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The Supreme Court, 2010 Term William M. Jay July 2011.

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Presentation on theme: "The Supreme Court, 2010 Term William M. Jay July 2011."— Presentation transcript:

1 The Supreme Court, 2010 Term William M. Jay July 2011

2 The Supreme Court, 2009 Term I.Overview of the Courts work and workload this Term II.Significant decisions III.Questions on any and all aspects of the Term

3 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

4 Transitions Justice Kagan replaces Justice Stevens

5 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket

6 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket –A fourth law professor

7 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket –A fourth law professor –Experience in the Executive Branch

8 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket –A fourth law professor –Experience in the Executive Branch –Experience at the lectern

9 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket –A fourth law professor –Experience in the Executive Branch –Experience at the lectern –40 years younger than her predecessor

10 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts docket –A fourth law professor –Experience in the Executive Branch –Experience at the lectern –40 years younger than her predecessor Retirement…

11 Transitions Justice Kagan replaces Justice Stevens –Less track record than Justice Sotomayor on many of the issues on the Courts 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

12 Some Illustrative Cases Four free-speech cases Ariz. Free Enterprise Sorrell v. IMS Health Snyder v. Phelps Brown v. EMA

13 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

14 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

15 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

16 Arizona Free Enterprise Funds 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

17 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

18 Arizona Free Enterprise Buckley v. Valeo (1976) –First Amendment protects unlimited spending –Public financing is constitutional Davis v. FEC (2008) –Millionaires 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

19 Arizona Free Enterprise Davis v. FEC (2008) –Supreme Court holds, 5-4, that Millionaires Amendment substantially burdened Daviss 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

20 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

21 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

22 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

23 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

24 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

25 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?

26 Sorrell v. IMS Health, Inc. Facts –Drug companies use detailing –Vermont statute regulates prescriber- identifying information. Without consent: Pharmacy cant sell it (for marketing?) Pharmacy cant allow it to be used for marketing Drug company cant use it in marketing –Drug companies and data miners both sue Similar Maine and N.H. statutes upheld Second Circuit strikes down Vermonts

27 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 Its not the governments information The access restriction burdens speech

28 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 cant do their job (speech) without this commodity (information); like banning a trade magazine from buying ink

29 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 businesss disclosure or use of prescriber-identifying information always commercial?

30 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 businesss disclosure or use of prescriber-identifying information always commercial? The Court doesnt answer.

31 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

32 Sorrell v. IMS Health, Inc. Protection of doctors from harassment –So dont 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 –Cant be done by suppressing truthful, non- misleading speech for fear people will listen

33 Sorrell v. IMS Health, Inc. What can the State do? –Fund its own counter-speech (use generic drugs, theyre cheaper and just as good) –Regulate false and misleading speech (even with content-based regulation) –Perhaps, regulate prescriber-identifying information more tightly and evenhandedly

34 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 (govt info) –If laws like this one must survive heightened scrutiny, then judges and not legislatures will be making economic policy (Lochner)

35 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 doesnt matter in the context of economic regulation; thats how governments choose and implement policy

36 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

37 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 Snyders father Albert saw tops of signs Albert Snyder later saw signs on news Epic posted on Internet

38 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

39 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

40 Snyder v. Phelps IIED tort is itself problematic –Malleable and subjective (Hustler) Captive audience doctrine doesnt justify treating seclusion tort differently –Albert Snyder wasnt a captive audience States have other regulatory options Our holding today is narrow.

41 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?

42 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

43 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 7 th and 8 th Circuits, other district courts Supreme Court grants cert nonetheless

44 Brown v. EMA 7-2 for video-game manufacturers (but only 5 votes for Justice Scalias opinion) Video games, in general, receive First Amendment protection –It is difficult to distinguish politics from entertainment, and dangerous to try Californias statute is content-based –So ordinarily strict scrutiny would apply

45 Brown v. EMA Court rejects Californias argument that video-game violence is unprotected speech, like obscenity –Obscenity is not whatever a legislature finds shocking; its 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

46 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

47 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

48 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. Thats the point of free speech.

49 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)

50 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 doesnt properly further them

51 Brown v. EMA Justice Alito concurs in the judgment, joined by the Chief Justice Statute is invalid because its vague Community standards of decency are well established in the area of obscenity, but not in the area of depictions of violence

52 Brown v. EMA But Justice Alito disagrees with the Courts 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

53 Brown v. EMA But Justice Alito disagrees with the Courts 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

54 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

55 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?

56 Brown v. EMA –Scientific opinion is divided, but there is evidence that video games affect children –The Court should defer to an elected legislatures resolution of this scientific debate –Majoritys remarkable footnote rejoinder Because scientists are divided, State cant prevail

57 Nev. Commn on Ethics v. Carrigan Voting on city council is not speech So punishment for conflict of interest doesnt violate First Amendment

58 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

59 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

60 Chamber of Commerce v. Whiting 5-3 for Arizona, per Chief Justice Roberts Text says licensing; Arizonas 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

61 Chamber of Commerce v. Whiting Justice Thomas concurs in the judgment He doesnt believe in implied purposes and objectives preemption

62 Chamber of Commerce v. Whiting Justice Breyer dissents, joined by Justice Ginsburg In context, license means an employment- related license; it doesnt mean articles of incorporation (business death penalty) E-Verify is supposed to be voluntary

63 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

64 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

65 Davis v. United States Facts –Davis was arrested, he was handcuffed, and his car was searched incident to the arrest –Under 11 th Circuit precedent, based on New York v. Belton, the search was permissible –While his appeal was pending, Court decides Arizona v. Gant, which disapproves 11 th Circuit precedent on vehicle searches –11 th Circuit okays search based on good faith

66 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 lawnonculpable, innocent

67 Davis v. United States Retroactivity doctrine –Gant applies to Daviss case as a potential ground for relief, but that doesnt mean hes entitled to relief Courts role in developing 4 th Amendment law –Deterrence trumps –And the law will still develop

68 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.

69 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

70 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 Thats because suppression is the often only remedy for an unreasonable search. In these cases, no suppression, no Fourth Amendment protection at all.

71 Cases about the Courts 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?

72 Cases about the Courts 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 plaintiffs grievance is shared with millions of others, should be resolved through the political process Establishment Clause exception for spending Three pence only

73 Cases about the Courts 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

74 Cases about the Courts 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 dont violate it

75 Cases about the Courts 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

76 Themes? A cautious Term in constitutional cases outside the First Amendment context Incremental decisions Some broad statutory and rule interpretation holdings

77 Other Highlights Confrontation: manhunts and crime labs Procedural barriers to postconviction DNA claims Police-created exigent circumstances Detention of a material witness Prison overcrowding Wal-Mart class action Unconscionability of arbitration clauses Petition Clause Personal jurisdiction Right to counsel in civil contempt State sovereign immunity Attorney fees for §1983 defendants CRIMINALCIVIL

78 Questions or feedback? William.M.Jay@usdoj.gov


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