Category Archives: Stevens

Pennsylvania v. Bruder

488 U. S. 9

October 31, 1988

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

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

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

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

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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.

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.

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?

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.