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1987-1988 Voting Patterns

1987-1988 was the most understaffed Court term between 1969-1970 and 2015-2016. Only eight Justices participated in a large portion of the cases. In several instances, only seven participated. There were a few times with just six, and even one memorable occasion with only five.

As a result, the voting alignments are just as unusual as you’d expect. I counted over 70 different alignments, and about two thirds of them only happened once. The most popular alignments, by far were 8-0 (with no Kennedy) and 9-0. Roughly tied for third place, with about 10 times each, were 5-3 (no Kennedy) with Brennan, Marshall, and Blackmun dissenting, and 5-4 with Brennan, Marshall, Blackmun, and Stevens dissenting.

No other combination came up more than about 5 times. Stevens and Scalia were the Justices most likely to dissent alone, with White and Marshall not far behind, and the other five almost never resorting to it. Brennan and Marshall dissented as a lonely pair only a few times, and usually had either Stevens or Blackmun with them in their dissent.

O’Connor, strangely enough, may have been the most conservative voter during the term. There are several cases each where she dissents with just Rehnquist, just White, and just Scalia. No other Justice seemed quite so frequently in dissent with just one other.

In cases where the four liberals got a fifth vote, it was usually White who defected. He did so about half a dozen times, most notably in Mills. O’Connor did it a few times, and Rehnquist, Scalia, and Kennedy each did it once.

Speaking of Kennedy, not much can be learned about him from the cases he voted on. He’s sort of generically conservative, but that’s about it. He could usually be found wherever the bulk of the other conservative Justices were.

Stevens seemed remarkably conservative this term, casting the fifth or sixth vote for the conservative side in a large number of cases. In some instances, it might be chalked up to his desire to prevent loads of tie votes. Still, it’s interesting to see a time when he was more a ‘wild card’ with a slight leftward bent than an automatic liberal vote.

Blackmun was in some ways the opposite of Stevens. While Stevens would join conservatives to make a majority, Blackmun tended to join conservatives when they were in dissent. Unfortunately, the alignments of these dissenting votes are so random that no deeper lessons can be drawn.

A left to right lineup starts out easy, but then gets hard. Marshall is clearly most liberal, closely followed by Brennan. Blackmun is plainly in third place, with Stevens plainly in fourth. White is the most natural swing voter. But trying to rank Rehnquist, O’Connor, Scalia, and Kennedy is really hard. You could make plausible cases for almost any ranking. Signs of the awful squishiness to come from O’Connor and Kennedy in the future were minimal.

FERC v. Martin Exploration Management Co.

486 U. S. 204

May 31, 1988

A 1978 law provided a timetable by which different types of natural gas would transition from having a price ceiling to having no price ceiling (i.e. being deregulated). If there was any ambiguity about where certain gas fell on the timetable, it would be treated in the way “which could result in the highest price.” As it turned out, deregulated gas ended up selling for considerably less than regulated gas in the market. Thus, many gas providers contended that the regulated price ceiling classification was the one “which could result in the highest price.”

The Supreme Court unanimously disagreed (White did not participate). Brennan said it was a simple textual case. The gas that theoretically could have the highest price of all was the deregulated gas, and not the gas with price ceilings. That market conditions currently deemed deregulated gas less expensive did not matter. Congress did not intend, Brennan showed, for market conditions to be inquired into in the course of classifying gas. Gas producers also argued that a regulatory agency had abused its authority in putting forth certain rules defining how gas would be classified. To the contrary, said Brennan, the agency had perfect statutory authority to do so, even if they had no affirmatively imposed obligation to do so. All in all, a good textualist ruling.

Kungys v. United States

485 U. S. 759

May 2, 1988

A man named Juozas Kungys lied several times about his biography when applying for a visa, and later when applying for citizenship. When this came to light decades later (together with the suggestion that he might have been a Nazi criminal), a denaturalization process was begun. At issue was whether his biographical lies were “material” for the procurement of naturalization, and whether the lies were sufficient to show bad moral character – in either event, his citizenship could then be revoked.

With Kennedy not participating, there was a confusing tangle of opinions. Scalia, had a majority for two points, joined by Rehnquist, Brennan, White, and O’Connor. First, by looking at the standards and definitions from the perjury context, Scalia held that lies were “material” if they had a natural tendency to influence the decisions of the naturalization decisionmakers. Second, lies need not be “material” to show bad moral character, because the plain language of the statute did not require it. While a similar statute had previously been interpreted to require that lies be “material,” it contained the word “misrepresentation,” which Scalia said was shorthand for material lies. Scalia hastened to add that, according to government policy, lies (whether material or immaterial) only showed bad character if they were made with the exact purpose of gaining immigration benefits.

In a portion joined by only Rehnquist, Brennan, and O’Connor, Scalia said that the case needed to be remanded to determine whether or not Kungys had lied for the exact purpose of gaining immigration benefits. This effectively became the Court’s final judgment on the matter. In a portion joined by only Rehnquist and Brennan, he said that the biographical lies were irrelevant enough to be immaterial. He also contended that if material lies are made, and citizenship is subsequently obtained, there is then a rebuttable presumption that the material lies procured the naturalization, which the naturalized person can then rebut through the preponderance of the evidence standard. Brennan, in a concurrence, emphasized that government would need to do a really thorough job in alleging that a material lie helped to procure naturalization.

Stevens, in an opinion joined by Marshall and Blackmun, found denaturalization a horrific punishment, and read the statutes to make it really hard. With reference to tort law, he interpreted “material” to mean that naturalization would not have been granted but for the lies. He also stressed that every single burden of proof in denaturalization cases should fall on the government. With respect to the requirement of good moral character, Stevens, by citing an analogous statute, contended that the lies would indeed need to be “material” (as he defined that word), to show bad moral character on the part of the applicant.

O’Connor, though joining most of Scalia’s opinion, wrote in a short dissent that the lies made by Kungys really were material. White, in his own dissent, was even more forceful that Kungys ought to be denaturalized. His long pattern of biographical lies, all made while trying to gain citizenship, clearly showed bad moral character. Furthermore, the lies were material because the immigration decisionmakers would surely have investigated more closely had they seen the change in biographical facts between the visa application and the citizenship application. White also expressed hope that the lower court, on remand, would look more seriously into the Nazi allegation.

… as I said, it’s an awful tangle of opinions and legal points. I hope I rarely have to write posts this long in the future.

Business Electronics Corp. v. Sharp Electronics Corp.

485 U. S. 717

May 2, 1988

Two Houston retailers sold calculators manufactured by Sharp. Because one retailer (Business Electronics) was selling them way cheaper, the other retailer asked Sharp to cut off the supply to the first retailer. Sharp did so, and Business Electronics sued, citing the Sherman Antitrust Act. After being told that cutting off one retailer because of its lower prices was always illegal if done at the bidding of a more expensive retailer, a jury ruled for Business Electronics. Sharp contended that this was not always illegal, and should be judged by the antitrust ‘rule of reason.’

Scalia, writing for the Court, agreed that the ‘rule of reason’ must be used. The Court thus ruled 6-2 that the jury instruction was erroneous, and a new trial would have to be held (Kennedy did not participate). According to antitrust precedent, tacit agreements between suppliers and retailers were only per se illegal if they fixed prices. Because the second retailer remained free to set prices as they wished, there was no price fixing here. Citing the Sylvania case from 1977, Scalia said that the Court should be extremely cautious before finding any other collusion between supplier and retailer inherently anti-competitive. Because there were arguable pro-consumer reasons for wanting only one, more expensive retailer, Sharp was in the clear pending a new trial.

Stevens, joined by White, dissented. He found no evidence in the record that Sharp and the more expensive retailer had any noble purpose – instead, the facts showed that they were just blatantly attempting to line their own pockets by leaving the cheaper retailer high and dry. Because this restraint of competition had no noble purpose, Stevens felt the agreement was per se illegal. Furthermore, antitrust precedents held that retailer boycotts of suppliers were per se illegal. Stevens argued that by threatening to sever ties if Sharp did not cut off the cheaper retailer, the more extensive retailer was effectively doing a one-business boycott.

Stevens made a really good argument, but reading the jury instruction again, I do think a new trial was probably warranted. That said, I also think that the jury should still find for Business Electronics, even after being properly instructed.

United States v. Providence Journal Co.

485 U. S. 693

May 2, 1988

The Providence Journal newspaper published documents that a District Court had forbid them from publishing. The paper was then held in contempt for violating the court order, but a higher court held that the order was invalid under the First Amendment. The Supreme Court originally intended to decide whether the paper could still be held in contempt in spite of the underlying order’s unconstitutionality. Then, the whole case hit a huge snag. The Solicitor General had not approved of the appeal to the Supreme Court, and the law required his approval for all cases “in which the United States is interested.”

The Court ruled 6-2 that it lacked jurisdiction (Kennedy did not participate). Blackmun said that vindication of a court’s contempt power was certainly something which the “United States” was “interested” in. He rejected the argument that cases about the judicial branch, rather than the Solicitor General’s own executive branch, constituted something other than the interest of the United States. Blackmun did not want to see various branches of the federal government divided against each other in Supreme Court cases. He also rejected the reasoning that Young, by allowing courts to appoint prosecutors for contempt cases, also meant that court appointed prosecutors could bypass the Solicitor General in taking contempt cases to the Supreme Court.

Scalia concurred just to say that he still disagreed with Young’s holding about the power of courts to appoint prosecutors. Stevens, joined by Rehnquist, dissented by showing that the majority opinion, while it seemed to follow the plain statutory text, was badly out of step with history. Many times, contended Stevens, the legislative and judicial branches had not gone through the Solicitor General or Attorney General when coming before the Supreme Court – which strongly suggested that cases “in which the United States is interested” was limited only to those involving the executive branch.

I don’t really know who’s right here. It’s one of the trickiest cases I can remember.

Bowen v. Kizer

485 U. S. 386

March 23, 1988

The State of California submitted a Medicaid plan amendment to the Secretary of Health and Human Services for approval. The HHS Secretary did not approve it, arguably in violation of a statutory duty to do so. A suit was filed, but in the meantime Congress stepped in and demanded that the Secretary approve the amendment. The Secretary did so, which made the lawsuit moot. In a per curiam announcement, the Supreme Court stated all this (Kennedy did not participate).

Lyng v. Automobile Workers

485 U. S. 360

March 23, 1988

The famous 1981 omnibus budget denied strikers the privilege of receiving food stamps. Predictably, unions were outraged, and tried to get this declared unconstitutional. They argued that it violated the associative and expressive rights of strikers, along with the Equal Protection clause.

The Supreme Court smacked down the unions 5-3 (Kennedy did not participate). White pointed out that food stamps were a privilege, and that the government is not required to fund every exercise of associative or expressive rights. Furthermore, it was pretty unlikely that anyone would decide against joining a union or living in a household just because of the food stamp issue. The government had not done any affirmative harm against unions or strikers – it had merely withdrawn a financial privilege. Finally, White said there was plenty rational basis for singling out strikers. In particular, it made the government more neutral in labor disputes, because strikers could hold out much longer if they were getting tax subsidized food stamps indefinitely.

Marshall, joined by Brennan and Blakmun, threw a babyish temper tantrum and called it a ‘dissent.’ He could not find a single rational basis for the law. Saving federal money was not good enough, because you could save federal money by discriminating against a protected class. Wanting to allocate money to those actually out of work was not good enough either, because those who strike are still in need of food. Finally, neutrality in labor disputes was not good enough, because company officials who oppose strikers could still get food stamps during a strike. Then, Marshall argued the law was simply a measure geared toward discouraging and ending strikes, and punishing those who chose to strike. You might think that this would constitute a pretty solid rational basis for the law, but in Marshall’s eyes, such an “animus” toward strikers was hateful and bigoted, and thus irrational.

Marshall is dead wrong. Strikes are evil, and emphatically do deserve to be squelched. And those who strike emphatically do deserve to suffer consequences for it. The last thing strikers deserve is having their evil rewarded by government money. Here’s a few Bible verses on the subject:

1 Peter 2:18: Submit with all fear to your masters, not only to the good and gentle but also to the cruel.

2 Thessalonians 3:10: This is what we commanded you: “If anyone isn’t willing to work, he should not eat.”

1 Timothy 5:8: But if anyone does not provide for his own, that is his own household, he has denied the faith and is worse than an unbeliever.

There you have it. Once again, Brennan, Marshall, and Blackmun are those who “call evil good and good evil.” Sadly, it won’t be the last time.

United States v. Wells Fargo Bank

485 U. S. 351

March 23, 1988

A 1930s housing act allowed ‘Project Notes’ to be exempt from “all taxation.” For half a century, this tax-free perk was understood to not include estate taxes, but then a District Court ruled otherwise, setting off a rush by taxpayers to get estate taxes paid on Project Notes refunded. It was now up to the Supreme Court to decide whether or not the housing act really included estate taxes in its exemption of “all taxation.”

Unanimously, the Court ruled that Project Notes were not exempt from estate taxes (Kennedy did not participate). Brennan said that “all taxation” does not really mean ‘all’ in many statutes. Estate tax is a type of excise tax, and a long line of cases had held that excise tax exemptions needed to be specifically spelled out, and were not deemed included in statutory exemptions from ‘all’ taxation. An unrelated part of the housing act appeared to imply that estate taxes were part of “all taxation,” but Brennan further showed that a close textual parsing proved the opposite. Finally, Brennan gave little weight to the fact that one Senator had said during debate that estate taxes would be exempted. Half a century of unbroken understanding weighed far more heavily.

And we have yet another unanimous tax case! Brennan’s analysis is probably sound, but it sure leaves a sour taste in one’s mouth. “All taxation” really ought to mean all taxation.

Boos v. Barry

485 U. S. 312

March 22, 1988

Some protesters wanted to gather at the embassies of the Soviet Union and Nicaragua and display critical signs about those nations. A District of Columbia regulation prohibited both congregating and displaying critical signs within 500 feet of embassies, supposedly because ambassadors deserve the highest level of dignity. The protesters claimed that these rules were obvious First Amendment violations.

The Court unanimously upheld the congregation ban, but struck down the signage ban 5-3 (Kennedy did not participate). A federal court had long ago interpreted the congregation ban to cover only violent congregations, and allow for peaceful ones. While federal courts could not usually narrow a DC regulation like this, the regulation had been originally passed by Congress rather than the DC Council, so it was ok. Because the federal court had narrowed the reach so drastically, an equal protection challenge based on labor unions being statutorily exempted was moot.

On the signage issue, there was no narrowing federal court ruling, and O’Connor did find that it violated the First Amendment. Because the regulation only banned signs that brought foreign nations into “disrepute,” it was a content based speech restriction. Furthermore, the regulation was not written to combat the secondary effects of this speech, like congestion or visual clutter, but the speech itself. While affording “dignity” to ambassadors was a possibly compelling interest, O’Connor did not find the regulation narrowly tailored enough to pass muster.

In an irrelevant concurrence joined by Marshall, Brennan whined about a previous decision which had allowed speech to be banned if its secondary effects were harmful. Rehnquist, joined by White and Blackmun, dissented. As is typical, he offered no argument; this time he simply said ‘read what the dissenting judge in the lower court wrote.’ Rehnquist’s unexpressed objections notwithstanding, the Court made the right decision. And I have to say, I really hated the idea of ambassadors deserving “dignity,” and freedom from offense. This is a deeply unbiblical notion. Evil nations must be openly called out as evil – just read the Old Testament prophets.

Schneidewind v. ANR Pipeline Co.

485 U. S. 293

March 22, 1988

A natural gas company wanted to sell securities, but the State of Michigan said that its regulatory commission would have to approve this first. The natural gas company protested that federal regulation of the industry was so comprehensive that any regulation by a state was preempted. Michigan responded that federal regulation did not cover the issue of securities, and that companies could certainly comply with both sets of regulations.

The Supreme Court unanimously found preemption (Kennedy did not participate). Blackmun left open the question of whether states could regulate natural gas securities in the absence of federal legislation, but then showed how elaborate and comprehensive the federal regime of regulation was. Although the federal scheme did not specifically mention securities, both state and federal regulation was indeed aimed at controlling the rates and facilities of natural gas companies. Because the end goal was the same, the Michigan law would need to be preempted. Furthermore, while it wouldn’t always happen, on occasion a company would find complying with both sets of regulation an impossibility. Blackmun also was unimpressed that Congress had voted against direct regulation of natural gas securities, since Congressional inaction had historically not mattered in preemption cases. Ultimately a very simple case; moving along.