The Term so far in plain English

By Lisa Tucker
on Nov 1, 2010 at 9:55 am

Now that the Term is well underway, we Court watchers have lots to talk about.  True, opinions haven’t started coming down the pike, but the arguments so far have been varied, interesting, and relevant.  And this week promises to be equally interesting, with the Court hearing arguments on – among other things – the constitutionality of a California law prohibiting the sale of violent video games to minors.

I have already written about some of the most interesting October arguments here; today, I’ll discuss a few more, as well as some themes we can draw from them.

Many Plain English readers will be interested in the case of Skinner v. Switzer, a case about a criminal defendant who wants access to DNA evidence collected at the crime scene.  Why?  Because it may show that he is innocent of murdering his girlfriend, a crime for which he was sentenced to death.  Moreover, witnesses have now recanted their testimony, and new evidence has been found.

So why wouldn’t Henry Skinner logically be able to get his DNA evidence?    Well, for a couple of reasons.  First, fearing it would prove his client guilty, his attorney decided not to ask to have it tested before his trial.  In the oral argument, Justice Sotomayor specifically commented that his attorney’s decision then might mean that Skinner could not ask for the DNA testing now.  Second, Skinner might be making the wrong legal argument.  The issue before the Court is whether Section 1983 – a federal statute that allows prisoners and others to claim that the government has violated their constitutional rights – allows suits like Skinner’s.  In another case last year, the Court prohibited some claims under the statute, but it left open the possibility that other challenges – specifically, those similar to Skinner’s in this case – might be allowed.  On the other hand, the Court might decide that his proper action would have been through a habeas claim – or one challenging his conviction and imprisonment as improper.  Skinner’s response to this dilemma?  He claims that the DNA evidence might exonerate him or show him to be guilty.  Therefore, the request for DNA evidence does not challenge his conviction directly.

But if the DNA evidence might possibly exonerate Skinner, why can’t the Court just decide that, in the interest of justice, it should be tested?  Well, this case is one in which the concepts of law and justice might align – or not.  In particular, some Justices may be concerned that allowing prisoners to use Section 1983 in cases like this one might give them a back door to get around the very strict limits imposed by Congress in federal habeas law – which Congress enacted for the specific purpose of prohibiting endless challenges to state convictions and sentences.

In another case in the October sitting, the Court heard arguments in Kasten v. Saint-Gobain Performance Plastics, a case about a potential fair labor violation.  Kevin Kasten complained to his employer about having to don safety gear before clocking into work and take it off after clocking out.  The robing time, he claimed, was time for which he should be paid.  After Kasten made several such comments, his employer fired him for failing to punch in and out correctly on four different occasions.  Kasten then sued, claiming in part that he was fired as retaliation for his complaints about the time clock.  However, because Kasten never wrote his complaints down, making them orally instead, the Court must now look at whether he ever “filed” a complaint for which the employer could not legally retaliate.

The question arises under the Fair Labor Standards Act, which refers to employees who “file any complaint.”  And with whom must the claim be “filed”?  With the employer?  Or with the government?  Because the federal appeals courts were split on the issue of just what constitutes “filing,” the Supreme Court.

Like Skinner, the Kasten case brings up legal and policy issues.  On the one hand, Congress sought to protect workers, who would be unlikely to complain about unfairness or lack of safety in the workplace if they thought that they would be fired for raising the issues.  On the other hand, employers like Saint-Gobain claim that requiring formal complaints in writing will protect employers from angry and frivolous lawsuits by employees.

One more interesting detail here, and one discussed quite intelligently by Bob Barnes of the Washington Post in a recent article:  Supreme Court litigation and decision-making often turn on the meaning of a single word.  In deciding what “file” means, or “unavoidable” (see my recent discussion of that statutory term), or any number of other words in other cases, the Court uses what we call “tools of statutory construction.”  In other words, the Court has a toolbox full of approaches to defining ambiguous terms.  The Justices might consider the “plain meaning” of the word, look to the legislative history or intent (or Congress’s debates about a bill before it is passed), consider the meaning of the term in similar laws, and so on.  In fact, the parties in Kasten have made arguments aimed at satisfying the Justices on all of these fronts, but how the Court will construe the word “file” remains to be seen.

This week will be an exciting one at the Court:  not only will we get to hear the Justices argue about video games, but they will also take on a sensitive topic – religion – in two different cases:  one involves religious freedom for prisoners, while the other considers the constitutionality of an Arizona program that provides tax credits for tuition payments to parochial schools.  Stay tuned . . . .