As I did last
time at this time, this page is in place to discuss and summarize some of the
highlights of this term of the US Supreme Court. A click of the headline will transport you to page which provides
a list of all the opinions of the term [you can also access the Constitution
and commentary on it, if for instance, you have forgotten the exact wording of
an amendment or wish to know more about its meaning], so if you wish to refer
to them or read any that I did not include, go right ahead. Do not be afraid to check out some of the
rulings; the Court has had a tendency recently to decide fewer cases and write
briefer opinions than in the past. The
usual complicated legal jargon is still present, but many opinions are quite manageable
to read, as well as being worth the effort.
For instance, the school
voucher decision opinions are overall rather easy on the brain, as well as
they should be: you should not need to be a law professor to understand rulings
that has the potential to protect the average individual. Linda Greenhouse’s end of the year term
summary (7/2/02, New York Times) was quite helpful, as was various other
articles, some of which I will intersperse in my discussion below.
The
unanimous ruling that innocent public housing beneficiaries can be evicted for
the crimes truly beyond their control, surely one of the more heinous rulings
of the term, is discussed here.
The Court continue to deal with
the troublesome Americans With Disabilities Act, the same used last year
to change the rules of golf to allow additional use of carts, supplying
additional evidence that Congress has to clarify this clearly too vague law. A
law that is vague, especially one that penalizes (including financial harm, as
is the case here) those who break it, has clear due process problems.
Furthermore, if the law is meant to assist the equality of the disabled, they
are do not benefit in the long run while the law is in such a state of
flux. After all, not only are their
cases held up in court, the courts might very well give less protection than
the law truly intended. One is left
with the conclusion that the law ultimately was passed to make us feel good
without the effort to truly make the hard choices necessary, including determining
just what “disabled” means.[1]
The Court tried various other
cases that affect workers and business in important ways. EEOC v Waffle House
(6-3) held that the federal government could step in to defend the rights of
all workers, even if the case in particular involves an employee whose arbitration
agreement prevents him/her from going to court. Such agreements are beneficial in some cases as a way to settle
disputes, but clearly sometimes a lone employee might not be fairly matched in
a fight with the company, and be better off with his/her day in court.
Furthermore, quite often the arbitration agreement is forced upon the employee,
who has little choice (if s/he wants to keep the job) to turn down this
option. National Railroad Passenger
Corp v Morgan (5-4)[2] extended the
time period in which employees can sue on account of a hostile work
environment. As noted in the linked essay, it was a good first step, but not
broad enough. Yet again, Congress, who has the power to pass legislation to
clarify employment rules and EEOC guidelines, can settle this. You cannot complain that the courts are too
powerful, when Congress leaves it up to them to clarify confusing laws that
ultimately often boil down to debatable policy choices that Congress really
should settle themselves. Rush
Prudential HMO Inc v Moran (5-4) upheld states power to require a denial of
recommended treatment to be reviewed by an independent doctor, arguably a
matter of federal control since HMOs are national businesses.
U.S. v Fior Ditalia Inc (6-3) was a little
spoken about tax case that is arguably one of the most important for a select
group of businesses, namely restaurants.
The case held, in the words of the dissent: “the Internal Revenue
Services statutory authorization to make assessments for unpaid taxes is
reasonably read to cover a restaurateurs FICA taxes based on an aggregate
estimate of all unreported employee tips.” In other words, owners of
restaurants might very well have to pay more taxes than deserved, because tip
income is rather arbitrary, and assuming otherwise is ignoring common
sense. It is true that the IRS has a
problem: many employees do not declare all their tips, so cheat the government
out of taxes, as does employers who also are taxed for the tips. Nonetheless, not only is tip income a type
of unofficial compensation for underpaid wait staff, the government cannot not
justly tax for income that does not exist, or at least, for which there is no
evidence of it existing. Therefore, I
am inclined to join the dissent for the reasons supplied (the rule is an
illogical one, and should only be put in place if one is totally clear Congress
so intended), but also because of more “unofficial” reasons as well.
Utah v
Evans (6-3) settled a reapportionment dispute between Utah and North Carolina
that ultimately arose from a census
technique “called imputation, by which it infers that the address or unit about
which it is uncertain has the same population characteristics as those of its
geographically closest neighbor of the same type (i.e., apartment or
single-family dwelling) that did not return a form.” The dispute: does the Constitution require an actual count of
individuals, or can some type of indirect measure be used? The term used is “enumeration,” which means
determining the count, counting. How
advanced statistical analysis used to tweak the final numbers to achieve the
highest accuracy does not “compute” the number of residents for the purposes of
appointing federal representatives in Congress is unclear to me. After all, how exactly is asking heads of
household or neighbors about numbers of people a better method? Neither method actual performs the “no doubt
about it” headcount the minority feels is constitutionally necessary.
Furthermore, it is counterproductive: it tends to undercount certain
individuals, surely not what the Framers had in mind when they put the term in
there. As I discussed in the linked
essay, what should be used it the best possible way to achieve an accurate
count, and “imputation” (let’s note that ultimately .4% of the population was
what was at issue here) is one possible way to do this.
A
discussion of cases involving the Internet and zoning of adult businesses can
be found here, a discussion of the appellate case involving abortion protest is found here,
the school voucher citation was supplied above, and the infamous appellate
Pledge of Allegiance ruling is defended here. And a personal essay on religion can be
found here.
Republican Party of Minnesota v
White (5-4) struck down state ethics rules that prohibited candidates in
judicial elections from taking stands on disputed legal or political
issues. The intent of such rules is
benign but at least somewhat benighted: elections provide the possibility that
judges will be improperly beholden to certain individuals that come before them
if they are allowed to discuss their views on issues likely to be tried in
their courts. As discussed by Justice
O’Connor in her concurring opinion, as well as this article, judicial
elections are per se troubled for just that reason. The majority opinion is correct: it is not like the judge will
have no views before being elected; elections are in place (including party labels
and the like) partly because of the people are supposed to choose between those
with different views. Yes, ability is
part of it, but trying to prevent a problem that is part of the nature of all
elections via censorship is a bit pointless as well as being censorship –
something that is too risky to put in place when its value is so
questionable. Furthermore, as a
resident of an area with judicial elections in which a vast majority of the
public does not know a thing (besides party labels) about the candidates, I
think an appointment system is the best way to handle things.
Watchtower Bible & Tract Society v
Village of Stratton (8-1) upholds the rights of Jehovah Witnesses (and
others) to bother you on weekend mornings without getting a permit to do so,
following an over forty year tradition by that group to bring cases to the
Supreme Court, and winning most of them.
The decision noted that “No Soliciting” signs is a better way to promote
privacy; permits interfere with various groups political, religious, and other
interest to speak; and criminals that go door to door are liable to do so with
or without such a statute.[3] The ruling also noted that certain groups
are loath to apply for permits because they see it as against the beliefs to
ask the government to do something they feel is their right; they rather just
not speak at all, if such efforts are required. The ruling ends on an eloquent note: “The rhetoric used in the
World War II-era opinions that repeatedly saved petitioners coreligionists from
petty prosecutions [including being forced to pledge allegiance to the flag]
reflected the Courts evaluation of the First Amendment freedoms that are implicated in this case. The
value judgment that then motivated
a united democratic people fighting to defend those very freedoms
from totalitarian attack is unchanged. It motivates our decision today.”
Justice Scalia, who has a tendency to out of his way to sound like
a smart aleck, does so here. He felt a
need to concur in this opinion, apparently largely to say that he doesn’t quite
concur with all of the Court’s reasoning,[4]
and to state: “As for the Courts fairy-tale category of patriotic citizens, who
would rather be silenced than licensed in a manner that the Constitution (but
for their patriotic objection) would permit: If our free-speech jurisprudence
is to be determined by the predicted behavior of such crackpots, we are in a
sorry state indeed.” It should be noted that the justice is a hero to many
conservatives, including those who some feel have a bit overextended distrust
of the government, including it’s record keeping (e.g. the questions asked on
the census). Such individuals might not
be so happy to be called “crackpots” by the fine justice.
Thompson v Western States
Medical Center (5-4) continued the current Court’s protection of commercial
speech, here striking down a federal ban on advertising of “compounded”
medicines that are pharmacists make for individual patients.[5] Since these drugs are not commercially
available, and their effects are not clearly understood, the federal government
wished to limit their sale.
Nonetheless, the drugs are still legally sold, and the commercial
information was truthful and possibly very helpful for those who might benefit
from the drugs. Therefore, it is
unclear how beneficial the protectionist legislation was overall, and
furthermore, the means (censorship) was constitutionally dubious. As was the case last term in the area of mushroom sales as
well as cigarette
advertising, free speech concerns also arise in commercial
proceedings. Free speech includes the free
transmittal of information, including medical and drug information, any risks
that come from allowing the people to make up their own minds once they receive
it inherent under the our First Amendment regime.
As addressed in a separate essay on
this site, the federal government via the Attorney General and Solicitor
General promoted a change in the official view of the Second Amendment. In a typical petition to the Supreme Court
not to accept an appeal, the federal government supported the individual
rights’ view, that is, the constitutional right of individuals to own firearms:
“The current position of the United States, however, is that the Second
Amendment more broadly protects the rights of individuals, including persons
who are not members of any militia or engaged in active military service or
training, to possess and bear their own firearms, subject to reasonable
restrictions designed to prevent possession by unfit persons or to restrict the
possession of types of firearms that are particularly suited to criminal
misuse." Showing that a few lower court rulings were as important as ones
by the Supreme Court, the government supported the view of a federal appellate
court that basically rejected its sister courts to support such a broad based
right.
Fourth
Amendment cases ultimately come down to reasonableness and the respect we give
to privacy. Broad drug testing of
school children puts privacy on the back burner to fight the drug abuse. Drug crimes often ultimately come down to
possession, since both the buyer and seller (unless undercover officers are
involved) consent to the sale; therefore, it is far from surprising many Fourth
Amendment cases deal with drugs. After
all, the amendment is in place to limit the power of the state in its ability
to search and seize people, places, and things, even if there is some evidence
that wrongdoing can be proven. This
higher level of protection is not always respected, since it seems to protect
bad people … this leads to the temptation to put aside reasonableness, and
ignore evident violations of the amendment.
A situation that under a “smell test” occurred in US v Drayton (6-3),
involving searches of bus passengers.
The situation: a bus pulls into
the station for refueling. The driver takes
the tickets of the passengers and leaves, and three police officers come on
aboard: one in the front, one in the back, and the third going up and down the
narrow aisle. Enclosed space, for many
a strange location, no tickets, and a police officer asking for
cooperation. If an officer asks you a
question on the street, you can refuse to be involved, though realistically
there is an inherent pressure to assist.
This pressure, coercion, only increases in more isolated environs,
including alley ways, strange locations, and yes, a bus in which the exit is
guarded by a police officer, and the tickets are elsewhere. And, when the police does not say you can
refuse, leaving the implication open that if you do so, you will be sorry. If not, why did the defendant consent to the
search, when he had drugs on him? And,
since the police do not have the right to search without probable cause (and
without a warrant, something more), the bus sweep plus the request has a clear
purpose: to get around the Fourth Amendment via a “voluntary” search. Seriously. Who truly buys the majority’s
argument that coercion was not present? That the search was truly
voluntary? We are dealing with convenient
fictions here in order to fight a war on drugs, and as with most wars, reasonableness
and liberty are luxuries we apparently cannot truly afford.
Question:
Does the ability to go to a lower security facility in a prison, one that took
years of good behavior to achieve, and has benefits such as the ability to see
more visitors and have less roommates (also know as potential rapists or other
violent offenders, especially if you are in there for a sex crime), an
important interest? In other words, if you are told that you will be denied it
if you do not incriminate yourself, is this unconstitutional coercion by the
state to make you surrender your rights?
One more thing: you never admitted you were guilty, and by doing so, you
leave yourself open for perjury charges and further punishment (even less doubt
of guilt can mean more jail time). The
ruling in McKune v
Lile (5-4) was based on Justice O’Connor ignoring the dangers of maximum
security, and the rest of the majority ignoring that any legal coercion
actually occurred. They had help: the
prisoner was in jail for a sex crime, and sacrificing his Fifth Amendment
rights (deemed so important that it is one of the few most people know by name)
apparently is necessary for his treatment.
Of course, (1) this presumes he is surely lying and is guilty (many
accused or even convicted of child abuse in day care centers were later found
innocent; even sex criminals are at times wrongly accused) and (2) really bad
people do not deserve constitutional rights.[6]
Tahoe-Sierra Preservation
Council v Tahoe Regional Planning Agency (6-3) held that a moratorium (delay)
on development, even for an extended period of time (32 months, though really
much longer), is not a “taking” of property requiring compensation. This is part of an ongoing string of cases
involving regulation of property that in actuality deprives the owners of much
of its economic value, including (as in this case) environmental regulation
with arguably beneficial purposes.
Nonetheless, it is to be expected (in theory at least) that if the
government is going to take or take control of your property, it will do so for
good reason. The purpose of the Takings
Clause is to make sure a few people do not have to pay for property used
for all … it is a way to spread the pain.
This case, including the fiction that a regulation that stopped
development for six years really was only two and a half because of what time
was counted, is just one of many troubling cases in our modern regulatory state
in which the burdens of property owners [and most of us are property owners in
some sense] are ignored. If Tahoe wants
to protect its land, why should only a few property owners pay the bill,
instead of all the residents who will benefit? And, if it costs too much, perhaps
it really is not worth it …
the alternative is residents become free riders on the pain of the few … just
what the Takings Clause was put in place to prevent.
Ring v
Arizona (7-2) held that juries must make the factual determinations necessary
to open the way to execute people, namely those aggravating factors necessary
to find the act so heinous as to deserve the death penalty. As I discuss in my extended discussion of
the death
penalty, the decision to hand down a capital sentence is one uniquely fit
for a jury (see also, Justice Breyer’s concurrence), but this ruling was more concerned
with juries than the Eighth Amendment / death penalty issues. The right to a jury trial has included in it
the right to have a cross section of the community try your case, to let them
decide the facts. This includes the
facts necessary for additional punishment, be it an enhanced sentence in a hate
crime, or the ultimate punishment of death.[7]
The additional protection of a unanimous jury (or in a few cases, a
supermajority of some sort) instead of one judge making the determination is a
major factor here. Nonetheless, judges
can hand down certain sentences based on facts only they decide, as held in
Harris v U.S. (5-4). Showing form over
substance continues to be the guide a bit too often, the reasoning was that the
sentence handed down was within the guidelines for the crime charged, even
though a fact like use of a gun was part of the equation in setting the
sentence. This is different from a hate crime statute that adds two years on
the sentence for a crime motivated by hate (i.e. an additional fact that the
jury must decide). Confused? Me too.[8]
Alabama
v Shelton (5-4) held that even when the only punishment was a suspended
sentence, you have a right to an attorney.
On the other hand, Mickens v Taylor
(5-4) held that even in death penalty cases you do not necessarily have
a right to an attorney who did not earlier represent the victim.
Hope v. Pelzer (6-3) upheld the
right of an Alabama prisoner to sue guards for tying him to a post outside in the hot
sun for a few hours until the guards discovered he did not start the fight he
was being punished for. Apparently,
there are a few things that guards are supposed to know are cruel and unusual. The dissent did show there was some evidence these guards might reasonably not know, but without cases such as these, their apparently reasonable ignorance would continue, as would the cruel and unusual (and unusual is an apt word: Alabama is unique in using type of penal technique) behavior. Have no fear hardliners, executing minors is
still constitutional, though under Atkins v
Virginia (6-3) not the mentally retarded.
A ruling thirteen years ago was decided the opposite way,[9]
regardless of the fact that the mentally retarded are mentally younger than
those currently allowed to be executed.
They are also less liable to be deterred than others mentally older and
more mature, and their lesser mental state make them less culpable. Such factors and others is why nationally
and internationally executing the retarded is either not allowed or nearly
never done, except for a few rogue nations and states in this country. All these factors were used by the majority,
and logically this is how one determines “cruel and unusual” in a system in
which the courts, not just legislatures, protect our constitutional
rights. Furthermore, less culpability
also raises due process concerns. A pretty
tough road (to me at least) to cross to decide the other way, but three justices
gave it a go, and bitingly so. Nothing
like stopping the execution of the mentally retarded to get a conservative all
riled up.
US v Quinones is a
federal district court case, which struck down the federal death penalty
because of the danger of executing the innocent, which an earlier Supreme Court
case held was unconstitutional. The use
of DNA and other evidence to exonerate several prisoners years after their
trial has in the last few years led more people to question the death penalty,
at least as it is now used. For
instance, the Republican governor of Illinois called a moratorium on all executions
after numerous individuals on death row were found to be wrongly
convicted. Therefore, the judge expressed
"evolving standards of decency" on the issue, though he ultimately based
his ruling on the Due Process Clause (i.e., it is not due process to deprive
one of life by a procedure that might very well lead to the execution of
innocents). The ruling is likely to be
overruled, but it was a worthwhile effort that expressed concerns held across
the country.
I put the words in italics because these days the words of the actual amendment are not quite what the Court rules the amendment actually means. Federal Maritime Commission v South Carolina Ports Authority (5-4) was more of the same. A private citizen petitioned a federal administrative agency to uphold a federal law involving interstate and foreign commerce by bringing a suit against South Carolina. Therefore, unlike some other recent precedents in this area, a branch of the federal government ultimately was carrying out the suit against the state, not an individual citizen. The Eleventh Amendment’s actual words say nothing about such a suit.[10] Of course, the amendment’s actual words say nothing about a citizen suing his/her own state at all, but apparently that is not an issue any more.[11] It seems quite logical for a citizen to petition a national agency (shades of the right to petition found in the First Amendment) to uphold the law against a local actor, even if it’s a state. It is even more logical if the suit furthers a national interest. “After all, the Constitution created a Federal Government empowered to enact laws that would bind the States and it empowered that Federal Government to enforce those laws against the States” (Justice Breyer, dissenting). In response, the majority talks about the “dignity” of the states, as if they are shrinking violets in need of protection. If only some of the justices of the majority was more concerned with the “dignity” of certain groups that need more protection and which the words of the Constitution actually is explicitly concerned about.
[1] Toyota Motor Manufacturing Inc. v Williams (9-0) held that not being able to do certain work related tasks does not automatically make on “disabled.” Another unanimous decision, Chevron v Echazabel held the legislation did not require companies to hire people whose condition would put them at risk in that particular job. The Court split 5-4 in US Airways v Barnett which held that ordinarily a firm does not have to change its seniority system to accommodate the needs of the disabled, but that in some cases it might. This “splitting the baby” result might be a decent compromise, if that is what the law really requires; if not, it is just a cute way to make law the mean what it does not. After all, as two dissenters said, why should seniority not factor in? Why is it so special? Or as the other two argued, why take it in consideration at all, if the law does not say so? Congress should clarify.
[2] As with Harris v US, this case shows we should not be too simplistic in defining the justices … that is, Justices Thomas and Scalia were not only on opposite sides, Justice Thomas wrote the majority opinion. On the other hand, Justice O’Connor (who as a woman might be considered biased) voted with the dissent.
[3] For instance, the statute does not require those who ask for directions, to use their phone to call the auto club, or even register using a fake name. The statute is so poorly written that it “contains no provision for verifying an applicants identity or organizational credentials.”
[4] Apparently the main point of disagreement was the suggestion by the majority, mostly in passing, that WWII era precedents were specifically concerned with regulations that interfered with religious speech, which would therefore run counter to the Free Exercise Clause. Justice Scalia opposes using this clause to specifically target neutral laws that indirectly burden free exercise of religion, tending to avoid court precedents that clearly argued another point of view. His argument is that the current ordinance violated freedom of speech, which includes religious speech; nonetheless, precedent and history suggests the Free Exercise Clause was partly interested in protecting religious speech in particular.
[5] Justice Thomas’ concurrence is basically my stance on this issue.
[6] Kansas v Crane (7-2) suggests otherwise. Held: Sexual predators in civil confinement after serving their criminal sentences have to be shown to have “serious difficulty in controlling behavior.” If sexual predators, who some studies show are more likely than some other offenders to commit crimes again, can be so protected, why can they be pressured to (or punished if they do not) incriminate themselves? Since Crane is basically a due process case, apparently one clause of the Fifth Amendment is more important than the other.
[7] Also noted, is that Ring left open the possibility of judges making the sole final determination. For instance, a jury can find the aggravating facts are present, but a judge can decide if the individual deserves death. And since the judge might very well use facts not known by the jury to do this, the spirit of the decision can be violated in the process. This includes judges who ultimately make a moral choice to execute or not, which (1) surely a jury’s job and (2) if the deciding factor is the “heinous” nature of the offense, arguably a factual determination!
[8] This is one of those times when reading the opinions or at least the head notes might be useful. For instance, it is a somewhat rare case to see Justice Scalia admitting he was wrong (concurring in Ring), as well as splitting with Justice Thomas (who dissented in Harris). Justice Breyer’s concurrence in Ring, though Justice Scalia felt he missed his plane, is a worthwhile one, especially for those who doubt the legitimacy of the death penalty.
[9] Since then, sixteen states passed laws to ban the execution of the retarded. Just what value this is, as well as other poll data and the like, was a matter of dispute … see, here for added discussion of the math as well as other reasoning used to determine what currently is "cruel and unusual."
[10] An administrative agency is not even a “court,” so an amendment concerned with the “judicial power of the US” is quite relevant. It is true that administrative agencies carry out some judicial functions, but they ultimately are executive agencies.
[11] As stated just this time by the unanimous decision of LAPIDES v. BOARD OF REGENTS OF UNIV. SYSTEM OF GA.: “The Eleventh Amendment provides that the Judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the States by citizens of another State, U.S. Const., Amdt. 11, and (as interpreted) by its own citizens." (emphasis added)