From: wdstarr@athena.mit.edu (William December Starr)
Subject: Kennedy's concurring opinion in Bray (was Supreme Court...)
Organization: Northeastern Law, Class of '93
Date: Mon, 25 Jan 1993 14:49:55 GMT


In article <1266@elan.Elan.COM>, lynn@elan (Lynn Gazis) said:

> Actually, I am having difficulty getting any clear idea from this
> discussion about what the legal effect of the Supreme Court decision
> is...  I gather, from what I read in the papers, that the decision
> applies to protesters who blockade clinics, and that the effect is
> that they will be only breaking state laws, and therefore state police
> will not be able to call in Federal police for reinforcement when
> breaking up the blockade.

Justice Kennedy, while voting with the majority, also wrote a brief
concurring opinion in which he addressed this matter.  I've reproduced
Kennedy's brief (approx. 60 lines, by my formatting) opinion below, just
as he wrote it save that I've substituted "@" for the non-ascii
sort-of-like-two-integral-signs-having-sex symbol that us legal beagles
use as an abbreviation for the word "section.  I don't claim to agree or
disagree with anything Justice Kennedy says here; I'm just reporting it:

  -=-=-=-  cut here  -=-=-=-  cut here  -=-=-=-  cut here  -=-=-=-

   In joining the opinion of the Court, I make these added observations.

   The three separate dissenting opinions in this case offer differing
interpretations of the statute in question, 42 U.S.C. @ 1985(3). Given
the difficulty of the question, this is understandable, but the
dissenters' inability to agree on a single rationale confirms, in my
view, the correctness of the Court's opinion. As all recognize,
essential considerations of federalism are at stake here. The federal
balance is a fragile one, and a false step in interpreting @ 1985(3)
risks making a whole catalog of ordinary state crimes a concurrent
violation of a single congressional statute passed more than a century
ago.

   Of course, the wholesale commission of common state-law crimes
creates dangers that are far from ordinary. Even in the context of
political protest, persistent, organized, premeditated lawlessness
menaces in a unique way the capacity of a State to maintain order and
preserve the rights of its citizens. Such actions are designed to
inflame, not inform. They subvert the civility and mutual respect that
are the essential preconditions for the orderly resolution of social
conflict in a free society.  For this reason, it is important to note
that another federal statute offers the possibility of powerful federal
assistance for persons who are injured or threatened by organized
lawless conduct that falls within the primary jurisdiction of the States
and their local governments.

   Should state officials deem it necessary, law enforcement assistance
is authorized upon request by the State to the Attorney General of the
United States, pursuant to 42 U.S.C. @ 10501. In the event of a law
enforcement emergency as to which "State and local resources are
inadequate to protect the lives and property of citizens or to enforce
the criminal law," @ 10502(3), the Attorney General is empowered to put
the full range of federal law enforcement resources at the disposal of
the State, including the resources of the United States Marshals
Service, which was presumably the principal practical advantage to
respondents of seeking a federal injunction under @ 1985(3).  See @
10502(2).

If this scheme were to be invoked, the nature and extent of a federal
response would be a determination for the Executive. Its authority to
act is less circumscribed than our own, but I have little doubt that
such extraordinary intervention into local controversies would be
ordered only after a careful assessment of the circumstances, including
the need to preserve our essential liberties and traditions. Indeed, the
statute itself explicitly directs the Attorney General to consider "the
need to avoid unnecessary Federal involvement and intervention in
matters primarily of State and local concern." @ 10501(c)(5).

I do not suggest that this statute is the only remedy available.  It
does illustrate, however, that Congress has provided a federal mechanism
for ensuring that adequate law enforcement resources are available to
protect federally guaranteed rights and that Congress, too, attaches
great significance to the federal decision to intervene. Thus, even if,
after proceedings on remand, the ultimate result is dismissal of the
action, local authorities retain the right and the ability to request
federal assistance, should they deem it warranted.

  -=-=-=-  cut here  -=-=-=-  cut here  -=-=-=-  cut here  -=-=-=-

-- William December Starr <wdstarr@athena.mit.edu>
Newsgroups: talk.abortion