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June 20th at the Supreme Court

Yesterday, the Court announced decisions in three cases. Unfortunately, none of them were among the big 4 remaining cases: DOMA, Proposition 8, affirmative action in college admissions and Voting Rights Act. Each case decided, however, is interesting in its own right with one decision somewhat controversial involving free speech. The first case, Descamps vs. United States involves the Armed Career Criminal Act. This law specifies enhanced sentences for repeat criminals, especially those that use firearms in commission of a crime. Others call this the federal “three strikes” law. Other crimes like arson, extortion and burglary which do not involve a firearm are also included. Traditionally courts use what is known as the categorical approach when determining if a previous crime matches the criteria of the current crime for which the defendant was convicted. If so, then it follows that the preceding crimes count, in effect, as “strikes” and the current offense receives the most severe punishment. However, if the person is convicted of a current crime with a single set of indivisible elements, there is no way the categorical approach can be applied. In such a case, the defendant cannot be considered a “career criminal” within the definition of the federal law and they would have to be sentenced to the least severe punishment. In practical terms, what this means is that it will be more difficult in the future for prosecutors to seek harder sentences under the “three strikes” rule. Kagan wrote the decision which was 8-1 with Alito in dissent.

On a personal level, I understand the reasons for three strikes laws. Several high profile cases of truly violent criminals let loose on the streets have led to a public demand for these laws. True, there are lenient judges and not so lenient judges who fall for the sob stories criminals tell in court after being found guilty. However, in many instances, these laws have had unintended consequences in that they have, because of the definitions of the crimes for which they are convicted, sent minimally or even non-violent criminals to jail for lengthy periods of time. For example, the crime of burglary is traditionally not considered a violent crime unless an assault occurs or if the perpetrator was carrying a firearm. But, burglary in and of itself is a crime against property. Yet, as the federal law spells out, burglary can be used as a predicate offense for determining whether that convicted person is a “career criminal.” Take another crime: death by auto. In and of itself, it sounds like a violent crime. But if the particulars were such that a pedestrian walked in front of a car? Likewise, many crimes are plea bargained to lesser offenses yet the lesser offense falls within the definition of what a “career criminal” is. Also, in California, which has gone hog wild with this type of law, it led to serious prison overcrowding which forced the Supreme Court a few terms ago to tell California to do something about prison overcrowding. Much of that was due to two factors: (1) the three strikes law, and (2) incarceration of drug offenders, many of them NOT major dealers. States and the federal government may want to revisit these three strikes laws and be more specific so that they truly catch the violent offenders.

The second case was American Express vs. Italian Colors Restaurant. In this case, decided 5-3 with Scalia the author (Sotomoayor took no part in the case), the decision broke down along the traditional ideological lines on the Court. This is not surprising in light of recent decisions involving arbitration to resolve disputes and, what the liberal wing of the court asserts, the “little guy versus Big Business and having the court door slammed shut in the faces of the little guy.” Here, the restaurant entered into an agreement and part of it was that any disputes would be resolved by arbitration. It further stated that no party can waive arbitration nor can they enter into a class action lawsuit against the company, in this case American Express. The restaurant did exactly that- started a class action lawsuit against American Express under the assertion that arbitration on their own would have been too costly. The Second Circuit ruled that because of the prohibitive costs of arbitration, the class action could proceed and the contractual waiver was unenforceable against the restaurant.

The Court ruled that the arbitration clause cannot be waived because the cost of arbitration may exceed any potential recovery in damages. Scalia cites a whole slew of recent cases to prove that Congress had no intentions of creating a waiver so that anyone can sue under the antitrust laws in a class action lawsuit. What this practically means is a vindication and reiteration of contract law. American Express and the restaurant entered into a legally binding contract which they both signed of their own free will. Both sides knew the clauses and if either side failed to read them, then shame on them. When one puts their name on a contract, unless something is illegal, that contract is legally binding upon both parties. This principle is what sets the developed world apart from the undeveloped world which have no iota of understanding of contractual obligations and enforcement. While it may be true that many people fail to read all the terms of a contract- checking “I agree” on the Internet is the most obvious- this mass ignorance is no excuse for negating a contract. The fact is that Italian Color Restaurant signed a legal contract, realized that the dispute resolution method may cost them more than what the dispute was worth, and then cried foul and tried to backdoor an antitrust class action lawsuit. It may sound mean and it may sound like the little guy got beaten by the big bad credit card company and that the courthouse door was slammed in their face, but a contract is a contract is a contract.

The final case involved free speech and federal funds. In a 6-2 decision by Chief Justice Roberts and with Scalia and Thomas in dissent (Kagan took no part in the decision), the Court ruled that if the government stipulates the affirmation of a belief that cannot by its nature have any effect on the purpose of the program being funded, it impinges on that group’s First Amendment free speech rights. In this case, the federal government provides funds to non-governmental organizations to help eradicate the spread of AIDS in foreign countries. After much congressional investigation, they determined that in developing countries the spread of AIDS was especially acute among prostitutes. Therefore, they required that any group receiving federal funds under this program have a written policy against prostitution. Several groups objected arguing that such a publicly stated policy was (1) against the First Amendment (the government cannot compel a belief upon anyone) and (2) such a policy would hinder their efforts in the practical sense. For example, they argued, because they are publicly non-committal towards the legality of prostitution (in fact, many of the groups do not condone it; they just do not have a written policy stating such), they have greater outreach to prostitutes in these countries and are effectively achieving the goals of the federal program.

One can see where this may potentially lead domestically. In light of this decision, I have to wonder whether the government can cut off funds to a group like Planned Parenthood which delivers women’s health care services AND performs abortions. Of course, they can cut off funding across the board regardless of any group’s stance on abortion and that would be perfectly legal. Some Justices place great emphasis on the congressional record when deciding these cases to divine the intentions of Congress. In this case, there was ample evidence indicating that the spread of AIDS in undeveloped countries was attributable to a great extent by prostitutes. It would seem like a reasonable requirement that groups receiving money would be against prostitution. Here, it seemed like a perfectly reasonable requirement for the receipt of funds.

Conversely, I can also see where this decision could lead if it was decided the other way. In that case, any group would be slave to the whims of the political ideology prevailing at the time. Imagine the government cutting off all funds to a social service group because they have a strong pro-life stance. For example, the Catholic Church relies primarily on donations to provide essential social services. They run hospitals and adoption services and homes for battered women that also receive federal dollars. If Roe v. Wade is the law of the land, then what is to stop the government from cutting off funds to such agencies because the Church disagrees with Roe v. Wade? If the purpose of the funding is to achieve a government purpose and the group does so effectively and efficiently, then the government cannot force its view- no matter what that view is- upon the group performing the service.

Although this decision may on first look have some people scratching their heads- the government should have the right to attach any conditions to funding- in reality, this case is a victory for free speech and the free exercise of religion enshrined in the First Amendment. It seems strange that prostitution would be the vehicle to reaffirm these rights, but reaffirmed they are. Hence, it would make sense in this context that only Scalia and Thomas would read the text of Spending Clause to the exclusion of the First Amendment concerns inherent in this case. In this writer’s opinion, the majority got it right.

Next week, the Court is scheduled to meet on Monday the 24th. It is their final scheduled, as of now, day for this term. However, it is not unusual for them to add more days. With eleven cases yet to be decided this term, it is very likely they will add another day or two to announce decisions. One cannot see the Court releasing eleven opinions in one day. When they announce these decisions, this writer will be here to explain some of the cases. Incidentally, they involve (1) affirmative action in college admissions, (2) supervisor liability in job discrimination cases, (3) whether land use agencies are liable under the Takings Clause, (4) the Voting Rights Act case, (5) a case involving generic drugs and federal preemption, (6) the Proposition 8 case, (7) the DOMA case, (8) an adoption case and Indian rights (sad case), (9) registration of sex offenders, (10) attorney recommendations and extortion and (11) the motivation behind an alleged act of job discrimination.

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