Last Thursday’s opinions: In Plain English

By Lisa Tucker
on Jun 27, 2010 at 8:00 pm

While most of the world has eyes only for the World Cup, Court watchers have spent several mornings in June anxiously awaiting the Court’s final decisions for this Term.  Last Thursday did not disappoint, as the Court handed down opinions in seven cases, many of which (including the “honest services” fraud cases and a big First Amendment case) have garnered an awful lot of attention, and all of which have far-reaching implications.

Where to start?  In my view, one of the most interesting cases of the Term – and one that fell somewhat under the shadow of the Skilling decision – was Doe v. Reed, a case about signatures on a referendum petition in the State of Washington.  The referendum issue?  Gay marriage.  Opponents of same-sex marriage in Washington signed a petition objecting to heightened legal status for domestic partners, but then objected to their names being published, citing a concern that they would be harassed and intimidated for their views. 

But the Court rejected this argument, holding that disclosure of the signatures should generally be allowed.  While it understood that harassment might occur, it reasoned that the election process maintains integrity and transparency through such disclosures.  In other words, the Court balanced the privacy interests of the petition signers against the state’s interest in running its elections fairly.  The Court is quite frequently engaged in this kind of balancing of interests in cases, like this one, in which both sides have competing interests and goals.  Although both might be protected by the Constitution, the Court’s job is to decide which one trumps.  If you have read in other posts about a “compelling state interest,” that’s what the concept means – the Court weighs a constitutional right against the state’s need to limit that right.  Here, the Court decided that the state’s interest in running fair elections was important enough to warrant publication of the names, even if harassment could result.

The case is not over:  although the Court held that signatures should generally be disclosed, it left open the possibility that these particular petition signers could still win in the lower courts.  Who knows?  The case might even make its way back to the Court in the coming years.

One other note:  The Court sided with the state here, which some may view as siding with gay marriage proponents.  But that’s not it at all.  The Court did not express an opinion on gay marriage in and of itself.  It merely ruled on the legal issue before it, an important distinction that will come into play even when cases directly implicating gay marriage eventually make their way to the Court.

Let’s turn now to the “honest services” fraud cases.  Jeffrey Skilling is undoubtedly celebrating this weekend, although he’s not completely off the hook (more on that in a minute).  At issue in his case (as well as two others, Weyhrauch v. United States and Black v. United States), was the federal “honest services” statute, which provides that a defendant can be convicted of fraud for depriving someone else of that person’s “intangible right” to the defendant’s “honest services.”  That wording is pretty broad, and for decades, federal prosecutors have used the statute in a broad range of corruption cases.  That all changed on Thursday, when the Court held that the statute applied only to crimes involving bribery and kickbacks.  Because Skilling and others had been tried under the statute for other kinds of crimes, the Court explained, those convictions could not stand. 

In my inbox are all kinds of questions from Plain English readers – how could the Court do this?  Didn’t Jeffrey Skilling cause a whole bunch of people to lose their life savings?  That’s an important question, and the answer gives us insight into how the Court works.  The Court’s job is not to decide whether people are guilty or not guilty – that’s a job for the trial courts.  No, the Supreme Court must decide what the Constitution and federal statutes mean.  The Court must be neutral about the outcome, deciding how the law works and then seeing what outcome results.

Think back to third-grade social studies or Schoolhouse Rock – remember checks and balances?  The judicial branch is one of three branches of the federal government, and the Court has to check and balance the executive and legislative branches.  That’s why we see a lot of Supreme Court cases involving executive power or statutory interpretation. 

But for those of you who are worried that the Supreme Court just issued Skilling, Black, and others a get-out-of-jail-free card, that is probably not going to happen either.  All of these defendants were convicted of multiple crimes, so even if their convictions under the honest fraud services statute do not hold up, some of the others probably will.  These cases, like Doe v. Reed, will probably be litigated for years to come.

Now, on to three cases that might not have been as familiar to the general public.  In Morrison v. National Australia Bank, the Court held that Australians could not sue in American courts over fraud by an American division of an Australian bank.  The Australian plaintiffs had bought stock on an international exchange; the Court held, however, that the securities fraud statute at issue only applied to domestic transactions.  For securities cases, the ruling will discourage what’s known as forum shopping, or the practice of filing suit in a court whose law is particularly sympathetic to the plaintiff’s cause.   

In Magwood v. Patterson, the Court handed down yet another opinion that helps criminal defendants who bring habeas petitions – that is, who seek to have their convictions or sentences (including those in state court) struck down by a federal court because they violate the Constitution.  Under a law enacted by Congress in 1996, a defendant can generally only file one habeas petition.  Once again, the Court’s job in this case was to interpret ambiguous language in a federal statute – here, the provision prohibiting defendants from filing “second or successive” petitions.”   It concluded that when a defendant files a petition and is re-sentenced, he can file a new habeas petition challenging his new sentence, even if he could have made the same challenge to his original sentence.  Perhaps the most interesting thing about Magwood, though, is that it once again demonstrates how hard it is to pigeonhole the Justices as “conservative” or “liberal.”  Both Justice Kennedy (the Court’s so-called “swing” vote) and Justice Ginsburg (who is usually regarded as one of the Court’s four “liberal” Justices) voted for the state and against Magwood, the death-row inmate.  But Magwood still won, because two of the Court’s “conservative” Justices – Thomas and Scalia – agreed with Justices Stevens, Breyer, and Sotomayor that he should be allowed to file his second challenge.  [Disclosure:  Both Akin Gump and Howe & Russell represented Magwood in this case, but I was not involved in the proceedings.]

Finally, in Granite Rock v. International Brotherhood of Teamsters, the Court resolved another issue about arbitration, holding that it was up to a federal court, not an arbitrator, to decide when parties entered into a collective bargaining agreement (perhaps refuting in part Tom’s LiveBlog comment from last week that “the Court hearts arbitration”). 

Next up?  As the Court announced on Thursday, we’ve got only one opinion day to go before the Court is in summer recess . . . and we’re still waiting, breathless, for opinions in some of the Term’s highest-profile cases.  Yes, these include Bilski v. Kappos, the landmark case that has patent lawyers on the edges of their seats; McDonald v. Chicago, the case that will determine whether state and local gun laws are subject to the Constitution’s right to keep and bear arms; and Christian Legal Society v. Martinez, the case about public university funding to religious groups with restrictive membership requirements. 

See you on Monday!