Supreme Court 2009-2010 Term Highlights

Prepared by LII Summer Editors Jeffrey Catalano and Bret Brintzenhofe

First Amendment

Establishment Clause

In 1934, members of the Veterans of Foreign Wars (VFW) placed a Latin cross on federal land in the Mojave National Preserve in remembrance of American soldiers who died in World War I. Citing the First Amendment’s prohibition on state establishment of religion, Frank Buono, a retired Park Service employee who is a regular visitor to the Preserve, sought an injunction requiring the government to remove the cross. There were four stages of this litigation. The first, in 2002, occurred when the District Court ruled in Buono’s favor on opposing motions for summary judgment. The Ninth Circuit stayed the 2002 injunction to the extent that it required the cross to be removed but did not forbid alternative methods of complying with the order. On appeal, the judgment of the District Court was affirmed, both as to standing and on the merits of the Establishment Clause challenge. While this case progressed, Congress enacted several laws, including two forbidding the use of governmental funds to remove the cross, a designation of the cross as a national memorial, and a statute directing the Secretary of the Interior to transfer the Government’s interest in the land to the VFW. Buono returned to the District Court in 2005, seeking injunctive relief against the transfer. The District Court found that the transfer was invalid, because it was an attempt by the government to keep the cross atop Sunrise Rock. The Court of Appeals again affirmed.

In Salazar v. Buono (08-472), the Supreme Court issued six opinions that provided no clear majority opinion, but ultimately reversed the Court of Appeals and remanded the case. Counting the votes on certain issues will provide for more clarity than analysis of individual opinions. Seven Justices voting for the notion that a retired National Park Service employee had a legal right to pursue his complaint about a religious symbol on federal property; however, Justice Scalia and Justice Thomas dissented explicitly on that point. Five justices concluded that the federal judge erred in barring a congressionally ordered land transfer, but there were two different rationales. Justice Kennedy, writing for Chief Justice Roberts, Justice Alito, and himself, said it was an incorrect legal proposition. Justice Scalia, writing for Justice Thomas and himself, concluded that the Park Service employee did not have standing to pursue his complaint. Four Justices would have upheld the order, but for two different reasons. Justice Breyer, in a solo dissent, rested on the law of injunctions to find no federal question of great significance. Justice Stevens, writing for the other dissenters, supported the District Court’s opinion that the land transfer would violate the 2002 injunction.

Charity and Terrorism

In 1996, Congress passed 18 U.S.C. § 2339B, which bars Americans from engaging in a list of activities defined within the Act as “material support” of State Department-designated terrorist organizations. Groups and individuals supportive of Turkish and Sri Lankan separatist groups that are classified as terrorist organizations by the State Department sued to gain exemption from the statute. These groups claimed they wanted to provide targeted aid to specific portions of these organizations that perform political and humanitarian activities, specifically in the form of financial aid, legal training, and political advocacy. The plaintiffs asserted that § 2339B was unconstitutionally vague and infringed on their rights to free speech and association.

In Holder v. Humanitarian Law Project (08-1498), the Supreme Court decided that § 2339B is constitutional as applied to the members’ activities that they wanted to pursue with regard to the PKK and the Tamil Tigers. Chief Justice Roberts wrote for a six-Justice majority that the activities Congress prohibited were clearly and adequately defined. The Court also decided that the First Amendment concerns about the statute were not significant enough to defeat it, both because the Court deferred to Congress’ expertise in foreign relations, and because the statute only restricts that speech that constitutes material support for terrorism, allowing for independent advocacy.

Freedom of Expression

Hastings College of Law requires student groups, in order to obtain recognition from the school, to comply with the school’s Nondiscrimination Policy, which bars discrimination on religion and sexual orientation. Hastings interprets this policy to mandate acceptance of all students who want to participate in a group. At the beginning of the 2004-2005 school year, the leaders of the Christian Legal Society required officers to sign a written statement to conduct their lives in accord with certain moral principles, included the belief that sexual activity should not occur outside of marriage between a man and a woman. The society also excludes anyone who engages in “unrepentant homosexual conduct.” Based on these actions, Hastings rejected the society’s application for recognition. The society filed suit for injunctive and declaratory relief alleging that the refusal to recognize the group violated its First and Fourteenth Amendment rights to speech, expression, and religion. The District Court ruled for Hastings, holding that the all-comers condition was reasonable and viewpoint neutral and that there was no restriction on speech or religious exercise. The Ninth Circuit affirmed.

In Christian Legal Society v. Martinez (08-1371), the Court held that the all-comers policy on access to the limited public forum created by Hastings through recognition is both reasonable and viewpoint-neutral. Thus, Hastings’ policy does not transgress First Amendment limitations. Justice Ginsburg authored the majority opinion, stating that state college leaders may reverse recognition to groups that admit all comers if the policy genuinely seeks and promotes that aim without singling out any set of beliefs. Justice Stevens and Justice Kennedy authored separate concurring opinions, with Kennedy stating that a dialogue between students of differing beliefs is impossible if the students prevent themselves from hearing opposing points of view. Justice Alito authored a vehement dissent, arguing that the policy has only ever been used to single out student groups for exclusion based on their beliefs.

Depictions of Animal Cruelty

Federal prosecutors indicted Robert Stevens under 18 U.S.C. § 48 for selling dog-fighting videos. Congress enacted § 48 to criminalize much creation, sale, or possession of video or audio depictions of the intentional injury or killing of an animal in a jurisdiction where the depicted conduct is illegal under state or federal law. The law, which applied to depictions intended for interstate or foreign commerce, exempted certain works of social value. The trial court convicted Stevens under the statute, but on appeal, the Third Circuit agreed with Stevens that § 48 violated the First Amendment.

Upholding the Third Circuit’s determination, Chief Justice Roberts wrote for an eight-justice majority in United States v. Stevens (08-769) that § 48 was too broad to survive the First Amendment. The court decided that despite the Government’s assurances that it would apply the law only to depictions of extreme cruelty, the statute could apply to depictions that are protected by the First Amendment, such as hunting magazines and videos. As a result, the Supreme Court declined to categorically exempt depictions of animal cruelty from First Amendment protection. Only Justice Alito dissented, stating that the decision would protect “depraved entertainment.”

Ballot Initiatives and Privacy

In May 2009, Washington’s governor signed into law a bill (SB 5688) that expanded rights and responsibilities for state-registered same- and opposite-sex domestic partners. In response, opponents of the law formed a state political committee, Project Marriage Washington, to collect the signatures needed to put a referendum (R-71) on the ballot that would repeal SB 5688. Once Washington’s secretary of state approved that Project Marriage Washington had collected enough valid signatures, proponents of SB 5688 invoked the Washington Public Records Act (PRA) to obtain copies of the referendum petition, which included the names and addresses of those who signed it. Project Marriage Washington and some individuals who had signed the petition sued in federal court seeking an injunction against the petition’s release, asserting that the PRA’s disclosure requirement imposed an unconstitutional burden on petition signers’ political speech, first as the requirement relates to referendum petitions in general, and second as it relates to this particular petition. The District Court granted a preliminary injunction against the release of the petition, agreeing that the plaintiffs would likely succeed on the merits with their first argument without making a determination regarding the second question. The Ninth Circuit reversed the injunction, and the Supreme Court agreed to hear the case.

An eight-Justice majority on the Supreme Court decided that with regards to referendum petitions generally the PRA does not violate the First Amendment, but that in specific instances some disclosures may constitute such a violation. Chief Justice Roberts wrote for the Court in Doe v. Reed (09–559) that as a general matter, Washington State’s “interest in preserving the integrity of the electoral process” outweighs the burdens on political speech posed by compulsory disclosure of information about referendum petition signers. The Court remanded for further proceedings the question of whether signers of the R-71 faced a significant enough threat of harassment if the PRA request was fulfilled to overcome the state interest. Justices Alito, Breyer, Scalia, Sotomayor, and Stevens concurred separately, and Justice Thomas dissented.

Second Amendment

In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense. In the city of Chicago, laws ban handgun possession by almost all private citizens. After Heller, Chicago residents who would like to keep handguns in their homes for self-defense filed federal suit against the City alleging that the ban has left them vulnerable to criminals. The District Court followed precedent to uphold the constitutionality of the ban. The Seventh Circuit affirmed, relying on three cases interpreting the Fourteenth Amendment’s Privileges or Immunities Clause.

In McDonald v. City of Chicago (08-1521), the Court split 5-4 that the Fourteenth Amendment incorporates the Second Amendment right to keep and bear arms for the purpose of self-defense. Justice Alito, supported by the other conservative Justices, held that self-defense, the central component of the Second Amendment, makes the right to bear arms fundamental. Alito used the intentions of the Framers and the ratifiers of the Fourteenth Amendment to show that the right to keep and bear arms is necessary to the American system of ordered liberty. However, state regulations like those listed in Heller are still legitimate. The majority, however, split on how the Fourteenth Amendment incorporates the Second Amendment. While Justice Alito and his supporters used the Due Process Clause, Justice Thomas authored a concurrence stating that the Privileges and Immunities Clause should be the method of incorporation. Justice Stevens authored a dissent questioning whether this decision does not limit the personal right to a gun to having it at home, while Justice Breyer authored a dissent arguing that the Fourteenth Amendment does not incorporate the Second Amendment.

Fourth Amendment

Public Employment

In October 2001, the City of Ontario, California issued pagers that could send and receive text messages to Jeff Quon and other members of Ontario’s SWAT Team. Before acquiring the pagers, the City announced a policy which reserved the right to monitor and log all network activity with or without notice, but did not explicitly mention text messaging. It was made clear, however, that the city would treat text messages the same way it would treat emails, which were mentioned in the policy. After Quon had exceeded his monthly text message limit several times, the city contacted the wireless company to obtain the transcripts of the text messages. The transcripts, which included personal messages and some messages of a sexually explicit nature, led to disciplinary action against Quon. Quon and the persons whom he had exchanged text messages with filed suit, alleging that the city had violated their Fourth Amendment rights against unreasonable search and seizures by reviewing the transcript of Quon’s pager messages. The District Court denied Quon’s summary judgment motion, relying on O’Connor v. Ortega to conclude that, while Quon had a reasonable expectation of privacy in the content of his messages, the issue turned on whether the city had a proper purpose in determining whether Quon was using his pager to waste time. Once the jury concluded that the intent of the city was legitimate, the court then granted the city’s summary judgment motion. The Ninth Circuit reversed, holding that the search was not reasonable because there were less intrusive means to determine whether Quon was wasting time.

In City of Ontario v. Quon (08-1332), the Court held that the search of Quon’s text messages was reasonable and that the city did not violate his Fourth Amendment rights. Justice Kennedy, writing for the majority, used a two-step test from O’Connor to consider the impact of the “operational realities of the workplace” on the expectation of privacy and the reasonableness of the employer’s intrusion on that expectation. Under this test, the review of the pager transcript was reasonable because it was motivated by a legitimate work-related purpose and was not excessive. Justice Stevens’ concurring opinion addressed the fact that the Court did not answer which approach given in O’Connor was correct. Justice Scalia, who concurred with the judgment, would have not used the “operational realities of the workplace” test, a view he had already expressed in his opinion in O’Connor.

Fifth Amendment

The Court decided several cases interpreting Miranda v. Arizona with respect to custodial investigations. The Supreme Court took a case where two police officers questioned Van Chester Thompkins for a shooting that occurred outside a mall in Southfield, Michigan. After advising the suspect of his rights, the detectives interrogated him for two hours and forty-five minutes. During this time, the suspect, while not expressly indicating that he did not want to talk with the police or that he wanted an attorney, remained mostly silent. After this time, the suspect responded “yes” when the detective asked him whether he “pray[ed] to God to forgive [him] for shooting that boy down?” The suspect motioned to suppress the statements, claiming that he had invoked his Fifth Amendment right to remain silent. The trial court denied the motion and the Michigan Court of Appeals affirmed. The suspect then filed a habeas request, which the federal district court denied. However, the Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent. In Berghuis v. Thompkins (08-1470), the court split 5-4 to hold that the state court’s decision rejecting the suspect’s claim was correct. Justice Kennedy, writing for the majority, determined that the suspect’s silence during the interrogation did not unambiguously invoke his right to remain silent. The suspect waived his Fifth Amendment right when he knowingly and voluntarily made a statement to the police. In her dissenting opinion, Justice Sotomayor concluded that the majority’s decision combats the idea in Miranda that the prosecution bears a heavy burden to show that the suspect had waived his rights and that the prosecution did not meet that burden here.

On August 10, 2004, Tampa police officers arrested Kevin Powell in connection with a robbery investigation. The officers advised Powell that he had “the right to talk to a lawyer before answering any of [their] questions” and he had “the right to use any of these rights at any time . . . during th[e] interview.” Powell then admitted he owned a handgun, leading to a conviction of possession of a weapon by a convicted felon in violation of Florida law. Before convicting Powell, the trial court denied his motion to suppress his incriminating statements, based on the theory that the Miranda warnings he received did not inform Powell of his right to an attorney during questioning. However, the appellate court held that the statements should have been suppressed, and the Florida Supreme Court agreed. In Florida v. Powell (08-1175), the Court held that the warnings did inform Powell of his right to have an attorney present during questioning. Justice Ginsburg, writing for the majority, concluded that the warnings Powell of his right to have an attorney present satisfied the test of whether the warnings reasonably convey to a suspect his rights as required by Miranda. Justice Stevens authored a dissent which concluded that the Court lacked jurisdiction over this state law issue and that the officers’ warnings to Powell were inadequate. Justice Breyer joined the majority on the jurisdiction issue, but joined Justice Stevens in arguing that the warnings were inadequate.

In 2003, a police detective attempted to question Michael Shatzer, Sr. about allegations that Shatzer had sexually abused his son. Shatzer invoked his right to have counsel present during interrogation, so the detective terminated the interview and returned Shatzer to prison. In 2006, another detective attempted to interrogate Shatzer regarding the same allegations, but this time, Shatzer waived his rights and made incriminating statements. At trial, the court declined to suppress the statements, reasoning that Edwards v. Arizona, a Supreme Court case holding that once a suspect invokes the right to presence of counsel any waiver of that right made during subsequent police interrogation is involuntary, did not apply because of the break in custody before the 2006 interrogation. The Court of Appeals of Maryland reversed, holding that the mere passage of time does not end the protections provided by Edwards. In Maryland v. Shatzer (08-680), the Supreme Court held that because Shatzer experienced a break in custody lasting more than two weeks between the first and second attempts at interrogation, the trial court did not have to suppress the 2006 statements. Writing for the majority, Justice Scalia determined that a fourteen-day period is an appropriate length of time for a suspect to readjust to normal life and, as such, is enough time for the coercive effects of prior custody to lapse. Because Shatzer’s release constituted a break in custody, Scalia concluded that the original invocation of the right to counsel did not survive in this case. Justice Thomas agreed that the incarceration constituted a break in custody and with the judgment, but disagreed with the imposition of the fourteen-day rule. Justice Stevens, who authored a concurrence, also disagreed with imposition of the fourteen-day rule.

Sixth Amendment

Confrontation Clause

In last year’s term, the Supreme Court split 5-4 in Melendez-Diaz v. Massachusetts to hold that that drug lab reports are within the core class of testimonial statements covered by the Confrontation Clause and that therefore prosecutors may not use the reports as evidence unless defendants waive their right to cross-examine the analysts who prepared them. However, the composition of the court changed since that opinion with the replacement of Justice Souter with Justice Sotomayor.

The issue returned to the Court in two cases this term. In Alexandria, Virginia, police found cocaine and drug paraphernalia while executing a search warrant on Mark Briscoe’s apartment. Prosecutors stated that they would use two certificates prepared by a state forensic scientist at trial. The trial court allowed the certificates as evidence over the defense’s objection that the scientist had to appear in order to discuss the certificate’s findings. In the other case, police in Chesapeake, Virginia stopped a car in which Sheldon Cypress was a passenger. A forensic scientist prepared a certificate indicating that the substance found during the search was crack cocaine. At trial, the judge allowed the certificate as evidence over the defense’s demand that the scientist appear. On appeal, the Virginia Supreme Court upheld both convictions and found no violation of the Confrontation Clause. The court granted certiorari, allowing for the possibility that Sotomayor’s appointment to the Court could overrule last year’s controversial decision.

However, in Briscoe v. Virginia (07-11191) the Court firmly defended its decision in Melendez-Diaz that drug lab reports fall within the Confrontation Clause. The Court, in a one sentence per curiam opinion, vacated the judgment of the Virginia Supreme Court and remanded the case for further proceedings consistent with Melendez-Diaz.

Effective Assistance of Counsel

Honduras native Jose Padilla lived for more than 40 years in the United States and served in the U.S. military in Vietnam before being arrested on marijuana distribution charges in his state of residence, Kentucky. Despite Padilla’s concerns about the immigration consequences of a drug conviction, before going to trial Padilla pled guilty on the advice of his lawyer, who told him that his long-term U.S. residence would protect him from deportation. Once convicted for the crime, Padilla became deportable under federal law. 8 U.S.C. § 1227(a)(2)(B)(i). Later, Padilla appealed the decision on the grounds that by giving him this erroneous advice, his attorney had provided him with ineffective counsel in violation of the Sixth Amendment. On appeal, the Kentucky Supreme Court denied Padilla relief on the grounds that the deportation was merely a collateral—rather than direct—consequence of his criminal conviction.

In a 7-2 decision, with Justices Thomas and Alito dissenting, the Supreme Court reversed. Justice Stevens wrote for the majority in Padilla v. Kentucky (08-651) that the Sixth Amendment right to effective counsel requires that attorneys tell their clients if a criminal conviction will result in deportation. To reach this result, Justice Stevens stated that the Court made no distinction between direct or collateral consequences in its requirement that a lawyer provide his client with “reasonable professional assistance”, articulated in Strickland v. Washington, 466 U.S. 668 (1984). Additionally, Justice Stevens cited the seriousness of deportation and its impact on the families of legal residents to justify the decision. Despite this general decision, the Court made no determination regarding Padilla’s particular case, stating that lower courts should conduct for further proceedings to determine whether he had been prejudiced.

Eighth Amendment

In July 2003, Terrance Graham, age 16, attempted to rob a barbeque restaurant in Jacksonville, Florida. Police arrested Graham and charged him with armed burglary with assault or battery and attempted armed-robbery. He pleaded guilty under a plea agreement, which withheld a decision of guilt as to both charges and sentenced Graham to two concurrent three-year probation terms. In 2004, Graham participated in two armed robberies and was arrested again. Because these acts were in violation of Graham’s probation, the trial court found Graham guilty of the earlier attempted burglary and attempted armed robbery charges and sentenced him to the maximum sentence authorized by law on each charge: life imprisonment for the armed burglary and 15 years for the attempted armed robbery. Release was impossible under Graham’s life sentence because Florida had abolished its parole system. Graham filed a motion challenging his sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause.

In Graham v. Florida (08-7412), the Court, in a 6-3 decision, held that the Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime. Writing for the majority, Justice Kennedy looked to the categorical rules of Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana and statistics regarding actual sentencing practices and the number of life sentences without parole given to juvenile non-homicide offenders to conclude that the national consensus finds Florida’s sentencing practice unconstitutional. Justice Stevens wrote a brief concurring opinion supporting evolving standards of decency to respond to Justice Thomas’ dissenting opinion that argued that this holding was inconsistent with precedent. Justice Roberts concurred with the judgment, but saw no need to create a categorical rule for juvenile non-homicide offenders. Justice Thomas wrote the dissenting opinion, stating that the Court should have looked to the examples of the 37 states that allow life sentences without parole for juvenile non-homicide offenders. Justice Alito joined Justice Thomas’ opinion in part and wrote a separate dissent to state that the court improperly decided the issue of whether Graham’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sentences.

Antitrust Law and Sports

In December 2000, the 32 separately owned professional football teams of the National Football League (NFL) authorized National Football League Properties (NFLP), formed to develop, license, and market the intellectual property of the NFL’s teams, to grant exclusive licenses to vendors to manufacture and sell team-labeled apparel. The NFLP granted an exclusive license to Reebok to produce and sell trademarked headwear for all 32 teams. When American Needle’s ’s nonexclusive license to manufacture and sell team-labeled apparel was not renewed, it filed this action alleging that the exclusive license agreements between the NFLP and Reebok violated the Sherman Act for illegal restraint of trade.

In American Needle, Inc. v. National Football League (08-661), the Supreme Court unanimously held that the NFL is capable of engaging in conduct defined by §1 of the Sherman Act and does not have to be viewed as a single enterprise. Writing for the Court, Justice Stevens relied on the separate decision-making structures of the 32 NFL teams to conclude that the NFL teams do not possess a single aggregation of economic power with respect to team trademarks. Because NFL teams compete when marketing their own valuable trademarks, thus pursuing separate economic interests, the NFLP, by providing exclusive licenses to market team trademarks, is in violation of §1 of the Sherman Act However, the Court did not hold that the NFL could never be granted antitrust protection since providing for a competitive balance and scheduling games are justifiable reasons for the NFL to make a host of collective decisions.


The Supreme Court took on several cases dealing with the scope of arbitration. In 2003, AnimalFeeds and other customers of Stolt-Nielsen, a group of four large maritime shipping companies engaged in an illegal price-fixing conspiracy, brought a class action against Stolt-Nielsen asserting antitrust claims. In 2005, AnimalFeeds demanded class arbitration pursuant to the parties’ arbitration agreement. The agreement was silent on class arbitration, but the arbitrators determined that the clause allowed for class arbitration. The District Court vacated the award, stating that the arbitrators should have applied federal maritime law that accounts for trade custom and usage. The Second Circuit reversed, holding that the arbitrators’ decision was not in violation of New York law because Stolt-Nielsen had no authority applying federal maritime law against class arbitration.

In Stolt-Nielsen v. AnimalFeeds (No. 08-1198), the Court split 5-4 to hold that imposing class arbitration on parties who have not agreed to authorize class arbitration in inconsistent with the Federal Arbitration Act (FAA). Writing for the majority, Justice Alito reasoned that since the agreement was silent on the class arbitration issue, the arbitrator’s should have identified the rule of law governing in that situation. A party may not be compelled under the FAA to submit to class arbitration unless it agreed to do so. The arbitrators erred in imposing class arbitration despite the parties’ stipulation that they had reached no express agreement. Justice Ginsburg authored the dissent, expressing concern that the Court has taken the previously untaken step of approving immediate judicial review of a preliminary arbitration hearing with no final decision. Ginsburg also questioned the Court’s decision to supplant the decision of the arbitrators chosen by the parties.

On February 1, 2007, Antonio Jackson filed an employment-discrimination suit under 42 U.S.C. §1981 in the United States District Court for Nevada, against his former employer, Rent-A-Center . Rent-A-Center filed a motion under the Federal Arbitration Act to dismiss or stay the proceedings in the District Court and compel arbitration as per a mutual agreement to arbitrate claims. Jackson opposed the motion on the ground that the entire arbitration agreement was unconscionable. The District Court granted Rent-A-Center’s motion, finding the agreement gives the arbitrator authority to decide whether the agreement is enforceable. A divided Ninth Circuit reversed on the question on who had the authority to decide whether the agreement is enforceable and affirmed the conclusion that the provision in question was not unconscionable.

In Rent-A-Center, Inc. v. Jackson (09-497), the Court split 5-4 to hold that where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, the type of challenge determines who determines the enforceability. If a party challenges specifically the validity of the agreement to arbitrate, the district court determines the enforceability. If a party challenges the enforceability of the contract as a whole, the challenge is for the arbitrator. Justice Scalia, writing for the majority, relied on Prima Paint Corp v. Flood & Concklin Mfg., Co. to hold that only a specific challenge to an agreement to arbitrate is relevant to a court’s determination of whether the arbitration agreement at issue is enforceable. Because the arbitration agreement is severable from the rest of the agreement, a court should only look at cases where the party disputes the arbitration agreement; otherwise, it should allow the arbitrator to make that determination. Justice Stevens authored a dissent, calling the majority’s reasoning “even more fantastic” than the holding in Prima Paint. Justice Stevens would have relied on a line of cases seeking the parties’ intent to decide this case.

In June 2004, a local union supported by the Teamsters began a strike against Granite Rock, the employer of some of the local’s members, following the expiration of the parties’ collective-bargaining agreement and an impasse in their negotiations. On July 2, the two sides created a new agreement containing no-strike and arbitration clauses, but could not reach an agreement holding the local harmless for strike-related damages. Teamsters instructed the local to continuing striking until the hold-harmless agreement was in the agreement. Granite Rock sued both Teamsters and the local under §301(a) of the Labor Management Relations Act of 1947, seeking damages from the strike. The unions countered, asserting that the local’s members never ratified the new agreement and thus the no-strike clause had no force. The District Court granted the Teamster’s motion to dismiss the tortuous interference claim, but denied local’s motion to send the parties’ dispute to arbitration, ruling that a jury should determine when the contract was ratified. The Ninth Circuit affirmed the dismissal of the first claim, but reversed the arbitration order.

In Granite Rock Co. v. Teamsters (08-1214), the Court held that the District Court, not the arbitrator, should resolve the parties’ dispute over the ratification date. Justice Thomas, writing for the majority, held that the dispute requires judicial resolution because the District Court would need to determine whether the parties consented to arbitrate the agreement. To resolve this issue, when a contract is formed is as important as whether the contract was formed. Justice Sotomayor concurred in the Court’s handling on the Teamsters’ motion, but dissented on arbitration issue. Justice Sotomayor used existing case law to determine that the arbitrator should determine the ratification date.


Student Loans

When he filed for bankruptcy protection in 1992, Francisco Espinosa listed as his only debts federal student loans he took out several years prior to attend trade school. The bankruptcy court confirmed a plan that would discharge the interest on Espinosa’s loans once he paid the principal, and the court notified the creditor of the plan. However, in making this decision the court failed to follow provisions of the federal bankruptcy code and rules of procedure. These rules required Espinosa to take steps to initiate an adversarial proceeding to determine whether he faced undue hardship, and required the court to come to a determination that he did before confirming his plan. Federal Rules of Bankruptcy Procedure 7001, 7003, 7004, 7008. 11 U.S.C. §§ 1324, 1325, 528(a). In 1997, Espinosa paid off the loan principal as required by the court’s plan, and the court discharged the interest. In 2000, the creditor, United Student Aid Funds, invoked Federal Rule of Civil Procedure 60(b)(4) to ask the bankruptcy court to void its order discharging the interest Espinosa owed on his student loans. The case went to the District Court and then the Ninth Circuit Court of Appeals before the Supreme Court granted certiorari.

In United Student Aid Funds, Inc. v. Espinosa (08-1134), the Supreme Court unanimously upheld the Ninth Circuit’s determination. Justice Stevens wrote for the Court that although the bankruptcy court erred in confirming the plan discharging Espinosa’s debt without the required adversarial proceeding, the error was not serious enough the void the judgment under Rule 60(b)(4). Additionally, the creditor had received adequate notice of the bankruptcy court’s plan and failed to object or appeal in a timely manner. Therefore, Justice Thomas wrote, it must accept the bankruptcy court’s plan.

Bankruptcy Counseling

The Supreme Court’s decision in Milavetz v. United States (08-1119) limits how lawyers may counsel their clients on bankruptcy matters. In 2005, Congress enacted the federal Bankruptcy Abuse Prevention and Consumer Protection Act. 11 U.S.C. §§ 101(12A), 526, 527, 528. The Act prohibited a class of organizations termed “debt relief agencies,” which provide bankruptcy assistance to consumers, from advising clients to incur more debt before bankruptcy. In addition, the Act requires these agencies to include certain disclosures in advertisements. Several plaintiffs associated with the same law firm, collectively Milavetz, filed pre-enforcement suit in federal district court, asking the court to hold that these provisions of the Act do not apply to them. The District Court and the Eighth Circuit heard the case, disagreeing about whether attorneys are debt relief agencies under the Act and whether disclosure requirements should apply to them, but agreeing that limitations on advising clients were unconstitutional.

The Court unanimously held that attorneys who provide bankruptcy assistance are debt relief agencies under the BAPCA when providing qualifying services. Additionally, the Court upheld the constitutionality of the Act’s limitations on client advising. Here, the Court rejected Milavetz’s assertion that the statute could punish attorneys providing responsible advice, stating that the law adequately protected those advising an increase in debt for a valid purpose. Finally, the Court held that the Act’s advertising disclosure requirements do not violate the First Amendment because the statute’s benefits in protecting consumers from misleading commercial speech outweigh the burden disclosure poses for debt relief agencies.

Campaign Finance

In January 2008, Citizens United, a nonprofit corporation, released a documentary criticizing then-Senator Hillary Clinton, who was at that time a Democratic presidential candidate. To promote this documentary, Citizens United produced television advertisements to run on broadcast and cable television. Concerned about violating 2 U.S.C. § 441b, a federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech that qualifies as “electioneering communication”, Citizens United sought declaratory and injunctive relief, arguing that §441b is unconstitutional as applied to the documentary and that the Bipartisan Campaign Reform Act (BCRA) of 2002’s disclaimer, disclosure, and reporting requirements were unconstitutional as applied to the documentary and the ads. The District Court denied a preliminary injunction and granted the Federal Election Commission summary judgment.

In Citizens United v. Federal Election Commission (08-205), the court split 5-4 to hold that §441b’s restrictions on corporate expenditures are invalid as applied to the documentary. Justice Kennedy, writing for the majority, overruled Austin v. Michigan Chamber of Commerce, which had previously held that corporations could be prohibited from using treasury money to support or oppose candidates in elections without violating the First and Fourteenth Amendments, and part of McConnell v. Federal Election Commission, which upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures. Justice Kennedy, joined by Chief Justice Roberts, Justice Scalia, Justice Alito and Justice Thomas (but only on this issue), concluded that §441b denied corporations the First Amendment right to political speech. Chief Justice Roberts wrote a concurrence to address the issues of judicial restraint and stare decisis. Justice Scalia, in another concurrence, addressed Justice Stevens’ dissenting opinion revealing fear that allowing corporations to use their money on campaign finance in this manner would wreck election integrity. On the other issue, the court voted 8-1 to hold that BCRA §§ 201 and 311 are valid as applied to the television advertisements. The four dissenting justices in the previous issue joined Part IV of Justice Kennedy’s majority opinion, addressing this issue. Justice Thomas, the lone dissenter on this issue, would have struck down the reporting requirements to protect the anonymity of organizations exercising free speech.

Diversity Jurisdiction

In September 2007, California citizens Melinda Friend and John Nhieu sued the Hertz Corporation in state court for violations of California’s wage and hour laws. Hertz sought removal to a federal court through 28 U.S.C. § 1332(d)(2), claiming that the federal court possessed diversity-of-citizenship jurisdiction under 28 U.S.C. §1332(c)(1). While Friend and Nhieu claimed that Hertz was a California citizen because Hertz’s “business activity” is predominantly in California, Hertz argued that their “principal place of business” was in New Jersey because the headquarters or “nerve center” was in New Jersey.

In Hertz Corp. v. Friend (08-1107), the Supreme Court unanimously held that the phrase “principal place of business” in §1332(c)(1) refers to the place where a corporation’s high level officers direct, control, and coordinate the corporation’s activities. Justice Breyer, writing for a unanimous Court, concluded that the “nerve center” approach, while not perfect, is superior to the “business activity” test in determining the citizenship of corporations. The “nerve center” test provides lower courts a test of easier application since it does not require courts to weigh corporate functions, assets, or revenues in order to determine where the corporation has predominantly has its business activities. However, corporations will not be able to avoid lawsuits by creating a “mail drop box” in a favorable jurisdiction, as the court instructed lower courts to look at the record to determine the source of the corporation’s decisions.


The federal government initiated deportation proceedings against Jose Angel Carachuri-Rosendo, a permanent U.S. resident, after he was convicted in Texas and sentenced to ten days in jail for misdemeanor possession of an anti-anxiety tablet without a prescription. Even though this was his second charge (the first was for misdemeanor marijuana possession a year earlier), state prosecutors declined to charge him with a felony, a charge authorized for repeat drug crimes under Texas and federal law. Carachuri-Rosendo asked the immigration judge to use discretion to cancel his deportation, but the judge agreed instead with prosecutors that Carachuri-Rosendo was ineligible for such discretionary relief because the second conviction could be considered an aggravated felony under federal law, 8 U.S.C. §§ 1101(a)(43), 1229b(a)(3). The Board of Immigration Appeals and the Fifth Circuit affirmed the holding.

In Carachuri-Rosendo v. Holder (09-60), the Supreme Court unanimously reversed the Court of Appeals, holding that immigration judges retain discretion to cancel automatic deportations following repeat drug misdemeanors. Justice Stevens reasoned in his opinion that common sense refuses a reading of the applicable statutes that equates a simple possession conviction that resulted in a short jail sentence with an aggravated felony. He also noted that the prior charge played no role in the second conviction and, therefore, the defendant had no chance to defend himself against recidivism charges, and that the federal government should respect Texas prosecutors’ decision to charge Carachuri-Rosendo with a misdemeanor rather than a felony. Justices Alito and Thomas concurred in the judgment, but not the majority’s reasoning, and issued separate opinions.

Intellectual Property

Monsanto Company owns the intellectual property rights to Roundup Ready Alfalfa (RRA), a type of genetically engineered alfalfa that is resistant to the active ingredient in the herbicide Roundup, whose development rights the company licenses exclusively to Forage Genetics International. Certain genetically modified crops, including RRA, are labeled plant pests under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §4321 et seq., under which they are subject to a detailed review of the environmental impact of the plant. When Monsanto and Forage sought total deregulation for RRA, the federal Animal and Plant Health Inspection Service (APHIS) granted their request without conducting the NEPA-mandated reviews and instead only conducting a less detailed review. Conventional alfalfa farms and environmental groups challenged APHIS’s decision in federal court. The District Court vacated APHIS’s deregulation of RRA and issued an injunction preventing almost all planting of the crop until the reviews were complete. The Court of Appeals affirmed the decision.

The Supreme Court heard Monsanto Co. v. Geertson Seed Farms (09-475) to determine if the district court abused its discretion in granting such a broad injunction for a procedural violation of a federal environmental law. The Court decided that the district court had in fact abused its discretion. Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsburg, and Sotomayor, delivered the Court’s opinion. He wrote that none of the criteria necessary for granting an injunction had been met, and that the court could have used less drastic remedies than a nationwide ban on planting. Justice Stevens dissented, and Justice Breyer did not participate.

In 1997, the U.S. Patent Office denied Bernard Bilksi’s patent application for a business process that allowed commodities traders in the energy market to hedge against risk. The Circuit Court of Appeals agreed with the Patent Office that process was ineligible. The Court of Appeals rejected its prior multi-faceted test of whether a process is patentable, which had asked broadly whether the claimed invention produced a useful, tangible result, deciding instead that when interpreting the Patent Act, 35 U.S.C. § 101, the sole inquiry should be whether a claimed new process is tied to a particular machine or transforms a particular article (the “machine-or-transformation” test).

Bilski appealed and the Supreme Court granted certiorari. Justice Kennedy delivered the Supreme Court’s opinion in Bilski v. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office (08-964), which overturned the Court of Appeals’ decision that the “machine-or-transformation” test was the only one needed. Justice Kennedy stated that although some business methods may be eligible for patent (citing Court precedent and the need for a patent system that recognizes diverse innovations), Bilski’s application remained ineligible because it was in effect an abstract idea, a category of claimed inventions that the Court has determined is ineligible for patent. Parker v. Flook, 437 U. S. 584 (1978). Finally, the Justice clarified that other limitations on patent eligibility were valid as long as they were consistent with the Patent Act’s text. Justices Roberts, Thomas, and Alito joined the opinion Justice Kennedy delivered for the Court, and Justice Stevens and Justice Breyer concurred separately.

International Law

Somali natives sued Virginia resident Mohamed Ali Samantar in United States federal district court, alleging that Samantar authorized torture and extrajudicial killings when he held Somali government posts, including defense minister and prime minister between 1980 and 1990. Samantar denied the allegations and moved to dismiss, asserting that the federal Foreign Sovereign Immunities Act of 1976 immunized him from suit. 28 U.S.C. § 1604. The District Court agreed with Samantar’s assertion that as an official of the state the Act immunized him, but the Fourth Circuit reversed on appeal, holding that § 1604 did not cover state officials.

The Supreme Court granted certiorari to consider in Samantar v. Yousuf (08-1555) whether the Act provides Samantar with “immunity from suit based on actions taken in his official capacity.” Unanimously, the Court held that it did not. Justice Stevens wrote for the Court that the language of the Act, its legislative history, and common law principles all indicate that § 1604 does not immunize officials acting on behalf of a foreign state from suit in the United States. However, Justice Stevens stressed the decision’s narrow scope, noting that other legal principles may immunize Samantar from suit.

Labor and Employment Law

In 1995, the City of Chicago conducted a written examination of applicants for firefighter positions. The City announced it would select candidates randomly from a list of “well qualified” applicants who scored at least 89 out of 100 points on the examination. The City informed “qualified” applicants, those who scored between 65 and 88 points, that it was unlikely they would be called for further processing but that they would remain eligible for hire. Beginning in March 1997, several African-American applicants who scored in the “qualified” range but were never hired filed suit, alleging that the City’s practice of selecting only from “well qualified” applicants had a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964. The District Court denied the City’s summary judgment motion, rejecting its claim that petitioners had failed to file EEOC charges within 300 days after the unlawful employment practice occurred. The Seventh Circuit reversed the judgment, holding that the suit was untimely.

In Lewis v. City of Chicago (08-974), the Court unanimously held that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim. Writing for the Court, Justice Scalia explained that the exclusion of passing applicants who scored below 89 when selecting those that advance through each round of selection provided for individual unlawful employment practices. Thus, the City’s practice did occur within the 300-day charging period.


In Florida, common law ordinarily dictates the boundary between private beachfront property and the state-owned seabed. In response to erosion on its ocean beaches, Florida’s legislature passed the Beach Renourishment Act, which added sand to the seabed at various Florida beaches and gave ownership of the resulting new waterfront land that was exposed to the state. A group of beachfront landowners sued the Florida Department of Environmental Protection in state court for issuing permits for the project. They claimed that by claiming the new land as state property, Florida unconstitutionally took their property rights by accretion. The Florida Supreme Court disagreed with the state Court of Appeals about whether the Beach Renourishment Act constituted an unconstitutional taking of property.

Justice Scalia wrote for the eight participating United States Supreme Court Justices in Stop the Beach Renourishment v. Florida Department of Environmental Protection (08-1151) that Florida’s efforts to shore up its eroding beaches did not constitute an unconstitutional taking. Florida common law dictates that waterfront landowners gain ownership of land that the sea deposits on their properties, as long as the increase is so gradual as to be imperceptible. But if the augmentation is sudden, the owner of the seabed (typically the state) retains ownership of the newly exposed land by avulsion. The Court reasoned that Florida common law does not distinguish between sudden increases that result from human activities and those that arise from natural events. Although the Court was unanimous that there was no unconstitutional taking in this particular case, it was split on the larger question of whether the actions by courts, in addition those by legislatures, that terminate an established property right can be considered an unconstitutional taking. Justices Scalia, Roberts, Thomas, and Alito agreed that these “judicial takings” exist. Justices Breyer and Kennedy concurred separately, joined by Justices Ginsburg and Sotomayor, holding that this question was not necessary to decide this case. Justice Stevens recused himself.

Criminal law

Civil Commitment

A federal civil-commitment statute authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. 18 U.S.C. § 4248. That statute allowed for post-sentencing civil commitment of persons who have committed certain sex crimes in the past, and suffer from a mental illness that makes them sexually dangerous to others. In November and December 2006, the Government instituted civil commitment proceedings under § 4248 against Graydon Earl Comstock, Jr. and others convicted of crimes included in the Act who were about to be released from prison. The District Court granted the five men’s motions to dismiss the proceedings on constitutional grounds. The Fourth Circuit upheld the dismissal.

A 7-2 majority reversed the Fourth Circuit’s decision in United States v. Comstock (08-1224), holding that the federal government has the authority to enact the federal civil-commitment statute. Justice Breyer, writing for the majority, clarified that the court was only considering whether the law was a necessary and proper exercise of federal power under Article I of the Constitution and did not consider other questions such as potential due process violations. In concurring opinions, Justices Alito and Kennedy agreed that the statute was constitutional, but Justice Kennedy raised concerns about federalism, and Justice Alito raised concerns about the statute’s broad potential applications. Justice Thomas, joined by Justice Scalia dissented, stating that § 4248 overreached Congress’ enumerated powers.

Sex Offender Registration

Under its broad power to regulate interstate commerce, Congress enacted the Sex Offender Registration and Notification Act (SORNA) in 2006, making it a federal crime for sex offenders who travel in interstate commerce to fail to register as required by the Act. 18 U.S.C. §2250(a). Before that statute was enacted, Thomas Carr, a registered sex offender in Alabama, relocated to Indiana but failed to comply with that state’s sex offender registration requirements. After SORNA was passed, federal prosecutors indicted Carr for violating the Act. At trial, Carr moved to dismiss, asserting that he could not be prosecuted under § 2250(a) because the Constitution’s ex post facto clause prohibits retroactive application of criminal laws. When the District Court denied his motion to dismiss, Carr pleaded guilty. On appeal, the Seventh Circuit affirmed the conviction despite the fact that Carr’s travel to Indiana pre-dated SORNA’s enactment, because he had a reasonable time to register once Congress passed SORNA.

In Carr v. United States (08-1301), the Supreme Court, in a 6-3 decision, reversed the Seventh Circuit’s determination without addressing the ex post facto question. Instead, looking to Congressional intent in drafting § 2250, the majority opinion, penned by Justice Sotomayor, stated that SORNA does not apply to sex offenders such as Carr whose interstate travel pre-dated SORNA’s enactment. To reach this result, the majority looked closely to the language of the Act (specifically, the use of the word “travels” rather than “travelled” or have travelled”) to infer that Congress intended the law to apply only to sex offenders whose travel occurred once the statute had passed. Justice Alito, joined by Justices Thomas and Ginsburg, dissented.

Securities Fraud

In October 2001, Enron Corp., the nation’s seventh largest business firm, collapsed, leading to the devastation of workers’ jobs, retirees’ savings, and the entire economy of Houston. In 2006, Jeffrey K. Skilling, a former Enron executive, was convicted of conspiracy to commit securities fraud and wire fraud, twelve counts of securities fraud, five counts of making false statements to accountants, and one count of insider tradition. The Fifth Circuit Court upheld the conviction. Skilling challenged the conviction on the basis that the “honest services” fraud law, criminalizing any form of fraud if the misconduct deprived another of the intangible right of honest services, is unconstitutional. The prosecutors in Skilling’s case used this law to reinforce the charge of a conspiracy to commit securities and wire fraud. Skilling also challenged on the ground that pretrial publicity and community prejudice prevented him from getting a fair trial.

In Skilling v. United States (08-1394), the Court held that the statute applied only to crimes involving bribery and kickbacks; therefore, since Skilling and the others had been tried under the statute for other crimes, the convictions could not stand. Justice Ginsburg, writing for a majority of six, held that reading the law as covering anything but bribes and kickbacks would raise questions of constitutional vagueness. Justice Scalia, writing for the three dissenters on this issue, argued that the Court had legislated from the bench in its interpretation of the “honest services” law. Ginsburg also wrote for a majority of five, holding that the publicity and community prejudice did not prevent Skilling from receiving a fair trial. Justice Alito wrote a separate concurrence on the right to an impartial jury. Justice Sotomayor dissented on this issue, questioning the adequacy of the voir dire in this case.