Nahmod Law

“Get Over It”: Justice Scalia and Bush v. Gore, Roe v. Wade and Obergefell v. Hodges

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.


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Written by snahmod

February 22, 2016 at 2:02 pm

Posted in Constitutional Law

Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court

It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.

In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.

Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).

However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.

Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.

It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”

There is no need to comment on this decision. Res ipsa loquitor.


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Written by snahmod

February 12, 2016 at 11:53 am

Mullinex v. Luna: A Supreme Court Qualified Immunity Excessive Force/High-Speed Police Chase Decision

The Supreme Court once again strongly signaled that police officers are to be given maximum deference when sued for damages under section 1983 and the Fourth Amendment for using excessive force.


On November 9, 2015, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation.

An earlier decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.

Both Plumhoff and Mullinex derive from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.

Mullinex v. Luna

Mullinex, an 8-1 per curiam decision (with Justice Scalia concurring in the judgment and Justice Sotomayor dissenting) involved a reportedly intoxicated driver who sped off in his car after being informed by a state trooper that he was the subject of an arrest warrant. He led officers on an interstate chase at speeds between 85-110 miles per hour and, during the course of the chase, warned officers by phone that he had a gun and would shoot the pursuing officers if they did not stop chasing him. Several officers set up a spike strip to stop the driver while another trooper, the defendant, considered another tactic: shooting at the car in order to disable it. Although the defendant did not have training in this tactic, he received preliminary approval from his supervisor to make the attempt if necessary.

Shortly after the defendant took up his shooting position, he spotted the car, with a trooper in pursuit, approaching the overpass where he was standing. Another officer was located beneath the underpass as well. Without waiting to see if the spike strip would work, the defendant fired six shots. The car thereafter engaged the spike strip, hit the median and rolled over several times. It became clear later that the driver had been killed by the defendant’s shots and that none of the shots had hit the car’s radiator, hood or engine block.

At trial, the district court denied the defendant’s qualified immunity motion for summary judgment and this was affirmed by the Fifth Circuit on denial of petition for rehearing en banc, seven judges dissenting.

The Supreme Court reversed per curiam, pointing out that it was not reaching the Fourth Amendment merits but instead deciding on qualified immunity grounds. The Court emphasized the need for particularity in the making the qualified immunity determination, warning against too high a level of generality. Specifically, according to the Court, the Fifth Circuit erred in ruling that the defendant violated the clearly settled rule that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat to harm to the officer or others.” This rule, derived from the Fourth Amendment deadly force case of Tennessee v. Garner, 471 U.S. 1 (1985), was not the correct qualified immunity test for excessive force cases.

Rather, as discussed in Brosseau v. Haugen, 543 U.S. 194 (2004)(per curiam), the correct qualified immunity inquiry in excessive force cases was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the particular situation he or she encountered. In Mullinex itself, existing precedent was “hazy” about the situation encountered by the defendant here: “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road.” The Court maintained that “[t]he general principle that deadly force requires a sufficient threat hardly settles the matter.”

In short, none of the Court’s Fourth Amendment precedents, including Scott and Plumhoff, “squarely govern[ed]” the facts here. Furthermore, the dissent’s emphasis on the availability of spike strips as an alternative means of ending the chase was not persuasive on the qualified immunity issue: no Supreme Court decision had ever denied qualified immunity on this basis. Moreover, the circuit decisions relied on by the Fifth Circuit and the plaintiffs were “simply too factually distinct to speak clearly to the specific circumstances here.”

For these reasons, the defendant was entitled to qualified immunity.

Justice Scalia concurred in the judgment, contending that since the defendant shot at the car’s engine in order to stop the car, it was misleading to describe what happened here as the application of deadly force in effecting an arrest.

Justice Sotomayor dissented, arguing that the defendant’s conduct was “rogue” and it violated clearly established Fourth Amendment law. He should not have fired the shots without any training in the tactic, against the wait order of his superior officer and a second before the car hit spike strips that were intended to stop it.


1. The Court in Mullinex did not address the Fourth Amendment merits, which is the first line of defense in section 1983 cases. Instead, the Court skipped to qualified immunity, the second line of defense which, as seen in Mullinex itself, adds a significant layer of protection for section 1983 defendants.

2. The scope of qualified immunity protection in Fourth Amendment excessive force cases involving high-speed police chases is obviously quite broad. The Court insists on a high degree of factual similarity in the relevant case law for clearly settled law purposes.

3. The qualified immunity clearly settled law inquiry is a question of law for the court. This point is explicitly made by the Court in its discussion of the Fifth Circuit’s decision. This is not new.

4. Mullinex makes clear that the availability of potentially less deadly alternatives does not necessarily strip qualified immunity protection from police officers in high-speed chase situations.

5.  Supreme Court decisions often serve to communicate or signal a specific message to affected institutions. Mullinex signals to the law enforcement community that qualified immunity protects all but the plainly incompetent.

For much more on qualified immunity, consult chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION (4th ed. 2015)(West).


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Written by snahmod

February 11, 2016 at 1:03 pm

My Class on Race, Dred Scott and Korematsu (Audio)

On October 21, 2015, I audio-taped a 55-minute makeup class on racial discrimination that covered two major (and infamous) Supreme Court cases, Dred Scott and Korematsu.

I hope you find it of interest.

Here it is:


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Written by snahmod

January 4, 2016 at 10:54 am

Posted in Constitutional Law

My Class on Presidential Immunity and Separation of Powers, with an Introduction to Preemption (Audio)

On October 7, 2015, I audio-taped a 55-minute makeup class on presidential immunity–our last class on separation of powers–and then began preemption with a hypothetical. Cases covered included Nixon v. Fitzgerald and Clinton v. Jones.

I hope you find it of interest.

Here it is:

listen online:

  • or download file here


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Written by snahmod

January 4, 2016 at 10:37 am

Posted in Constitutional Law

My Class on the Affordable Care Act Case: Taxing, Spending and the Commerce Clause (Audio)

I audio-recorded a 55-minute makeup constitutional law class on the groundbreaking Affordable Care Act Case (NFIB v. Sibelius).

This class took place on September 16, 2015, and dealt with the taxing power, the spending power, the individual mandate of the Affordable Care Act and the commerce power.

I hope you find it of interest.

Here it is:

listen online:

  • or download file here


Follow me on Twitter @NahmodLaw

Written by snahmod

December 28, 2015 at 11:42 am

Posted in Constitutional Law

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami HeraldRichmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

  • or download file here

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Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment