A Single Day's Decisions Illustrate Deep Fault Lines In the Supreme Court:
Why Hibbs and Chavez Are Symptoms of the Justices' Divisions

By EDWARD LAZARUS

Thursday, Jun. 12, 2003

One day can sometimes speak volumes about the character of an institution. A case in point was May 27, 2003 at the Supreme Court.

That day, the Court handed down two important decisions in a term brimming with significant cases. One was Nevada Department of Human Resources, et. al. v. Hibbs. The other was Chavez v. Martinez.

The cases dealt with very different legal issues, but they had a few things in common. They illustrated the deep, problematic divisions in the Court. And they showed what the wages of those divisions can be, testifying to the deep cost they exact upon the coherence of the Court's case law, and its ability to provide guidance to the nation.

The Chavez Case's Facts

The Chavez case presented the Court with an unusually troubling set of facts. In the midst of a drug investigation, two police officers stopped a passing bicyclist, Oliverio Martinez, made him lie prone on the street, and conducted a pat-down search. They found a knife.

An altercation ensued (exactly why is disputed). One of the officers shot Martinez several times, including in the face - severely injuring both eyes. A patrol supervisor, Ben Chavez, arrived on the scene. Chavez accompanied Martinez to the hospital.

At the hospital, Martinez was screaming in pain and moving in and out of consciousness. Indeed, he was so disoriented that he could not distinguish Chavez from the medical personnel. The audiotape lodged with the court showed that Martinez was in excruciating pain, and suffered from an intense fear that he might be dying.

Nonetheless, Chavez began to interrogate Martinez. Martinez begged for medical attention and tried to put off the questioning. Meanwhile, Chavez made no effort to dispel Martinez's perception that he would not receive medical treatment until he responded.

Martinez sued Chavez under the federal constitutional civil rights statute, arguing that the interrogation had violated his Fifth Amendment right against compelled self-incrimination.

The Justices' Fractured Opinions in Chavez

A 6-3 majority of the Court (Justices Thomas, Rehnquist, O'Connor, Scalia, Souter, and Breyer) agreed that Martinez could not sue Chavez for violation his Fifth Amendment rights. However, it suggested that he might be able to sue him for violating his due process rights, on the grounds that Chavez's behavior was "shocking to the conscience."

While this bottom line was clear, the Court's views were anything but. The opinions were a crazy quilt of Justices' concurrences, dissents, and decisions to join, and not to join, other Justices' opinions.

What led to this fracture? In essence, Justices Souter and Breyer did not agree with the reasoning of Justice Thomas's opinion.

Basically, in Thomas' view, the Fifth Amendment's self-incrimination clause is never violated except when a person is compelled to be a witness against himself in an actual criminal case. Since Martinez was never prosecuted, he could not sue.

Souter and Breyer agreed that Martinez did not have a Fifth Amendment claim, but took a more flexible approach than Thomas's to the scope of the clause.

Meanwhile, Justices Stevens, Kennedy, and Ginsburg also took a much broader view of the clause than Thomas had - and, unlike Breyer and Souter, took the view that Chavez' interrogation violated Martinez's rights.

This 4-2-3 division left the Court without a majority on a central constitutional issue: How broad is the scope of the self-incrimination clause?

The Court was equally unclear on the question of whether the due process clause had been violated. Did the interrogation of the extremely ill Martinez "shock the conscience"?

Justices Thomas, Rehnquist and Scalia thought not. After all, "the situation was urgent given the perceived risk that Martinez might die and crucial evidence might be lost."

Justice Stevens passionately thought it did. Indeed, after quoting the interrogation at length, he compared it to the odious methods of question used by the Star Chamber and the Nazis.

Justice Souter, joined by Breyer, Kennedy, and Ginsburg, agreed that Martinez presented a "serious argument" that Chavez deprived him of his right to due process. Apparently, the question of whether that "serious" argument is also a correct argument will be left for the lower courts to decide.

Meanwhile, oddly, Justice O'Connor, without explanation, expressed no view on this subject at all.

Supreme Court opinions, of course, are supposed to provide clear guidance to the lower federal courts and, in a constitutional case such as Chavez, to the courts of the 50 states. As the recently deceased Yale Law Professor Burke Marshall noted, many opinions are also of "direct operative interest" to every significant actor in the criminal justice system - including police, prosecutors, defense counsel, and defendants.

On neither the Fifth Amendment nor the due process question did the Court provide anything resembling sufficient guidance. Worse, the Justices' opinions raised the real possibility that they may be so profoundly divided in their worldviews that they are simply incapable of consistently producing a clear and stable set of constitutional doctrines.

What can it mean for the Court when the Justices can look at an undisputed set of facts and one group sees a basically routine pursuit of evidence, while another sees the specter of the Gestapo? Across this gulf of perspective, compromise or accommodation may be simply too much to manage.

The Facts of, and Legal Question Raised By, the Hibbs Case

The Court's decision in Hibbs displayed a similar problem - and raises some others as well.

In Hibbs, a employee of the Nevada Department of Human Resources sued his employer for damages. He said it had violated the federal Family and Medical Leave Act (FMLA), which grants all eligible workers up to 12 weeks of unpaid leave to care for a spouse or other family member suffering a "serious health condition."

Sovereign immunity ordinarily protects states from actions threatening their financial resources. But sometimes, Congress can, and does, abridge that immunity. The question before the Court was whether Congress, could and did, in the FMLA.

The Court's Opinion in Hibbs

By a 6-3 vote, the Court said yes. In particular, it found that Congress had exercised Fourteenth Amendment-based immunity-erasing power when enacting the FMLA. And it found that there was a sufficient record of past incidents of gender discrimination relating to family leave policies to justify Congress's doing so. (Joanna Grossman's recent column on Hibbs provides a more detailed analysis of these rulings.)

Hibbs is full of surprises. Chief Justice Rehnquist wrote the majority opinion reaching this conclusion. Yet for nearly a decade now, Rehnquist - along with O'Connor, Scalia, Kennedy and Thomas - had been steering the Court in the exact opposite direction.

In a series of decisions, this narrow five-Justice majority had expanded the scope of state sovereign immunity. At the same time, it raised the bar for what evidence of state misconduct can justify Congress's using its Fourteenth Amendment power to abrogate that immunity.

For instance, in recent years, these justices had declared unconstitutional Congress's attempts to subject states to damage actions for violations of the Americans with Disabilities Act and the Age Discrimination in Employment Act. They reasoned, in each case, that that the evidence of discrimination was insufficient.

The Reasons for Justices Rehnquist and O'Connor's Changes of Mind

In Hibbs, Justices Rehnquist and O'Connor apparently changed their minds. They split off to join the four Justices (Stevens, Souter, Breyer, and Ginsburg) who have passionately opposed as totally unprincipled the current Court's expansion of state sovereign immunity.

Why? Was the evidence of discrimination Congress considered in Hibbs far more compelling than in the ADA case, Board of Trustees of the University of Alabama v. Garrett, and the ADEA case, Kimel v. Florida Board of Regents?

Hardly. To the contrary, in Hibbs - as Justice Kennedy's dissent demonstrated at great length - Congress had virtually no record before it of states committing gender discrimination in their medical leave policies when the FMLA was enacted

Was it because gender - not age, or disability - discrimination was at issue? Were Justices Rehnquist and O'Connor convinced that the Fourteenth Amendment is more deeply concerned with the problem of gender stereotyping (addressed by the FMLA) than it is with problems of discrimination against the elderly and disabled?

That explanation doesn't hold water either. No matter how strong a basis gender discrimination might provide for Congress to abolish immunity, prior recent Court decisions (in which Rehnquist and O'Connor enthusiastically joined) make clear that Congress still needs strong evidence that the states are actually committing acts of gender discrimination. Here, again, there was virtually no such evidence.

So what were Justices O'Connor and Rehnquist thinking when they switched?

O'Connor's vote is easy enough to explain. As the Court's first woman justice, she has consistently voted to uphold legislation beneficial to women even in contexts, such as affirmative action, where her judicial instincts are to the contrary. The FMLA was a landmark legislative advance for women.

But what about Rehnquist's vote? For that, there may be a strategic explanation.

It was obvious that Stevens, Souter, Breyer, and Ginsburg were going to uphold the FMLA, based on their prior opinions. During deliberations, it may have become clear to Rehnquist that O'Connor agreed with them - creating a 5-4 majority in favor of that result.

Unless Rehnquist joined that majority, Justice Stevens - based on seniority - would have the power to assign - and thus, if he so chose, to write - the opinion. It would likely have been a broad opinion cutting back on the states' rights approach Rehnquist has spent his entire career championing.

No wonder, then, that Rehnquist switched sides. Once he had done so, based on seniority, he was able to assign the opinion to himself, and write it narrowly.

This kind of strategy is effective, but ultimately damaging to the Court In this instance, it added instability and incoherence to an already profoundly troubled area of the law. And within the Court itself, this kind of strategic voting surely must further fray the bonds of mutual trust and respect that are essential to the culture of a collegial Court - especially one so ideologically divided.

In sum, if May 27, 2003, is any guide, the problems inside the Court are deep and wide - and the biggest decisions of the term are yet to come.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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