Category Archives: Scalia

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.

 

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Bowen v. Massachusetts

487 U. S. 879

June 29, 1988

This case involved a dispute between the Department of Health and Human Services (HHS) and Massachusetts about the HHS disallowing a reimbursement for Massachusetts health expenditures. Massachusetts wanted the claim heard in District Court, as ostensibly allowed by the Administrative Procedure Act (APA). HHS contended that the APA did not allow suits against it in District Court for “money damages,” and that, in any case, Massachusetts had an adequate remedy through suing in Claims Court under the Tucker Act.

The Court ruled 6-3 that a District Court could have jurisdiction. Stevens said that the phrase “money damages” was a legal term of art referring to monetary compensation for other harm done. By contrast, seeking merely to gain an amount of money legally due was known as asking for “monetary compensation.” Stevens said that legislative history, as well as a lower court opinion by no less of an authority than Robert Bork, proved this distinction. Thus, Massachusetts could still ask for a money judgment against HHS in District Court. Stevens also found that the Claims Court would not offer an adequate remedy. Those courts did not provide equitable relief, such as the declaratory and injunctive relief Massachusetts was also seeking. Furthermore, there was reason to believe that the Medicaid administration questions involved in the case were really beyond the scope of the Claims Court’s wheelhouse.

White concurred in judgment. He cryptically noted that he agreed with all of the majority’s ultimate conclusions, except for its statement that Massachusetts could request monetary compensation in District Court. He said that they would have to settle for mere declaratory and injunctive relief. Scalia, joined by Rehnquist and Kennedy, dissented vigorously. He thought the majority’s distinction between “money damages” and “monetary relief” was total crap, and utterly unsupported by legal history. Almost any suit, he argued, to obtain money is a suit for “money damages.” Thus, the APA barred District Court jurisdiction. He also claimed that the majority’s reasons for holding that the Claims Court could not provide an adequate remedy were completely specious. The Claims Court was more than capable of taking the case and providing an adequate solution for Massachusetts.

Scalia made particular note that both of the case’s major holdings would effectively deprive the Claims Court of most of its docket, and cause a ream of other policy problems. He even predicted that lower courts would probably confine the ruling to its immediate facts, because trying to apply it would cause total chaos in the Claims Court. He closed with these words which I could not more heartily agree with: “Nothing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law. Today’s decision is a potential cornucopia of waste.”

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.

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.

Morrison v. Olson

487 U. S. 654

June 29, 1988

When Ted Olson of the Justice Department was investigated by Independent Counsel Alexia Morrison, Olson challenged, on separation of powers grounds, the law that created the Independent Counsel. Under the law, the Attorney General was required to request a special court to appoint an Independent Counsel if there were reasonable grounds to believe that investigation of a government official could be warranted. The Independent Counsel could be removed by the Attorney General for cause, but would have virtually complete power as a federal prosecutor. The special court had some extra supervisory powers as well.

The Court ruled 7-1 that the law was not in any way unconstitutional (Kennedy did not participate). As is usually the case, Rehnquist first had to brush aside an excrementally stupid justiciability challenge. On the merits, Rehnquist said that the Independent Counsel was an inferior office (i.e. one that could be appointed by someone other than the president) because the Attorney General could dismiss the Counsel, and because the office’s scope and tenure were limited. He also said that appointment by a court rather than an executive official was perfectly consistent with the literal text of the Constitution’s appointments clause. Next, he found that the special court had not been given powers that exceeded the bounds of Article III. Its appointment and supervisory powers were in line with those of other courts. While conceding that some of the special court’s actions might have been ultra vires, Rehnquist said they could be addressed in separate lawsuits.

Rehnquist then addressed the argument that restricting the Attorney General to removing the Counsel for cause interfered with the President’s control of the executive branch, as defined in Myers and Humphrey’s Executor. While the Counsel did perform executive functions, Rehnquist contended that a for cause removal policy did not unduly trammel the Presidential authority, and was a reasonable limitation. The law did not contradict broad principles regarding separation of powers because it was the Attorney General’s decision to request appointment of Counsel in the first place, and because power to dismiss the Counsel still resided with the Attorney General.

Scalia dissented. In his tour de force of an opinion, he showed that the law was a naked encroachment on the President’s authority, and a horrendous distortion of the separation of powers. He noted that, realistically, the Attorney General would have no choice but to request appointment of Independent Counsel if asked to by Congress, because he could only refuse if there were absolutely no reasonable grounds for further investigation. Going on, he contended that any removal of prosecutorial power from the president’s control was far from a trivial encroachment. Prosecution was a core executive duty that no other branch had the slightest right to intrude on. And the president’s right to oversee his branch’s efficient functioning meant that the mere right to dismiss for cause was not enough

Scalia went further, and argued that the Counsel was not an inferior office. It had nearly all the powers of the Attorney General, and had no superior officer in any real sense. Worse yet, the majority relied on no real precedent to conclude that it was an inferior officer. Scalia said the majority also treated Myers and Humphrey’s Executor shabbily, as neither ever suggested that an officer with pure executive functions should be insulated from removal. He contended that the majority’s test for whether good cause restrictions could be implemented was hopelessly arbitrary. Not content to rest there, Scalia showed how the Independent Counsel was terrible public policy. While most prosecutors are forced to use discretion because of the infinite amount of potential cases, special prosecutors have every incentive to keep digging until they find something. Also, by taking away ultimate responsibility from the President, the law ensures that no one can really be held accountable for an out-of-control Independent Counsel.

Conventional wisdom has it that this was Scalia’s greatest dissent ever, and it’s easy to see why. It’s a masterpiece of legal argumentation, and it’s almost unbelievable that no other Justice joined it. Although best remembered for the quote “this wolf comes as a wolf,” I think that barely even makes the top five quotes in the opinion. Even better are:

  • This is somewhat like referring to shackles as an effective means of locomotion.
  • Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.
  • It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.

Scalia’s dissent is more timely than ever in light of the ongoing attempts by the deep state, assisted by an evil media and a pliable Congress, to stage a coup against President Donald Trump. The malicious bureaucratic cabal that’s out to get Trump needs to be annihilated, once and for all. Trump needs to have ultimate authority and control, or presidential elections will become meaningless, and Americans will be ruled forever by an unelected deep state hellbent on destroying anyone who tries to restore power to the people.

This is a fight nearly as important as the fight against the destruction of the family through abortion, divorce, and premarital sex. The darkest day of the 1970s was January 22, 1973, when the Roe v. Wade decision was announced. But the second darkest day was August 9, 1974, when President Richard Nixon resigned in the face of vicious, abusive, and amoral ruling class clique. He should have fought to the bitter end, because the nation was crippled forever when he let the bad guys win. In the 43 years since, the godless deep state cabal has only grown more emboldened, more powerful, and more eager to force another resignation on the basis of some BS makeweight ‘scandal.’

All prayers to Trump and Pence in the years to come, for their battles are not merely “against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places” – Ephesians 6:12.

Pierce v. Underwood

487 U. S. 552

June 27, 1988

A law allowed citizens to recover attorneys fees against the government if the government’s position was not “substantially justified.” The attorneys fees awarded would be capped at $75 per hour, but that could be adjusted upward based on “special factors.” A lower court found for citizens who were suing the Department of Housing and Urban Development. The court found that HUD’s position was not substantially justified, and awarded large attorneys fees, ballooned greatly by “special factors.”

Scalia wrote the majority opinion, and Kennedy did not participate. It concluded 6-2 that lower courts findings that government positions were not “substantially justified” should be reviewed under an abuse of discretion standard. It concluded 5-3 that “substantially justified” meant that the position was basically reasonable, plausible, and arguable. It concluded 6-2 that the lower court did not abuse discretion in finding that the government’s position was not substantially justified. And it concluded 5-3 that the “special factors” cited by the lower court were not quite special enough, and it vacated the greatly ballooned award of attorneys fees. In the 6-2 parts, Scalia was joined by Rehnquist, Brennan, Marshall, Blackmun, and Stevens. In the 5-3 parts, he was joined by Rehquist, White, Stevens, and O’Connor.

To very briefly summarize, Scalia felt that abuse of discretion was better than allowing de novo review because of how weird the legal question of substantial justification was. He defined “substantially justified” by looking at how the word ‘substantial’ was used in other legal contexts. He noted that HUD’s string of losses in lower courts, together with some tough legal criticisms of HUD’s position, foreclosed any possibility that the lower court judge abused his discretion. Finally, he thought the lower court’s expansive reading of “special factors” was so broad as to virtually eliminate the $75 limit.

Brennan, joined by Marshall and Blackmun, though Scalia was too forgiving to the government in how it defined “substantially justified.” To Brennan, the government’s position had to be more than just reasonable – there had to be some true force and persuasion to the government’s position. He also felt Scalia was not recognizing enough “special factors,” and that things like the difficulty of the litigation should be reflected in an upward adjusted fee. White, joined by O’Connor, contended that questions of law were always reviewed de novo, and that questions of whether a government’s legal position was “substantially justified” ought to be no different. He further contended that, under a de novo standard, he would find enough justification for HUD’s position to absolve them of the duty to pay attorneys fees.

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.

Boyle v. United Technologies Corp.

487 U. S. 500

June 27, 1988

A helicopter manufactured by a military contractor crashed, and the pilot died due to design flaws. The pilot’s family wanted to bring a tort action against the manufacturer under Virginia law. The manufacturer contended that the Virginia law was preempted, and that it had immunity from any tort suit because of its status as a government contractor. This government contractor defense had never been explicitly established by the Supreme Court before, and it was now their job to figure out if it existed or not.

The Court ruled 5-4 that the manufacturer was protected by government contractor immunity. Scalia began by explaining that in a few legal areas of “uniquely federal interests” the courts had the ability to fashion federal common law that could preempt state law. Scalia said that the efficient operation of federal contracts was of sufficient importance to render it subject to the courts common lawmaking power. State laws could be preempted if their was a significant conflict between them and the government’s ability to cheaply contract.

A precise formulation of the immunity and range of preemption was needed. The Federal Tort Claims Act exempted from liability all discretionary functions of government employees. Therefore, Scalia reasoned that government contractors were immune from state laws if they manufactured products that reflected the specifications given to them by the government. The pilots family said that the lower court had not used this precise formulation, but Scalia responded that a jury would probably not rule differently if the lower court had.

Brennan, joined by Marshall and Blackmun, was outraged. The majority violated Erie by fashioning common law that was not necessary at all. The burdens suffered by the government when its contractors got sued were minimal, and the losses to those victimized by defective product designs was great. Brennan said that precedents never intimated that contractors ought to have immunity, and instead suggested that they were perfectly liable to state law claims. He argued that the FTCA had no real relevance to the issue at hand. Simply put, the majority was creating immunity without any green light from Congress, and without any compelling policy reasons to do so. Stevens, in a short dissent of his own, also argued that any contractor immunity should be imposed by Congress and not the courts.

I know I must sound like a broken record by now, but I’ll say it yet again: I hate extensive tort liability, but I hate governmental immunity even more. This decision is very frustrating. All term long, there were less than ten occasions when the solid bloc of 5 conservatives beat the solid bloc of 4 liberals. Why did this stupid ruling have to be one of the rare wins, instead of Mills or Liljeberg?

Mississippi Power & Light Co. v. Mississippi ex rel. Moore

487 U. S. 354

June 24, 1988

This was probably the most brutal case I’ve ever confronted. Quite honesty, I couldn’t even read the whole thing because I was so lost, and I had to rely on the syllabus to get the gist. Apologies.

Basically, FERC, a federal energy agency told a Mississippi power company how much electricity it needed to buy, and at what rate. A Mississippi agency then set retail rates based on what would enable the company to recover its expenditures. But it was argued that the company had imprudently wasted money building a nuclear power plant, and that only prudent expenditures could be passed on to consumers. The question was whether FERC’s setting of  wholesale rates preempted state agencies from considering whether the expenditures of power companies were prudent, and adjusting retail rates accordingly.

The Court ruled 6-3 that there was preemption. Stevens said that the case was pretty much controlled by a precedent called Nantahala, which generally disallowed state agencies from setting retail rates that wouldn’t allow power companies to recoup the investment made in buying the set quota of energy at rates set by FERC. Stevens said that any differences between that case and the instant case were negligible. He thought that FERC was entitled to take the prudence of a power company’s projects and expenditures into account when setting wholesale rates, and that states could not attack FERC’s final judgment by re-litigating the question of prudence after the fact, and monkeying with the retail rates to relieve consumers.

Scalia concurred in judgment. To him, it was a simple Chevron case. FERC had asserted the power to review the prudence of the decisions of power companies when setting wholesale rates, and since this was not flatly inconsistent with the underlying statutes, FERC deserved the Court’s deference. Brennan, joined by Marshall and Blackmun, did not find any statutory authority for FERC to deal with questions of prudence, and contended that it was still the domain of states, at least as it related to setting retail rates. It was simply beyond agency purview, and thus not entitled to Chevron deference. Furthermore, the central question of prudence served as an adequate basis to distinguish Nantahala, which did not squarely address that precise issue.

United States v. Taylor

487 U. S. 326

June 24, 1988

The Speedy Trial act requires trial within 70 days of indictment. The day before that time limit expired, the suspect ran away. When he was finally recaptured, the government wasted two months before it brought him to trial again. The District Judge found that the 70 day limit had expired, and also found that the “lackadaisical” attitude of the government after recapturing him was responsible for the great delay. The judge dismissed the case with prejudice. The question was whether the judge had abused her discretion in so doing.

The Court ruled 6-3 that she had abused her discretion. Blackmun said that the Speedy Trial act allowed for dismissal without prejudice, and that to dismiss with prejudice, a judge had to weigh several factors. Among those were the seriousness of the charges, and the degree to which the defendant was responsible for the delay. The judge barely addressed these factors, and concentrated only on the “lackadaisical” actions of the government, which she didn’t even explain all that well. Blackmun resorted to legislative history to show that the various different factors really did need to be considered. Scalia joined everything except the legislative history part. In his concurring opinion he sounded his old notes about the importance of sticking to clear statutory text.

White concurred to say that a delay initially caused by the suspect absconding should almost always be dismissed without prejudice. Stevens, joined by Brennan and Marshall, dissented. Dismissing with prejudice was a judgment call where reasonable judges could differ, and Stevens found no grounds to conclude that the judge had abused her discretion. He noted that the judge gave the runaway a harsh 5 year sentence for absconding, which was intended to compensate for the lost opportunity to prosecute the underlying charge. Allowing the case to be brought again risked essentially punishing him twice for the same drug charge. Stevens also said that the government’s delays were far more egregious than the “lackadaisical” label would leave you to believe.

I might be with Stevens on this one. The judge should not have dismissed with prejudice, but it probably wasn’t an abuse of discretion.