Last week’s opinions in Plain English

By Lisa Tucker
on Mar 6, 2011 at 7:15 am

What a week at the Supreme Court!  Through six arguments and six opinions, the Court addressed such important legal issues as the First Amendment, criminal sentencing, the constitutional rights of criminal defendants, appeals by veterans, and corporate privacy.    What’s more, several opinions made legal history in what some view as some of the most important cases of the Term so far.

Most of the attention from this week’s opinions has been on Snyder v. Phelps, and not all of the commentary has been positive.  Why?  Because in one of the two or three big First Amendment cases of the Term, the Court held that even extremely repugnant speech – political picketing at a military funeral – is protected by the Constitution if it addresses publicly important issues.  So what’s the fuss?  Haven’t we known that for a while that speech we do not like is protected (think pornography, videos of animals being killed, white supremacist mantras)?  Well, some members of the public have criticized the decision, arguing that we should honor our soldiers and agreeing with Justice Alito that a funeral should be private, not a bully pulpit for extreme political views.

While it’s true that the facts of this case are particularly disturbing (the church members involved chose a fallen soldier’s funeral service to picket, claiming that U.S. soldiers deserve to die because our society is so perverted), most legal experts agree that the decision in this case is probably right.  That’s because the Court has held time and again that the First Amendment was designed to protect speech that we do not like; after all, we wouldn’t need to worry about speech that’s more palatable.  In other words, the uglier the message, the more we turn to the First Amendment to protect it – with some limits, of course (like child pornography and obscenity).

Still, as many have noted, there is always a downside to freedom of speech – once the Court declares that a certain kind of speech is protected, such hurtful messages are likely to multiply.  That may be the case here:  the church involved has promised to send more protesters to more military funerals, and other groups are likely to follow.

The Court’s decision in Michigan v. Bryant, a Confrontation Clause case, also caused a bit of a stir, but not necessarily from the public.  No, the distressed party here was Justice Scalia, who disagreed emphatically with Justice Sotomayor’s opinion for the Court, which held that statements made out of court during an emergency are admissible as evidence in a future trial.  The case involved a victim who died from a gunshot wound; while he was bleeding to death and waiting for an ambulance, he told police that “Rick” (apparently referring to the defendant, Richard Bryant) had shot him.

Bryant was the latest in a long string of cases involving the Confrontation Clause, a provision in the Sixth Amendment that guarantees criminal defendants the right to confront witnesses against them.  In a landmark 2004 case called Crawford v. Washington, Justice Scalia wrote for the Court in explaining that the Confrontation Clause means what it says:  witnesses who want to testify against a criminal defendant have to do so in court and subject themselves to cross-examination.  The problem?  Often, witnesses (like victims of domestic violence, for example) are unavailable or unwilling to come to court.  That’s when prosecutors like to use statements that they made at the scene of the crime.  The Crawford line of Confrontation Clause cases makes clear that the Constitution prohibits such out-of-court statements, even though evidentiary rules allowed juries to hear them under some circumstances.

So why is Justice Scalia mad?  One reason is that many consider the Confrontation Clause to be “his” doctrine:  he has written most of the majority opinions concerning the Clause over the last several years.  In his view, this was an easy case (in fact, he said so explicitly in his dissent), and Justice Sotomayor and the majority got it wrong.  The statements that the victim made in Bryant should not have been admissible, because the police were investigating a crime when the victim said that Bryant had shot him.  Because they were in the course of an investigation, the intent of the police in eliciting the accusation was “testimonial,” or intended for use at a future trial; they were not trying to get the victim to help them find a killer on the loose.

One last note about the Confrontation Clause – the movement led by Justice Scalia to enforce the clause on its plain terms is a great example of one that is not purely ideological.  If it were, we might think that Justice Scalia and other Court conservatives would seek to limit the rights of criminal defendants, not expand them by giving them constitutional arguments designed to make the prosecution’s case harder.  But the ideological bias against criminal defendants is balanced by a concern for strict interpretation of the Constitution, another component of Justice Scalia’s judicial philosophy.  As he sees it, if the Constitution says it, the Court has to follow it.  Period.

First Amendment and Confrontation Clause cases always garner a lot of attention, but over the last several years, after 2005’s United States v. Booker, so, too, have sentencing cases.  In Booker, the Court held that sentencing guidelines (promulgated by the Federal Sentencing Commission, a quasi-legislative agency) could not be mandatory, only advisory.  And this week, in Pepper v. United States, the Court handed down another case in the line of cases following Booker, holding that a judge can be more lenient than the sentencing guidelines suggest if a defendant is rehabilitated after his initial sentencing.  In Pepper, the government appealed a downward departure in Jason Pepper’s sentence under the then-mandatory guidelines, and the appeals court sent the case back to the district court.  By the time the district court revisited the issue, Pepper had served twenty-four months, completed a drug treatment program, and enrolled in community college – factors the Supreme Court now says the district court properly considered.

And how about privacy?  In one of the week’s biggest cases, FCC v. AT&T, the Court held that corporations do not have a right of “personal privacy” under the Freedom of Information Act (better known to most as “FOIA”).  While it might seem funny to think of corporations as “persons” at all, in fact, the law often includes them in the definition of “personhood.”

But this case turned on the word “personal.”  What does the adjective mean for purposes of FOIA, which says that law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” do not have to be disclosed under the Act?  Does “personal” refer to the corporation if the corporation is legally a “person”?  No, said Chief Justice Roberts for a unanimous Court, drawing on standard dictionary definitions to support the holding.  While most words with the same root have the same general meaning, regardless of the part of speech, that is not always true; he offered examples like “squirrel” and “squirrelly,” “corn” and “corny.”  And confirming many recent observations that the Justices have a sense of humor, he ended the opinion by saying, “We trust that AT&T will not take it personally.”

Huh, you might think.  Does the Court usually just look things up in the dictionary?  The answer:  sometimes.  Many cases before the Court (like this one) involve an ambiguous word in a federal statute; the Court’s job is to tell the lower courts just what that word means so that federal courts from California to the Carolinas apply the same definition to cases before them.  To decide the meaning, the Court will draw on any number of “tools of construction,” or ways to interpret the term’s meaning.  Usually, the Court will look first to the plain meaning of the word; if the meaning is clear, usually the Court will go no further, leaving it up to Congress to change the language if necessary.  But if the meaning is not clear (and, on occasion, even if it seems to be), the Court will look elsewhere for help: the legislative history, for example, or a policy reason to interpret the word in a particular way.

The Court issued two other decisions this week.  In one case, Henderson v. Shinseki, a veteran sought disability benefits, but that very disability caused him to miss a deadline to file an appeal when they were denied.  In an opinion by Justice Alito, the Court held unanimously that veterans who miss filing deadlines in special tribunals may still be able to bring their cases, including because Congress has a long history of caring about veterans.  And in Staub v. Proctor Hospital, the Court unanimously held that an employer can be liable for discrimination if a decision that is detrimental to an employee is influenced by bias, even if the person who actually makes the detrimental decision is not the biased party.   In other words, if someone in the chain of command is biased, and that person influences an employment decision, the employer is liable under federal law – even if someone else carries out the decision. Although the case came to the Court under a law with fairly limited application, many have commented that its holding will affect employment discrimination cases more broadly.

Next week will be a bit quieter at the Court, but we’re expecting at least one opinion, which I’ll explain here on the blog.  I’ll also take the opportunity to discuss the major oral arguments from the February sitting . . . in Plain English.