The Corporate Court’s 2011-12 Docket
The Supreme Court‘s docket for 2011-12 covers cases that could have profound effects on
millions of Americans. Many of these cases pit individual rights against corporate interests.
Under the leadership of Chief Justice John Roberts, the Court has consistently favored those
powerful corporate interests over average citizens, and has worked to bend the law to favor
That‘s why AFJ is evaluating all cases before the Court to identify the ones that will have
important implications for consumers, employees, the environment, and the vitality of our
country‘s democracy. AFJ tracks these ―Corporate Court‖ cases, as well as significant cases that
implicate core constitutional values, paying close attention at the petition for certiorari stage, oral
argument, and when a decision is issued. On cases of particular import, we issue in-depth
reports, blog posts, press releases, and other resources. Click here for AFJ special reports on
important Supreme Court cases. The Corporate Court 2011-12 docket is below. We will
continue to update the docket as the Corporate Court adds new cases, or decides those it has
What’s at Stake in the Cases on the Corporate Court’s Docket?
Arizona v. United States: The federal government‘s ability to maintain effective and
uniform immigration policies.
Christopher v. Smithkline Beecham Corp.: The ability of employees to get time-and-a-half
pay for overtime work, as guaranteed under federal law.
CompuCredit v. Greenwood: Consumers are prevented from suing credit repair companies in
court when they are charged excessive fees.
Credit Suisse Securities, et al. v. Simmonds: The ability of investors to bring securities fraud
suits for insider trading.
Douglas v. Independent Living Center of Southern California: The ability of individuals to
compel states to abide by federal law.
First American Financial Corp. v. Edwards: Holding corporations accountable when they
violate federal laws preventing payment for business referrals.
Florence v. Board of Freeholders: The privacy rights of individuals arrested for minor
Freeman v. Quicken Loans Inc.: The right of consumers to sue mortgage lenders for
Health & Human Services Department v. Florida; National Federation of Independent
Business v. Sebelius; Florida v. Health & Human Services Department: The ability of all
Americans to access affordable healthcare.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: Religious institutions
are immune from suit for discriminating or retaliating against employees for reasons
unrelated to religious doctrine.
Kiobel v. Royal Dutch Petroleum: Holding corporations responsible for human rights
violations committed overseas.
Knox v. SEIU: Unions‘ ability to engage in political advocacy on behalf of workers.
Kurns v. Railroad Friction Products: Railroad manufacturers escape liability for violating
state safety regulations.
Mims v. Arrow Financial Services: Consumers subjected to harassing robocalls can sue in
Minneci v. Pollard: Employees of privately-run federal prisons cannot be held liable in
federal court for violating inmates‘ constitutional rights.
National Meat Association v. Harris: The ability of states to protect consumers from
contaminated meat and animals from inhumane treatment is limited.
Pacific Operations Offshore v. Valladolid: Oil and gas workers hurt or killed on the job may
receive workers‘ compensation if they can show a substantial nexus between their injury and
operations on the Outer Continental Shelf.
Perry v. Perez: The voting rights of the African-American and Latino citizens of Texas are
Sackett v. Environmental Protection Agency: The ability of EPA to compel compliance
with Clean Water Act and other environmental laws.
United States v. Jones: The right of individuals to be free from extended warrantless
government tracking of their vehicle‘s location through GPS technology is protected.
*Merit and amicus briefs are provided by the American Bar Association.
Arizona v. United States
What’s at stake? The federal government‘s ability to maintain effective and uniform
Issue: Whether provisions of Arizona‘s immigration law are preempted by the federal
Immigration and Naturalization Act.
Argument date: April 25, 2012
What the case is about: In 2010, Arizona passed S.B. 1070, a law designed to make it all but
impossible for illegal immigrants to live or work in the state. A number of states have since
passed copycat laws, in response to what they view as the federal government‘s inadequate
efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-
reaching consequences that even the state attorney general has called for revisions.
In this suit, the United States has sought to enjoin enforcement of Arizona‘s law, arguing that it
is preempted by the federal Immigration and Naturalization Act (―INA‖). In particular, the U.S.
has challenged four provisions of the law as incompatible with federal immigration laws and
policies. The challenged provisions (1) require that state police ascertain the immigration status
of any individual they stop or arrest if they have reasonable suspicion to believe that the person
is here illegally (additionally, the person, once arrested, cannot be released until the federal
government verifies his or her legal status); (2) make it a violation of law for a person to fail to
obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work
or to try to work; and (4) authorize warrantless arrests for individuals who the state police have
probable cause to believe has committed any act anywhere that would make them deportable
under federal law.
While Arizona maintains that its law falls under the ―cooperative‖ state and local efforts
authorized by the INA, the U.S. argues that the Arizona law is clearly meant to supplant federal
law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer‘s signing
statement, she specifically noted the federal government‘s ―misguided policy‖ on immigration
The district court granted an injunction blocking the enforcement of all four provisions of
Arizona‘s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona has now appealed
to the Supreme Court.
The U.S. urged the Court to reject the case for review as premature until other courts of appeal have
had an opportunity to consider other similar state laws. For example, legal challenges have been
raised to provisions of Alabama‘s parallel law. Recently, a federal district court enjoined
enforcement of a provision of that law, known as H.B. 56, which criminalizes ―business
transactions‖ between state officials and people who cannot prove lawful immigration status. As
in Arizona v. United States, the district court‘s ruling in that case was based on the plaintiffs‘
likelihood of success on their claims of preemption. Undoubtedly, Alabama will appeal that
injunction to the Court of Appeals for the Eleventh Circuit, but because the Alabama and
Arizona state laws differ in their specifics, the Supreme Court‘s ruling in the Arizona case is
likely not to resolve the issues in the Alabama case. Nonetheless, the Supreme Court has chosen
to weigh in on yet another controversial and political topic in an election year.
If the Supreme Court sides with Arizona, not only will it disrupt the federal government‘s ability
to maintain a uniform and effective federal immigration policy, but potentially millions of hard-
working, law-abiding immigrant families with American children will be forced to live in the
shadows, or be driven from the states where they have made valuable contributions to the
community and the economy.
Christopher v. SmithKline Beecham Corp.
What’s at stake? The ability of employees to get time-and-a-half pay for overtime work, as
guaranteed under federal law
Issue: Whether courts should defer to the Secretary of Labor‘s interpretation of ―outside
salesman‖ under the Fair Labor Standards Act (FLSA), and whether the FLSA‘s ―outside sales‖
exemption applies to pharmaceutical sales representatives.
Argument date: April 16, 2012
What the case is about: This case arose from a dispute between Michael Shane Christopher and
his employer, SmithKline Beecham, a drug company. As a ―pharmaceutical representative,‖
Christopher‘s work consisted mainly of visiting doctors‘ offices and encouraging doctors to
prescribe appropriate SmithKline drugs to patients. He sometimes worked more than 40 hours
per week, but did not receive time-and-a-half pay for his overtime work. He and another plaintiff
sued on behalf of themselves and a class of all other similar employees working for SmithKline
for time-and-a-half pay, which is generally guaranteed to workers under the federal Fair Labor
Standards Act (FLSA).
SmithKline claims that Christopher is not entitled to overtime pay because he is an ―outside
salesman,‖ and thus falls into one of several narrowly-drawn classes of employees exempted
from the FLSA‘s overtime pay requirement. Christopher argues that he should not be categorized
as an outside salesman because he does not actually sell anything.
Through the FLSA, Congress delegated to the Secretary of Labor the authority to define terms
such as ―outside salesman.‖ The Secretary of Labor has issued regulations providing that an
―outside salesman‖ must in some sense make sales. According to the Secretary, who filed an
amicus brief in this and a related case, these regulations do not exempt drug companies from
paying pharmaceutical representatives like Christopher overtime.
It is a well-established principle of federal law that courts generally defer to agencies‘
interpretations of statutes and of their own regulations. However, in this case, the Ninth Circuit
Court of Appeals agreed with SmithKline that the Secretary‘s interpretation deserved no
deference because the Secretary merely ―parroted‖ federal law in writing the regulations. As a
result, the Ninth Circuit substituted its judgment for the judgment of the agency, and decided that
Christopher was in fact an outside salesman who did not merit overtime pay.
Although this case raises the technical question of the degree of deference a reviewing court
should give to agency interpretations of its own regulations, it is important to remember the core
dispute at issue in this case. Christopher worked longer hours than a full-time employee is
expected to work. Federal law demands that such workers receive overtime pay, unless they fall
into specific, narrowly drawn categories. Congress delegated the authority to define the
boundaries of these categories to the Secretary of Labor, who has determined that employees in
Christopher‘s position should receive overtime pay.
If the Supreme Court sides with the drug companies, it will not only constitute an earthquake in
administrative law, it would also deny overtime to roughly 90,000 drug company employees in
CompuCredit v. Greenwood
What’s at stake? The right of consumers to sue credit repair companies when they are charged
Issue: Whether the Credit Repair Organization Act‘s requirement that a consumer be informed
of the right to ―sue‖ voids mandatory arbitration clauses in credit repair contracts.
Decision date: January 10, 2012
Outcome: 8-1 in favor of CompuCredit. Justice Scalia delivered the opinion of the Court, joined
by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, and Alito. Justice Sotomayor
filed a concurrence in the judgment, in which Justice Kagan joined. Justice Ginsburg filed a
What the Court held: Plaintiff consumers filed a class action lawsuit against CompuCredit and
other credit providers after signing up for a credit card that was advertised to consumers with low
or weak credit scores as helping to ―rebuild your credit, ―rebuild poor credit,‖ and ―improve your
credit rating.‖ Although the credit providers‘ promotional materials stated that consumers would
immediately receive $300 in available credit, consumers were charged $257 in fees in the first
year, plus the interest that would accrue if the fees were not immediately paid. The consumers
sued the companies for their deceitful tactics under the Credit Repair Organization Act
(―CROA‖) and California‘s Unfair Competition Law. CompuCredit moved to dissolve the class
action and force each plaintiff to settle his or her own complaint in binding arbitration.
The Supreme Court held that the arbitration clause in CompuCredit‘s take-it-or-leave-it contracts
with consumers are enforceable, thereby preventing consumers from filing a class action lawsuit
in court. This conclusion is shocking, considering that Congress specifically required companies
like CompuCredit to inform their customers: ―You have a right to sue a credit repair organization
that violates the Credit Repair Organization Act.‖ Nonetheless, the Court found that this
provision of the CROA only creates the right to receive the statement, not an underlying right to
sue. Instead, the Court found that so long as parties could enforce the law in some way – such as
arbitration – the CROA is not violated. The Court maintained that the ―right to sue‖ language is
―a colloquial method of communicating to consumers that they have the legal right, enforceable
in court, to recover damages from credit repair organizations that violate the CROA,‖ and that
―most consumers would understand it this way, without regard to whether the suit in court has to
be preceded by an arbitration proceeding.‖
In dissent, Justice Ginsburg argued that the majority‘s interpretation of the CROA‘s ―right to
sue‖ ―may be comprehensible to one trained to ‗think like a lawyer.‘‖ However, she pointed out
that Congress enacted the CROA to protect vulnerable consumers of ―limited economic means,‖
who are ―likely to read the words ‗right to sue‘ to mean the right to litigate in court, not the
obligation to submit disputes to binding arbitration.‖ Particularly in a statute designed to prevent
credit repair organizations from unfair and deceptive practices, Justice Ginsburg found that
Congress certainly did not intend to allow those organizations to deceive consumers by telling
them they had a right that they do not in fact have – i.e., the right to sue.
By ruling for CompuCredit, the Supreme Court has found yet another way to close the
courthouse doors to ordinary Americans. This decision follows on last year‘s decision in AT&T
v. Concepcion, in which the Court granted companies the right to draft contracts forcing
consumers to arbitrate disputes one-by-one, without recourse to banding together in class actions.
By preventing plaintiffs from being able to band together to sue CompuCredit and other credit
providers for their deceitful practices, either in court or in arbitration, the Court has ensured that
corporate defendants are unlikely to be held accountable for defrauding consumers.
LA Times: Supreme Court says forced arbitration OK under credit repair law
Reuters: US court rules for arbitration in credit card case
Washington Post: Supreme Court backs binding arbitration agreements
Brief for Petitioner CompuCredit Corporation and Synovous Bank
Brief for Respondent Wanda Greenwood
Reply Brief for Petitioner Compucredit Corporation and Synovous Bank
Brief for Consumer Data Industry Association in Support of Petitioners and for Reversal
of the Ninth Circuit‘s Judgment
Brief for DRI-the Voice of the Defense Bar in Support of Petitioner
Brief for AARP and National Senior Citizens Law Center in Support of Respondent
Brief for the American Association for Justice in Support of Respondent
Credit Suisse Securities, et al. v. Simmonds
What’s at stake? The ability of investors to bring suits against investment banks for insider
Issue: Whether the deadline to file insider trading suits is put on hold until the insider publicly
discloses the trades.
Argument date: November 29, 2011
What the case is about: This case arises out of a series of Initial Public Offerings (IPOs) during
the tech bubble of the late 1990s. The plaintiff, Vanessa Simmonds, was an investor who owned
tech stocks underwritten by Credit Suisse and other investment banks. Simmonds alleges that
underwriters for these IPOs manipulated stock prices using short-swing transactions in violation
of the insider trading laws.
The main issue before the Supreme Court will be when the insider trading law‘s two-year time
limit to bring suits begins to run: when the profit is realized by insiders or when the required
public disclosures are filed. Credit Suisse argues that actions must be brought within two years of
the profits being realized and therefore Simmonds suit is time-barred. Simmonds argues that
because insiders never filed the required disclosures when the profit was realized that the two-
year limitations period never began to run. The U.S District Court for the Western District of
Washington dismissed the complaints on the grounds that the two year limit had expired, but the
Court of Appeals for the Ninth Circuit agreed with Simmonds and reversed.
If the Supreme Court finds that the suit was time-barred, it will be saying that corporate insiders
can get away with insider trading by violating the disclosure requirement. Furthermore, setting
the statute of limitations to two years from the time profit was realized will limit investors‘
ability to sue for illegal insider trading.
Brief of Petitioners Credit Suisse Securities (USA) LLC, et al.
Brief of Respondent Vanessa Simmonds
Brief for the Chamber of Commerce of the United States of America and the Securities
Industry and Financial Markets Association in Support of Petitioner
Brief for the United States in Support of Neither Party
Douglas v. Independent Living Center of Southern California
Consolidated with Douglas v. Santa Rosa Memorial Hospital and Douglas v. California
What’s at stake? The ability of individuals to compel states to abide by federal law.
Issue: Whether Medicaid beneficiaries and providers may bring a Supremacy Clause preemption
challenge claiming that insufficient reimbursements to health care providers by states threaten
access to health care in violation of the federal Medicaid Act.
Outcome: 5-4 to vacate and remand. Justice Breyer delivered the opinion of the Court, joined by
Justices Ginsburg, Kennedy, Sotomayor, and Kagan. Chief Justice Roberts wrote a dissenting
opinion, joined by Justices Scalia, Alito, and Thomas.
Decision date: February 22, 2012
What the Court held: The Supreme Court vacated the Ninth Circuit‘s decision and remanded
the case for further consideration ―in light of the changed circumstances.‖ However, the Court
did not resolve the central issue of whether individuals may sue the state of California using the
Supremacy Clause of the U.S. Constitution for adopting state Medicaid laws that allegedly deny
care to certain individuals in violation of the federal Medicaid statute.
The consolidated Douglas cases arose from California‘s decision to issue cuts of up to ten
percent in Medicaid benefits. A group of medical providers and low-income elderly and disabled
individuals challenged the cuts under the Supremacy Clause, saying that they violated federal
law by causing a reduction in the number of providers willing to participate in the program. The
district court found that the reduction has forced or will force non-emergency medical
transportation services and home health services providers to reduce the geographic area they are
able to serve, to decline to take new Medicaid patients, and to end services to some existing
patients or close their businesses. The Ninth Circuit held that the claims could proceed and that a
preliminary injunction preventing the cuts from going into effect should be granted. The
Supreme Court was asked to decide the preliminary issue of whether the Supremacy Clause
granted the plaintiffs a right to sue.
In an opinion penned by Justice Breyer, the Court held that the cases, although not moot, are now
―in a different posture.‖ Between the Court‘s grant of certiorari and the rendering of its decision,
the federal agency charged with administering Medicaid (Centers for Medicare & Medicaid
Services, or ―CMS‖) approved some of the challenged rate reductions while the state withdrew
its request to implement the other reductions. As a result, a cause of action under the
Administrative Procedure Act became newly available to the plaintiffs. Thus, the Supreme Court
decided that the parties should reargue the Supremacy Clause claim in the Ninth Circuit in light
of these changed circumstances. In dissent, Chief Justice Roberts, joined by Justices Scalia,
Thomas, and Alito, would have held that there is no cause of action under the Supremacy Clause,
regardless of the position that CMS takes.
According to California and the dissenters at the Supreme Court, no private individual has the
right to sue a state for noncompliance with federal Medicaid laws. However, as Alliance for
Justice has reported in its report on the Douglas cases [http://www.afj.org/connect-with-the-
issues/the-corporate-court/douglas_independent_living.pdf], former Housing and Human
Services (―HHS‖) officials have said that private enforcement ―has been the cornerstone of HHS
policy throughout the history of the Medicaid act, and remains the prevailing view of those
charged with administering the program.‖ If Americans were left unable to use the Supremacy
Clause to challenge illegal state laws, states would feel free to gut a range of other important
federal programs and policies. Furthermore, businesses regularly use the Supreme Clause to
challenge state laws that affect them, so it is only fair that everyday Americans be allowed to do
Although the Supreme Court did not conclusively close the courthouse door to these plaintiffs, it
did send the case back to the Ninth Circuit with the central issue left unresolved. We also now
know that the Supreme Court has at least four votes against allowing Americans to stand up for
their rights under the Supremacy Clause.
Sacramento Bee: Supreme Court to hear key California budget case
Brief for Petitioner Toby Douglas, Director, Department of Health Care Services, State of
Brief for Respondent Independent Living Center of Southern California, Inc., et al.
Brief for the Dominguez Respondents
Brief for Respondent Santa Rosa Memorial Hospital
Brief for Intervenor Respondents in 09-958 and the California Pharmacists Association
Respondents in 09-1158
Reply Brief for Petitioner Toby Douglas, Director, Department of Health Care Services,
State of California
Brief for Michigan and 30 Other States in Support of Petitioner
Brief for National Governors Association, National Conference of State Legislatures,
Council of State Governments, National Association of Counties, International
City/County Management Association, and United States Conference of Mayors in
Support of Petitioner
Brief for the United States in Support of Petitioner
Brief for AARP, Families USA, the National Legal Aid and Defenders Association, the
National Health Law Program, the National Disability Rights Network, Center for
Medicare Advocacy, First Focus, Voices for America‘s Children, Children‘s Dental
Health Project, the National Center for Youth Law, National Housing Law
Project, National REACH Coalition, Disability Rights Legal Center, the American
Network of Community Options and Resources, Planned Parenthood Federation of
America, the National Family Planning & Reproductive Health Association, the National
Latina Institute for Reproductive Health, Black Women‘s Health Imperative, National
Asian Pacific American Women‘s Forum, Asian & Pacific Islander American
Health Forum in Support of Respondent
Brief for the American Civil Liberties Union, the NAACP Legal Defense and Education
Fund, Inc., and the Mexican American Legal Defense and Educational Fund in Support of
Brief for the American Health Care Association, American Hospital Association,
Association Of American Medical Colleges, Catholic Health Association of the United
States, the Federation of American Hospitals, National Association of Children‘s
Hospitals, National Association of Community Health Centers, the National Association
of Public Hospitals and Health Systems, National Council for Community Behavioral
Healthcare, and Safety Net Hospitals for Pharmaceutical Access in Support of
Brief for the American Medical Association, American Dental Association, of Pediatrics,
the American Congress of Obstetricians and Gynecologists, American Academy of
Family Physicians and the American College of Emergency Physicians in Support of
Brief for Former HHS Officials in Support of Respondent
Brief for Members of Congress in Support of Respondent
Brief for the National Association of Chain Drug Stores, National Community
Pharmacists Association, National of State Pharmacy Associations and the American
Pharmacists Association in Support of Respondent
Brief for the Chamber of Commerce of the United States of America in Support of
First American Financial Corp. v. Edwards
What’s at stake? Enforceability of consumer laws that award statutory damages as a
disincentive to illegal conduct.
Issue: Whether the Real Estate Settlement Procedures Act of 1974 allows individual plaintiffs to
recover charges for title insurance when the selling corporation has violated a provision of the
Act, regardless of whether the plaintiff was overcharged.
Argument date: November 28, 2011
What the case is about: First American Financial is a holding corporation that owns First
American Title, which provides title insurance. It also partially owns a number of other title
insurance agencies that ostensibly offer a range of title insurance policies, but pursuant to an
agreement with First American Financial and unknown to customers, only offer First American
Title insurance. Such contracts are illegal under the Real Estate Settlement Procedures Act of
1974 (RESPA). Enacted to protect consumers from overpriced insurance due to practices like
kickbacks, RESPA outlaws payment for business referrals. Anyone charged for a settlement that
violates the law may collect three times the amount of the charges.
Denise Edwards bought a house and received a settlement statement requiring her to pay for title
insurance from First American Title. She claims that the agency from which she had purchased
title insurance used to work with multiple title insurance companies but entered a kickback
agreement with First American Title in 1998. She further contends that RESPA‘s damages
clause allows a lawsuit by private individuals regardless of whether the individual overpaid for
insurance because of the kickback.
First American claims that Ms. Edwards was not actually injured because she cannot prove that
she would have paid less for title insurance from another company. In fact, Ohio, where the
conflict arose, requires all title insurance companies to charge the same amount. First American
also argues that RESPA allows only the settlement service, not the individual customer, to bring
Even though Ohio requires all title insurance companies to charge the same amount, not all states
follow this practice. If corporations like First American Financial are allowed to enter kickback
agreements, home buyers in other states could be forced to pay too much for their title insurance.
If the Supreme Court sides with First American Financial it could have far reaching effects on
the enforceability of other consumer laws. If consumers are forced to show actual damages to
have standing to sue companies, this will eviscerate a host of consumer protection laws that use
statutory damages as a disincentive to illegal conduct.
Brief for Petitioners First American Financial et al.
Brief for Respondent Denise P. Edwards
Brief for ACA International Law in Support of Petitioner
Brief for American Bankers Association, American Escrow Association, Community
Mortgage Banking Project, Consumer Bankers Association, the Consumer Mortgage
Coalition, the Financial Services Roundtable, Housing Policy Council, Mortgage Bankers
Association, and the National Association of Realtors in Support of Petitioner
Brief for the American Land Title Association in Support of Petitioner
Brief for the Association of Global Automakers, Inc., and the Alliance of Automobile
Manufacturers in Support of Petitioner
Brief for the Consumer Data Industry Association in Support of Petitioner and For the
Reversal of the Ninth Circuit's Judgment
Brief for DRI-the Voice of the Defense Bar and the Association of Southern California
Defense Counsel in Support of Petitioner
Brief for Experian Information Solutions, Inc., in Support of Petitioner
Brief for Facebook, Inc., Linkedin Corp, Yahoo Inc., and Zynga, Inc., in Support of
Brief for the International Association of Defense Council in Support of Petitioner
Brief for the National Association of Home Builders and the California Building Industry
Association in Support of Petitioner
Brief for the National Association of Retail Collection Attorneys in Support of Petitioner
Brief for the New England Legal Foundation, the Associated Industries of Massachusetts,
and the Chamber of Commerce of the United States of America in Support of Petitioner
Brief for the Pacific Legal Foundation and the Center for Constitutional Jurisprudence in
Support of Petitioner
Brief for the Real Estate Services Provider's Council, Inc., (RESPRO) in Support of
Brief for the Stewart Information Services Corporation, Fidelity National Financial Inc.,
and Old Republic National Title Insurance Company in Support of Petitioner
Brief for Birny Birnbaum, M.S., M.C.P. et al. in Support of Respondent
Brief for Electronic Privacy Information Center (EPIC) in Support of Respondent
Brief for Reporter and Advisers to Restatement of Restitution and Unjust Enrichment in
Support of Respondent
Brief for AARP et al. in Support of Respondent
Brief for Erick and Whitney Carter in Support of Respondent
Brief for Lawyers‘ Committee for Civil Rights Under Law et al. in Support of
Brief for the National Association of Title Agents in Support of Respondent
Brief for Public Law Professors in Support of Respondent
Brief for Toyota Economic-Loss Plaintiffs in Support of Respondent
Florence v. Board of Freeholders
What’s at stake? Privacy rights of individuals arrested for minor offenses.
Issue: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search
when an individual is arrested for a minor offense.
Argument Date: October 12, 2011
What the case is about: While riding in his car with his wife and young son, Albert Florence
was stopped by a state trooper in Burlington County, New Jersey. The trooper erroneously
arrested Florence on a bench warrant issued for late payments of a fine, which Florence had paid
before his arrest. He even carried official proof of payment in his glove compartment, but this
did not protect him. At both the Burlington County Detention Facility and the Essex County
Correction Facility, Florence was forced to undergo a thorough strip search with other detainees,
even though New Jersey law requires reasonable suspicion of possession of contraband for a
strip search when an individual is arrested for a minor offense.
Florence and other detainees arrested for minor offenses who had been strip searched brought a
class action suit against jail and county officials in the U.S. District Court for the District of
New Jersey. The District Court granted summary judgment for Florence on the grounds that his
Fourth Amendment right against unreasonable searches and seizures had been violated, but
granted the defendants‘ motion to appeal on that issue. The Court of Appeals for the Third
Circuit reversed the District Court‘s ruling, holding that the jails‘ security interest in preventing
smuggling of contraband outweighs the privacy interests of detainees.
If the Supreme Court allows the correctional facilities‘ policy of strip searching stand, anyone
arrested for minor infractions will be subject to humiliating and highly-intrusive infringements
on their personal privacy.
Washington Post: Supreme Court is asked about jails‘ blanket strip-search policy
New York Times: Supreme Court weighs strip-search propriety
USA TODAY: Supreme Court mulls danger, dignity in strip-search case
Wall Street Journal: Supreme Court Wrestles With Strip Searches
National Public Radio: Supreme Court Weighs Legality Of Strip Searches
Brief for Petitioner Albert W. Florence
Brief for Respondent Essex County
Brief for Respondents Board of Chosen Freeholders of the County of Burlington et al.
Brief for Academics on Gang Behavior in Support of Petitioner
Brief for the American Bar Association in Support of Petitioner
Brief for Current and Former Corrections Professionals in Support of Petitioner
Brief for Former Attorneys General of New Jersey in Support of Petitioner
Brief for Medical Society of New Jersey et al. in Support of Petitioner
Brief for National Association of Criminal Defense Lawyers in Support of Petitioner
Brief for the National Police Accountability Project in Support of Petitioner
Brief for Psychiatrists in Support of Petitioner
Brief for Sister Bernie Galvin, et al., in Support of Petitioner
Brief for the National Sheriffs' Association in Support of Respondents
Brief for the County Commissioners Association of Pennsylvania in Support of
Brief for City and County of San Francisco et al. in Support of Respondents
Brief for Policemen's Benevolent Assoc., Local 249 et al.
Brief of Atlantic County and Gary Merline in Support of Respondents
Brief for New Jersey County Jail Wardens Assoc. in Support of Respondents
Brief for Cook County in Support of Respondents
Brief for State of Michigan and 11 Other States in Support of Respondents
Brief of the Texas Assoc. of Counties et al. in Support of Respondents
Brief for DRI in Support of Respondents
Brief of City and County of San Francisco et al. in Support of Respondents
Brief for the United States in Support of Respondents
Brief for Maine County Commissioners Association in Support of Respondents
Freeman v. Quicken Loans Inc.
What’s at Stake? The right of consumers to sue mortgage lenders for unearned fees.
Issue: Whether homeowners can sue mortgage lenders for charging unearned fees.
Argument Date: February 21, 2012
What the case is about: This case arises from a group of lawsuits out of Louisiana in which
borrowers, including Tammy Freeman, claim that Quicken Loans violated the Real Estate
Settlement Procedures Act (RESPA) by charging them loan-discount fees on their mortgages
without providing reduced interest rates in return. Quicken says that the fees charged to
borrowers were both legal and earned.
The question for the Supreme Court is how to interpret RESPA, which prohibits kickbacks and
other abuses in the mortgage industry. The borrowers argue that the Act was intended to forbid
both kickbacks and unearned fees, regardless of whether a third party was involved in the
improper fee arrangement. Quicken argues that the law only prohibits lenders from receiving an
unearned fee when that fee is divided with a third party and does not address unearned fees
received by the lender alone. The Fifth Circuit agreed with Quicken, ruling that there was no
violation of the Act if an unearned fee is charged by a single party and there is no third party
taking a share. The Circuit Courts are deeply divided on this issue, with the Fourth, Fifth,
Seventh and Eight Circuits limiting the Act to third party kickbacks and the Second, Third and
Eleventh Circuits believing that the Act applies to all unearned fees.
The Court‘s decision in this case will determine the lawfulness of millions of dollars worth of
fees placed on homebuyers annually. If the Court sides with Quicken, it will allow mortgage
lenders to place unexplained and unearned fees on their loans.
Brief for Petitioners Tammy Freeman et al.
Brief for the United States in Support of Petitioners
Brief for California et al. in Support of Petitioners
Health & Human Services Department v. Florida; National
Federation of Independent Business v. Sebelius; and Florida v.
Health & Human Services Department
What’s at stake? The ability of all Americans to access affordable healthcare.
Issues: Whether the Anti-Injunction Act permits a pre-enforcement challenge to the
constitutionality of the Affordable Care Act‘s individual mandate; whether Congress exceeded
its power in enacting the individual mandate; whether the individual mandate can be severed
from the rest of the Affordable Care Act; and whether the Affordable Care Act‘s expansion of
Medicaid coverage for the poor and disabled violates states‘ rights.
Argument dates: March 26, 2012 (Anti-Injunction Act); March 27, 2012 (Constitutionality of
Individual Mandate); March 28, 2012 (Severability and Medicaid).
What the case is about: In 2010, Congress passed the Patient Protection and Affordable Care
Act (―Affordable Care Act‖), a major overhaul of the nation‘s health insurance system.
The Affordable Care Act provides that, beginning in 2014, private insurance companies cannot
deny health insurance coverage based on most pre-existing conditions, nor charge more for
coverage to individuals with pre-existing conditions. Because these two provisions would
theoretically cause premiums for healthy individuals to rise, Congress also included a minimum
coverage provision, more commonly called the individual mandate. This provision, which also
takes effect in 2014, requires that most individuals purchase private health insurance, or else be
subject to a penalty assessed by the IRS – with exceptions for individuals who are already
covered through Medicare or Medicaid, have religious objections, or are suffering financial
hardship. Congress included the individual mandate to ensure that healthy individuals do not
leave the insurance pool, which would cause a further increase in premiums. The
constitutionality of the individual mandate lies at the heart of the cases before the Supreme
On the first day of argument, March 26, the Court will consider the preliminary question of
whether it can decide these cases at all. The Tax Anti-Injunction Act, passed in 1867, provides
that a person cannot sue to challenge a tax prior to paying the tax. Under the individual mandate
provision, the penalty for not purchasing health insurance is to be assessed by the IRS in
conjunction with income tax collection. If the Court decides that the enforcement mechanism of
the individual mandate falls within the Anti-Injunction Act, then the private plaintiffs lack
standing to sue at this time, because the penalty provision does not take effect until 2014. On this
basis, the Court could essentially decide not to decide the cases.
On March 27, the Court will hear the central challenge to the individual mandate. Plaintiffs argue
that the mandate exceeds Congress‘s power under the Interstate Commerce Clause and the
Necessary and Proper Clause. Article 1, Section 8 of the Constitution states that ―The Congress
shall have Power…[t]o regulate Commerce…among the several States‖ and ―To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers.‖
Plaintiffs argue that these powers do not authorize the individual mandate. The United States
argues, by contrast, that the health care system is clearly commerce ―among the several States,‖
and that the individual mandate is a reasonable way to ensure that all Americans have access to
affordable, quality health care.
On March 28, the Court will hear argument on the two remaining issues. First, the Court will
consider the issue of ―severability.‖ The question here is whether Congress would have wanted
the balance of the Affordable Care Act to remain in force if the individual mandate were struck
down as unconstitutional. The final issue that the Court will consider is whether the federal
government may condition its continuation of subsidies to state Medicaid programs on the states‘
expansion of Medicaid coverage to families with incomes up to 133% of the federal poverty
level. A group of states are challenging this provision, arguing that Congress has exceeded its
constitutional authority by expanding Medicaid eligibility and coverage in this manner.
If the Supreme Court sides with the plaintiffs, millions of Americans will continue to go without
affordable health care. Indeed, it is possible that the Court‘s decision could cause all of the
protections of the Affordable Care Act -- from allowing children to be on their parents‘ insurance
until age 26, to increased Medicare funding to rural hospitals -- to disappear.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
What’s at stake? Disabled employees‘ rights to be free from retaliatory firings by religious
Issue: Whether an Americans with Disabilities Act retaliation claim may be brought against a
religious school by a disabled teacher engaged to teach a secular curriculum and fired for non-
Decision Date: January 11, 2012
Outcome: 9-0 in favor of Hosanna-Tabor Evangelical Lutheran Church and School. Chief
Justice Roberts delivered the opinion for a unanimous Court. Justice Thomas filed a concurring
opinion. Justice Alito filed a concurring opinion, in which Justice Kagan joined.
What the Court held: Cheryl Perich was a teacher of primarily secular subject matter at
Hosanna-Tabor Lutheran School. Perich became ill in July 2004 and took medical leave. When
Perich recovered and adapted to her treatment she told the school she wanted to return to
teaching, but the school expressed concerns about her disability and asked her to resign. Perich
told school officials she would file a disability discrimination suit if they could not come to an
amicable solution. Soon thereafter, Perich was fired.
The EEOC filed charges against Hosanna-Tabor for illegally retaliating against Perich and firing
her for discriminatory reasons. Hosanna-Tabor claimed that its actions were protected by the
Establishment Clause and the Free Exercise Clause of the First Amendment. The school cited the
―ministerial exception‖ to employment discrimination laws, which the lower courts of appeal
have created and applied for some time, but which has never been acknowledged or approved by
the Supreme Court. Under this exception, religious institutions are immune from discrimination
suits if a fired employee had primarily religious duties.
Reversing the Sixth Circuit, the Supreme Court held for the first time that there is a ―ministerial
exception‖ to federal employment discrimination laws, including Title VII and the ADA. The
Court then proceeded to apply a totality of the circumstances test to conclude that Perich was a
―minister‖ and that therefore the ministerial exception applies and her suit is barred. Focusing on
Perich‘s religious training, title, and the religious duties that she performed, the Court
downplayed the fact that the vast majority of her duties were secular and that most of her
religious duties were also performed by lay teachers.
By siding with Hosanna-Tabor, the Supreme Court has rendered religious institutions immune
from suit for discriminating or retaliating against employees for reasons unrelated to religious
doctrine. This makes it difficult for teachers to speak out against misdeeds within religious
institutions for fear of retaliation, and allows religious institutions to discriminate with impunity.
New York Times: Religious Groups Given ‗Exception‘ to Work Bias Law
Slate: Ministers of Justice
The Atlantic: The Supreme Court's Religious Double Standard
National Public Radio: Justices Rule Ministers Exempt From Anti-Bias Laws
USA TODAY: Court: Certain religious employees can't sue for job bias
Brief for Petitioner Hosanna-Tabor Evangelical Lutheran Church and School
Brief for Respondent Cheryl Perich
Brief for the Federal Respondents
Reply Brief for Petitioner Hosanna-Tabor Evangelical Lutheran Church and School
Brief for the American Association of Christian Schools in Support of Petitioner
Brief for the American Center for Law and Justice and the Intervarsity Christian
Fellowship/ USA in Support of Petitioner and Urging Reversal
Brief for the American Jewish Committee and the Union for Reform Judaism in Support
Brief for American Bible Society, Association of Christian Schools International,
Association of Gospel Rescue Missions, Awana Clubs International, Azusa Pacific
University, Bethesda Ministries, the Christian and Missionary Alliance, Christian Camp
& Conference Association, Compassion International, Crista Ministries, Evangelical
Council for Financial Accountability, Moody Bible Institute of Chicago, the Navigators,
New Tribes Mission, Trans World Radio, and Upward Sports in Support of Petitioner
Brief for the Council for Christian Colleges and Universities in Support of Petitioners
Brief for Evangelical Covenant Church, Evangelical Lutheran Church in America,
General Conference of Seventh Day Adventist, General Council in Finance and
Administration of the United Methodist Church, Inc., General Synod of the United
Church of Christ, Reverend Gradye Parsons, Stated Clerk of the General Assembly of the
Presbyterian Church (U.S.A.) and the Salvation Army National Corporation in Support of
Brief of the International Center for Law and Religious Studies at Brigham Young
University in Support of Petitioner
Brief for the International Mission Board of The Southern Baptist Convention, Ethics and
Religious Liberty Commission of The Southern Baptist Convention, Council of Hindu
Temples of North America, Mandaean Association of Massachusetts, And International
Church of the Foursquare Gospel in Support of Petitioner
Brief for the Jewish Educational Center, Association of Christian Schools International,
and the North American Division Of Seventh-Day Adventists Office Of Education in
Support of Petitioner
Brief for Justice and Freedom Fund in Support of Petitioner
Brief for Lutheran Church-Missouri Synod in Support of Petitioner
Brief for Michigan and 7 Other States in Support of Petitioner
Brief for the Muslim-American Public Affairs Council, United Sikhs, Church of the
Lukumi Babalu Aye, International Society for Krishna Consciousness, O Centro
Beneficente Uniao Do Vegetal, and Templo Yoruba Omo Orisha in Support of
Petitioner and Urging Reversal
Brief of the National Jewish Commission on Law and Public Affairs (COLPA) filed on
behalf of the Orthodox Jewish Organizations and Rabbinical Courts in Support of
Brief for Professor Eugene Volokh, National Council of the Churches of Christ In The
USA, Baptist Joint Committee for Religious Liberty, Queens Federation of Churches,
National Association of Evangelicals, And Christian Legal Society in Support of
Brief for Religious Organizations and Institutions in Support of Petitioner
Brief for Religious Tribunal Experts in Support of Petitioner
Brief for the Rutherford Institute in Support of Petitioner
Brief for Trinity Baptist Church in Support of Jacksonville in Support of Petitioner
Brief for the United States Conference of Catholic Bishops, Church of Jesus Christ of
Latter Day Saints, the Presiding Bishop of the Episcopal Church and the Union of
Orthodox Jewish Congregations of America in Support of Petitioner
Brief for Wallbuilders, Inc. in Support of Petitioner
Brief for the American Humanist Association and American Atheists, Inc., American
Ethical Union, Atheist Alliance of America, Military Association of Atheists and
Freethinkers, Secular Student, and Society for Humanistic Judaism in Support of
Brief for Americans United for Separation of Church and State, American Civil Liberties
Union, ACLU of Michigan, National Council of Jewish Women, Sikh Council on
Religion and Education, and Unitarian Universalist Association in Support of Respondent
Brief for the Anti-Defamation League in Support of Respondent
Brief for Antitrust Professors and Scholars in Support of Respondent
Brief for Bishopaccountability.Org, the Cardozo Advocates for Kids, Child Protection
Project, the Foundation to Abolish Child Sex Abuse, Jewish Board of Advocates for
Children, Inc., Kidsafe Foundation, the National Black Church Initiative, the National
Center for Victims of Crime, Survivors for Justice, and The Survivors Network Of Those
Abused by Priests in Support of Respondent
Brief for Law and Religion Professors in Support of Respondent
Brief for NAACP Legal Defense Fund, Lawyers‘ Committee For Civil Rights Under
Law, National Women‘s Law Center, National Partnership For Women And Families,
Disability Rights Education And Defense Fund, Disability Rights Advocates, Bazelon
Center For Mental Health Law, and the National Council on Independent Living in
Support of Respondent
Brief for the National Employment Lawyers Association in Support of Respondent
Brief for People for the American Way in Support of Respondent
Brief for Neil H. Cogan in Support of Respondents Urging Affirmance
Kiobel v. Royal Dutch Petroleum Co.
What’s at stake? Holding corporations responsible for human rights violations committed
Issue: Whether corporations may be held liable for torts that violate the law of nations, such as
torture, murder, and genocide, under the Alien Tort Statute.
Argument Date: February 28, 2012
What the case is about: Twelve Nigerian nationals sued Royal Dutch Petroleum and two other
oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of
Nigeria in the early 1990s. Defendants have long been involved in oil exploration and production
activities in the Ogoni region. To protest the environmental degradation caused by those
activities, Nigerian residents organized the ―Movement for Survival of Ogoni People.‖ Plaintiffs
allege that defendants responded by enlisting the Nigerian government to suppress the Ogoni
activists. In 1993 and 1994, the Nigerian military was involved in a variety of human rights
abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and
looting property – allegedly with the assistance of defendants.
To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their
claims under the Alien Tort Statute (―ATS‖), alleging that defendants had aided and abetted the
Nigerian government in violating the law of nations, including extrajudicial killing, crimes
against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and
detention, forced exile, property destruction, and violation of the rights to life, liberty, security,
The District Court dismissed certain of plaintiffs‘ claims, finding that they were not established
clearly enough under customary international law, while permitting the remainder to proceed.
Both parties appealed the court‘s ruling. Rather than decide the issues that had been certified for
appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all of
plaintiffs‘ claims by finding that corporations are not liable under the ATS. The ATS, which was
enacted by the first Congress in 1789, establishes jurisdiction for torts ―committed in violation of
the law of nations or a treaty of the United States.‖ Considering that limited grant of jurisdiction,
the majority concluded that, under customary international law, while States and individual men
and women have been held liable for human rights violations, juridical ―persons‖ such as
corporations have not. The majority acknowledged that corporations are generally deemed
―persons,‖ with corresponding rights and liabilities, under U.S. domestic law. However, it
insisted that liability under domestic law – including under the laws of ―most or even all
‗civilized nations‘‖ – does not create a norm of customary international law.
As Judge Leval, who concurred only in the judgment, stated in a separate opinion, the majority
―deal[t ] a substantial blow to international law and its undertaking to protect fundamental human
rights‖ by creating a rule ―[w]ithout any support in either the precedents or the scholarship of
international law.‖ In Judge Leval‘s view, the majority mistakenly derived from the lack of
jurisdiction for international criminal tribunals to impose criminal punishments on corporations,
a lack of precedent for the civil compensatory liability of corporations.
Furthermore, in order to reach this issue, which had never been raised in the litigation, the court
deemed it a jurisdictional question, which the court may address on its own at any point, rather a
question of the merits of the case, which is waived if not raised by the defendants. The Second
Circuit‘s holding created a split among the Circuits, as the Eleventh Circuit has held that
corporations can be held liable under ATS just like any private party. The issue of corporate
liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits.
The Supreme Court will also hear argument in the related case of Mohamad v. Rajoun. In that
case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by
officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the
1991 Torture Victim Protection Act (―TVPA‖). The D.C. Circuit affirmed the district court‘s
dismissal of plaintiffs‘ claims on the grounds that the TVPA – which establishes the civil
liability of ―individuals‖ – applies only to natural persons, not to organizations.
If the Supreme Court affirms the lower courts‘ decisions in favor of the defendants in each of
these cases, it will allow corporations and other organizations to act with impunity to perpetrate
crimes against humanity.
Los Angeles Times: Supreme Court to decide on reach of global human rights law
Forbes: Supreme Court To Decide If 1789 Law Applies To Shell in 2012
Huffington Post: Corporate Personhood Debate, Tortured Reasoning In Tow, Heads Back
To Supreme Court
Brief for Petitioners Esther Kiobel et al.
Amicus Briefs in Support of Petitioners
Brief of the United States
Brief of Yale Law School Center for Global Legal Challenges
Brief for the American Federation of Labor and Congress of Industrial Organizations
Brief for International Human Rights Organizations and International Law Experts
Brief for International Law Scholars
Brief for Navi Pillay, the United Nations High Commissioner for Human Rights
Brief for Professors of Legal History Barbara Aronstein Black et al.
Brief for the Rutherford Institute
Brief for Joseph E. Stiglitz
Brief for Law Professors of Civil Liberties and 42 U.S.C. § 1983
Brief for Nuremberg Scholars Omer Bartov et al.
Amicus Briefs in Support of Neither Party
Brief for Nuremberg Historians and International Lawyers
Kurns v. Railroad Friction Products
What’s at stake? Holding railroad manufacturers responsible for violating state safety
Issue: Whether federal railroad safety laws preempt an injured rail worker from suing a railroad
parts manufacturer under a more protective state regulation.
Decision Date: February 29, 2012
Outcome: 6-3 in favor of Railroad Friction Products. Justice Thomas delivered the opinion of
the Court. Justice Kagan wrote a concurring opinion. Justice Sotomayor wrote an opinion
concurring in part and dissenting in part, which Justices Breyer and Ginsburg joined.
What the Court held: The Supreme Court affirmed the Third Circuit‘s holding that the federal
Locomotive Inspection Act (―LIA‖) preempts plaintiffs‘ state tort law claims for design defects
and failure to warn.
In this case, railroad parts manufacturers were sued by the widow and estate executor of a
railroad worker who died as a result of contracting malignant mesolthelioma, the only generally
accepted cause of which is asbestos exposure. Defendants admittedly manufactured products that
contained asbestos and failed to provide specific product warnings required under state law.
Federal railroad regulations are silent as to warnings for products containing
asbestos. Nonetheless, the Supreme Court was persuaded by defendants‘ claim that the LIA
controls the entire field of regulation of railroad parts manufacture and use, and therefore found
the state tort claims to be preempted. The Court based its decision on the 1926 case of Napier v.
Atlantic Coast Line R. Co., which held that the LIA occupied the field for ―the design, the con-
struction and the material of every part of the locomotive.‖
Justice Kagan wrote a concurring opinion, noting her belief that the Court would not have
decided Napier the same way today, given the trends in modern preemption doctrine, but that
―Napier governs so long as Congress lets it.‖ Justice Sotomayor, joined by Justices Breyer and
Ginsburg, wrote an opinion concurring in part and dissenting in part. Justice Sotomayor agreed
that the defective design claims were preempted by the LIA, but opined that the failure to warn
claims, insofar as they have nothing to do with the physical composition of the railroad parts,
should not be considered preempted under Napier. She concluded, ―[T]he majority affords the
LIA field-pre-emptive effect well beyond what Napier requires, leaving petitioners without a
remedy for what they allege was fatal exposure to asbestos in repair facilities.‖ With a quote
from the famous Silkwood plutonium exposure case, Sotomayor noted, ―It is difficult to believe
that Congress would, without comment, remove all means of judicial recourse for those injured
by illegal conduct.‖
By upholding the lower courts‘ decisions in favor of the corporate defendants, the Supreme
Court is preventing injured citizens from holding railroad manufacturers responsible for violating
state safety laws and regulations, many of which speak to local safety hazards and provide more
stringent protections than those afforded by federal laws. Once again the Corporate Court has
used federal preemption to protect corporate interests and prevent states from protecting public
Brief for Petitioner Gloria Gail Kurns, Executrix of The Estate Of George M. Corson,
Deceased, and Freida E. Jung Corson, Widow In Her Own Right
Brief for Railroad Friction Products Corp. and Viad Corp.
Brief for the Academy of Rail Labor Attorneys in Support of Petitioner
Brief for the American Association for Justice in Support of Petitioner
Brief for the National Association of Retired and Veteran Railway Employees in Support
Brief for Public Justice, P.C., in Support of Petitioner
Brief for Public Law Scholars in Support of Petitioner
Brief for the United States in Support of Petitioner
Brief for Thyssenkrupp Budd Company in Support of Respondents
Brief for the National Association of Manufacturers in Support of Respondents
Brief for General Electric Corporation in Support of Respondents
Brief for John Crane Inc. in Support of Respondents
Brief for Chamber of Commerce in Support of Respondents
Brief for DRI-The Voice of the Defense Bar in Support of Respondents
Brief for Griffin Wheel Company in Support of Respondents
Knox v. SEIU
What’s at stake? Unions‘ ability to engage in political advocacy on behalf of workers.
Issue: Whether unions must send a notice to workers every time they impose temporary fee
increases to cover costs of additional advocacy activities.
Argument Date: January 10, 2012
What the case is about: Service Employees International Union (SEIU) represents 1.8 million
people in health care and public service. Non-member public employees are required by
California state law to pay SEIU a ―fair share fee‖ to defray the costs of union representation on
their behalf. To that end, each year SEIU sends its non-members a notice, as required by the
Supreme Court, which informs non-members of their fair share fee and of their right to object to
paying non-chargeable expenditures including money spent for political advocacy. Those fees
are calculated based upon expenses during the previous year and do not take into account
In 2005, SEIU issued a valid annual notice informing non-members of the percentage of their
dues which would be allocated to union representation and gave them 30 days to opt-out of
paying amounts associated with non-representation functions. The notice stated that dues were
subject to change based on actual costs. A month later, SEIU imposed an emergency temporary
assessment fee to defend against attacks on union plans and charged non-members who objected
to the increase the percentage set forth in the initial notice as the amount associated with union
representation. A group of nonmember state employees in California challenged this practice in
a class action suit against SEIU.
Employees claim that SEIU‘s failure to send out a supplemental notice when the union imposed
a special assessment violated employees First and Fourteenth Amendments rights by forcing
non-union employees to subsidize union political activities. SEIU counters that its notice was
constitutionally and legally sufficient because the Supreme Court has recognized that the notice
did not require an exact determination of the yearly expenditures, but merely a good prediction
based upon the previous year‘s audits. The Court previously recognized the impossibility of
anticipating expenditures at the outset of the fee year and that once the union sent the original
notice it need not send a second notice speculating how a fee increase might be spent. The
district court found for the employees, but the U.S. Court of Appeals for the Ninth Circuit
reversed, finding that a temporary fee increase did not require an additional notice.
If the Supreme Court rules against the SEIU, it will erode the power of unions to fight back
against new political attacks by making it harder to raise additional funds to respond.
Brief for Petitioners Diane Knox et al.
Brief for Respondent SEIU
Brief for Pacific Legal Foundation et al. in Support of Petitioners
Brief for AFL-CIO in Support of Respondent
Brief for National Education Association in Support of Respondent
Mims v. Arrow Financial Services
What’s at stake? Protecting consumers from harassment.
Issue: Whether the Telephone Consumer Protection Act allows a consumer claiming harassment
to sue in federal court.
Decision date: January 18, 2012
Outcome: 9-0 in favor of Mims. Justice Ginsburg delivered the opinion of the Court.
What the case is about: Arrow Financial Services (―Arrow‖) is an originator, servicer, and
collector of private student loans. Marcus Mims claims that Arrow harassed him about student
loan payments by repeatedly calling his cell phone with an automated dialing system and leaving
prerecorded voicemails. Mims sued in federal district court and argued that Arrow‘s activity
violated the Telephone Consumer Protection Act (―the Act‖), a statute passed by Congress to
restrict the ability of companies to harass consumers over the phone. The district court dismissed
the complaint and the Eleventh Circuit upheld the dismissal, reasoning that Congress intended to
limit jurisdiction over lawsuits under the Act to state courts.
The Supreme Court reversed this holding, allowing consumers to stand up for their rights under
the Act in both state and federal court. The Court reasoned that the Act does not use the words
―only‖ or ―exclusively‖ in granting jurisdiction to state courts. Furthermore, the Court found that
the Act created a federal right of action, and thus, federal courts retain concurrent jurisdiction
over causes of action under the Act as an exercise of their general federal-question jurisdiction.
A brief filed by the National Association of Consumer Advocates, an AFJ member organization,
and the National Consumer Law Center states that, ―[n]otwithstanding Congress‘s clearly stated
intentions, extensive non-compliance by national and international telemarketing and related
industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all
uncommon.‖ The organizations added that ―this unfortunate state of affairs is the failure of the
Act‘s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective
deterrence mechanism that Congress envisioned when it adopted this law.‖
By siding with Mims, the Supreme Court has provided consumers with the ability to hold
companies accountable for unlawful telephone harassment in federal court, where they might
receive greater relief than they would in the courts of states with weaker consumer protections.
Brief for Petitioner Marcus D. Mims
Brief for Respondent Arrow Financial Services LLC
Minneci v. Pollard
What’s at stake? Holding employees of privately-run federal prisons liable for violating
inmates‘ constitutional rights
Issue: Whether employees of a private corporation operating a federal prison may be held liable
under federal law for committing constitutional violations.
Decision date: January 10, 2012
Outcome: 8-1 in favor of Minneci. Justice Breyer delivered the opinion of the Court, joined by
Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Alito, Sotomayor, and Kagan.
Justice Scalia filed a concurring opinion, in which Justice Thomas joined. Justice Ginsburg filed
a dissenting opinion.
What the Court held: Richard Lee Pollard was incarcerated in a federal prison in Taft,
California. The prison was operated under contract by a private company, Wackenhut
Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that
had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to
use his broken arms in painful ways, refused to provide the splints recommended by his doctors,
and made him engage in prison tasks before his injuries had healed. Pollard sued both the
corporate entity and individual employees for damages under Bivens v. Six Unknown Federal
Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been
violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against
federal officers for constitutional violations, where there was no other remedy available.
The Supreme Court reversed the Ninth Circuit‘s holding that a Bivens action is available where
the only alternative remedy is under state law. The Court followed its 2001 decision in
Correctional Services Corp. v. Malesko, in which it held that the prisoner plaintiff could not state
a Bivens claim against the private corporate entity running the federal prison in which he was
incarcerated. In Malesko, the Court reasoned that a suit against a corporation would not deter
individual misconduct, and that the plaintiff could sue under state tort law instead. Although in
this case Pollard sued individual Wackenhut employees, the Court nonetheless concluded that
there is no reason to imply a Bivens remedy because, as in Malesko, Pollard can pursue his
claims under state tort law.
However, as Justice Ginsburg pointed out in her lone dissent, Pollard would clearly have had a
Bivens remedy if he were incarcerated in a prison run by the government, under the Court‘s
decision in Carlson v. Green. It is only happenstance that he was placed in a prison run by a
private contractor, so he should have the same federal legal remedies available to him as if he
were held in a government-run prison. Justice Ginsburg argued that finding a federal cause of
action here would serve the Bivens Court‘s interests in the application of uniform federal law to
such claims, and in creating a means to deter individuals from violating constitutional rights.
The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal
prisoners. In addition to the 16% of the federal prison population in privately-run facilities,
nearly half of federal immigration detainees likewise are held in privately-run detention
facilities. Because private prison contractors have incentives to cut costs in order to maximize
their profits, they pay corrections officers less, provide less training, and maintain fewer officers
per inmate, as compared to federally-run prisons. As a result, inmates held in privately-held
facilities face greater dangers to their health and safety than do other prisoners, and federal
oversight of such facilities has been insufficient to correct such shortcomings. Yet today the
Court has shut the federal courthouse doors to inmates who suffer as a result of these dangers.
Because the Supreme Court has ruled in favor of the corporate employees, inmates who are held
in privately-run federal prisons are unable to sue under federal law when their constitutional
rights are violated by their jailers.
McClatchy Newspapers: Supreme Court denies inmate's request for lawsuit over prison
Brief for Petitioners Minneci, Akanno, Spack, Stiefer, and Maness
Brief for Respondent Richard Lee Pollard
Brief for the United States in Support of Petitioners
Brief for the American Civil Liberties Union, the Legal Aid Society of New York, and
the Washington Lawyers‘ Committee for Civil Rights and Urban Affairs in Support of
Brief for the United Mexican States in Support of Respondent
Brief for Law Professors in Support of Respondent
National Meat Association v. Harris
What’s at stake? States‘ ability to protect consumers from contaminated meat.
Issue: Whether a state may enact laws designed to protect the food supply when federal
regulations do not address the specific issue.
Decision date: January 23, 2012
Outcome: 9-0 in favor of the National Meat Association. Justice Kagan delivered the opinion of
What the Court held: In January 2008, the Humane Society released undercover video
depicting sick and disabled cows (―downer‖ or ―non-ambulatory‖ animals) being beaten, kicked,
shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising
concerns about animal welfare, the video inspired grave concerns about the safety of the food
supply. Downer animals are much more susceptible to contracting and passing on the E. coli
virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In
fact, it later emerged that meat from those same animals had been processed and sold, leading to
the largest beef product recall in United States history.
The California State Legislature subsequently amended existing California laws governing
slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of
―nonambulatory‖ or ―downer‖ pigs, sheep, goats or cattle, and requiring that such animals be
immediately and humanely euthanized.
The California State Legislature subsequently amended existing California laws governing
slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of
―nonambulatory‖ or ―downer‖ pigs, sheep, goats or cattle, and requiring that such animals be
immediately and humanely euthanized. The National Meat Association sued to enjoin the law,
arguing that it was preempted by the Federal Meat Inspection Act (the ―FMIA‖).
The FMIA was first enacted in 1906, in the wake of Upton Sinclair‘s exposé of the meat
industry, The Jungle. It is a comprehensive set of regulations governing the slaughtering process,
designed to protect the health of consumers by ensuring that meat for human consumption is
wholesome and not adulterated. The Court of Appeals for the Ninth Circuit ruled for California,
holding that the state law did not conflict with the FMIA‘s regulation of slaughterhouse
activities, because its effect was to exclude certain types of animals from the slaughtering
process all together.
The Supreme Court, in a unanimous opinion written by Justice Kagan, reversed the Ninth
Circuit, finding the state law to be expressly preempted by the FMIA. The Court held that ―[t]he
FMIA regulates slaughterhouses‘ handling and treatment of nonambulatory pigs from the
moment of their delivery through the end of the meat production process,‖ and California‘s law
―endeavors to regulate the same thing, at the same time, in the same place—except by imposing
different requirements.‖ Accordingly, the Court struck down the state law as preempted, thus
undermining California‘s efforts to ensure humane and safe handling of animals destined for
As a result of the Court‘s decision, it will be easier for potentially contaminated meat to get into
California grocery stores, and more difficult for all states to protect the public health through the
regulation of the food supply.
Bloomberg: California Slaughterhouse Law Struck Down by Top U.S. Court
The New York Times: Supreme Court Rejects California Slaughterhouse Law
Los Angeles Times: California animal-slaughter law struck down; activists pin hopes on
Brief for Petitioner National Meat Association
Brief for Respondent the Humane Society of the United States et al.
Brief for Respondent Kamala D. Harris
Brief for the American Association of Swine Veterinarians et al. in Support of Petitioner
and for the Reversal of the Ninth Circuit's Judgment
Brief for the Chamber of Commerce of the United States of America in Support of
Brief of the United States of America in Support of Petitioner
Brief for Illinois et al. in Support of Respondents
Brief for Public Citizen in Support of Respondents
Brief for the ASPCA in Support of Respondents
Brief for Tim Blackwell, D.V.M. and Kristie Mozzachio, D.V.M. in Support of
Pacific Operations Offshore v. Valladolid
What’s at stake? The ability of oil and gas workers hurt or killed on the job to receive workers‘
Issue: Whether the Outer Continental Shelf Lands Act extends workers‘ compensation coverage
under the Longshore and Harbor Workers‘ Compensation Act only to workers injured while they
are on the Outer Continental Shelf.
Decision date: January 11, 2012
Outcome: 9-0 for Valladolid. Justice Thomas delivered the opinion of the Court, in which Chief
Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice
Scalia filed an opinion concurring in part and concurring in the judgment, in which Justice Alito
What the Court held: Juan Valladolid was killed when a forklift crushed him while he was
working for Pacific Operations Offshore, an oil extraction company. Valladolid spent 98% of
his working hours on an oil platform on the Outer Continental Shelf (OCS) three miles from the
California coast but died while working onshore to clean up scrap metal taken from operations
on the OCS. Valladolid‘s widow, Luisa, argued that she was entitled to benefits under the Outer
Continental Shelf Lands Act (the Act), which requires employers or their insurance providers to
pay benefits to individuals or surviving relatives when employees suffer ―any injury occurring as
the result of operations conducted on the [OCS] for the purpose of exploring for, developing,
removing, or transporting by pipeline the natural resources…of the [OCS].‖ An administrative
law judge denied Luisa Valladolid‘s claim for benefits because her husband‘s death did not occur
―on the subsoil and seabed of the [OCS], or the artificial islands and structures erected thereon.‖
The Ninth Circuit Court of Appeals reversed this decision and held that the plain language of the
Act shows that a death or injury does not have to occur on the OCS for an injured employee or
surviving relative to receive benefits as long as there is ―a substantial nexus between the injury
and extractive operations on the shelf.‖ The Ninth Circuit‘s test conflicted with those devised by
two other circuits. The Third Circuit had adopted an expansive reading of the statute as covering
all injuries that would not have occurred ―but for‖ the operations on the OCS – including, for
example, a worker ―killed in a car accident on the way to the helicopter that was to fly him to the
rig‖ that he worked on. The Fifth Circuit, on the other hand, had adopted a much narrower
interpretation, holding that the statute covered only injuries actually suffered ―on an OCS
platform or the waters above the OCS.‖
Surprisingly, given the Supreme Court‘s penchant for reversing the Ninth Circuit‘s decisions, the
Court in this case affirmed the Ninth Circuit‘s ruling and its ―substantial nexus‖ test, through a
common sense reading of the statute in question. As a result, workers in the offshore extractive
industries who are injured or killed while working onshore may still receive benefits under the
OCSLA if they can show a ―substantial nexus‖ between their injury and operations on the Outer
Brief for Petitioner Pacific Operators Offshore, LLP
Brief for Respondent Luisa C. Valladolid
Brief for the Federal Respondents
Reply for Pacific Operators Offshore, LLP et al.
Perry v. Perez
Consolidated with Perry v. Perez and Perry v. Davis
What’s at stake? The voting rights of the African-American and Latino citizens of Texas
Issues: Whether a federal district court can impose an interim electoral map of its own design for
an impending election, when the state has not yet obtained preclearance for its redistricting plan,
as required under Section 5 of the 1965 Voting Rights Act.
Decision date: January 20, 2012
Outcome: Per Curiam in favor of Texas.
What the Court held: The state of Texas has experienced tremendous population growth and
demographic change in recent years. The 2010 Census revealed that the state population had
grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that
growth came from the Latino population, which increased by 2.8 million. As a result, the state
electoral maps required a major overhaul, both to bring the state legislative districts in line with
the U.S. Constitution‘s one-person, one-vote provision, and to apportion fairly the electoral
districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the
Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions,
primarily in the South, that are required to seek ―preclearance‖ for any changes to their electoral
system because of their history of voting discrimination on the basis of race. Under Section 5, a
jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the
District Court for the District of DC. In this case, Texas chose to submit its newly drawn
electoral maps to the DC District Court for approval, even though the administrative process is
generally more expeditious. It is likely that Texas, under Republican Governor Rick Perry, took
the slower route to avoid an adverse ruling from the executive branch under Democratic
President Barack Obama.
While Texas‘ preclearance application was pending before the federal court in DC, voters and
advocacy groups filed a series of suits in federal court in San Antonio, alleging that the changes
violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral
procedures that undermine minority voting rights, as well as the Fourteenth Amendment. The
federal court in San Antonio found that it was not free to determine the legality of the
legislature‘s maps, as that issue was pending in the preclearance action before the court in DC.
However, the San Antonio court also found that the legislatively-drawn maps could not go into
effect without being precleared by the DC District Court. Accordingly, in view of the impending
2012 election season, the San Antonio court designed interim maps to be used until the
preclearance issue is resolved.
The Supreme Court rejected the maps drawn by the San Antonio court for failing to defer
adequately to the legislature‘s choices. In its decision, the Supreme Court reiterated that a new
electoral map cannot be used until it has been precleared, while also noting that the old electoral
map in this case could not be used because it violated the one-person, one-vote constitutional
mandate. As a result, the Supreme Court concluded that the district court in San Antonio was
correct to create an interim electoral map for the 2012 election. However, the Supreme Court
found that the San Antonio court should have given greater deference to the legislature‘s
preferences rather than ―substitut[ing] its own concept of ‗the collective public good‘ for the
Texas Legislature‘s determination of which policies serve ‗the interests of the citizens of
Texas.‘‖ In essence, the district court should not have modified the legislature‘s maps except
where there are alleged legal problems with those maps that have a likelihood of success on the
With regard to Section 5, the Supreme Court instructed the district court not to prejudge the
preclearance proceedings on the merits, instead ―taking guidance from a State‘s policy judgment
unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain §
5 preclearance.‖ It remains to be seen how district courts will apply this opaque formulation. In
the meantime, it seems likely that the maps the San Antonio court must design on remand for use
in 2012 will bear much greater resemblance to the legislature‘s maps, vote dilution and all.
Those concerned with voting rights should take note that Justice Thomas penned a concurrence
in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal
Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.
By rejecting the court-drawn maps and ordering greater deference to the legislature‘s maps, the
Court‘s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.
The New York Times: Justices‘ Texas Redistricting Ruling Likely to Help G.O.P.
USA TODAY: Supreme Court throws out judge-drawn Texas electoral maps
NPR: High Court Orders Redo Of Texas Redistricting Plan
Politico: S.C.‘s gift to the Voting Rights Act
Brief for Appellants Rick Perry et al.
Brief for Appellees Shannon Perez et al.
Brief for Appellees Wendy Davis and League of United Latin American Citizens et al.
Brief for Appellees Texas State Conference of NAACP Branches et al.
Brief for Appellees Texas Latino Redistricting Task Force et al.
Supplemental Appendix of Appellees Texas Latino Redistricting Task Force et al.
Brief for Alabama et al. in Support of Appellants
Brief for Congressman Canseco in Support of Appellants
Brief for Eagle Forum Education & Legal Defense Fund in Support of Appellants
Brief for Edward Chen and the Project on Fair Representation in Support of Appellants
Brief for the United States in Support of Neither Party
Brief for the Cato Institute in Support of Neither Party
Brief for the Organization of Chinese Americans Greater Houston Chapter in Support of
Sackett v. Environmental Protection Agency
What’s at stake? The ability of the EPA to compel compliance with environmental laws.
Issue: Whether EPA orders regarding compliance with the Clean Water Act are subject to pre-
enforcement judicial review.
Argument date: January 9, 2012
What the case is about: The Sacketts bought a half-acre of land in a wetland area and, without
seeking any environmental permits, filled it with dirt and rock in preparation for building a
home. The EPA issued an order against the Sacketts to restore the property to its prior condition
on the grounds that the land was wetlands protected by the Clean Water Act. The Sacketts went
to court to seek court review of the EPA order before the EPA had an opportunity to bring an
action in court to enforce the order.
The U.S. District Court for the District of Idaho dismissed the case on the grounds that judicial
review of the order was improper. The Ninth Circuit affirmed the lower court‘s dismissal. The
Sacketts claim that denying them court review of the EPA‘s order against them violates their
Due Process rights under the Constitution. The EPA counters that there is no Due Process
violation because the Sacketts can get court review once the agency seeks to enforce the order
It is important to note that the Supreme Court recently denied the certiorari petition of General
Electric in General Electric v. Jackson, a case very similar to this one challenging the
constitutionality of administrative orders under Superfund. If the Supreme Court allows pre-
enforcement review of orders under the Clean Water Act, it would likely follow that Superfund
order authority would also be subject to such review.
If the Supreme Court allows the Sacketts to get court review of the order, it will hamper the
ability of the EPA to enforce timely compliance with the Clean Water Act. Further, such a
ruling could lead to future challenges of other important environmental regulations, such as the
Clean Air Act and Superfund.
Brief for Petitioners Chantell Sackett and Michael Sackett
Brief for the American Civil Rights Union in Support of Petitioners
Brief for Alaska et al. in Support of Petitioners
Brief for the American Farm Bureau Federation et al. in Support of Petitioners
Brief for the Center for Constitutional Jurisprudence and the National Federation of
Independent Business Small Business Legal Center in Support of Petitioners
Brief for the Chamber of Commerce of the United States of America in Support of
Brief for the Competitive Enterprise Institute in Support of Petitioners
Brief for General Electric Co. in Support of Petitioners
Brief for the Institute for Justice in Support of Petitioners
Brief for the Mountain States Legal Foundation in Support of Petitioners
Brief for the National Association of Home Builders et al. in Support of Petitioners
Brief for the National Institute of Manufacturers in Support of Petitioners
Brief for the Wet Weather Partnership et al. in Support of Petitioners
Brief for the American Petroleum Institute et al. in Support of Petitioners
Brief for APA Watch in Support of Neither Party
United States v. Jones
What’s at stake? The right of individuals to be free from warrantless government tracking of
their vehicle‘s location through GPS technology.
Issue: Whether it is an unconstitutional search for the police to install a GPS tracking system on
a vehicle without a warrant.
Decision Date: January 23, 2012
Outcome: 9-0 in favor of Jones. Justice Scalia delivered the opinion of the Court, joined by
Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor. Justice Sotomayor filed a
concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Justices
Ginsburg, Breyer, and Kagan joined.
What the Court held: The Supreme Court delivered a limited victory for privacy rights, holding
that the police performed an unconstitutional search in this case. Although the majority opinion
and two concurrences relied on different legal analyses, the decision signals the Court‘s concern
about the implications of new technologies for the Fourth Amendment‘s protection of individual
District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in
cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking
device on Jones's vehicle while it was in the District of Columbia and for ten days only. Instead,
D.C. authorities placed the GPS device on Mr. Jones's car while it was located in Maryland and
tracked Mr. Jones's car for a month, in contravention of the warrant. The device recorded Jones's
vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS
device, authorities charged Mr. Jones with conspiracy to sell cocaine. At his trial, Jones moved
to suppress the GPS evidence as an unreasonable search and invasion of his privacy in
contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he
was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C.
Circuit found that the police violated Jones‘s reasonable expectation of privacy by putting the
device on his car without a valid court order.
The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices
split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief
Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a ―search‖ under
the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use
the device to monitor that car remotely. The majority revived a property-based approach to the
Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but
left untouched the current ―reasonable expectation of privacy‖ approach where no physical
trespass is at issue.
Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment.
However, Justice Alito would not have held that the installation of the GPS device was a search.
Instead, he expressed his view that it was the long-term monitoring with the device that violated
a reasonable expectation of privacy. He also criticized the majority for what he described as
reliance on ―18th Century tort law.‖ According to the concurrence, the majority‘s property-based
approach might not protect privacy as much as is required, particularly with the continuing
advance of technology.
Justice Sotomayor, who joined the majority, nevertheless wrote a concurring opinion. Most
strikingly, she signaled her openness to a potentially significant expansion of privacy rights. She
stated that ―it may be necessary to reconsider the premise that an individual has no reasonable
expectation of privacy in information voluntarily disclosed to third parties.‖
In sum, the majority‘s holding in this case – and thus the law of the land – is that the installation
and use of a GPS tracker on an automobile constitutes a ―search.‖ Whether or not a warrant is
required for such a search remains an open question, and one that will undoubtedly trouble
privacy advocates. Nevertheless, the three opinions written in this case make it clear that the
justices are concerned with what new technology means for personal privacy rights, a concern
that will likely be fleshed out further in cases to come.
Slate: Alito vs. Scalia
The New Republic: All Hail Samuel Alito, Privacy Champion Extraordinaire!
Boston Review: Big Brother Buys a GPS
SCOTUSblog: Jones confounds the press
Brief of Petitioner United States of America
Reply brief for the United States of America
Brief for Respondent Antoine Jones
Brief for the Center on the Administration of Criminal Law in Support of Petitioner
Brief for the Council on American-Islamic Relations in Support of Respondent
Brief for the ACLU et al. in Support of Respondent
Brief for Gun Owners of America, Inc. in Support of Respondent
Brief for EPIC et al. in Support of Respondent
Brief for Fourth Amendment Historians in Support of Respondent
Brief for NACDL el al. in Support of Respondent
Brief for Owner-Operator Independent Drivers Association, Inc. in Support of
Brief for the Constitution Project in Support of Respondent
Brief for the Center for Democracy and Technology et al. in Support of Respondent
Brief for Yale Law School Information Society Project Scholars et al. in Support of
Brief for the Cato Institute in Support of Respondent
Brief for the Rutherford Institute and National Motorists Association in Support of