Highlights of the 2005-06 Supreme Court Term
The 2005-2006 Supreme Court term welcomed two new conservative justices to the bench, Chief Justice John Roberts and Associate Justice Samuel Alito. Addressing the divisiveness that many predicted in the wake of centrist Justice O'Connor's retirement, Roberts urged the Supreme Court to rule with "a greater degree of consensus" and "promote clarity and guidance...." To accomplish this goal, Roberts argued that the Court should rule on narrow grounds and do only "what's necessary to decide the case." Indeed, many of this term's decisions are extremely narrow and leave larger, more difficult matters to be decided in future cases. Nonetheless, the Court remains sharply divided on certain issues. Perhaps the most starkly divided were in the Court's two plurality decisions handed down during the last weeks of the term in election law and environmental law cases.
Overall, however, the Court may have reached some consensus. There were only two plurality decisions, and roughly half of the Court's decisions were unanimous. About a quarter commanded at least a six-justice majority, and only slightly fewer than a quarter of the decisions were decided by one vote. Still, it is too soon to tell whether the consensus is attributable to Chief Justice Roberts. This matter, along with several unresolved legal issues from this term, will have to be clarified in future terms.
Here are some highlights of this past term:
In its seven-two decision in Volvo Trucks North America v. Reeder-Simco GMC, the Court clarified antitrust pricing rules, limiting the Robinson-Patman Act's applicability and holding that, under the Act, a manufacturer is liable for secondary-line price discrimination only when the manufacturer discriminated between dealers competing to resell the manufacturer's product to the same customer. This outcome is intended to stimulate inter-brand competition rather than protect individual competitors. Although the holding was narrow, this decision may have broad implications.
The Court decided two cases clarifying the scope of federal subject matter jurisdiction. In Marshall v. Marshall, the Court unanimously held that the federal probate exception does not bar federal courts from adjudicating tortious interference claims involving a gift or inheritance in the form of a trust. The Court explained that because state probate courts exercise exclusive jurisdiction over probate matters through in rem jurisdiction over the decedent's estate, a federal court cannot similarly exercise in rem jurisdiction over the same estate. However, federal courts may exercise in personam jurisdiction over tort claims, tax claims, claims arising in bankruptcy proceedings and other claims over which federal courts otherwise have jurisdiction such that the federal court does not "interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court."
Meanwhile, in Empire Healthchoice Assurance v. McVeigh, a five-four Court decided that 28 U.S.C. 1331 federal subject matter jurisdiction does not extend to controversies over insurance contracts pursuant to the Federal Employees Health Benefits Act. Thus, state courts are the proper venue for contract disputes arising between federal employees and insurance companies, which may result in inconsistent outcomes across states.
In Burlington N. & S.F.R. Co. v. White, the Court unanimously held that, under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act, employers can be liable for any materially adverse actions (such as an inconvenient reassignment) that might dissuade a reasonable employee from making or supporting a discrimination claim. This standard is much broader than the standard for anti-discrimination claims, which are specifically limited to adverse employment decisions (including discharge, refusal to hire, and discriminatory compensation) based on an employee's race, color, religion, sex or national origin. In contrast, here the Court said that retaliatory actions can be even an employer's actions that occur completely outside the workplace and/or employment context. Some employers fear that this decision will lead to an onslaught of frivolous suits brought by employees who experience minor annoyances after filing a discrimination claim and think that they are being retaliated against by their employer. The Court insists that the material adversity standard will separate significant claims from trivial ones. Moreover, the Court says that its interpretation is consistent with Title VII's purpose and that this outcome will not overburden employers.
Justice Alito wrote his first opinion, in Holmes v. South Carolina, for a unanimous Court. Never mentioning that Holmes was a death penalty case, the Court decided that a criminal defendant's constitutional rights are violated when an evidence rule bars the defendant from introducing evidence of third party guilt, if the prosecution introduced forensic evidence, that, if believed, strongly supports a guilty verdict. The Court explained that such a rule unconstitutionally considers the weight of only the prosecution's evidence, and further, that it fails to regard the evidence rule that permits a defendant to introduce evidence of third party guilt when that evidence raises a reasonable inference or presumption of his or her own innocence. Attorney Jeffrey T. Green, who filed this amicus brief (pdf) on behalf of the National Association of Criminal Defense Lawyers, says that "this decision is a strong reaffirmation of defendants' constitutional right to present a defense."
In contrast, however, in Oregon v. Guzek, the Court by a six-two decision held that, although a capital defendant can present mitigating evidence, he/she may not have the constitutional right to present at the sentencing phase evidence suggesting his/her innocence. Commentators suggested that this sort of residual doubt might have played a role in Zacarias Moussaoui's sentencing hearing.
In another sentencing case, Washington v. Recuenco, the Court clarified the circumstances under which a sentence might still be valid even though it was based on a fact not found by the jury. The 2004 Blakely v. Washington decision invalidated the Federal Sentencing Guidelines, finding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury, and proved beyond a reasonable doubt." Since then, the Court has clarified the implications of Blakely violations. Recuenco, by a seven two decision, held that Blakely violations are subject to harmless error analysis so long as the violation was not structural. Some commentators suggest that this decision that seemingly restricts Blakely will ultimately enable justices to feel more comfortable expanding Blakely rights in future cases.
In Hill v. McDonough, the Court unanimously decided that death row inmates can challenge the lethal injection procedure as a civil rights claim under Section 1983 rather than having to file a federal writ of habeas corpus. This decision neither rules on the constitutionality of lethal injection nor offers a means to a stay of execution. The decision allows inmates to more readily litigate the constitutionality of execution methods, but the Court has repeatedly denied review of such cases on their merits.
Nevertheless, the Court remains divided on certain death penalty issues. In the five-four Brown v. Sanders decision, the Court upheld a death sentence and ruled that an invalidated death penalty sentencing factor renders a sentence unconstitutional, unless one of the other factors that the sentencer considered allowed him/her to account for the same facts and circumstances as the invalidated factor. Here the Court departed from the weighing and non-weighing state analysis and handed down this generally applicable rule.
Similarly, in Kansas v. Marsh, a split Court upheld a death sentence and upheld a Kansas death penalty statute that allowed the death penalty to be imposed when aggravating circumstances and mitigating factors are equally balanced. The Court reasoned that the state statute was constitutional because it met both the Furman v. Georgia and Gregg v. Georgia standards, which require a state system to "rationally narrow the class of death-eligible defendants and must permit a jury to render a reasonable, individualized sentencing determination…" Since Kansas's statute satisfies this requirement, the majority concluded that Kansas's system merely exercises its constitutionally permitted discretion.
In disability law, the Court reached greater consensus through its narrow approach. In Schaffer v. Weast, by a six-two decision, the Court filled a gap in the Individuals with Disabilities Education Act (IDEA) when it "[held] no more than [it] must…" and decided that the burden of persuasion in an administrative due process hearing challenging an Individualized Education Program's (IEP's) adequacy rests on the party requesting the hearing (which is usually the parents of the child with a disability). The effects of this decision apply to states where there are no state statutes or regulations explicitly delegating the burden of persuasion to one party. The fact that the parents are usually the party requesting the hearing means that parents would ordinarily be responsible for demonstrating that the IEP is inadequate, even in cases where the school district may be more equipped and better trained to defend the IEP.
Moreover, in Arlington Central School District v. Murphy, by a six-three decision, the Court further increased the burden on parents who bring IDEA actions when it held that parents who prevail in their action cannot recover expert costs under IDEA's cost shifting provision. In a vehement dissent, Justice Breyer argued that this decision contradicts not only IDEA's legislative history and intent, but IDEA's purpose to provide a "'free' and 'appropriate' public education for 'all' children with disabilities." This decision also demonstrates the post-O'Connor Court's shift in the analysis of the Constitution's Article 1 Section 8 spending clause, primarily that it might apply the clear notice doctrine more aggressively, which will limit the conditions that the federal government can impose on states that accept federal funds to only those conditions that are clearly specified in the statute. Whether conditions promulgated in administrative regulations meet the clear notice doctrine was not considered and will have to be decided in a future case.
Meanwhile, by a unanimous decision in United States v. Georgia, the Court narrowly held that Title II of the Americans with Disabilities Act (ADA) validly abrogates state sovereign immunity for conduct that violates both the ADA and the Fourteenth Amendment. However, the Court left the issue of whether states can be sued for conduct that violates only Title II and not the Fourteenth Amendment to the district court. Whether states are immune from suit brought by a prisoner with a disability in a state prison under Title II is significant, because Title II permits plaintiffs to recover money damages, not just injunctive relief. In addition, the Court demonstrated its methodological approach to ADA cases. The Court will consider alleged ADA violations as applied, but not facially.
In six separate opinions and an array of joinings, the Court decided the congressional districting case, League of United Latin American Citizens v. Perry. The Court held: (1) Texas's mid-decade districting plan was not statewide political gerrymandering; (2) District 23 violates Section II of the Voting Rights Act, (3) District 24 comports with Section II of the Voting Rights Act. The Court did not reach the race-based equal protection claim or the constitutionality of District 25. At minimum, this decision does two things. It allows plaintiffs to bring partisan gerrymandering claims because such claims are justiciable. However, it offers no manageable standard for deciding the cases, as the Court decided that much of Texas's redistricting was constitutional, but partisan gerrymandering in other contexts may not be constitutional. Therefore, political parties may opt to possibly face litigation in the future and enact new, more favorable, mid-decade districting plans when they gain control of the legislature. Additionally, this decision may affect Congress's deliberations about renewing the Voting Rights Act. For a detailed explanation of the vote distribution and the opinion's implications, see this Scotusblog post and Washington Post discussion.
In the Court's second plurality opinion of the term, Randall v. Sorrell, six justices struck down a Vermont law that limited the amount that individuals and political parties can contribute to candidates for state offices and the expenditures candidates can make on their state election campaigns. No rationale for this decision commanded a majority opinion. Relying on Buckley v. Valeo, the plurality concluded that the expenditure limitation violated the First Amendment because it "necessarily 'reduc[es] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached'" (Randall quoting Buckley). The plurality explained that Vermont's contribution limitation is unconstitutional because it is too restrictive based on a newly created five-factor analysis discussed in Part III-C of the opinion, which includes the low dollar amounts, themselves, and the statute's adverse impact on volunteer activity in state campaigns. Meanwhile, in Justice Thomas's concurrence, joined by Scalia, and Justice Stevens's dissent, both expressed their desires to overrule Buckley. This decision may increase the difficulty law-makers face when drafting contribution limitation statutes, because the Court offered no rule for determining when a contribution limit is too low. Inevitably, future litigation will have to answer this and other questions.
In Rapanos v. United States and Carabell v. United States Army Corps of Engineers, a deeply fractured Court issued a plurality opinion in which Kennedy's concurrence governs. Both cases involved defining which wetlands the federal government can regulate under the 1972 Clean Water Act (CWA). Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, favored a narrow reading of the Act where the only burdened wetlands under the CWA would be wetlands that share a continuous surface connection to permanent standing or flowing bodies of water (such that there is no clear demarcation between the wetland and the permanent body of water). This interpretation would greatly restrict the traditional interpretation of the CWA, which has allowed the federal government to regulate approximately 272 to 300 million acres of swampland because these lands have a hydrologic connection, however remote, to navigable waters. Meanwhile, the dissent favored the traditional interpretation, which, although expansive, allows the federal government to protect the physical, chemical, and biological integrity of US waters. Kennedy, again demonstrating his importance as the Court's sole centrist, offered the "significant nexus" standard laid out in Solid Waste Agency of Northern Cook Cty. for determining whether federal regulations apply to wetlands. This standard would permit regulation of wetlands that have a significant scientific nexus rather than a geographic nexus to navigable waters. This decision likely will lead to further litigation and legislation to retain federal control of wetlands.
In a separate concurrence, Chief Justice Roberts commented on the fact and implications of the Court's nonconsensus, saying that "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act…[especially given] how readily the situation could have been avoided." Now, "lower courts and regulated entities will…have to feel their way on a case-by-case basis."
Despite his efforts toward building consensus, Chief Justice Roberts joined his first dissent in Gonzales v. Oregon, where a six-justice majority decided that the Controlled Substances Act (CSA) regulates medical practice only in that it bars physicians from using their prescription-writing privileges for dealing or trafficking drugs, but it does not regulate medical practice generally. Thus, the Court held that the attorney general lacks authority to interpret Section 824(a)4 of the CSA by promulgating a regulation that defines a "legitimate medical purpose," which would invalidate a state law that allows physicians to prescribe controlled substances to assist patient suicide. The Court addressed the issue narrowly and spoke in terms of federalism and separation of powers, not doctor-patient rights.
The Court unanimously decided two First Amendment cases, Rumsfeld v. Forum for Academic and Institutional Freedom and Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, while remaining sharply divided in Garcetti v. Ceballos. In Forum for Academic and Institutional Freedom, the Court decided that the Solomon Amendment does not violate law schools' First Amendment rights, because it does not require them to engage in proscribed speech nor admit military recruiters into the law schools' expressive association. Instead, the court said that the Amendment only provides military recruiters with equal access to students on law school campuses. The Court did not decide when a condition to university funding goes beyond a reasonable choice (held constitutional in Grove City College v. Bell) and becomes an unconstitutional condition, because Congress could have directly imposed the Solomon Amendment's equal access requirement without violating the Constitution. Thus, law schools still must choose either to receive federal funds or to permit recruiters with incompatible hiring policies onto their campuses.
The O Centro case involved a religious group's attempt to import a Schedule I narcotic for ritual use. In a narrow holding, the Court found that under the Religious Freedom Restoration Act, the government does not establish a compelling interest in enforcing the Controlled Substances Act (CSA) merely by demonstrating that an international convention would otherwise be violated. However, the Court did not offer any guidance as to what consequences would in fact be a compelling state interest. Therefore, bona fide religious groups may import Schedule I substances for religious use in violation of international treaties until the Court decides which consequences of non-compliance rise to the level of a compelling governmental interest.
In contrast, in Garcetti v. Ceballos, a five-four Court handed down a new method for determining when the First Amendment protects public employees' speech, limiting the applicability of the Pickering balancing test. The Court declared that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," even though their speech is a matter of public concern. This decision is quite narrow, and the distinction between "official" and "private" speech likely will lead to future litigation to define when public employees are engaged in official duties. Additionally, this decision does not provide any rule with respect to expressions made pursuant to academic scholarship and classroom instruction. It also demonstrates that Justice Kennedy will continue to play a pivotal role as a centrist after Justice O'Connor's retirement, as her replacement, Alito, likely tipped the vote.
In Georgia v. Randolph the Court grappled with the Fourth Amendment right of one co-occupant to object to a warrantless police search of his or her home while the other co-occupant consented. By a five-three decision, the Court narrowly held that, in the specific facts of Randolph, the Fourth Amendment rights of a physically-present and objecting co-occupant override the other co-occupant's consent. Thus, a police search under such facts would be unreasonable, and any evidence obtained there from should be suppressed. The Court's rationale contradicts the basic real property premise that, generally, cotenants have a right to enjoy the entire property, which presumably includes the right to invite guests into the dwelling. Dissenting justices' primary concern was that the Randolph holding will prohibit police officers from entering domestic abuse victims' homes when the abuser is present and objects. Later however, in Brigham City v. Stuart, a unanimous Court confirmed that "police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury", regardless of whether this circumstance reflects the officer's actual motive. Thus, the Brigham City decision addresses the Randolph dissenters' concerns.
In Hudson v. Michigan, a five-four Court decided that the exclusionary rule is not an appropriate remedy when police officers have a valid search warrant but fail to knock and announce themselves before entering a defendant's home. The knock-and-announce rule prescribes the manner in which an officer should enter a defendant's home, but has no bearing on whether he or she can search the defendant's home. In this case, then, the majority reasoned that excluding inculpatory evidence is not an appropriate remedy for all Fourth Amendment violations, particularly the knock-and-announce rule, for which other remedies exist. For example, the Court suggested that persons can file a civil rights suit under 42 U.S.C. 1983, or that internal disciplinary measures or personal incentives sufficiently deter officers from violating the knock-and-announce rule. However, the dissent criticized this rationale, because Section 1983 claims are rarely successful and, if such claims do succeed, plaintiffs usually recover only nominal damages. This decision suggests that the Court now views the knock-and-announce rule with less importance, and consequently, police officers may be less inclined to knock-and-announce before entering.
The Court's narrow approach allowed it to reach a unanimous decision in Ayotte v. Planned Parenthood, an abortion case involving a parental notification statute that unconstitutionally lacked a health emergency exception. Without endorsing the New Hampshire statute, the Court held that invalidating the entire statute is not always necessary and is not mandated by its decision in Stenberg v. Carhart. The Court vacated the judgment and remanded the case to the district court to consider whether granting a declaratory judgment and enjoining only the unconstitutional provision would be consistent with legislative intent.
Although Mohawk Industries Inc. v. Williams anticipated an important clarification of the RICO statute, the Court avoided the issue by dismissing Mohawk and remanding the case in light of the decision in Anza v. Ideal Steel Supply Corp. The Court also avoided the task of defining a RICO enterprise in the upcoming term, as it denied certiorari to Dupont Co. v. Living Designs, Inc., which raised the issues presented in both Mohawk and Ideal Steel.
In Davis v. Washington and Hammon v. Indiana, the Court by a unanimous and eight-one decision held that:
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
In other words, statements made under conditions of apparent safety and that describe past events are testimonial and subject to the confrontation clause of the Sixth Amendment. On the other hand, statements made during the crime, at an apparent risk of continuing danger, or in the midst of other exigent circumstances, such as some portions of 911 calls, are nontestimonial and are admissible forms of evidence that are not subject to the confrontation clause, because they are narrations or describe relevant information in helping the police address the current situation. This decision significantly affects domestic violence cases, because, due to the intimidation and coercion associated with domestic violence, a large number of such victims fail to appear and testify at trial. Thus, prosecutors often must rely on nontestimonial statements to prove their case because such evidence is admissible without cross-examination from the defendant. The majority suggests that if the victim's absence results from the defendant's wrongdoing, then the loss of the defendant's confrontation right serves as an adequate remedy. However, Justice Thomas offers a more formal definition of testimony and addresses the practical implications of this decision on domestic violence victims in his partial concurrence/partial dissent.
In Hamdan v. Rumsfeld, by a five three decision, the Court rebuked the Bush administration and decided that President Bush, as Commander in Chief, lacked congressional authority to try Guantanamo Bay detainees through military commissions. The Court also found that trying detainees through military commissions violated the Uniform Code of Military Justice and the Geneva Conventions, and, in addition, the charges against Hamdan violated the laws of war. In order to reach this conclusion, the Court decided that Congress's efforts to strip the Court's jurisdiction to hear the case through the Detainee Treatment Act did not apply to cases pending before the act's effective date. This decision only means that the U.S. Military will have to devise a different method of trying Hamdan and roughly four hundred fifty other detainees -- it does not address the legitimacy of the detainment, because the Court explicitly stated that this decision has no bearing on whether the detainees can in fact be detained. In the wake of this decision, President Bush will not have to close Guantanamo Bay prisons, though he recently mentioned that he would like to close these detention centers and may do so of his own accord. Justice Kennedy even suggested that President Bush could bypass this decision by simply requesting the authority to conduct military commissions directly from Congress.
Prepared by LII Summer Editor Angela C. Winfield (Cornell Law School Class of 2008).
Special thanks to Cornell undergraduates Tyler Grove and Jennifer Senior for their research assistance.