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					The Supreme Court,
    2010 Term

    William M. Jay
        July 2011
The Supreme Court, 2009 Term
I.   Overview of the Court’s work and
     workload this Term
II. Significant decisions
III. Questions on any and all aspects of the
     Term
               Raw Numbers
• 77 cert petitions granted for merits hearing, plus
  1 appeal and 1 original case

• 78 oral arguments

• 75 decisions after briefing and argument
• Two split 4-4; two dismissed without opinion
      • 48% unanimous
      • 20% 5-4 or 5-3
      • 31 recusals (28 Kagan, 2 Sotomayor, 1 Chief)
                                                 Source: ScotusBlog
              Transitions
• Justice Kagan replaces Justice Stevens
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
  – Experience in the Executive Branch
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
  – Experience in the Executive Branch
  – Experience at the lectern
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
  – Experience in the Executive Branch
  – Experience at the lectern
  – 40 years younger than her predecessor
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
  – Experience in the Executive Branch
  – Experience at the lectern
  – 40 years younger than her predecessor
• Retirement…
               Transitions
• Justice Kagan replaces Justice Stevens
  – Less track record than Justice Sotomayor on
    many of the issues on the Court’s docket
  – A fourth law professor
  – Experience in the Executive Branch
  – Experience at the lectern
  – 40 years younger than her predecessor
• Retirement… of the Court librarian
      Some Illustrative Cases
• Four free-speech cases
  • Ariz. Free Enterprise   • Sorrell v. IMS Health
  • Snyder v. Phelps        • Brown v. EMA
      Some Illustrative Cases
• Four free-speech cases
  • Ariz. Free Enterprise   • Sorrell v. IMS Health
  • Snyder v. Phelps        • Brown v. EMA
• Preemption
  Chamber of Commerce v. Whiting
      Some Illustrative Cases
• Four free-speech cases
  • Ariz. Free Enterprise   • Sorrell v. IMS Health
  • Snyder v. Phelps        • Brown v. EMA
• Preemption
  Chamber of Commerce v. Whiting
• Important criminal case
  Davis v. United States
      Some Illustrative Cases
• Four free-speech cases
  • Ariz. Free Enterprise   • Sorrell v. IMS Health
  • Snyder v. Phelps        • Brown v. EMA
• Preemption
  Chamber of Commerce v. Whiting
• Important criminal case
  Davis v. United States
• Cases about the role of the courts
Arizona Free Enterprise Fund’s
Freedom Club PAC v. Bennett
• Arizona offers public financing to qualifying
  candidates for state office
  – Initial lump sum (varies by office) (“X”)
  – Matching funds based on opponents’
    fundraising or spending above X
  – Matching funds based on independent
    groups’ spending on the election
  – Absolute cap: 3X
      Arizona Free Enterprise
• Plaintiffs
  – Candidates who faced publicly funded
    opponents
  – Independent groups who advertised against
    publicly funded candidates or in favor of their
    opponents
• Plaintiffs alleged they had been chilled in
  their fundraising or spending
     Arizona Free Enterprise
• Buckley v. Valeo (1976)
  – First Amendment protects unlimited spending
  – Public financing is constitutional
• Davis v. FEC (2008)
  – “Millionaire’s Amendment” to McCain-Feingold
    • Self-funded candidate spends $350,000
    • Opponents’ contribution limits triple:
      from $2300 to $6900 per donor
    • Opponents can accept coordinated contributions
      from parties
      Arizona Free Enterprise
• Davis v. FEC (2008)
  – Supreme Court holds, 5-4, that Millionaire’s
    Amendment substantially burdened Davis’s
    exercise of his First Amendment right to fund
    his own campaign
  – “Special and potentially significant burden”
  – Substantial burden → strict scrutiny
  – Leveling the playing field is not a compelling
    (or valid) interest
      Arizona Free Enterprise
• On the logic of Davis, district court strikes
  down Arizona matching-funds law
• Ninth Circuit disagrees and upholds the law
  – Matching funds create a disincentive like
    disclosure requirements
  – Intermediate scrutiny
  – Anticorruption interest
       Arizona Free Enterprise
     5-4 for plaintiffs, per Chief Justice Roberts
• Strict scrutiny applies
   – Substantial burden, just like Davis
      • This subsidy is “in direct response to the political speech of
        another, to allow the recipient to counter that speech”
   – Worse than Davis, because no fundraising
   – Multiplier effect; effect on independent groups
   – Choice is “trigger matching funds, change your
     message, or do not speak”
   – More speech only as a step to less speech
      Arizona Free Enterprise
• Matching funds fail strict scrutiny
  – Leveling the playing field is “a dangerous
    enterprise,” not a valid justification
  – Anticorruption interest is inadequate here
     • Self-funders, independent groups pose no
       corruption risk
     • Contribution limits already combat corruption
     • Encouraging participation in public financing is not a
       sufficient justification given the burden it imposes
      Arizona Free Enterprise
            Justice Kagan dissents
• Public financing is constitutional
  – Matching funds are a way to find the “sweet
    spot”
• No substantial burden
  – “Except in a world gone topsy-turvy, additional
    campaign speech and electoral competition is
    not a First Amendment injury”
  – Content-neutral subsidy; plaintiffs’ chutzpah
      Arizona Free Enterprise
            Justice Kagan dissents
• Davis is about a discriminatory restriction,
  not a nondiscriminatory subsidy
• Anticorruption interest
  – Nobody relies on “leveling”; 1 interest suffices
  – Buckley said that lump-sum public financing
    fights corruption by getting people to decline
    contributions; this is just a fine-tuning of the
    lump-sum program
      Arizona Free Enterprise
• For public financing, what now?
  – Matching funds appear to be dead
     (as most courts had held after Davis but before the
       Ninth Circuit decision in Arizona Free Enterprise)
  – Buckley still says the presidential (lump-sum)
    public-financing program is constitutional
     • No “separation of campaign and state,” yet
  – Multiplier-match for small contributions?
    Sorrell v. IMS Health, Inc.
• Facts
  – Drug companies use “detailing”
  – Vermont statute regulates “prescriber-
    identifying information.” Without consent:
    • Pharmacy can’t sell it (for marketing?)
    • Pharmacy can’t allow it to be used for marketing
    • Drug company can’t use it in marketing
  – Drug companies and data miners both sue
    • Similar Maine and N.H. statutes upheld
    • Second Circuit strikes down Vermont’s
    Sorrell v. IMS Health, Inc.
   6-3 for plaintiffs, per Justice Kennedy
• Heightened scrutiny
  – Burdens disfavored speech (marketing) by
    disfavored speakers (drug companies)
  – Not an incidental burden, like fair-housing
    laws that prohibit “Whites Only” signs
  – Regulates speech, not just “access to
    information” or “beef jerky”
     • It’s not the government’s information
     • The access restriction burdens speech
    Sorrell v. IMS Health, Inc.
• Heightened scrutiny
  – The creation and dissemination of information
    are speech
  – This content-based restriction is like a ban on
    selling cookbooks, lab results, train schedules
  – Detailers can’t do their job (speech) without
    this commodity (information); like banning a
    trade magazine from buying ink
    Sorrell v. IMS Health, Inc.
• Heightened scrutiny… but what kind?
  – Restrictions on commercial speech get less
    scrutiny than, e.g., restrictions on political
    speech
  – But is a business’s disclosure or use of
    prescriber-identifying information always
    commercial?
    Sorrell v. IMS Health, Inc.
• Heightened scrutiny… but what kind?
  – Restrictions on commercial speech get less
    scrutiny than, e.g., restrictions on political
    speech
  – But is a business’s disclosure or use of
    prescriber-identifying information always
    commercial?
• The Court doesn’t answer.
    Sorrell v. IMS Health, Inc.
• Vermont statute fails intermediate
  (commercial-speech) scrutiny
• Protection of doctors’ privacy
  – Bogus because the information may be
    disclosed to all but a narrow disfavored class
  – And although some content-based privacy
    measures might be OK, here the content-
    discrimination has nothing to do with privacy
    Sorrell v. IMS Health, Inc.
• Protection of doctors from harassment
  – So don’t let the drug rep into your office
  – “Many are those who must endure speech
    they do not like, but that is a necessary cost of
    freedom”
• Protection of public health and fisc
  – Can’t be done by suppressing truthful, non-
    misleading speech for fear people will listen
    Sorrell v. IMS Health, Inc.
• What can the State do?
  – Fund its own counter-speech (“use generic
    drugs, they’re cheaper and just as good”)
  – Regulate false and misleading speech (even
    with content-based regulation)
  – Perhaps, regulate prescriber-identifying
    information more tightly and evenhandedly
    Sorrell v. IMS Health, Inc.
           Justice Breyer dissents,
   joined by Justices Ginsburg and Kagan
• No heightened scrutiny
  – This is just economic regulation (Glickman)
  – No restriction on what you may or must say
  – Drugs are heavily regulated (gov’t info)
  – If laws like this one must survive heightened
    scrutiny, then judges and not legislatures will
    be making economic policy (Lochner)
    Sorrell v. IMS Health, Inc.
• His bottom line
  – Where the government directs the collection
    or retention of certain information, regulations
    on what may be done with that information
    need not pass heightened scrutiny
  – “Content-based” or “speaker-based” doesn’t
    matter in the context of economic regulation;
    that’s how governments choose and
    implement policy
    Sorrell v. IMS Health, Inc.
• Statute also survives heightened scrutiny
  – Letting detailers in the door, but restricting
    their access to information, is a valid way to
    give doctors access to detailers’ information
    but still control prices and protect privacy
           Snyder v. Phelps
• Facts
  – Lance Corporal Matthew Snyder, USMC, was
    killed in Iraq in the line of duty
  – Members of Westboro Baptist Church
    protested his funeral
    • Protest occurred 1,000 feet from church
    • Funeral procession passed within 200 feet;
      LCpl Snyder’s father Albert saw tops of signs
    • Albert Snyder later saw signs on news
    • “Epic” posted on Internet
           Snyder v. Phelps
• Snyder sued Westboro, Phelpses under
  Maryland tort law
  – Prevailed on claims of intentional infliction of
    emotional distress, intrusion upon seclusion
  – Won $2.9M compensatory, $2.1M punitive
  – Lost on defamation, publicity of private life
• Fourth Circuit invalidated award under
  First Amendment, ordered judgment for
  defendants as a matter of law
           Snyder v. Phelps
 8-1 for Phelpses, per Chief Justice Roberts
• Speech was on a matter of public concern,
  at least in its “overall thrust and dominant
  theme”
  – Not an attack on the family in guise of speech
• Peacefully, in the traditional public forum
  – “had the right to be where they were”
  – “It was what Westboro said that exposed it to
    tort damages”
           Snyder v. Phelps
• IIED tort is itself problematic
  – “Malleable” and “subjective” (Hustler)
• “Captive audience” doctrine doesn’t justify
  treating seclusion tort differently
  – Albert Snyder wasn’t a captive audience
• States have other regulatory options
• “Our holding today is narrow.”
            Snyder v. Phelps
            Justice Alito dissents alone
• Speech was mostly not on a matter of public
  concern; the Snyders were private figures
• Words can inflict injury; Phelpses “brutally
  attacked Matthew Snyder”
  – “Neither classic ‘fighting words’ nor defamatory
    statements are immunized when they occur in a
    public place, and there is no good reason to treat a
    verbal assault based on the conduct or character of a
    private figure like Matthew Snyder any differently.”
  – “Special protection” at funerals?
   Brown v. Entertainment
 Merchants Association (EMA)
• Facts
  – California prohibits sale or rental of violent
    video games to minors
     • VVGs involve “killing, maiming, dismembering, or
       sexually assaulting an image of a human being”
     • Phrased like an obscenity statute:
          – “appeals to a deviant or morbid interest of minors”
          – “patently offensive” to community standards for minors
          – lacks “serious literary, artistic, political, or scientific value
            for minors”
              Brown v. EMA
• Video-game industry brings First
  Amendment suit
  – District court in northern California grants
    permanent injunction
  – Ninth Circuit affirms
  – Consistent with rulings in 7th and 8th Circuits,
    other district courts
• Supreme Court grants cert nonetheless
               Brown v. EMA
      7-2 for video-game manufacturers
(but only 5 votes for Justice Scalia’s opinion)
• Video games, in general, receive First
  Amendment protection
  – “It is difficult to distinguish politics from
    entertainment, and dangerous to try”
• California’s statute is content-based
  – So ordinarily strict scrutiny would apply
               Brown v. EMA
• Court rejects California’s argument that
  video-game violence is unprotected
  speech, like obscenity
  – Obscenity is not “whatever a legislature finds
    shocking”; it’s only depictions of sex
  – Restrictions on the sale of obscenity to minors
    do not receive strict scrutiny (Ginsberg), but
    violent video games are not obscene
     • Restrictions on sale to minors only in “relatively
       narrow and well-defined circumstances”
             Brown v. EMA
• No tradition of denying First Amendment
  protection to depictions of violence
  – At a minimum, “a long … tradition of
    proscription” is required
    • Stevens – crush videos
    • The First Amendment strikes the balance
  – California concedes no tradition for adults
  – Court concludes no tradition for minors, either
                Brown v. EMA
• Examples of gore in juvenile entertainment
     • Snow White, Cinderella, Hansel & Gretel
     • The Odyssey and the Inferno
     • Lord of the Flies
• Examples of failed censorship attempts
     •   Dime novels and “penny dreadfuls”
     •   Movies
     •   Radio dramas
     •   Comic books
               Brown v. EMA
• Video games are not materially different
     • Cultural and intellectual difference, but no
       constitutional difference, between reading Dante
       and playing Mortal Kombat
     • Video games are “interactive,” but choose-your-
       own-adventure novels have existed since 1969
     • And in some ways, “all literature is interactive”
• Yeah, some video games are disgusting
     • But disgust is not a valid basis for restricting
       expression. That’s the point of free speech.
              Brown v. EMA
• So strict scrutiny applies
• Statute flunks strict scrutiny
  – “Wildly underinclusive”
     • No greater effect on kids than Bugs Bunny, Road
       Runner, Sonic the Hedgehog, or a picture of a gun
     • California does not restrict Saturday-morning
       cartoons or pictures of guns
     • Underinclusiveness suggests pretext, censorship
     • And California lets kids have the games with adult
       approval (even aunt or uncle)
              Brown v. EMA
• Statute flunks strict scrutiny
  – Also overinclusive
     • Some parents would let their kids have the games,
       but California prohibits selling those kids the
       games directly
     • This is “only in support of what the State thinks
       parents ought to want”
  – So although both ends (reduce youth
    violence, help parents) are legitimate, the
    statute doesn’t properly further them
               Brown v. EMA
    Justice Alito concurs in the judgment,
           joined by the Chief Justice
• Statute is invalid because it’s vague
     • Community standards of decency are well
       established in the area of obscenity, but not in the
       area of depictions of violence
              Brown v. EMA
• But Justice Alito disagrees with the Court’s
  analysis
  – Violent video games are different from the
    other media that the Court has confronted
     • Realism approaching virtual reality
     • Player has unprecedented ability to participate
     • “In some of these games, the violence is
       astounding.” And there may be “no antisocial
       theme too base” – ethnic cleansing, Columbine,
       Virginia Tech, JFK assassination, rape
             Brown v. EMA
• But Justice Alito disagrees with the Court’s
  analysis
  – Violent video games are different from the
    other media that the Court has confronted
  – So the Court should not dismiss so easily the
    possibility that playing violent video games
    affects “at least some minors” in a way
    different from reading a book, listening to the
    radio, or watching a movie
              Brown v. EMA
  Justices Thomas and Breyer each dissent
• Justice Thomas: no right to speak directly
  to minors
  – Relies on the original public understanding of
    the freedom of speech
  – “Speech to minor children bypassing their
    parents” is unprotected speech
     • The founding generation believed parents had total
       authority over their children, even what they read
               Brown v. EMA
  Justices Thomas and Breyer each dissent
• Justice Breyer: California had a sufficient
  basis to take action to protect minors
  – Strict scrutiny applies, but keep in mind that
    the speech involved is speech to minors
     • “What sense does it make to forbid selling to a 13-
       year-old boy a magazine with an image of a nude
       woman, while protecting a sale to that 13-year-old
       of an interactive video game in which he … binds
       and gags the woman, then tortures and kills her?”
             Brown v. EMA
– Scientific opinion is divided, but there is
  evidence that video games affect children
– The Court should defer to an elected
  legislature’s resolution of this scientific debate
– Majority’s remarkable footnote rejoinder
   • Because scientists are divided, State can’t prevail
Nev. Comm’n on Ethics v. Carrigan
• Voting on city council is not speech
• So punishment for conflict of interest
  doesn’t violate First Amendment
 Chamber of Commerce v. Whiting
• Arizona regulates employment of aliens
  – One provision provides for revocation of any
    “licenses” held by a business that knowingly
    employs an unauthorized alien
     • Even articles of incorporation and the like
  – Another requires every employer in Arizona to
    use E-Verify
• Business, civil rights groups sue
• Ninth Circuit upholds the statute
 Chamber of Commerce v. Whiting
• Federal law forbids employers from hiring
  unauthorized aliens
  – Sanctions in federal tribunals
  – Corresponding civil-rights protections
• Federal law preempts any state or local
  law imposing sanctions on employers
  except for “licensing and similar laws”
• Federal law makes E-Verify “voluntary”
 Chamber of Commerce v. Whiting
  5-3 for Arizona, per Chief Justice Roberts
• Text says “licensing”; Arizona’s law affects
  only things that meet common definitions
  of “license”; Q.E.D.
• Text imposes no requirement that there be
  a federal adjudication first; Arizona has
  adequately adopted federal standards
• E-Verify is good; more is better
 Chamber of Commerce v. Whiting
  Justice Thomas concurs in the judgment
• He doesn’t believe in implied “purposes
  and objectives” preemption
 Chamber of Commerce v. Whiting
            Justice Breyer dissents,
          joined by Justice Ginsburg
• In context, license means an employment-
  related license; it doesn’t mean articles of
  incorporation (“business death penalty”)
• E-Verify is supposed to be voluntary
 Chamber of Commerce v. Whiting
         Justice Sotomayor dissents
• Read the “licensing” savings clause
  against the backdrop of other federal law
• State may impose licensing sanctions only
  once a federal tribunal has found that an
  employer knowingly hired someone the
  federal government agrees is an
  unauthorized alien
 Chamber of Commerce v. Whiting
Contrast with other recent preemption cases
• Williamson (Justice Breyer)
  – Motor vehicle safety standards)
  – Role of the agency)
• PLIVA (Justice Thomas)
  – Generic drug labeling
  – 5-4, with 4 votes to dispense with
    presumption against preemption
       Davis v. United States
• Facts
  – Davis was arrested, he was handcuffed, and
    his car was searched incident to the arrest
  – Under 11th Circuit precedent, based on New
    York v. Belton, the search was permissible
  – While his appeal was pending, Court decides
    Arizona v. Gant, which disapproves 11th
    Circuit precedent on vehicle searches
  – 11th Circuit okays search based on good faith
       Davis v. United States
    7-2 for prosecution, per Justice Alito
• Deterrence is the “sole purpose” of the
  exclusionary rule; no deterrent value, no
  suppression
     • Knock-and-announce      • Reliance on database
     • Reliance on state law   • Reliance on warrant
• Here, officers acted in accordance with
  “binding circuit law”—“nonculpable,
  innocent”
       Davis v. United States
• Retroactivity doctrine
  – Gant applies to Davis’s case as a potential
    ground for relief, but that doesn’t mean he’s
    entitled to relief
• Court’s role in developing 4th Amendment
  law
  – Deterrence trumps
  – And the law will still develop
       Davis v. United States
 Justice Sotomayor concurs in the judgment
• Here, circuit law was very clear. Maybe a
  different rule would apply if the search had
  been in reliance on unsettled precedent.
      Davis v. United States
           Justice Breyer dissents,
         joined by Justice Ginsburg
• Gant applies to Davis, under the rules
  governing retroactivity
• Therefore, Davis and those like him need
  a remedy for the unconstitutional search
       Davis v. United States
• “Good faith” is a misnomer and good-faith
  exceptions are few; we regularly suppress
  even when the officer acts in “good faith”
• That’s because suppression is the often
  only remedy for an unreasonable search.
  In these cases, no suppression, no Fourth
  Amendment protection at all.
    Cases about the Court’s role
•   Standing
•   “Lawmaking”
•   Article III judicial power
•   What unites these concepts?
    – To what extent does the Court preserve its
      own ability to interpret the law? And in what
      areas does it step back in favor of other
      branches, or no one?
  Cases about the Court’s role
• Standing
  – Ariz. Christian Sch. Tuition Org. v. Winn
     • $500 tax credit for contributions to STOs
     • 5-4, no taxpayer standing, per Justice Kennedy
     • Rule against taxpayer standing is based on
       principle that matters of public concern, in which
       the plaintiff’s grievance is shared with millions of
       others, should be resolved through the political
       process
     • Establishment Clause exception for spending
     • “Three pence only”
  Cases about the Court’s role
• Standing
  – Bond v. United States
    • Claim that the Chemical Weapons Convention
      Implementation Act exceeds federal power
    • Third Circuit holds that only a State can raise a
      Tenth Amendment claim
    • “Federalism secures to citizens the liberties that
      derive from the diffusion of sovereign power”
    • In a proper case, an individual can make that claim
      as well as a State – provided she has the ordinary
      elements of Article III standing
  Cases about the Court’s role
• “Lawmaking”
  – American Electric Power v. Connecticut
    • Claim that greenhouse-gas emissions violate the
      federal common law of nuisance
    • Court unanimously holds that the Clean Air Act has
      displaced any such judge-made law
  – NASA v. Nelson
    • Background checks at Jet Propulsion Lab
    • Whatever right to informational privacy may exist,
      these background checks don’t violate it
  Cases about the Court’s role
• Article III judicial power
  – Stern v. Marshall
     • Did a bankruptcy court have power to enter final
       judgment on a state-law counterclaim by the
       bankrupt (Anna Nicole Smith) against her stepson?
     • 5-4, per Chief Justice Roberts: No, under Article III
       of the Constitution. Congress may not withdraw
       from life-tenured Article III judges “any matter
       which, from its nature, is the subject of a suit at the
       common law, or in equity, or in admiralty”
     • Dissenters see threat to administrative adjudication
               Themes?
• A cautious Term in constitutional cases
  outside the First Amendment context
• Incremental decisions
• Some broad statutory and rule
  interpretation holdings
               Other Highlights
          CRIMINAL                     CIVIL
•   Confrontation: manhunts   • Wal-Mart class action
    and crime labs            • Unconscionability of
•   Procedural barriers to      arbitration clauses
    postconviction DNA
                              • Petition Clause
    claims
•   Police-created exigent
                              • Personal jurisdiction
    circumstances             • Right to counsel in
•   Detention of a material     civil contempt
    witness                   • State sovereign
•   Prison overcrowding         immunity
                              • Attorney fees for
                                §1983 defendants
     Questions or feedback?
• William.M.Jay@usdoj.gov

				
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