Picking up on a couple days ago when I was talking about the John Paul Stevens retirement, I mentioned about my own breach of contract case (Gundlach v. Reinstein), and how it got carried into Supreme Court dicta via Gonzaga v. Doe (wiki).
(The wiki’s a little weak, but you get the sense of where the case law is going. Stevens dissent is yet one more treasure of his 34-year tenure, and that’s where my case was footnoted.)
In short, our current Chief Justice, John Roberts has made a career long attack on a very important case in American federal jurisprudence, Maine v. Thiboutot, 448 U.S. 1 (1980). In Thiboutot, the Supreme Court held that an action under Section 1983 could be brought in violation of federal statutory rights. Section 1983 is a long-standing federal statute. It was part of a post civil war enactment of civil rights laws by Congress.
Section 1983 was meant to allow individuals who had been wronged by a “state actor”—someone who had power from a state government—to be sued for “deprivation of any rights, privileges, or immunities secured by the Constitution and (federal) laws.”
For many years, this case was generally applied to deprivations of civil rights, because the body of federal laws, federal statutes, was relatively thin. Starting in the mid 20th century however, Section 1983 began to be pled more frequently in cases arguing violations by state actors of federal laws, statutory laws. In particular, violations by state officials of the Social Security Act, since the act did not provide a separate remedy for violations by state government officials.
The main case from this era is King v. Smith, 332 U.S. 309 (1968). In King v. Smith, Alabama officials had denied AFDC (child benefits) to a family where the mother had separated from the biological father, who did not provide support, and was seeing another man.
You will notice something typical about American law is that the South plays a prominent role in either watering down or making redundant substantial protections offered by our Constitution and the federal government. It’s like some kind of Banana Republic attached to the rest of the United States. So it’s no surprise that Alabama was the state involved in King v. Smith. Apparently, most other states’ officials had no problem reading and interpreting the federal statute.
From 1968 on, the U.S. Supreme Court began to expand the application of Section 1983. This culminated in the landmark holding of Maine v. Thiboutot.
The holding from Justia.com:
Title 42 U.S.C. §1983 — which provides that anyone who, under color of state statute, regulation, or custom deprives another of any rights, privileges, or immunities “secured by the Constitution and laws” shall be liable to the injured party — encompasses claims based on purely statutory violations of federal law, such as respondents’ state court claim that petitioners had deprived them of welfare benefits to which they were entitled under the federal Social Security Act. Given that Congress attached no modifiers to the phrase “and laws,” the plain language of the statute embraces respondents’ claim, and even were the language ambiguous, this Court’s earlier decisions, including cases involving Social Security Act claims, explicitly or implicitly suggest that the §1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.
Clear language: Section 1983 covers violations of federal statutory laws.
Then along comes John J. Roberts.
As a Reagan Administration functionary, Roberts wrote a memorandum discussing ways to get Maine v. Thiboutot overturned. It’s no secret that the South did not like the Thiboutot case at all, and by the early 1980’s the base of the Republican Party, the people the modern party carries water for, were powerful people in the South. A young, up-and-coming federal government lawyer then would be building a nice career path by making a career knocking down federal protections for otherwise relatively powerless citizens.
When Roberts was being confirmed for the high court in 2005, the National Women’s Law Center warned the public of specific dangers that John Roberts had been presenting to established federal law for most of his career. Their focus was on “women’s rights”, but remember as I’ve told you in posts along the way, civil rights are civil rights. If someone presents a threat to “women’s rights”, watch out, because if this really means civil rights, yours are at stake too.
Section 1983 was enacted in part because the defeated South was trying to find ways around the newly enacted, written protections for citizens. This particularly meant, that Section 1983 was motivated to provide a legal remedy for blacks in the South, but in turn, really, every American. As the role of the federal government expanded in America throughout the 20th century, it’s no surprise that the statute was later interpreted to focus more concretely on the “laws” language of “Constitution and laws”. So Thiboutot made perfect sense, and what guys like the young John Roberts and his enablers in the Reagan Administration were doing, in the end, was like trying to overturn the results of the Civil War. Sending our country back rather than forward.
The National Women’s Law Center made the case very well in this part of their memorandum, about Roberts’ attacks on Section 1983. (Starts on page 2 of the PDF.)
In particular, John Roberts had his hand in the following cases, each of which narrowed scope of Maine v. Thiboutot:
Wilder v. Virginia Hospital Association (1990) (as Deputy Solicitor General, co-authored the government’s brief in Wilder. He also argued the case before the Court.)
Suter v. Artist M (1990) (co-authored the government’s amicus brief, and argued the case)
Gonzaga v. Doe (2002) (then in private practice, wrote the brief for petitioners, arguing that Section 1983 does not apply to the Family Educational Rights and Privacy Act, or FERPA.)
So clearly, John Roberts has a long track record of being against Section 1983. He chisled away at it throughout his career, and now he sits as Chief Justice of the U.S. Supreme Court. And it’s a court that is arguably holding a 5-4 majority for this strange sort of turn-back-the-clock radicalism that the Republicans call “judicial restraint”.
Prior to the Gonzaga case, most appellate courts agreed that FERPA violations were covered by 1983—the substantial body of cases came out in favor of 1983 availability. John Roberts used my case, where the holding wasn’t even on point, and one other one to say 1983 was unavailable, and the high court bought it.
It was this fact that Justice Stevens pointed out in his dissent, which I quoted the other day.
The irony in my case was, it turned out there was no school record. Or rather, what the record was were the musings of Assistant Dean Adelaide Ferguson at some meeting of the administration, which looks to have taken place sometime after I was attacked (that is, physically attacked, as in assault and battery) on the street in early 1993. Ferguson’s document was complete, or rather replete with doodles and faces and scribbles–I guess the kind of thing you make on your notes during meetings of the sort. Attorney Carl Hittinger had turned this into a “medical record” in his filings with the court, and during discovery on the amended complaint that summer I learned that no such thing existed.
This is what I say about how attorneys fight dirty. I spent months chasing down this “record”, which didn’t exist. I’m not sure the judge understood what Hittinger did, or if it really even mattered. But the Section 1983 language got into the breach of contract case, years later John Roberts picks up on it to use it to argue something bigger about 1983, and the next thing you know, he’s the Chief Justice! Watch out Maine v. Thiboutot.
To be continued.