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Michael Polsky
EID: MP27384
Michael.m.polsky@gmail.com
Professor: Dr. Alan Sager
Judicial Process and Behavior, Government 357L
Essay II
A Study into the Voting Patterns of two Supreme Court Justices:
Did Justices Scalia and Kennedy Split Against the Pro-prosecutorial Conservative
block in Canton v. Harris, Decided in 1989, Nevertheless
Set the Stage for their Future Pro-prosecutorial Votes

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INTRODUCTION
Historically, the American ideological divide between the conservative left and liberal right
does not stop at the doorsteps of the Supreme Court. While Justices Scalia and Kennedy have
repeatedly voted in favor of the authorities in cases of governmental abuse of prosecutorial powers
and resultant liability, did an earlier case suggest a different result? In the 1989 seminal case of
Canton v. Harris (1989), it would appear that their ideological predilections started in a more liberal
direction. However, while the two Justices voted against their conservative brethren, upon closer
study it is a clear indication of how the two would vote in the future. Dissenting against the
reversal of a lower court ruling in favor of defendant, Ms. Geraldine Harris, these two Justices
clearly articulated their future votes on “no governmental liability for damages” for prosecutorial
misdeeds.
GUTTMAN SCALE
This Essay uses a statistical study/ questionnaire know as a Guttman Scale to explain their
decisions. Four other cases, before and after Canton are analyzed to discern a voting pattern. The
Guttman Scale, depicted below, is used to identify the individual Justice’s ideological vote, in each
of the five cases, based on their ideological vote: plus (+) for liberal (pro defendant) and minus (-)
for conservative (pro-government). The cases are further ranked based on facts most likely to
support a finding for the defendant (victim). With this background, a close review of the dissenting
opinions and as well as the Justices themselves suggest their Canton v. Harris decision was not a
break from their ideological base but rather supportive and indicative of their prior and future
decisions, respectively.
COMMON ISSUES AND PROIR STANDARDS
Each of the five cases analyzed involved constitutional violations by governmental bodies,
which resulted in profound damage to the personal lives of the defendants (victims). The state
refused, in all of these cases, to acknowledge any responsibility for the damages caused. In 1989,
the Supreme Court, in Canton v. Harris et. al. (1989), adopted the standard of “deliberate
indifference” to determine responsibility for prosecutorial indiscretions. The standard requires such
indifference to require a pattern of events to be more than “ordinarily necessary.” Nine years later
the Court ruled that respondent superior would not establish damages for unconstitutional actions
of the police or prosecutors. Board of the County Comm. of Bryan County, Oklahoma v. Brown, et
al., (1997). Defendant victims would later use “failure to train” to show “deliberate indifference.”
Connick v. Thompson (2011).
CASE STUDY #1:
CITY OF CANTON, OHIO v. HARRIS ET AL. (1989)
The case at issue, Canton, presents the weakest factual case against the authorities on
the Guttman Scale. The victim, Harris, claimed violation of her constitutional rights for failure to
provide medical care, specifically care for mental illness, while in custody. However, the police had
debated whether to take Harris to the hospital or process her as quickly as possible, deciding on
the latter. Accordingly, the police were not found “deliberately indifferent,” even if they had made
the wrong choice.
While the Court arguably found for the prosecution, it remanded the case to the lower
court for further review based on its instructions. Contrary to the majority, the expected pro-
prosecutorial (conservative) Justices, Kennedy and Scalia, dissented. Although, at first glance, it
would appear Justices Kennedy and Scalia split from the conservative majority, the majority gave
the victim a second chance with remand. Justices Kennedy and Scalia dissented on procedural
grounds that remand was unnecessary as the defendant, (victim), had not proved fault or causation.

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Without remand, the police would have had a complete victory. In conclusion, the two Justices
articulated their inviolate ideology that prosecution prevails.
CASE STUDY #2
CONNICK, DISTRICT ATTOURNEY, ET AL. v. THOMPSON (2011)
Notwithstanding fourteen years of false imprisonment on death row for an unconstitutional
conviction, the Supreme Court held that prosecutors are not liable for damages for their
constitutional violations. This case ranked first on the Guttman scale because of the egregious and
admitted facts: Prosecutors admittedly were grossly negligent by failing to disclose exculpatory
blood evidence. See Brady v. Maryland (1963.) Notwithstanding these admissions, the Court,
including Justices Scalia and Kennedy, shielded prosecution even when the facts suggest to a
reasonable person that the authorities were “deliberately indifferent” to the constitutional rights of
the defendant. 1
If the Court did not find prosecutorial liability for admittedly blatant and knowing
constitutional violations, that falsely imprisoned an innocent man for fourteen years, it is unlikely the
present Court ideological composition ever would. Justices Scalia and Kennedy’s refusal to hold
prosecutors liable in the face of the facts of Thompson could be predicted by the Justices vote in
the “failure to train” situation of Canton.
CASE STUDY #3:
ARIZONA v. YOUNGBLOOD (1988)
In Arizona v. Youngblood, the earliest case analyzed, both Justices Scalia and Kennedy
joined the majority in denying police liability for destroying the life of an innocent man. Without
question, a brutal crime took place, with a young male brutally beaten and repeatedly raped.
However, the police admittedly failed to preserve exculpatory physical evidence and admitted the
wrong individual was tried. Justices Scalia and Kennedy held that the need for training was not
“plainly obvious” to rise to deliberate indifference without a pattern of similar violations.
CASE STUDY #4:
CURTIS LEE KYLES, PETITIONER V. JOHN P. WHITLEY, WARDEN (1995)
In Kyles v. Whitley, the Court ruled in favor of the defendant; both Justices Scalia and
Kennedy dissented, although on the basis that certiorari should not have been granted. Kyles’s
conviction was based on an informant’s manufactured evidence. The police not only encouraged
the informant, but aided him in planting the “evidence” at Kyle’s home. (In the end, it was the
informant who was the murderer.) Justices Scalia and Kennedy joined in the Chief Justice
(Rehnquist)’s dissent, supporting the authorities regardless of unethical police actions.2
1 Although Justice Thomas suggested the possibility of a “[f]ailure to train could be based on a single
incident,” later in Connick v. Thompson (2011), he qualified, rather modified that this“hypothetical” statement as not
to apply to prosecutors.
2
The dissent concluded the law was simply “improperly applied.” Police can use an informant; the mere fact the
execution of the investigation was a failure to properly implement a law cannot amount to “deliberate indifference”
(Canton v. Harris, 1989)

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CASE STUDY #5:
BOARD OF THE COUNTY COMMISSIONERS OF BRYAN COUNTY, OKLAHOMA v.
BROWN, et al. (1997)
In Bryan Co. v. Brown, a unanimous Court held that a police chief could not be liable for
damages based on a respondent superior regardless of negligence. The chief of police hired his
nephew as a deputy without a criminal background check; subsequently, the nephew abused the
police right to use force and injured an individual. The state denied liability, claiming no liability for
its hiring decisions. Although the Court held the chief was negligent and ignored his duties to put
qualified officers on the street, damages were not awarded. Justices Kennedy and Scalia reiterated
their Canton v. Harris decision that “a single incident case [i.e., the hiring of one person] can never
amount to “deliberate indifference.”
CONCLUTION
In conclusion, are the rulings of Justices Kennedy and Scalia predictable on their ideological
base? Do their backgrounds or personalities suggest their rulings? The answer is yes. And even
though strange bedfellows, these two Judges present a solid block on prosecutorial liability.
Appointed by President Ronald Reagan, Justice Scalia is known for a strong willed, “dynamic” and
eccentric persona. He has been described as a “[b]ig cat battering around a ball of yarn.”
Nominated on the basis of his conservative ideology, his pro-prosecutorial votes are very much to
be expected.
On the other hand, Justice Kennedy’s pro-prosecutorial view does not have an apparent
historical or behavioral base. Justice Kennedy, also a Reagan appointment, was the President’s third
choice after the confirmations of Bork and Ginsberg failed. His nomination sailed through the
Senate, with liberals and conservatives finding him both fair and balanced. (PBS reporter). Since
the nomination was likely made on the basis of who could win Senate confirmation, it is not
surprising that Justice Kennedy has developed into a swing vote, at least on non-prosecutorial
liability. He is not easily pigeonholed ideologically. But, as to why he has adopted such a pro-
prosecutorial partnership with Justice Scalia is neither apparent nor explainable based on prior
history or behavior. Indeed, in a dissent on the lower court before joining the Supreme Court, then
Judge Kennedy criticized the police for bribing a child into showing them where the mother hid her
drugs considering that offensive and destructive of the family unit3
. Kennedy wrote that
“indifference to personal liberty is but the precursor to state’s hostility to it.” Kennedy, however,
had written earlier about judicial restraint in applying constitutional “rights” to state activities4
. In
his speech, Kennedy acknowledged that biggest threat America’s constitutional framers perceived
would come from the abuse of their government power. Which direction he would adopt on the
Supreme Court thus cannot be clearly predicted from Kennedy’s past behavior.
3 Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme
Court.2007. Penguin Books. Page 55.
4 Kennedy, Anthony (July 24 – August 1, 1986). "Unenumerated Rights and the Dictates of Judicial Restraint.". Address
to the Canadian Institute for Advanced Legal Studies, Stanford University. Palo Alto, California,
http://web.archive.org/web/20080627022153/http://www.andrewhyman.com/1986kennedyspeech.pdf , accessed April
20, 2013

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GUTTMAN SCALE:
Alito Roberts Thomas Scalia Kennedy Breyer Kagan Soto Ginsburg
Connick
v. Thompson
(2011)
- - - - - + + + +
Kyles v.
Whitley
(1995)
N/A N/A - - - + - - +
Arizona V.
Youngblood,
(1988)
N/A N/A N/A - - N/A N/A N/A N/A
Bryan Cty Ok.
v.
Brown
(1997)
N/A N/A - - - + N/A N/A +
Canton v.
Harris
(1989)
N/A N/A N/A + + N/A N/A N/A N/A
Works Cited:
Anthony M. Kennedy. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/justices/anthony_m_kennedy>.
Antonin Scalia. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/justices/antonin_scalia>.
CANTON v. HARRIS. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/cases/1980-1989/1988/1988_86_1088>.
CONNICK v. THOMPSON. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/cases/2010-2019/2010/2010_09_571>.
BRYAN COUNTY, OKLAHOMA v. BROWN. The Oyez Project at IIT Chicago-Kent College of Law. 19
April 2013. <http://www.oyez.org/cases/1990-1999/1996/1996_95_1100>.
KYLES v. WHITLEY, WARDEN. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/cases/1990-1999/1994/1994_93_7927>.
ARIZONA v. YOUNGBLOOD. The Oyez Project at IIT Chicago-Kent College of Law. 19 April 2013.
<http://www.oyez.org/cases/1980-1989/1988/1988_86_1904>.
Arizona v. Young blood. http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?court=us&vol=488&invol=51, accessed April 15 2013
Connick V. Thompson: Halford K., Schulman E., http://www.law.cornell.edu/supct/cert/09-571
Accessed April 17 2013