS. After Robert McCoy’s father died, Robert missed an administrative deadline which could have saved him $20,000 in taxes. The IRS not only refused to waive this deadline for the grieving son, but imposed a penalty fine, and interest on the total amount owed. McCoy won in the lower court because the judges recognized how heartless, abusive, and a$$holish the IRS was acting. Why the Supreme Court felt the need to review this case, out of the thousands on the docket, and overturn the lower court is unfathomable.

Maynard v. Cartwright: This was the worst death penalty ruling of the entire term, and sadly, it was one of the unanimous ones. Here, Cartwright committed a murder which was especially heinous, atrocious, and cruel. Then, the Supreme Court vacated his death sentence because they claimed to not know what the words “especially heinous, atrocious, or cruel” meant. The bitter irony here is that the Justices were so danged sure that executing Cartwright in the face of this allegedly vague statutory language would be “cruel and unusual” – language which is, if anything, even vaguer.

Winner of the October Term, 1987 Proverbs 18:5 Prize:

Phillips Petroleum Co. v. Mississippi

Much like last year, the death penalty cases were bad, but a property seizure case was ultimately far worse. Property owners who had lived on and paid taxes on lands for over 150 years were summarily told “Whoops! Actually the State of Mississippi acquired title to your land in 1817, and didn’t get around to realizing this and asserting its property ownership until now.” This was done not on the basis of indisputable law, but on the basis of some ancient and highly ambiguous dicta. The equitable rights of the landowners were callously and casually brushed aside by the five Justice majority. In a truly free country, a government would not behave this way, and show such sociopathic disrespect toward the property rights of its own people.

As for the best case of the year, Berkovitz and Westfall were excellent anti-immunity decisions. Lyng v. Automobile Workers upheld a great number of unpopular Biblical principles. But in the end, one stood above all others.

Winner of the October Term, 1987 Deuteronomy 16:20 Prize:

Buchanan v. Stanships, Inc.

Last year, Carrie Rose was the oppressed widow that the Supreme Court delivered, despite the lack of novel legal issues in her case. This year, the role of oppressed widow saved by the Court was filled by Mercilyn Buchanan. Her quest for relief was being illegally frustrated by an abusive shipping company. The case involved no novel legal questions, but the Court still stepped in to reverse the terrible lower court ruling through summary judgment. This is precisely what the Supreme Court should be doing – squelching obvious injustice in the lower courts. I hope to see more cases like this one in years to come.

And now, we’re finally off to the legendary October Term, 1988. It was this term which would finally give the Rehnquist-White-O’Connor-Scalia-Kennedy bloc a chance to prove how conservative it could be.

1986-1987: Mega Colossal Retrospective Bonanza!

In the Mega Colossal Retrospective Bonanza! posts, I plan to have a fun roundup of general trends from the term (excluding voting patterns), thoughts on Justices, general odds and ends, and what not. It’s meant to be a fun final goodbye to a term.

When I began, way back in April of 2014, my aspiration was to read every single word of each case, main text and footnotes. For a little bit, I did so. But very quickly, I started skimming the footnotes. By the term’s end, I was skimming the main text, and largely skipping the footnotes altogether. And I began to gain an appreciation for O’Connor, who made a point of being very sparing with the footnotes (Justice Breyer has never used any since his 1994 appointment – whatever else I think of his rulings, I can only say amen to his footnote aversion).

Note to myself: If I have any hope of ever making it through the entire Rehnquist era, I have got to stop leaving these months-long gaps between updates. My summaries of the 161 decisions took longer to publish than it took the Supreme Court to publish the real things!

One thing that surprised me: for the most part, Supreme Court cases are fairly simple to understand. You really don’t get mega-complicated cases in difficult areas of law, with half a dozen moving parts. I think the Supreme Court leaves the deadly boring and complicated ones to the lower courts.

With regard to the Justices, you quickly learn that none are all good or all bad. As the saying goes, every dog has his day. Reading a full term has dispelled some of the gross caricatures that existed in my mind.

Rehnquist: The most shocking thing to say about Rehnquist is that there isn’t much to say about him at all. He was by far the most invisible of the nine, which you certainly wouldn’t expect from the Chief Justices! Not a single one of his opinions stands out. He tended to write for the Court in relatively unimportant cases, and his dissents were usually short and non-flashy. The two times he dissented alone, he didn’t even offer any argument, but only gave citations to other cases. He didn’t author a single concurrence all year! I take it that his goal was to keep his head down, and make sure his five Justice majority stayed together. If so, good job, but I still miss the more flashy Associate Justice Rehnquist.

Brennan: Brennan was impressive, but not quite the evil genius mastermind that some portray him as. Of course, his career was almost over, and he was having trouble getting majorities. I might have been more dazzled if I’d picked a Warren Court year to start with. Although several of his dissents are great, others are simply aggravating. His shtick of always backing the criminal defendant, no matter what, eventually struck me as both annoying and morally disgusting. In spite of this, of all the Justices, he was the second most likely to convincingly use morally loaded arguments.

White: The most likely, of course, to effectively use moral language was White. He had probably the best sense of abstract Justice of anyone on the Court. He was a master of understatement – making his powerful point in simple and plain words. His Booth dissent in particular stands out. As was the habit throughout his career, White often did defect from conservatives, but he tended to stay with them in the most important cases of all. The sad exception this term was DeBenedictis, about which more will be said later.

Marshall: Very on in the term, Marshall caught me off guard with his brilliant dissents in Robinson and Philbrook. I started to think that I had massively underestimated the man. Unfortunately, it was all downhill from there. As 1986 became 1987, he largely disappeared into Brennan’s shadow, never to come out again. That’s too bad, because I really wish he could have a more independent voice, as much as I usually disagree with him. His refusal to join summary decisions was intriguing, and he does perhaps seem to care more than anyone else about some of the procedural nuts and bolts. In the end though, just like Brennan, his knee-jerk activism in criminal cases ultimately turned me off.

Blackmun: After Rehnquist, Blackmun was probably the second most invisible of the Justices. When I tried to think of memorable opinions by him, the best I could come up with was his one page concurrence in Hohri, itself a very minor case. In all honesty, it’s hard to avoid thinking that the guy was simply mediocre. Were it not for the warping influence of his opinions in Roe and Bowers, I think his lackluster abilities as a Justice would be much more broadly admitted. And finally, as I’ve already said many a time, I really can’t make heads or tails of his voting record.

Powell: Eh, he wasn’t horrible, but I’m glad to be rid of him. Powell at his worst was nowhere near as annoying as Anthony Kennedy at his worst. That only takes some of the sting out of Booth and Gray though. On the other hand, Powell does get lots of points for writing one of the most important capital punishment opinions ever: McCleskey v. Kemp. Yes, I know he would recant it in later years, but nonetheless his opinion still holds up. For better or worse, the guy was a lot like O’Connor. He leaned conservative, but not strongly so, and he certainly wasn’t a particularly original or creative thinker.

Stevens: Let’s get this out of the way –  I was wrong. Dead wrong. My previous impression of Stevens was that he was always wrong. But time after time, I found frankly wonderful dissents by the man. For better or worse, he does seem to care more about precedent than the others. Usually that’s bad, but in cases like Fink and McNally, it was completely appropriate. It’s also clear that Stevens was still something of a maverick in the 1980s. Not until the 1990s did he really become an automatic liberal vote. Lest you get the wrong impression, I still don’t particularly like Stevens. He had some truly infuriating opinions, and he made some incredibly dopey arguments. He might be the worst Justice ever on eminent domain issues. His First English Evangelical dissent, and his DeBenedictis majority opinion stand out as the snottiest, and most exasperating writings of any Justice all term.

O’Connor: As I already mentioned, she’s got the footnote thing going for her. It was quite interesting to go back to a time when she was a generally reliable conservative vote. And a lot of the times she did break with the conservatives, I thought it was justified. What’s surprising is that I found so few red flags as to what was eventually coming. Sure, there’s a few opinions here and there where she tries to temporize, but they really seem all to easy to let slide. And while she leaped to the left of White on some cultural issues, on loads more she could still be seen standing shoulder to shoulder with him, Scalia, and Rehnquist.

Scalia: This man is amazing. On a Court filled with institutionalists, he was something decidedly different. He alone had the courage to challenge conventional wisdom, and say that the Court had got something wrong for more than a century. You can disagree with what he writes, but it’s always enlightening and thought provoking. His historical excursions in Malley-Duff and Tyler Pipe really stand out. And even when his separate opinions don’t go full-blown originalist, they’re simply a joy to read. A complete listing would take far too long, but Aguillard and both cases known as Johnson are utter classics. But, everyone already knows that he writes interesting opinions. What’s less known is how surprisingly liberal Scalia was during the first term. He was considerably to the left of Rehnquist, and you could make a non-frivolous argument that he was a hair to the left of O’Connor! Apparently, it took a few terms for him to really bring out his inner originalist.

Most trivial case of the year: A South Dakota case about whether a state could pass a new tax if they didn’t repeal an old tax first. South Dakota’s interpretation of the law is so terrible, so obviously wrong, so downright silly, that I couldn’t believe it got to the Supreme Court. I kept waiting for O’Connor to say “your argument is self-evidently stupid, stop wasting our time.”

Some of the other best quotes: Powell’s “impenetrable maze” in Granite Rock. Scalia on precedent. White about the value of common sense. Marshall on the basics of jurisdiction in Pennzoil. The sheriff’s lawyer in Rankin.

It was extremely interesting how different some of the political poles were back in the day. One example that really stands out is Brennan writing against a campaign finance law. You’d never see that today. But most stunning of all is a case about the use of lethal force in self-defense. It’s very reminiscent of the Trayvon Martin case, right down to the last name of the victim. But in Martin, it was the liberals who backed an easier path to a not guilty verdict for the person claiming self-defense.

Loads of times, there would be a case involving some law or regulation, and I’d start to wonder what gave the government the power to pass it in the first place. Naturally, the validity of the law or regulation would simply be accepted. It really shows how thoroughly the war was lost back in 1937.

One thing that stood out among the laws I saw was how obsequious our legal system is to labor unions. What in the world did they ever do to get such special treatment? As I repeatedly note in these cases, labor unions have extremely unbiblical tendencies, and it’s very sad to see the law give them such respect.

In many cases, I flat out didn’t think there was a single true answer. Honestly, Congress, legislatures, judges, and regulators don’t always know what they’re doing, and sometimes an issue comes up that the applicable law just doesn’t answer, or only provides contradictory evidence about. Its cases like these that make it so easy to understand why ideological voting blocs form on the Court – sometimes the easiest thing to grab hold of is your preferred political outcome.

I really, really, really hate the exclusionary rule, and the ultra-narrow nature of harmless error. The exclusionary rule should be shrunk, and the harmless error rule dramatically expanded. The rules as they now stand are anti-justice, and they’ve been totally screwing up Bill of Rights jurisprudence for decades. And on that note…

Each term, I will award two prizes. The Proverbs 18:5 Prize will be given to the absolute worst decision of the year, while the Deuteronomy 16:20 Prize will be given to the best. What’s really upsetting is how many candidates there are for the former. When I did a preliminary skim for possible winners, I came up with a list of 16, and could have easily added more. I was able to cut the list down to four, and will now reveal the three dishonorable mentions.

United States v. Johnson: If there’s one area of American law I despise with a passion, it’s torts. As a general rule, getting me to dislike a ruling which limits tort liability is almost impossible. But somehow, this case manages to do it. Its the perfect mixture of bad public policy, stare decisis idiocy, governmental immunity arrogance, and shocking disrespect toward the statutory law.

Booth v. Maryland: Awful, absolutely awful. The only saving grace of this case was that it got overruled a mere four years later. But it still should never have happened. In simple terms, this case said that telling a community about the lives of a murderer’s victims unfairly victimizes the murderer. If that’s not some Orwellian reversal on par with ‘War is Peace,’ then I don’t know what is.

Gray v. Mississippi: This one literally made me feel sick inside. The excuse the Court came up with for overturning Gray’s death sentence was so irrelevant and immaterial, so blatantly unjust, so obviously p-ss poor that it’s hard to not outright accuse the majority of favoring evil over good. This is the sort of ruling which demonstrates that a nation is spiritually sick unto death.

Winner of the October Term, 1986 Proverbs 18:5 Prize:

Keystone Bituminous Coal Assn. v. DeBenedictis

The capital punishment cases put up one heck of a fight, but in the end, one prisoner escaping death couldn’t possibly compare to the government openly stealing 27 million tons of coal. That works out, by the way, to a value of over $800 million. The 2005 case Kelo v. New London received far more public loathing, but DeBenedictis was arguably worse. In Kelo, homeowners were at least compensated when the government took their property. In this case, there was nothing but outright theft. The ruling was made all the worse by the ugly sneering tone of the majority opinion written by Justice Stevens.

As to the best ruling of the term… that turned out to be far more challenging to come up with. Not that there weren’t plenty of correct rulings, but how do you say that one is particularly good and just? In the end, there was one case especially which kept crossing my mind.

Winner of the October Term, 1986 Deuteronomy 16:20 Prize:

Rose v. Arkansas State Police

Yes, the very first decision of the Rehnquist Court. The Bible is filled with admonitions to see that justice is done for the widow. And in this case, justice was done for a widow named Carrie Rose. What made the case stand out to me is that the Court had no reason to decide it. It involved no important legal questions or principles. These sorts of cases tend to be passed over by the Court. But not this one. This seems to be an instance where the Justices felt genuine empathy for a widow who had been wronged by the lower court judges. And as a loving mercy to her, they summarily took the case and ruled in her favor. It’s truly a shame that the Court doesn’t do this more often. There are thousands of citizens whose only temporal hope for justice comes from the Supreme Court, and it’s evil for them to ignore these cases merely because the legal questions aren’t important. Laws are created for people, not people for laws.

Things to come: As most legal junkies know, when Powell retired, Reagan nominated Robert Bork, who was defeated by a nasty all-out war. Sadly, we ended up with the pompous squish known as Anthony Kennedy instead. Because of the massive delay caused by the Bork nomination, Kennedy didn’t take the Oath of Office until February of 1988. In the interim, lots of decisions were rendered, and even after he took the Oath, he wasn’t allowed to vote in many of the cases. As a result, October Term, 1987 ended up being relatively boring and transitory. The true test of the expected Rehnquist/White/O’Connor/Scalia/Kennedy bloc would have to wait until October Term, 1988.

…Well, I think that’s it. I had hoped to have finished by the summer of 2014 at the latest, but better now than never I guess. Until next time…