Sorry for the delay in the update, but the computer ate my homework. Honest. (I’m told by reliable sources that my technological woes will be solved sometime in June. I can only hope.)
Ok, enough complaining. The Court issued five opinions — four from argued cases, and one per curiam summary reversal. Thus, with just under one month left in the Term, the Court still has 22 opinions to go. The Court also granted cert in three cases, but I’ll begin with the opinions.
Before I begin, though, I should note that the Court’s latest opinions undermine one of its newest rules. In the past, parties would routinely “lodge” documents and other items for the Court’s consideration even though those items were not properly before the Court as part of the official record. To discourage such lodgings, the Court adopted a new rule (effective May 1) that requires an explanation for why any proposed lodging is necessary and prohibits lodgings until approved by the Clerk. Despite this new rule, parties are unlikely to cease filing them because the Court continues to rely on them: Three separate opinions from the latest round cited “lodgings” with the Court. Not a momentous issue, but an inconsistency nonetheless. Lodge away!
On to substance:
In the big news of the day, the Court (by a 6-3 vote) upheld the Family and Medical Leave Act against a federalism-based challenge in Nevada Dept. of Human Resources v. Hibbs (01-1368). Unless you’ve been living under a rock for the past several years, you already know that one of the signature themes of the Rehnquist Court is the expanding protection of state sovereign immunity. In this case, however, the state lost. Under current case law, Congress may abrogate state sovereign immunity from suit if it makes this intent unmistakably clear and acts pursuant to a valid exercise of its power under Section 5 of the 14th Amendment. In the FMLA, Congress made clear that it intended to subject states to suit for violations of the act, and thus the central question in this case was whether the FMLA was a proper exercise of congressional authority under Section 5. In an opinion joined by O’Connor, Souter, Ginsburg, and Breyer, the Chief said yes and thus upheld the FMLA as applied to states. Section 5 allows Congress to enact “prophylactic” legislation that proscribes facially constitutional conduct in order to prevent and deter unconstitutional conduct. To be valid, however, such legislation must be congruent and proportional to the injury to be prevented and the means adopted to that end. The Court found that the FMLA meets this standard. The statute — which entitles eligible employees to take up to 12 weeks of unpaid leave for family-related reasons — aims to protect against gender-based discrimination in the workplace, and according to the Court, Congress had sufficient evidence of a pattern of constitutional violations on the part of states in this area. This evidence included multiple state policies that enshrined the belief that women, and not men, should be caregivers for the family. Moreover, the chosen remedy (the FMLA), is congruent and proportional to the violation: to counteract discriminatory leave policies, the FMLA creates a routine employment benefit available to men and women alike. In sum, the FMLA is constitutional because it is congruent and proportional to its remedial purpose and is designed to prevent unconstitutional behavior.
Souter (joined by Ginsburg and Breyer) wrote separately to emphasize that by joining the majority, he was not conceding the positions he took in other sovereign immunity cases where he expressed his much broader view of congressional authority under Section 5. Stevens concurred in the judgment. For Stevens, the Eleventh Amendment did not bar respondent’s suit (because he is a citizen of Nevada), and thus the only question is whether Congress abrogated a common law defense of sovereign immunity. Because the FMLA is a valid exercise of the commerce power, Stevens found a valid abrogation.
Kennedy authored the principal dissent, joined by Scalia and Thomas. Kennedy agreed with the basic framework for analysis in the majority opinion, but disagreed with the conclusion. According to Kennedy, there was insufficient evidence of a pattern of unconstitutional behavior by states to justify the FMLA. Scalia wrote a second dissent to point out that even if Congress had evidence of unconstitutional behavior by many states, Nevada should be able to argue that the statute is unconstitutional as applied to it because Nevada (as opposed to states in general) had not acted unconstitutionally in the past.
Next, in Black & Decker Disability Plan v. Nord (02-469), a unanimous Court (by Ginsburg) held that ERISA does not require plan administrators to accord special deference to the opinions of treating physicians. In this case, Nord applied for disability benefits under an ERISA-covered plan. Although Nord’s treating physician supported his claim for benefits, the plan administrator denied the claim, citing other evidence in support of its decision. The Ninth Circuit held that the plan administrator erred because it should have followed the treating physician’s recommendation unless it could point to substantial evidence in the record to reject that recommendation. The Supreme Court rejected this “treating physician” rule, expressly rejecting the Ninth Circuit’s argument that a treating physician rule should govern ERISA disability benefits claims because a similar rule governs social security disability benefits determinations. There is nothing in ERISA that would require such a rule, the federal agency responsible for issuing ERISA regulations specifically disavowed such a rule, and there are crucial differences between the two statutes. Thus, the Ninth Circuit erred by importing a social security rule to the ERISA context. End of story.
The Court reversed the Ninth Circuit in another case, Chavez v. Martinez (01-1444), but in this case, all they could agree on was that the Ninth Circuit should be reversed. (Ok, so that’s a bit of an overstatement, but any decision that generates 6 separate opinions and requires counting how many Justices joined specific sub-parts of an opinion deserves a little derision.) Here, Martinez confessed to criminal conduct while being questioned by a patrol officer. This interrogation was conducted without the benefit of Miranda warnings. Although Martinez was never charged with a crime and his statements were never used against him, he filed suit against the officer claiming that the questioning violated the Fifth Amendment protection against self-incrimination and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The Ninth Circuit held that the officer was not entitled to qualified immunity on these claims and the Supreme Court reversed.
Beginning with the Fifth Amendment claim, Thomas (joined by Rehnquist, O’Connor and Scalia) held that the officer did not deprive Martinez of his Fifth Amendment rights because Martinez was never prosecuted for a crime and was never compelled to be a witness against himself in a criminal case. Mere compulsive questioning, without more, does not violate the Fifth Amendment. A contrary result would be inconsistent with case law that allows compulsion of incriminating testimony under immunity agreements. Souter (joined by Breyer) concurred in the judgment. Souter acknowledged that the Fifth Amendment, by its own terms, is about the courtroom use of compelled, self-incriminating testimony, but also noted that the Court has expanded this bare right beyond its core protection when necessary to protect the basic right (e.g., barring compulsion to give testimonial evidence in civil proceedings). In this case, however, Souter concluded that Martinez had not shown that it was necessary to provide a cause of action for civil damages in order to protect the privilege against self-incrimination.
Kennedy (joined by Stevens and Ginsburg in part) dissented on this issue. He would hold that the police violated the Fifth Amendment when, after failing to provide Miranda warnings, the police used severe compulsion or extraordinary pressure in an attempt to elicit a statement or confession. According to Kennedy, the Fifth Amendment is not merely an evidentiary rule that protects against the introduction of self-incriminating statements, but rather is a substantive constraint on the conduct of the government.
On the substantive due process claim, Souter delivered the one-sentence opinion of the Court (for himself, Breyer, Stevens, Kennedy, and Ginsburg): “Whether Martinez may pursue a claim of liability for a substantive due process violation is thus an issue that should be addressed on remand, along with the scope and merits of any such action that may be found open to him.” Stevens wrote separately to register his opinion that the interrogation of Martinez violated substantive due process. (Did I mention that Martinez was interrogated while in the emergency room being treated for gunshot wounds to the face?) However, to avoid a situation where there is no controlling judgment, he joined Souter’s opinion remanding the case to the Ninth Circuit. Kennedy, too (joined by Ginsburg and Stevens) would find a substantive due process violation, but voted to remand with Souter to ensure that the Court issued a controlling judgment. Ginsburg wrote separately to emphasize that the interrogation in this case was clearly the kind of compulsion that no reasonable officer would have thought constitutionally permissible, and to express her view that the interrogation violated Martinez’s Fifth Amendment right. Thomas (joined by the Chief and Scalia) disagreed. While Thomas acknowledged that brutal and offensive police conduct might violate the due process clause, the conduct at issue here was not egregious or sufficiently “conscience shocking” to violate that clause. Expressing a reluctance to expand the protections of the substantive due process clause, Thomas refused to recognize a right to be free from unwanted police questioning absent a compelling state interest. Scalia wrote a separate opinion to explain that he thinks a remand on the substantive due process clause is unnecessary. By reversing the Ninth Circuit’s judgment, the Court necessarily addresses (and rejects) the substantive due process claim. (Maybe it’s just me, and maybe it’s just too late for me to be parsing opinions, but I don’t think O’Connor joined any opinions on the substantive due process issue.)
Next, in a refreshingly straightforward opinion, the Court (per Thomas for himself, Rehnquist, Scalia, Kennedy, Souter, and Ginsburg) in National Park Hospitality Ass’n v. Department of the Interior (02-196) held that a challenge to a National Park Service regulation was not ripe for review. The Contract Dispute Act establishes rules governing disputes arising out of certain government contracts, but in 2000, the National Park Service issued a regulation stating that national park concession contracts are not “contracts” within the meaning of that act. Petitioner (representing national park service concessioners) challenged that regulation, but the Court held that its challenge was not ripe. Applying the familiar standard for ripeness, the Court concluded that the regulation imposed no “hardship” on petitioner because it did not affect primary conduct and did not mandate any legal consequences. It merely expressed the Park Service’s view of the proper application of the Contract Dispute Act. Moreover, although the question is a purely legal one and the regulation was a final agency action, the question was not “fit for judicial review” because further factual development (in the form of a specific controversy) would significantly aid the Court’s ability to resolve the legal issue presented.
Stevens concurred in the judgment because he believed that petitioner, who (according to Stevens) alleged no injury from the regulation, lacked Article III standing. Breyer (joined by O’Connor) dissented. He would find that petitioner had standing, and that the question was ripe for review.
Finally, in Bunkley v. Florida (02-8636), the Court summarily reversed the Florida Supreme Court in a criminal case. In 1986, Bunkley burglarized a Western Sizzlin restaurant. When he was arrested leaving the restaurant, the police found a pocketknife (blade of 2 1/2 to 3 inches) in his pocket, and because of the weapon, he was charged (and convicted) of first degree burglary and sentenced to life imprisonment. Florida law defines “weapon” to include all the usual suspects, but specifically excludes the “common pocketknife.” Thus, if Bunkley’s knife fell within this exclusion, he would have been charged (and presumably convicted) of third degree burglary, which carries a 5-year maximum sentence. In 1997, eleven years after his crime, the Florida Supreme Court interpreted this exclusion and held that a knife with a blade of less than 4 inches was a pocketknife. Bunkley filed for post-conviction relief based on this decision, but the Florida courts rejected his claim. In a per curiam opinion, the Court reversed and remanded for further proceedings. According to the Court, if the 1997 interpretation of the law was a correct interpretation of the law at the time of Bunkley’s conviction, then he could not have been convicted of the crime. Thus, the Court remanded for clarification by the Florida Supreme Court on that issue. Rehnquist (joined by Kennedy and Thomas) dissented because they thought it was clear that the 1997 decision was a “change” in the law.
Turning finally to the order list, the Court granted cert in the following cases:
1. Olympic Airways v. Husain (02-1348): Under the Warsaw Convention, air carriers are liable for “accidents” causing passenger deaths. Is this condition precedent satisfied when a passenger’s pre-existing medical condition is aggravated by exposure to normal conditions in an aircraft cabin, even if the carrier’s negligence is a link in the chain of causation?
2. United States Postal Service v. Flamingo Industries (U.S.A.) Ltd. (02-1290): Question presented: Is the Postal Service a “person” subject to suit under federal antitrust laws?
3. Baldwin v. Reese (02-964): Question presented: Does a state prisoner “alert” the state’s highest court that he is raising a federal claim, as required by the exhaustion doctrine, when, in that court, he neither cites specific provision of federal constitution nor cites at least one authority that has decided the claim on a federal basis? (I’m going out on a limb here, but this is a Ninth Circuit case, and my bet is that they took this case to reverse.)