Supreme Court Opinions: October 2002 Term

Order Code RL31996

CRS Report for Congress

Received through the CRS Web

Supreme Court Opinions: October 2002 Term

July 15, 2003

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2002 Term

Summary

This report contains synopses of Supreme Court decisions issued from the

beginning of the October 2002 Term through the end of the Term on June 26, 2003.

Included in this listing are all cases decided by signed opinion and selected cases

decided per curiam. In addition to the summary, the date of decision is indicated,

and cites to United States Law Week and West's Supreme Court Reporter are

provided. Following each synopsis the vote on the Court's holding is indicated in

bold typeface, and authors of the Court's opinion and of any concurring and

dissenting opinions, along with the Justices who joined those opinions, are identified.

Cases are listed alphabetically, and a subject index is appended. These synopses are

prepared throughout the Term and can be accessed through the CRS Home Page

[http://www.crs.gov/reference/general/law/02_term.shtml], which also provides links

from the synopses to the full texts of the Court’s opinions.

Supreme Court Opinions: October 2002

Term

American Ins. Ass’n v. Garamendi 123 S. Ct. 2374, 71 USLW 4524 (6-23-03)

Preemption, foreign relations: California’s Holocaust Victim Insurance Relief

Act, which requires any insurance company doing business in the state to

disclose information about policies it or “related” companies sold in Europe

between 1920 and 1945, is preempted as interfering with the Federal

Government’s conduct of foreign relations. The relevant foreign policy is

expressed principally in executive agreements with Germany, Austria, and

France. Executive agreements that settle claims of U.S. nationals against

foreign governments date to 1799, and Congress has acquiesced in this

longstanding practice. Although the agreements at issue here address claims

against foreign corporations rather than foreign governments, that distinction

“does not matter.” The Potsdam and Yalta agreements are precedent for

executive agreements addressing reparations implicating private parties, and

limiting the permissible scope of such agreements by requiring a sharp dividing

line “would hamstring the President in settling international controversies.”

Valid executive agreements may preempt state law. The Court in Zschernig v.

Miller (1968) held that state laws may not intrude into the field of foreign

affairs, “which the Constitution entrusts to the President and the Congress,”

even in the absence of conflict with some affirmative federal activity. In this

case there is “sufficiently clear conflict to require finding preemption.” The

general policy of “encourag[ing] European governments and companies to

volunteer settlement funds in preference to litigation or coercive sanctions” has

held true in the insurance area, where the executive agreements have

“encourage[d] European insurers to work with [the International Commission

on Holocaust Era Insurance Claims] to develop acceptable claim procedures,

including procedures governing disclosure of policy information.” California’s

different tack of providing regulatory sanctions, supplemented by litigation,

“threatens to frustrate the operation of the particular mechanism the President

has chosen.” “California seeks to use an iron fist where the President has

consistently chosen kid gloves.” Congress’s silence on the subject “is not to be

equated with congressional disapproval” of the President’s policies.

5-4. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Kennedy, and

Breyer. Dissenting opinion by Ginsburg, joined by Stevens, Scalia, and Thomas.

Archer v. Warner 123 S. Ct. 1462, 71 USLW 4249 (3-31-03)

Bankruptcy: A debt embodied in a settlement agreement that settled a

creditor’s earlier claim for money obtained by fraud can be considered a debt

“for money . . . obtained by . . . fraud” within the meaning of section

523(a)(2)(A) of the Bankruptcy Code, and hence is nondischargeable in

bankruptcy. Although the settlement agreement can be considered a “kind of

novation” that replaced the debt for money obtained by fraud with a new debt,

that new debt can also amount to a debt for money obtained by fraud. The

outcome is governed by Brown v. Felsen (1979), in which the court held

nondischargeable a debt embodied in a stipulation and consent judgment

resolving a suit based on fraud. The Court in Brown said that “the mere fact

that a conscientious creditor has previously reduced his claim to judgment

should not bar further inquiry into the true nature of the debt,” and the same

reasoning applies here. There is no significant difference between a debt

embodied in a settlement and one embodied in a stipulation and judgment. The

fact that the bankruptcy provision, which originally applied only to “judgments

sounding in fraud,” was later broadened to cover all such “liabilities” indicates

that Congress “intended the fullest possible inquiry” to ensure that all debts

arising out of fraud are excepted from discharge.

7-2. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, and Ginsburg. Dissenting opinion by Thomas, joined by

Stevens.

Barnhart v. Peabody Coal Co. 123 S. Ct. 748, 71 USLW 4041 (1-15-03)

Coal Industry Retiree Health Benefit Act, deadline for assignment of retirees:

The Coal Industry Retiree Health Benefit Act’s requirement that the

Commissioner of Social Security “shall, before October 1, 1993,” assign each

eligible coal industry retiree to an operating company for purposes of

responsibility for funding benefits does not invalidate an initial assignment

made after that date. The claim that the deadline is jurisdictional is

“unsupportable” and “counterintuitive.” Coupling the mandatory “shall” with

a specific deadline does not automatically void agency action taken after the

deadline. The Act does not specify a consequence for noncompliance with the

deadline, and “in the ordinary course” federal courts will not impose their own

sanction. The fact that other provisions of the Act combine “shall” with a

deadline in a manner “that could not possibly be read to prohibit action outside

the statutory period” provides “structural clues.” “Plausibility” governs

resolution of the issue: Congress “would have said more than it did, and would

not have couched its intent in language . . . already held to lack any clear

jurisdictional significance” had it intended to limit authority to act after the

deadline. The Act’s express references to “unassigned” beneficiaries merely

means that Congress recognized that in some instances there would be no

operator to which a beneficiary could be assigned; Congress did not foresee that

the deadline for assignment might not be met. It is fair to read the Act’s

requirement that an operator’s percentage of obligations be determined on the

basis of assignments “as of” the deadline date as qualified by Congress’

assumption that all possible assignments would be made by that date. Congress

intended to allocate the greatest number of beneficiaries to a responsible

operator, and the deadline should be read “as a spur to prompt action, not as a

bar to tardy completion.”

6-3. Opinion of Court by Souter, joined by Rehnquist, Stevens, Kennedy,

Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by O’Connor and

Thomas.

Beneficial Nat’l Bank v. Anderson 123 S. Ct. 2058, 71 USLW 4409 (6-2-03)

Removal, action “arising under” National Bank Act: An action brought in

state court to recover damages from a national bank for charging excessive

interest in violation of both the common law usury doctrine and an Alabama

usury statute may be removed to federal district court as an action “arising

under” federal law, even though the complaint did not refer to any federal law.

As a general rule, a case is not removable if the complaint does not allege a

federal claim; potential defenses based on federal law, even if referenced by the

complaint, ordinarily do not create a basis for removal. In two instances,

however, involving certain causes of action under the Labor Management

Relations Act and ERISA, the Court has recognized exceptions because the

federal statute “wholly displaces” the state-law cause of action. The National

Bank Act (NBA) is another such statute. The Court has long held that sections

85 and 86 of the NBA provide the exclusive cause of action for usury claims

against national banks, and has also recognized that “the special nature of

federally chartered banks” requires uniform rules limiting liability and

prescribing exclusive remedies for overcharges.

7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Thomas.

Black & Decker Disability Plan v. Nord 123 S. Ct. 1965, 71 USLW 4405 (5-27-03)

ERISA, deference to treating physician: The “treating physician rule”

applicable by regulation to Social Security disability benefit determinations does

not apply to disability determinations under employee benefit plans covered by

ERISA. The Secretary of Labor’s regulations implementing ERISA’s

provisions on employee benefit plans do not require extra respect for the

opinions of treating physicians, nothing in the Act itself suggests that plan

administrators must accord treating physicians special deference, and the Ninth

Circuit erred in imposing such a rule. The two statutory regimes are different.

The Social Security Act creates a nationwide benefits program, and

presumptions help the Administrator cope with the volume of claims and

provide guidance to the administrative law judges who make the initial

determinations. ERISA does not require the same uniformity. Rather,

employers “have large leeway to design disability . . . plans as they see fit,” and

the validity of a claim depends upon interpretation of the particular plan at issue.

“Courts have no warrant to require administrators automatically to accord

special weight to the opinions of a claimant’s physician [or to] impose . . . a

discrete burden of explanation when they [do not].”

9-0. Opinion for unanimous Court by Ginsburg.

Boeing Co. v. United States 123 S. Ct. 1099, 71 USLW 4131 (3-4-03)

Taxation, DISCs, R&D expenses: A Treasury Regulation that governs

accounting of research and development expenses (R&D) for domestic

international sales corporations (DISCs) and foreign sales corporations is a

reasonable interpretation of the statute, and is entitled to deference by courts.

The regulation requires that R&D expenses be allocated to a broadly defined

category of products from a list of Standard Industrial Classifications (SICs),

and prevents Boeing from attributing all such costs to one particular product

model even in years when there were no sales for that product. The regulation

thereby prevents Boeing from deducting R&D expenses that are not also

reflected in combined taxable income derived by Boeing and its DISC for the

taxable years in question. The statute grants the Secretary authority to

“prescribe all needful rules and regulations” for the enforcement of the Internal

Revenue Code. Moreover, the statute does not define “combined taxable

income” and does not specifically refer to R&D expenses. Although the statute

does refer to a percentage of combined taxable income that is “attributable” to

export sales, this limitation does not prevent the Secretary from classifying all

R&D as an indirect cost “attributable” to all export sales of products in a

broadly defined SIC category. Similarly, general language calling for a

“ratable” apportionment of expenses that cannot definitely be allocated to some

item or class of gross income does not prevent apportionment on a categorical

basis. A regulation governing computation of combined taxable income does

not override the regulation at issue, but instead relies on the challenged

regulation for its application. To the extent that legislative history is relevant,

it “weighs in favor of the Government’s position.”

7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by Scalia.

Borden Ranch Partnership v. U.S. Army Corps of Engineers

123 S. Ct. 599, 71

USLW 4025 (12-16-02)

Clean Water Act, wetlands: The decision of the U.S. Court of Appeals for the

Ninth Circuit is upheld by an equally divided vote. The Ninth Circuit held that

the “deep ripping” plowing method, which disgorges and replaces soil in

wetlands and results in draining the land and converting it to dry land, is subject

to regulation under the Clean Water Act as the discharge of a pollutant.

4-4. Per curiam. Justice Kennedy did not participate.

Branch v. Smith 123 S. Ct. 1429, 71 USLW 4232 (3-31-03)

Congressional redistricting, Voting Rights Act, court-ordered plan: A

federal district court properly enjoined a Mississippi state court’s order

imposing a congressional districting plan for the state, and properly fashioned

its own redistricting plan rather than ordering at-large elections in accordance

with 2 U.S.C. § 2a(c). The injunction was proper because the state-court plan,

adopted after the state legislature had failed to redistrict on the basis of the 2000

census, “was not precleared [under § 5 of the Voting Rights Act] and had no

prospect of being precleared in time for the 2002 election.” Section 5 requires

preclearance when a covered jurisdiction seeks to administer a change in voting

procedures. A state’s change in voting procedures may take effect if the

Attorney General has not interposed an objection within 60 days of the state’s

submission. In this case, however, the 60-day period had been postponed by the

Attorney General’s request for additional information. The State did not

provide the requested information until Feb. 20, 2002. The deadline for

candidate qualification was March 1, 2002, and the federal court’s injunction

was issued on Feb. 26, 2002. The 60-day period that began running on Feb. 20

with submission of the additional information “had no legal significance”

because the state “never appealed” the federal court’s injunction and thus was

no longer “seek[ing] to administer” the state-court plan. In fashioning a

redistricting plan for Mississippi, the federal court properly relied on 2 U.S.C.

§ 2c, which directs that single-member districts “shall be established by law.”

Although this language “assuredly envisions legislative action, it also embraces

action by state and federal courts” when legislatures have not acted. An earlierenacted provision, 2 U.S.C. § 2a(c)(5), which directs that representatives shall

be elected at-large “until a state is redistricted in the manner provided by the law

thereof” following an apportionment which has reduced the number of

Representatives to which the state is entitled, is inapplicable. A Mississippi

statute also calling for at-large election of Representatives in such circumstances

is similarly inapplicable.

9-0 (propriety of injunction); 7-2 (remedy). Opinion of Court by Scalia,

unanimous in part, and joined in separate part by Rehnquist, Stevens, Souter,

Ginsburg, and Breyer. Separate part of Scalia opinion joined by Rehnquist,

Kennedy, and Ginsburg. Concurring opinions by Kennedy, joined in part by

Stevens, Souter, and Breyer; and by Stevens, joined by Souter and Breyer.

Concurring and dissenting opinion by O’Connor, joined by Thomas.

Breuer v. Jim’s Concrete of Brevard, Inc. 123 S. Ct. 1882, 71 USLW 4367 (5-19-03)

Fair Labor Standards Act, removal of cases to federal court: The Fair

Labor Standards Act (FLSA), which provides that a suit “may be maintained .

. . in any Federal or State court of competent jurisdiction,” does not bar removal

of a suit from state to federal court. Such removal is authorized by 28 U.S.C.

§ 1441(a) “except as otherwise expressly provided by Act of Congress.” Use

of the word “maintained” does not amount to an express prohibition of removal;

the word is ambiguous with respect to removal. “If use of an ambiguous word

like ‘maintain’ qualified as an express provision . . . , then the requirement [in

effect] would call for nothing more than a ‘provision,’ pure and simple, leaving

the word ‘expressly’ with no consequence whatsoever.” Moreover, the FLSA

provision contrasts with language in other statutes (a civil action “may not be

removed”) that evidences an “indisputable” prohibition of removal. Removal

does nothing to defeat a right to “maintain” an action to final judgment, but

merely transfers the action from one forum to another. A contrary reading could

defeat change of venue as well as removal. A number of other statutes use the

same language allowing actions to be “maintained” in state or federal courts,

and it is “just too hard to believe that a right to ‘maintain’ an action was ever

meant to displace the right to remove.”

9-0. Opinion for unanimous Court by Souter.

Brown v. Legal Found. of Washington 123 S. Ct. 1406, 71 USLW 4221 (3-26-03)

Taking of property, IOLTA accounts: Washington State’s interest on

lawyers’ trust accounts (IOLTA) program, which requires each lawyer to

deposit into a single pooled IOLTA account for all that lawyer’s clients any

client funds that cannot otherwise earn net interest for an individual client, and

which requires the lawyer to direct the bank to pay interest on the pooled

account to the Foundation, to be used for charitable and educational purposes,

does not violate the Just Compensation Clause of the Fifth Amendment (as

applicable to the State through the Fourteenth Amendment). A law that requires

that interest on a client’s funds be transferred to a different owner for a

legitimate public use could constitute a per se taking requiring payment of just

compensation to the client. No “just compensation” is due, however. Just

compensation is measured by the owner’s pecuniary loss, and that loss is zero

if the Washington law is obeyed by placing in the IOLTA account only those

client funds that, invested individually, could not provide a net positive return

to the client.

5-4. Opinion of Court by Stevens, joined by O’Connor, Souter, Ginsburg, and

Breyer. Dissenting opinions by Scalia, joined by Rehnquist, Kennedy, and

Thomas; and by Kennedy.

Bunkley v. Florida 123 S. Ct. 2020, 71 USLW 3732 (5-27-03)

Due Process, elements of crime at time of conviction: The Florida Supreme

Court must consider whether a pocket knife with a blade of 21/2 to 3 inches in

length was a “dangerous weapon” within the meaning of the state’s first-degree

burglary statute at the time in 1989 when the petitioner’s conviction for that

crime became final, or whether the knife instead was a “common pocketknife”

excepted from the definition of “weapon.” In 1997 the Florida Supreme Court,

relying on a 1951 opinion of the state attorney general, interpreted the provision

for the first time as excluding a pocket knife with a blade length of 33/4 inches.

The state court characterized its 1997 decision as part of a “century-long

evolutionary process” in interpreting the provision, and this characterization

raises the question of what the provision meant in 1989 when the petitioner was

convicted. In a similar situation, the Court in Fiori v. White (2001) found a due

process violation in a state’s refusal to apply to an earlier conviction a definitive

and exonerating interpretation of a criminal statute said to reflect a clarification

of the statute’s plain language rather than a new interpretation. A conviction

denies due process if it is clear that the defendant’s conduct did not violate an

element of the crime set forth in the statute.

9-0. Per curiam.

Chavez v. Martinez 123 S. Ct. 1994, 71 USLW 4387 (5-27-03)

Due Process, self-incrimination: The respondent’s claim for damages

premised on police officers’ violation of his privilege against self-incrimination

is rejected. The officers interrogated the respondent while he was in a hospital

being treated for gunshot wounds, and failed to give him a Miranda warning.

The respondent was not charged with a crime, and hence the statements he gave

in response to the questioning were not used against him at a criminal trial. Any

such claim of outrageous conduct by police, however, may raise an issue of

denial of substantive due process. The case is remanded for consideration of the

due process issue.

5-3 (due process); 6-3 (self-incrimination). Opinion of Court by Souter (due

process issue), joined by Stevens, Kennedy, Ginsburg, and Breyer. Separate part

of Souter opinion joined by Breyer. No opinion of Court on self-incrimination.

Opinion by Thomas, joined by Rehnquist, and joined in separate and overlapping

parts by O’Connor and Scalia. Opinion by Scalia concurring in part. Opinion

by Stevens concurring in part and dissenting in part. Opinion by Kennedy

concurring in part and dissenting in part, joined by Stevens and joined in part by

Ginsburg. Opinion by Ginsburg concurring in part and dissenting in part.

Citizens Bank v. Alafabco, Inc. 123 S. Ct. 2037 (6-2-03)

Commerce power, Federal Arbitration Act: The Alabama Supreme Court

applied an “improperly cramped view of Congress’ Commerce Clause power”

in holding that the Federal Arbitration Act (FAA) applies only to transactions

“in” interstate commerce, and therefore did not apply to debt restructuring

agreements between an Alabama bank and an Alabama construction company.

The FAA applies to contracts “evidencing a transaction involving commerce.”

The term “involving commerce” is the “functional equivalent” of the term

“affecting commerce,” and ordinarily signals “the broadest permissible

exercise” of the commerce power. “[I]t is perfectly clear that the FAA

encompasses a wider range of transactions than those actually ‘in commerce.’”

There was no need, therefore, to find that the restructuring related to interstate

transactions or to out-of-state projects. Nor was it necessary to find that any of

the individual debt-restructuring agreements, standing alone, had a substantial

effect on interstate commerce; the issue instead is the cumulative impact of “the

economic activity in question.” The agreements at issue meet the FAA’s

“involving commerce” test. The respondent company engaged in business

throughout the southeastern United States using loans from the petitioner bank;

the debt was secured by all of the company’s business assets, including out-ofstate assets; and commercial lending – the “general practice” represented by the

transactions – has “broad impact” on the national economy.

9-0. Per curiam.

City of Cuyahoga Falls v. Buckeye Community Hope Found. 123 S. Ct. 1389, 71

USLW 4213 (3-25-03)

Equal Protection, due process, referendum: City officials did not violate the

Equal Protection Clause by submitting to the voters a petition to repeal an

ordinance authorizing construction of low-income housing, or by denying

building permits while the referendum was pending. The respondents failed to

establish a racially discriminatory intent. The City acted pursuant to the

requirements of its charter in submitting the referendum petition to the voters,

and the city engineer performed “a nondiscretionary, ministerial act” in denying

the building permits while the referendum was pending. Statements made by

private individuals during the petition drive may not be attributed to city

officials. “In fact, by adhering to charter procedures, city officials enabled

public debate on the referendum to take place, thus advancing significant First

Amendment interests.” Respondents also failed to establish a substantive due

process denial. The denial of building permits “in no sense constituted

egregious or arbitrary government conduct.” Although the substance of a

measure approved by referendum may be challenged as arbitrary and capricious,

the subjection of an ordinance to public approval through a referendum cannot

be considered an invalid delegation of power, and in this case is not arbitrary

government conduct that violates due process.

9-0. Opinion for unanimous Court by O’Connor. Concurring opinion by Scalia,

joined by Thomas.

City of Los Angeles v. David 123 S. Ct. 1895, 71 USLW 3720 (5-19-03)

Due Process, delay in holding of hearing: The city did not deny the

respondent due process by delaying a hearing on the validity of an automobile

impoundment fee until 27 days after his car had been towed. The delay is

supported by application of the three factors set forth in Mathews v. Eldridge

(1976) for determining whether an individual has received the process that is

“due.” The private interest affected – the temporary loss of the use of money

– is fully compensable. A 30-day delay is unlikely to create the risk of

significant factual errors. The city’s interest in “administrative necessity,”

however, “argues strongly in the city’s favor.” The city already holds hearings

within 48 hours for those persons unable to pay impoundment fees, and it would

be “burdensome” to have to hold all such hearings so promptly.

9-0. Per curiam.

Clackamas Gastroenterology Assocs., P.C. v. Wells 123 S. Ct. 1673, 71 USLW 4293

(4-22-03)

ADA, definition of “employee”: The issue of whether the four shareholderdirectors of the petitioner professional corporation are “employees” under the

Americans with Disabilities Act (ADA) – an issue that in this case determines

whether the corporation is an “employer” subject to ADA coverage as having

15 or more “employees” – should be resolved by application of common law

principles that define the master-servant relationship. The ADA’s definition of

an “employee” as “an individual employed by an employer” is “completely

circular and explains nothing,”and in such instances the Court ordinarily

presumes that Congress intended the common law of agency to govern. The

petitioner’s approach of asking whether the shareholder-directors are in reality

partners “simply begs the question,” and the appeals courts’ approach seeking

guidance in the ADA’s broad purposes overlooks Congress’s reasons for

limiting coverage to firms with 15 or more employees. The common law

definition of the master-servant relationship provides “helpful guidance,” and

is reflected in EEOC “guidelines.” Under that EEOC/common law approach,

the principal issue is whether the shareholder-directors operate independently

and manage the firm or are instead subject to the firm’s control. The case is

remanded for further factual findings related to this inquiry.

7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, and Thomas. Dissenting opinion by Ginsburg, joined by

Breyer.

Clay v. United States 123 S. Ct. 1072, 71 USLW 4155 (3-4-03)

Habeas corpus, limitations period: When a federal defendant takes an

unsuccessful direct appeal from a judgment of conviction, but does not petition

for a writ of certiorari from the Supreme Court, his conviction becomes “final”

for purposes of the one-year limitation period for filing for postconviction relief

under 28 U.S.C. § 2255 when the time expires for filing the petition for

certiorari. The lower courts erred in ruling that the conviction became final on

the earlier date when the appellate court issued its mandate in the direct appeal.

Finality has “a long-recognized, clear meaning” in the context of postconviction

relief: it attaches when the Supreme Court affirms a conviction on the merits on

direct review or denies a petition for certiorari, or when the time for filing a

certiorari petition expires. The Court “presume[s] that Congress intends its

statutes to be read in conformity with this Court’s precedents.” Parallel

statutory provisions setting limitation periods do not require a different

conclusion. The fact that a provision governing petitions from state prisoners

is worded differently – it elaborates on “the date on which the judgment became

final” by adding the words “by the conclusion of direct review or the expiration

of the time for seeking such review” – does not mean that § 2255 must be

interpreted differently. Congress might have felt the need to spell out the

meaning of “final” in the context of petitions by state prisoners but not in the

context of petitions by federal prisoners in order to make it clear that finality is

be determined by a uniform federal rule rather than by reference to state law

rules. A provision governing petitions by death-sentenced state prisoners is not

similar enough to § 2255 to create any presumption as to § 2255's meaning.

9-0. Opinion for unanimous Court by Ginsburg.

Connecticut Dep’t of Public Safety v. Doe 123 S. Ct. 1160, 71 USLW 4158 (3-5-03)

Due Process, “Megan’s Law”: Connecticut’s Megan’s Law did not deprive the

respondent of due process by requiring that he be listed as a convicted sex

offender on the State’s Website without affording him a hearing to attempt to

prove that he is not currently dangerous. Even if injury to reputation could

constitute a deprivation of a liberty interest, due process does not entitle a

person to a hearing to establish a fact that is not material. Whether or not the

respondent is currently dangerous “is of no consequence under Connecticut’s

Megan’s Law.” The law’s posting requirements “turn on an offender’s

conviction alone.” While it may be that a claim could be raised that public

disclosures about currently non-dangerous sex offenders violate substantive due

process, the respondent disavowed any reliance on that argument, and the issue

was not properly before the Court.

9-0. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Concurring opinions by Scalia; by

Souter, joined by Ginsburg; and by Stevens.

Cook County v. United States ex rel. Chandler 123 S. Ct. 1239, 72 USLW 4192 (310-03)

False Claims Act, applicability to local governments: Local governments are

“persons” subject to qui tam actions under the False Claims Act. Long before

enactment of the False Claims Act (FCA) in 1863 private corporations had been

held to be artificial persons ordinarily included within the statutory term

“person.” Although it was not until six years after enactment of the FCA that

the Supreme Court held that municipal corporations are also “persons,” this

decision merely reflected a common understanding antedating the FCA. The

Dictionary Act defines “person” to include corporate entities “unless the

context” shows otherwise, but nothing about the FCA makes the common

understanding inappropriate. The text is not inherently inconsistent with local

government liability. The original act included references to natural persons in

the land or naval forces, but also referred unqualifiedly to other “persons.” And,

although municipalities may not be subject to criminal penalties, “that is no

reason to exempt them from remedies that sensibly apply.” The fact that

Congress in 1863 was primarily concerned with frauds committed by private

contractors during the Civil War does not alter the fact that Congress wrote

expansively to cover all fraud. 1986 amendments to the FCA that raised the

ceiling on damages from double to treble did not repeal by implication the

FCA’s applicability to local governments. Although municipalities are

generally exempt from punitive damages, treble damages under the FCA have

compensatory as well as punitive traits. Some liability beyond the amount of

a fraud is usually necessary to compensate the government completely for the

losses occasioned by fraud. The FCA does not provide for prejudgment interest

or for consequential damages that typically come with recovery for fraud, and

qui tam recoveries must be subtracted from the government’s recovery. More

important than the presumption against punitive recovery is the presumption

against repeals by implication. “The basic purpose of the 1986 amendments

was to make the FCA a more useful tool against fraud in modern times,” and it

is “simply not plausible” that Congress intended at the same time to repeal sub

silentio the liability of local governments, “which today often administer or

receive federal funds.”

9-0. Opinion for unanimous Court by Souter.

Dastar Corp. v. Twentieth Century Fox Film Corp. 123 S. Ct. 2041, 71 USLW 4415

(6-2-03)

Lanham Act, “origin” of goods: Section 43 of the Lanham Act, which

prohibits “a false designation of origin,” does not prevent the unaccredited

copying of a non-copyrighted work. The phrase “origin of goods” “refers to the

producer of the tangible goods that are offered for sale, and not to the author of

any idea, concept, or communication embodied in those goods.” Thus the

petitioner corporation is the “origin” of a video set about the European

campaigns of World War II that it produced and sold, even though it copied the

videos from a television series based on General Eisenhower’s book Crusade

in Europe, and made only minor modifications before selling them. The “most

natural understanding of the ‘origin’ of ‘goods,’” derived from dictionary

definitions, is “the producer of the tangible product sold in the marketplace.”

Interpreting the phrase to encompass the person whose ideas are embodied in

the product would be “out of accord with the history and purpose of the Lanham

Act.” The Lanham Act prohibits actions that deceive consumers. A brand-loyal

consumer cares about whether a favored company produced or stands behind a

product, but does not necessarily care who originally designed or devised the

formula for the product. A different rule for “communicative” products, where

authorship is important to purchasers, would result in conflict with copyright

law, which provides that the right to copy without attribution passes to the

public upon expiration of a copyright. To hold the Lanham Act applicable in

this way would be “akin to finding . . . a species of perpetual patent and

copyright.” When Congress has changed copyright law, “it has done so with

much more specificity than the Lanham Act’s ambiguous use of ‘origin.’”

Interpreting “origin” to require attribution of non-copyrighted material would

pose practical problems as well, including the determination of “who is in the

line of ‘origin.’”

8-0. Opinion of Court by Scalia, joined by all Justices except Breyer, who did

not participate.

Demore v. Kim 123 S. Ct. 1708, 71 USLW 4315 (4-29-03)

Due Process, detention of aliens; judicial review: Mandatory detention of an

alien pending removal proceedings, without an individualized determination of

risk of flight and danger to the community, does not violate due process under

the circumstances of this case, in which a lawful permanent resident alien

brought a habeas corpus action challenging the constitutionality of detention

rather than availing himself of procedures under which he could challenge

inclusion in the mandatory detention category. A provision of the Immigration

and Nationality Act, 8 U.S.C. § 1226c, requires the Attorney General to detain

“any alien” who is removable from this country because he has been convicted

of any of certain specified crimes. “Congress regularly makes rules that would

be unacceptable if applied to citizens,” and the Court “has recognized the

validity of detention during deportation proceedings.” Detention pending

removal proceedings “necessarily serves the purpose of preventing deportable

criminal aliens from fleeing,” and thus increases the chance of successful

removal. This detention is normally of relatively short duration. If detention

becomes “unreasonably long,” the alien may become entitled to an

individualized determination as to risk of flight and dangerousness. Judicial

review is not precluded by language declaring that the Attorney General’s

discretionary judgment applying the section shall not be subject to review, and

that no court may set aside any action or decision of the Attorney General

regarding the detention of any alien. Here the respondent was not challenging

a “discretionary judgment” or “decision” of the Attorney General, but rather the

“statutory framework that permits his detention without bail.”

5-4 (detention); 6-3 (judicial review). Opinion of Court by Rehnquist, joined by

Kennedy, joined in part by Stevens, Souter, Ginsburg, and Breyer, and joined in

separate part by O’Connor, Scalia, and Thomas. Concurring opinions by

Kennedy; and by O’Connor, joined by Scalia and Thomas. Concurring and

dissenting opinions by Souter, joined by Stevens and Ginsburg; and by Breyer.

Desert Palace, Inc. v. Costa 71 USLW 4434 (6-9-03)

Civil rights, proof in “mixed-motive” cases: A plaintiff need not present

direct evidence of discrimination in order to obtain a mixed-motive instruction

in an action brought under Title VII of the Civil Rights Act of 1991. The 1991

Act provides that an unlawful employment practice is established if the

complaining party “demonstrates that race, color, religion, sex, or national

origin was a motivating factor for any employment practice, even though other

factors also motivated the practice.” This means that “a plaintiff need only

present sufficient evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that [a prohibited consideration] was a

motivating factor for any employment practice.” That evidence may be

circumstantial. The statute is unambiguous. A plaintiff “need only

demonstrate” a discriminatory motive; the statute “does not mention, much less

require, that a plaintiff make a heightened showing through direct evidence.”

Moreover, the Act defines the term “demonstrates” as meaning “to meet the

burdens of production and persuasion.” This contrasts with other situations,

where “Congress has been unequivocal when imposing heightened proof

requirements.” Title VII’s silence with respect to the type of evidence required

also “suggests” that the “conventional rule of civil litigation” applicable in Title

VII cases should govern, viz., that the plaintiff must prove her case “by a

preponderance of the evidence, using direct or circumstantial evidence.” Courts

have long recognized “the utility of circumstantial evidence in discrimination

cases,” and in other contexts as well.

9-0. Opinion for unanimous Court by Thomas.

O’Connor.

Concurring opinion by

Dole Food Co. v. Patrickson 123 S. Ct. 1655, 71 USLW 4301 (4-22-03)

Foreign Sovereign Immunities Act: A subsidiary of a corporation in which a

foreign state owns a majority of shares is not an “agency or instrumentality” of

the foreign state for purposes of the Foreign Sovereign Immunities Act (FSIA),

and hence is not entitled to removal under 28 U.S.C. § 1441 as a “foreign state.”

“Foreign state” is defined by the FSIA to include an “agency or

instrumentality,” defined in turn to include an entity “the majority of whose

shares or other ownership interest is owned by a foreign state.” “A corporation

is an instrumentality of a foreign state under this definition only if the foreign

state owns a majority of the corporation’s shares.” The meaning of share

ownership is determined by reference to corporation law, and only “direct

ownership” satisfies the requirement. “Where Congress intends to refer to

ownership in other than the formal sense, it knows how to do so,” as, for

example, in statutes that refer to “direct and indirect ownership,” or that define

an owner as someone who “owns or controls” an entity. A shareholder, by

virtue of its ownership of shares, does not own the corporation’s assets, and

therefore does not own subsidiary corporations. “Other ownership interest”

does not include a state’s “interest” in its instrumentality’s subsidiary, but rather

is designed to recognize the possibility of different ownership forms in other

countries. Instrumentality status must be determined as of the time the action

is filed, not as of the time of the conduct giving rise to the suit. This

interpretation is required by “plain text,” viz., use of the present tense in the

FSIA definition (“a majority of whose shares . . . is owned by a foreign state”).

Analogy to status-based immunities, which derive from an officer’s status at the

time of the conduct giving rise to suit, is inapt. Cases recognizing status-based

immunities do not involve interpretation of a statute, and the reasons for the

official immunities do not apply to a foreign state.

7-2 (ownership of subsidiary); 9-0 (timing of determination). Opinion of Court

by Kennedy, joined in part by Rehnquist, Stevens, Scalia, Souter, Thomas, and

Ginsburg, and unanimous in separate part. Concurring and dissenting opinion

by Breyer, joined by O’Connor.

Dow Chemical Co. v. Stephenson 71 USLW 4440 (6-9-03)

Class actions, Agent Orange litigation: The decision of the U.S. Court of

Appeals for the Second Circuit, reversing a district court’s dismissal of an

action brought by Vietnam veterans against manufacturers of the herbicide

Agent Orange as barred by a 1984 class action settlement, is affirmed by an

equally divided vote.

4-4. Per curiam. Justice Stephens did not participate.

Early v. Packer 123 S. Ct. 362, 71 USLW 3312 (11-4-02)

Habeas corpus, alleged coercion of jury verdict: The Ninth Circuit erred in

granting habeas corpus relief to a petitioner who alleged that the state trial judge

had coerced the jury’s verdict by instructing the jury, deadlocked 11 to 1, to

deliberate further and attempt to reach a unanimous verdict. The California

appellate court’s decision upholding the conviction was not “contrary to clearly

established federal law” within the meaning of 28 U.S.C. § 2254(d). There is

no need to cite the established federal law, as long as the result or reasoning

does not contradict that law. The California court did not fail to apply the

“totality of the circumstances” test by focusing on three particular incidents;

those incidents constituted “the essence” of the complaint about juror coercion,

and in any event the “fair import” of the court’s decision is that it considered the

cumulative impact of all the evidence. Also, Supreme Court decisions derived

from the Court’s supervisory power over the federal courts do not constitute

“clearly established federal law” to which state courts must conform.

9-0. Per curiam.

Eldred v. Ashcroft 123 S. Ct. 769, 71 USLW 4052 (1-15-03)

Copyright Term Extension Act, Copyright Clause: The Copyright Term

Extension Act (CTEA), which extends the copyright term from life of the author

plus 50 years to life plus 70 years, and applies the change to existing as well as

to future copyrights, is a valid exercise of Congress’s authority under the

Copyright Clause. The Clause, which empowers Congress to grant copyrights

“for limited times,” authorizes Congress to extend the terms of existing

copyrights. The word “limited” does not mean that a copyright term, once set,

becomes inalterable. There is “an unbroken congressional practice” of applying

copyright term extensions to existing copyrights, and the same practice has been

applied to patents. Application of the CTEA’s extension to existing copyrights

is a “rational” exercise of power. On the issue of rationality, the Court “defer[s]

substantially to Congress.” The extension conforms copyright practice to that

of the European Union, consistent with the Berne Convention, and ensures that

American authors will receive the same copyright protection in Europe as their

European counterparts. Congress also rationally relied on predictions that

longer terms would encourage copyright holders to invest in restoration and

public distribution of works. The Court rejects the argument that permitting

Congress to extend existing copyrights recognizes a power to create “perpetual”

copyrights in violation of the “limited times” constraint. “Petitioners fail to

show how the CTEA crosses a constitutionally significant threshold.” Also

rejected is the argument that there must be a quid pro quo. Authors need not

submit a new writing in exchange for an extension; the original bargain entails

“a copyright not only for the time in place . . . , but also for any renewal or

extension legislated during that time.” The “congruence and proportionality”

standard recently used to limit congressional power under § 5 of the Fourteenth

Amendment is inapplicable to the Copyright Clause. The CTEA does not

violate the First Amendment. The Copyright Clause and the First Amendment

were enacted close in time, and “copyright’s limited monopolies are compatible

with free speech principles.” In addition, copyright law has “built-in free speech

safeguards.”

7-2. Opinion of Court by Ginsburg, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, and Thomas. Dissenting opinions by Stevens and by Breyer.

Entergy Louisiana, Inc. v. Louisiana PSC 123 S. Ct. 2050, 71 USLW 4420 (6-2-03)

FERC regulation, “filed rate” preemption doctrine: Under the “filed rate”

doctrine, wholesale electricity rates filed with FERC or fixed by FERC must be

given binding effect by state public utility commissions setting intrastate retail

rates. A FERC tariff that does not set rates, but that delegates discretion to a

public utility holding company to allocate capacity and costs among its

operating companies, can also have preemptive effect under the filed rate

doctrine. The Louisiana Public Service Commission’s order disallowing costs

related to electricity sharing under Entergy’s system agreement, and having the

effect of “trapping” costs so that Entergy Louisiana could not recoup them

through retail sales, is therefore preempted. The fact that FERC had not

specifically approved the cost allocation for the period covered by the Louisiana

PSC’s order does not matter; the only issue is “whether the FERC tariff dictates

how and by whom that [allocation] should be made.”

9-0. Opinion for unanimous Court by Thomas.

Ewing v. California 123 S. Ct. 1179, 71 USLW 4167 (3-5-03)

Cruel and unusual punishment; “three-strikes” law: California’s “Three

Strikes and You’re Out” law is not unconstitutional as applied in sentencing a

repeat felon to imprisonment of 25 years to life for stealing three golf clubs

valued at $399 apiece. The three strikes law applies when a person is convicted

of a felony (here “felony grand theft”) and has previously been convicted of one

or more prior felonies defined as “serious” or “violent.” There was no opinion

of the Court. Three Justices determined that the circumstances did not warrant

application of the “narrow proportionality principle” applicable to non-capital

cases and derived from the Eighth Amendment’s Cruel and Unusual

Punishments Clause, the sentence being “justified by the State’s public safety

interest in incapacitating and deterring recidivist felons, and amply supported

by [the petitioner’s] long, serious criminal record.” One Justice asserted that the

proportionality principle cannot be intelligently applied when the penological

goal is incapacitation rather than retribution, and one Justice argued that the

Cruel and Unusual Punishments Clause “contains no proportionality principle.”

5-4. Opinion announcing the Court’s judgment by O’Connor, joined by

Rehnquist and Kennedy. Concurring opinions by Scalia and by Thomas.

Dissenting opinions by Stevens, joined by Souter, Ginsburg, and Breyer; and by

Breyer, joined by Stevens, Souter, and Ginsburg.

FCC v. NextWave Personal Communications, Inc. 123 S. Ct. 832, 71 USLW 4085

(1-27-03)

Bankruptcy, revocation of FCC license: Section 525 of the Bankruptcy Code

prohibits the FCC from revoking communications licenses held by a debtor in

bankruptcy upon the debtor’s failure to make timely payments for purchase of

the licenses. Section 525 provides that a government agency “may not . . .

revoke” a license held by a debtor “solely because” the debtor has not paid a

debt that is dischargeable in bankruptcy. NextWave’s failure to make payments

on the licenses was the “proximate cause” of cancellation, and it is “irrelevant”

that the FCC had a regulatory motive. When Congress has intended to provide

regulatory exceptions to bankruptcy law requirements, “it has done so clearly

and expressly.” The license obligations are “debts that [are] dischargeable” in

bankruptcy. “Debt” is defined broadly in terms of any “right to payment,” and

consequently “a debt is a debt, even when the obligation to pay it is also a

regulatory condition.” Dischargeability is not tied to authority to modify

regulatory obligations. A preconfirmation debt is dischargeable unless it falls

within an express exception to discharge, and no such exception applies. The

Court’s interpretation of section 525 does not create any conflict with the

Communications Act; the FCC’s “policy preference” for selling licenses on

credit and then cancelling the licenses rather than asserting security interests is

not mandated by the Communications Act. The dissent’s argument that section

525 should be interpreted more narrowly, in conformity with asserted

congressional “purposes,” is rejected.

8-1. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

Souter, Thomas, and Ginsburg. Concurring opinion by Stevens. Dissenting

opinion by Breyer.

FEC v. Beaumont 123 S. Ct. 2200, 71 USLW 4451 (6-16-03)

First Amendment, campaign finance, corporate contributions: The ban on

direct corporate contributions to candidates for federal office imposed by 2

U.S.C. § 1441b may validly be applied to nonprofit advocacy corporations. The

law allows corporations to establish political action committees (“separate

segregated fund[s] to be utilized for political purposes”) that may make

contributions as well as other expenditures in connection with federal elections.

The Court has distinguished between corporate contributions and “independent

expenditures” by corporations, upholding a prohibition on contributions in FEC

v. National Right to Work Committee (1982), and striking down a ban on

independent expenditures as applied to a nonprofit advocacy corporation in FEC

v. Massachusetts Citizens for Life (1986). The corporations involved in the two

cases were similar, and Massachusetts Citizens for Life distinguished National

Right to Work on the basis of “its addressing regulation of contributions, not

expenditures.” “Concern about the corrupting potential underlying the

corporate ban may indeed be implicated by advocacy corporations” even though

they are “generally different from traditional business corporations.” Advocacy

corporations, as do for-profit corporations, benefit from “state-created

advantages,” and are “no less susceptible to misuse . . . as conduits for

circumventing contribution limits imposed on individuals.” Restrictions on

contributions have not been subjected to the same level of First Amendment

scrutiny as independent expenditures because “contributions lie closer to the

edges than to the core of political expression.” Section 1441b is not correctly

characterized as a complete ban on contributions, since corporations are allowed

to establish and pay the administrative expenses of PACs.

7-2. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,

Ginsburg, and Breyer. Concurring opinion by Kennedy. Dissenting opinion by

Thomas, joined by Scalia.

Fitzgerald v. Racing Ass’n of Central Iowa 123 S. Ct. 2156, 71 USLW 4438 (6-9-03)

State taxation, equal protection: Iowa’s differential taxation of revenues from

slot machines – a maximum rate of 20% if the slot machines are on excursion

riverboats and a maximum rate of 36% if the slot machines are at a racetrack –

does not violate the Equal Protection Clause of the Fourteenth Amendment.

The classification is subject to rational basis review. There must be a plausible

policy reason for the classification, there must be justifying facts that the

legislature rationally may have considered true, and the relationship of the

classification to its goal must not be so attenuated as to render the distinction

arbitrary or irrational. The Iowa Supreme Court erred in invalidating the law as

frustrating what it viewed as the law’s basic objective of rescuing racetracks

from economic distress. The Iowa law can rationally be understood to advance

racetracks’ economic interests by granting tracks the authority to operate slot

machines. More fundamentally, legislatures may, within the bounds of

rationality, “decide whom they wish to help with their tax laws and how much

help those laws ought to provide.” Also, a law can serve more purposes than

one and balance different objectives. What is harmful to the racetracks may be

helpful to the riverboats, and the legislature may have wanted to encourage

economic development of river communities or to protect reliance interests of

riverboat operators whose revenues had previously been taxed at the 20% rate.

The Allegheny Pittsburgh Coal Co. case (1989) is distinguishable. There the

Court struck down property tax assessments in the “absence of any indication

. . . that policies underlying [the law] could conceivably have been the purpose

for the . . . unequal assessment”; here the facts do not preclude an inference that

the reason for the different rates was to aid the riverboat industry or riverside

communities.

9-0. Opinion for unanimous Court by Breyer.

Franchise Tax Bd. of California v. Hyatt 123 S. Ct. 1683, 71 USLW 4307 (4-23-03)

Full Faith and Credit, sovereign immunity: The Full Faith and Credit Clause

does not require Nevada to give full faith and credit to California’s statute

immunizing its tax collection agency from suit. The Clause does not compel a

state to substitute the statutes of other states for its own statutes dealing with a

subject matter concerning which it is competent to legislate. The Court

abandoned the balancing-of-interests approach to conflicts of law in 1981,

concluding that it is frequently the case that a court can lawfully apply either the

law of one state or the contrary law of another. In this case, involving the

California agency’s alleged intentional torts against someone alleging to be a

citizen of Nevada, Nevada has “significant contacts” and sufficient interests to

avoid the conclusion that choice of its own law is arbitrary or unfair. The tax

board’s request for a new rule recognizing “core sovereignty” interests reflected

in sovereign immunity statutes is rejected. “The question of which sovereign

interest should be deemed more weighty is not one that can be easily answered.”

In this case there is neither a “principled distinction” nor a “constitutionally

significant distinction” between competing state interests at issue in an earlier

case (California’s interest in automobile accidents on its roads and Nevada’s

interest in tort claims against its university employee) and those at issue in the

present case (Nevada’s interest in protecting its citizens against intentional torts,

California’s interest in collecting taxes). Here the Nevada Supreme Court

“sensitively applied principles of comity with a healthy regard for California’s

sovereign status.”

9-0. Opinion for unanimous Court by O’Connor.

Georgia v. Ashcroft 123 S. Ct. 2498, 71 USLW 4545 (6-26-03)

Voting Rights Act, state legislative redistricting: The federal district court

failed to consider all of the relevant factors when it determined that Georgia’s

redistricting for its State Senate violated section 5 of the Voting Rights Act, and

therefore was not entitled to preclearance. Section 5 seeks to insure that states

do not adopt changes in voting procedures that “lead to a retrogression in the

position of racial minorities with respect to their effective exercise of the

electoral franchise.” “Effective exercise of the electoral franchise” includes the

ability of minority voters to elect a candidate of their choice, and can be

achieved through creation of “safe” districts in which minority voters constitute

well over 50% of eligible voters. Effective exercise of the franchise can also be

achieved, however, by increasing the concentration of minority voters in other

districts in which they have a reasonable chance (but not a near certainty) of

electing candidates of their choice or influencing the outcome of elections.

Georgia’s Senate redistricting plan “unpacked” several safe districts, reducing

minority strength in each to just over 50%, but at the same time increased

minority voting strength in other districts in order to increase the number of

“influence” and “coalitional” districts. The district court “did not engage in the

correct retrogression analysis because it focused too heavily on the ability of the

minority group to elect a candidate of its choice in the [safe] districts,” and

neglected to credit the state’s creation of additional influence and coalitional

districts. The district court did not abuse its discretion in allowing private

litigants to intervene in the action.

5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and

Thomas. Concurring opinions by Kennedy and by Thomas. Dissenting opinion

by Souter, joined by Stevens, Ginsburg, and Breyer.

Gratz v. Bollinger 123 S. Ct. 2411, 71 USLW 4480 (6-23-03)

Equal protection, racial discrimination, college admissions: The University

of Michigan’s policy governing admission of undergraduates relies

impermissibly on the race of applicants, and violates the Equal Protection

Clause of the Fourteenth Amendment. All racial classifications reviewed under

the Clause must be strictly scrutinized without regard to the race of those

burdened or benefitted. The University’s policy, which automatically gives 20

points, or one-fifth of the total points needed to guarantee admission, to every

applicant who is a member of an “underrepresented minority” defined by race

(African-Americans, Hispanics, and Native Americans), is not narrowly tailored

to achieve the asserted interest in educational diversity. Michigan’s program

does not meet the conditions proposed by Justice Powell in his 1978 opinion in

Regents v. Bakke, allowing a public university to take race into account in its

admissions policies in the context of “flexible” consideration of “all pertinent

elements of diversity in light of the particular qualifications of each applicant.”

Rather than providing for individualized consideration of each applicant, the

policy “has the effect of making ‘the factor of race . . . decisive’ for virtually

every minimally qualified underrepresented minority applicant.” The possibility

that a student’s application might be “flagged” for individualized consideration

does not save the policy, since this flagging can operate only after allocation of

the automatic points. The fact that there are practical difficulties in applying

individualized consideration at so large a university “does not render

constitutional an otherwise problematic system.” A petitioner who was denied

admission as a freshman and who expressed an interest in transferring if

Michigan eliminated its reliance on race had standing to maintain the action,

and was an adequate representative in a class action.

6-3. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and

Thomas. Concurring opinions by O’Connor, joined in part by Breyer; by

Thomas; and by Breyer. Dissenting opinions by Stevens, joined by Souter; by

Souter, joined in part by Ginsburg; and by Ginsburg, joined by Souter, and joined

in part by Breyer.

Green Tree Financial Corp. v. Bazzle 123 S. Ct. 2402, 71 USLW 4538 (6-23-03)

Arbitration: The issue of whether an arbitration clause in a contract between

a commercial lender and its customers forbids class arbitration is a matter for

the arbitrator to decide. Because there is a “strong likelihood” in these cases

that the arbitrator’s decision “reflected a court’s interpretation of the contracts

rather than an arbitrator’s interpretation,” the case is remanded for further

proceedings. The cases do not fall within narrow exceptions relating to whether

the parties agreed to arbitrate a matter, but relate instead to “what kind of

arbitration proceeding the parties agreed to.” The issue is one of contract

interpretation and arbitration procedures that arbitrators “are well situated to

answer.”

5-4. No opinion of Court. Opinion announcing the Court’s judgment by Breyer,

joined by Scalia, Souter, and Ginsburg. Concurring opinion by Stevens.

Dissenting opinions by Rehnquist, joined by O’Connor and Kennedy; and by

Thomas.

Grutter v. Bollinger 123 S. Ct. 2325, 71 USLW 4498 (6-23-03)

Equal protection, racial discrimination, law school admissions: The

University of Michigan Law School’s reliance on race as a factor governing

admission of students does not violate the Equal Protection Clause of the

Fourteenth Amendment. The law school seeks to enroll a “critical mass” of

underrepresented minority students in order to produce classes “both diverse

and academically outstanding.” “Student body diversity is a compelling state

interest that can justify the use of race in university admissions.” Strict scrutiny

is not always “strict in theory, but fatal in fact.” Some governmental uses of

race can withstand strict scrutiny. The law school’s “educational judgment that

such diversity is essential to its educational mission,” supported by amici

pointing to similar needs of the business and military communities, “is one to

which we defer.” Educational benefits of diversity include “cross-racial

understanding” and “livelier” and “more enlightening” classroom discussion.

Dispelling the stereotype that there is a single “minority viewpoint” on any issue

can be achieved by a “critical mass” of minority students, but not by “token

representation.” The law school’s admissions program is “narrowly tailored”

to achieve the compelling interest of diversity. The program does not establish

a “quota,” but is “a highly individualized, holistic review of each applicant’s

file, giving serious consideration to all the ways an applicant might contribute

to a diverse educational environment.” “Some attention to numbers, without

more, does not transform a flexible admissions system into a rigid quota.” The

number of minority students enrolled between 1993 and 2000 showed variation

(from 13.5 to 20.1 percent) in “a range inconsistent with a quota.” The law

school adequately considered and rejected race-neutral alternatives to its

approach.

5-4. Opinion of Court by O’Connor, joined by Stevens, Souter, Ginsburg, and

Breyer, and joined in part by Scalia and Thomas. Concurring opinion by

Ginsburg, joined by Breyer. Concurring and dissenting opinions by Scalia,

joined by Thomas; and by Thomas, joined in part by Scalia. Dissenting opinions

by Rehnquist, joined by Scalia, Kennedy, and Thomas; and by Kennedy.

Hillside Dairy, Inc. v. Lyons 123 S. Ct. 2142, 71 USLW 4425 (6-9-03)

Commerce, state regulation; Privileges and Immunities Clause: Section 144

of the Federal Agriculture Improvement and Reform Act of 1996, disclaiming

preemption of any California law regulating “the percentage of milk solids or

solids not fat in fluid milk” does not operate to exempt California’s milk pricing

laws from scrutiny under the Commerce Clause. Although Congress may

authorize states to regulate interstate commerce in ways that, absent

authorization, would be held to be invalid as burdening or discriminating

against interstate commerce, Congress must express its intent to do so

unambiguously. The federal statute at issue unambiguously expresses an intent

to authorize California’s “compositional and labeling laws” for milk, but “that

expression does not encompass the pricing and pooling laws.” A claim

challenging California’s pricing and pooling laws as violative of the Privileges

and Immunities Clause of Art. IV, § 2, should not have been dismissed simply

because the laws do not on their face discriminate on the basis of residency or

citizenship. “Absence of an express statement . . . identifying out-of-state

citizenship as a basis for disparate treatment is not a sufficient basis for rejecting

this claim.”

8-1 (commerce); 9-0 (privileges and immunities). Opinion of Court by Stevens,

unanimous in part, and joined in separate part by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, Ginsburg, and Breyer. Concurring and dissenting opinion by

Thomas.

Howsam v. Dean Witter Reynolds, Inc. 123 S. Ct. 588, 71 USLW 4019 (12-10-02)

Arbitration: An arbitrator rather than a court should apply an arbitration rule

of the National Association of Securities Dealers (NASD) that is applicable to

a dispute arising out of a contract between the parties, and that governs the time

limit for submitting issues to arbitration. Because arbitration is a matter of

contract and a party cannot be required to submit to arbitration without agreeing

to do so, the general rule is that a question of arbitrability is for judicial

determination unless the parties clearly and unmistakably provide otherwise.

The NASD time limit rule, however, is a “gateway” procedural matter that

parties would likely expect the arbitrator to decide, and that, therefore, is

“presumptively for the arbitrator, not for the judge.” This conclusion is

consistent with a comment to the Revised Uniform Arbitration Act: “in the

absence of an agreement to the contrary, issues of substantive arbitrability . . .

are for a court to decide and issues of procedural arbitrability, i.e., whether

prerequisites such as time limits . . . have been met, are for the arbitrators to

decide.”

8-0. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Scalia, Kennedy,

Souter, and Ginsburg. Concurring opinion by Thomas. O’Connor did not

participate.

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc. 123 S. Ct. 1829, 71 USLW

4341 (5-5-03)

First Amendment, charitable solicitations, fraud: The First Amendment

does not prohibit a state from bringing a fraud action against fundraisers who

make false or misleading representations intended to deceive potential donors

about how their donations will be used. Earlier decisions of the Court

invalidated state laws that prohibited fundraisers from keeping more than a

specified percentage of money collected, or that required fundraisers to disclose

to potential donors the percentage of their contributions that would actually be

turner over to charity. These decisions were premised on the belief that neither

high fundraising costs nor failure to disclose the fundraiser’s fee establishes

fraud, the Court explaining that states could still “vigorously enforce” antifraud

laws to protect the public from false or misleading charitable solicitations. “So

long as the emphasis is on what the fundraisers misleadingly convey, and not

on percentage limitations on solicitors’ fees per se, such actions need not

impermissibly chill protected speech.” The state bears the burden of proof in

a “properly tailored” fraud action; the Illinois law requires the state to prove by

“clear and convincing evidence” that the defendant knowingly made a false

representation of a material fact with the intent to mislead, and succeeded in

doing so. In this case the pleading described misrepresentations that are

unprotected by the First Amendment. Fundraisers allegedly asserted that “a

significant amount” of each dollar donated would be paid over to the charity,

when in fact “the amount of funds being paid over to charity (15 cents or less

on the dollar) was merely incidental to the fund raising effort,” and also

allegedly asserted falsely that “substantial portions” of funds collected would

be used to support a message center for Persian Gulf troops.

9-0. Opinion for unanimous Court by Ginsburg. Concurring opinion by Scalia,

joined by Thomas.

INS v. Ventura 123 S. Ct. 353, 71 USLW 3314 (11-4-02)

Immigration, review of BIA decision: The Ninth Circuit erred in deciding an

immigration case on the merits rather than remanding to the Board of

Immigration Appeals to resolve an issue it had not addressed – the issue of

whether circumstances in Guatemala had changed so much following the end

of a civil war that the respondent would not face persecution on account of

political opinions if he were denied asylum and forced to return to Guatemala.

Generally, a court should remand to an agency for initial decision on a matter

that the statute places primarily in agency hands. By relying on an ambiguous

five-year-old State Department report to reach its conclusion that the threat of

political persecution remained, the court disregarded the agency’s legally

mandated role and “created potentially far-reaching legal precedent . . . without

giving the BIA the opportunity to address the matter in the first instance.”

9-0. Per curiam.

Inyo County v. Paiute-Shoshone Indians 123 S. Ct. 1887, 71 USLW 4370 (5-19-03)

Section 1983, “person,” sovereign immunity: An Indian Tribe does not

qualify as a “person” who may sue under 42 U.S.C. § 1983 to vindicate an

interest in immunity from compliance with a criminal search warrant. Section

1983 uses the word “person” in two contexts, to describe claimants who may

sue and to describe potential defendants who, “under color of state law,” deprive

someone of federal rights. The Court has held that Congress did not intend to

override state sovereign immunity, and that therefore a state is not a “person”

subject to suit under section 1983. Even if similar protection is accorded to

Indian tribes, however, this would not mean that tribes cannot be claimant

“persons” for purposes of section 1983. The general presumption that identical

words in the same act are intended to have identical meanings “is not rigid,” and

“the meaning may vary to meet the purposes of the law.” Sovereigns have been

recognized as “persons” in other contexts, but the purposes of section 1983

would not be served by such recognition under the circumstances of this case.

Section 1983 “was designed to secure private rights against government

encroachment, . . . not to advance a sovereign’s prerogative to withhold

evidence relevant to a criminal investigation.”

9-0. Opinion of Court by Ginsburg, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, Thomas, and Breyer. Concurring opinion by Stevens.

Jinks v. Richland County 123 S. Ct. 1667, 71 USLW 4310 (4-22-03)

Necessary and Proper Clause, supplemental jurisdiction: 28 U.S.C. §

1367(d), which provides for the tolling of a state statute of limitations while a

state cause of action that is supplemental to a federal claim is pending in federal

court, and for 30 days thereafter, is constitutional. Although the Constitution

does not expressly grant Congress the power to toll limitations periods for statelaw claims brought in a state court, the power conferred by Art. I, § 8, cl. 18 to

make all laws “necessary and proper for carrying into execution” powers vested

in the federal government supports section 1367(d). That provision is necessary

and proper to effectuate Congress’s power to “constitute tribunals inferior to the

Supreme Court,” and to enable the fair and efficient exercise of “the judicial

power of the United States.” A law need not be “absolutely necessary” to the

exercise of an enumerated power to be “necessary and proper.” “Rather, it

suffices that § 1367(d) is ‘conducive to the due administration of justice’ in

federal court and is ‘plainly adapted’ to that end.” The provision is conducive

to the administration of justice because it provides an alternative to the

unsatisfactory options that federal judges would otherwise face in determining

whether the retain jurisdiction over supplemental claims that might become

time-barred in state court, and because it eliminates a serious impediment to

access to federal courts by plaintiffs pursuing federal and state claims that

derive from a common nucleus of operative fact. Principles of state sovereignty

do not prevent § 1367(d) from being a “proper” exercise of power; the provision

does not fall into the category of state “procedure” that is immune from

congressional regulation. If there is a valid “substance/procedure dichotomy,”

the tolling of a limitations period falls on the substance side of the line. Section

1367(d) validly applies to claims brought against a state’s political subdivisions;

a clear statement rule for such cases would be inconsistent with Monell v. New

York City Department of Social Services (1978), holding that municipalities are

subject to suit as “persons” under 42 U.S.C. § 1983.

9-0. Opinion for unanimous Court by Scalia. Concurring opinion by Souter.

Kaupp v. Texas 123 S. Ct. 1843, 71 USLW 3696 (5-5-03)

Fourth Amendment, arrest, confession: The petitioner, a 17-year old, was

arrested and seized within the meaning of the Fourth Amendment when police

officers, who had been denied a warrant to take the petitioner into custody for

questioning, awoke him in his bedroom at 3 a.m. by shining a flashlight in his

eyes, told him “we need to go and talk,” handcuffed him, took him to the patrol

car in his underwear, transported him to the scene of a crime, and then took him

to the station house and questioned him. The petitioner’s “O.K.” in response

to “we need to go and talk” was “no showing of consent under the

circumstances,” but was merely a “submission to a claim of lawful authority.”

Because the petitioner was unlawfully arrested before he was questioned, his

confession during that questioning must be suppressed unless the confession

was “an act of free will sufficient to remove the primary taint of the unlawful

invasion.” A Miranda warning alone is insufficient to break the taint.

9-0. Per curiam.

Kentucky Ass’n of Health Plans, Inc. v. Miller 123 S. Ct. 1471, 71 USLW 4259 (4-203)

ERISA, preemption, state laws regulating insurance: Kentucky’s “any

willing provider” (AWP) statutes, which prohibit health insurers from

discriminating against any provider willing to meet the insurer’s terms and

conditions for participation, are “law[s] . . . which regulate insurance” within

the meaning of ERISA. This means that the AWP statutes are thereby saved

from ERISA’s broad preemption of all state laws that “relate to any employee

health benefit plan.” Generally, laws specifically directed toward the insurance

practices of insurance companies are held to be laws “which regulate

insurance.” The fact that the AWP statutes’ regulation of insurance companies

also affects providers does not take the statutes outside the scope of the savings

clause. State laws need not control the terms of insurance policies in order to

qualify for the exception, but must substantially affect the risk pooling

arrangement between the insurer and insured. AWP laws do so by altering the

scope of permissible bargains between insurers and insureds; the effect is that

insurers can no longer offer lower premiums in exchange for acceptance of a

closed network of providers. Reliance on cases interpreting the McCarranFerguson Act, which regulates “the business of insurance,” is misplaced. The

two statutes use substantially different language, and the McCarran-Ferguson

Act tests were developed in cases that addressed conduct by private actors rather

than state laws.

9-0. Opinion for unanimous Court by Scalia.

Lawrence v. Texas 123 S. Ct. 2472, 71 USLW 4574 (6-26-03)

Due Process, privacy, sodomy: A Texas statute making it a crime for two

people of the same sex to engage in sodomy violates the Due Process Clause of

the Fourteenth Amendment. The right to liberty protected by the Due Process

Clause includes the right of two adults, “with full and mutual consent from each

other, [to] engag[e] in sexual practices common to a homosexual lifestyle.”

Bowers v. Hardwick (1986), upholding application of a Georgia sodomy law on

the basis that there is no fundamental right of homosexuals to engage in

sodomy, is overruled. The Bowers Court “misapprehended the claim of

liberty.” The sodomy laws, although directed at a particular sexual act, have

“more far-reaching consequences, . . and seek to control a personal relationship

that, whether or not entitled to formal recognition in the law, is within the

liberty of persons to choose without being punished as criminals.” The

“historical premises” relied upon by the Bowers Court are questionable. “There

is no longstanding history in this country of laws directed at homosexual

conduct as a distinct matter.” General sodomy laws “do not seem to have been

enforced against consenting adults acting in private,” but rather for the most part

have been enforced in cases involving minors, assault victims, or animals. The

Bowers precedent has been undermined by later decisions of the Court, and its

reasoning has been rejected by state and foreign courts. The doctrine of stare

decisis is not controlling; “there has been no individual or societal reliance on

Bowers of the sort that could counsel against overturning its holding.”

6-3. Opinion of Court by Kennedy, joined by Stevens, Souter, Ginsburg, and

Breyer. Concurring opinion by O’Connor. Dissenting opinions by Scalia, joined

by Rehnquist and Thomas; and by Thomas.

Lockyer v. Andrade 123 S. Ct. 1166, 71 USLW 4161 (3-5-03)

Habeas corpus, “three-strikes” law: Imposition on a 37-year-old of two

consecutive 25-year-to-life sentences under California’s three strikes law on

conviction for two “petty thefts with a prior conviction” is not contrary to, and

does not involve an unreasonable application of, clearly established federal law

as determined by the Supreme Court. The standard for habeas corpus relief

from a state sentence established by the Antiterrorism and Effective Death

Penalty Act, 28 U.S.C. § 2254, is therefore not met. The Supreme Court’s

precedents in the area “have not been a model of clarity.” While a “gross

disproportionality” principle derived from the Eighth Amendment’s Cruel and

Unusual Punishments Clause is applicable to sentences for terms of years, the

precise contours of the principle are unclear. The California Court of Appeal’s

decision was not “contrary to” clearly established law. It was permissible for

that court to rely on Rummel v. Estelle (1980), in which the Court rejected a

challenge, based on gross disproportionality, to a sentence of life imprisonment

with possibility of parole after 10 to 12 years. The facts in this case fell “in

between” those of Rummel and those of Solem v. Helm (1983), in which the

Court granted relief from a sentence of life imprisonment without possibility of

parole. Nor are the consecutive sentences an “unreasonable application” of

clearly established precedent. To fail under this test the state court’s application

must be “objectively unreasonable.” “Here, however, the governing legal

principle gives legislatures broad discretion to fashion a sentence that fits within

the scope of the proportionality principle,” and the sentencing was not

objectively unreasonable.

5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and

Thomas. Dissenting opinion by Souter, joined by Stevens, Ginsburg, and Breyer.

Massaro v. United States 123 S. Ct. 1690, 71 USLW 4310 (4-23-03)

Habeas corpus, ineffective assistance of counsel: Ineffective assistance of

counsel claims that were not raised on direct appeal may be brought in habeas

corpus proceedings even if the petitioner could have raised the claim on direct

appeal. In this case the petitioner had been represented by new counsel on

appeal, and his trial counsel’s ineffectiveness was evident from the trial record.

The general rule that claims not raised on direct appeal may not be raised on

collateral review unless the petitioner shows cause and prejudice is inapplicable

to claims of ineffective counsel. Requiring such claims to be brought on direct

appeal does not promote the interests that are served by the procedural default

rule – conserving judicial resources and promoting finality of judgments. The

trial record is not developed for the purpose of litigating a claim of ineffective

assistance of counsel, and may be incomplete for that purpose. Appellate

counsel could feel compelled to raise the issue on direct appeal before it is fully

developed, might feel pressured to bring the claim regardless of merit in order

to prevent waiver and avoid a claim of ineffective appellate counsel, and might

be hampered in obtaining trial counsel’s assistance in the appeal. “Few” such

claims would be capable of resolution on direct appeal, and appellate courts

“would waste time and resources” attempting to resolve the various issues.

Allowing ineffective assistance claims to be litigated on collateral review means

that they can be litigated in the first instance in district courts, “the forum best

suited to developing the facts necessary to determining the adequacy of

representation.”

9-0. Opinion for unanimous Court by Kennedy.

Meyer v. Holley 123 S. Ct. 824, 71 USLW 4081 (1-22-03)

Fair Housing Act, racial discrimination, vicarious liability: The Fair

Housing Act imposes vicarious liability on a corporation, but not upon

corporate officers or owners, for the racially discriminatory acts of corporate

employees. The Act prohibits racial discrimination in real estate transactions,

but is silent about vicarious liability. The established rule is that when Congress

creates a tort action, as it did in the Fair Housing Act, it incorporates the

ordinary tort rules of vicarious liability unless it specifies a different intent.

Congress has done so in several contexts, e.g., the antitrust and food and drug

laws, but said nothing in the Fair Housing Act or its legislative history about

extending vicarious liability beyond traditional principles. Traditional vicarious

liability rules make employers liable for acts of their agents or employees in the

scope of their employment, but treat the corporation – not its owner or officer

– as the employer. A corporate officer’s right to control an employee’s actions

is insufficient by itself to establish the employer/employee relationship.

Moreover, the Court defers to an administering agency’s reasonable

interpretations of a statute, and views a HUD regulation governing

administrative complaints as adopting the traditional vicarious liability rules.

The Act does not create a non-delegable duty that trumps traditional vicarious

liability principles. Characterizing the Act’s objective as an “overriding societal

priority” does not change the liability rules.

9-0. Opinion for unanimous Court by Breyer.

Miller-El v. Cockrell 123 S. Ct. 1029, 71 USLW 4095 (2-25-03)

Habeas corpus, certificate of appealability: A habeas corpus petitioner

seeking permission in the form of a certificate of appealability (COA) to initiate

appellate review of dismissal of his petition need only make “a substantial

showing of the denial of a constitutional right.” A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district

court’s rejection of his claims or could conclude that the issues are worthy of

further consideration. In this case the appeals court erred in denying a COA.

The petitioner made a “substantial showing” of racial discrimination in jury

selection at his state court trial, as measured by a “threshold” application of the

three-part test set forth in Batson v. Kentucky (1986). Statistical evidence alone

raised “some debate” as to race-based motives: the prosecutors used peremptory

challenges to exclude 10 of the 11 eligible African-American jurors, and

excluded only 4 of the 31 other prospective jurors. The manner in which

potential jurors were questioned varied by race, prosecutors used a “jury

shuffling” practice to reduce the number of African Americans likely to be

questioned during voir dire, and there was a history in the county of a formal

policy of excluding minorities from jury service. Although the prosecutors

proffered race-neutral explanations for their actions, “a fair interpretation of the

record . . . is that the prosecutors designed their questions to elicit responses that

would justify the removal of African-Americans from the venire.” Also, the

state courts made no mention of the jury shuffling or the history of purposeful

discrimination. Whether or not the petitioner can prevail on the merits by “clear

and convincing evidence,” the issue is at least “debatable,” and that is all that

is necessary for a COA.

8-1. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,

Scalia, Souter, Ginsburg, and Breyer. Concurring opinion by Scalia. Dissenting

opinion by Thomas.

Moseley v. V Secret Catalogue, Inc. 123 S. Ct. 1115, 71 USLW 4126 (3-4-03)

Federal Trademark Dilution Act: Trademark dilution, prohibited by the

Federal Trademark Dilution Act (FTDA), requires objective proof of actual

injury to the capacity of a famous mark to identify and distinguish a product,

and is not satisfied by a mere presumption of harm embodied in a “likelihood

of dilution” standard. The FTDA provides relief against the use of a famous

mark if that use “causes dilution of the distinctive quality” of the mark. This

language “unambiguously requires a showing of actual dilution, rather than a

likelihood of dilution.” Language in the definition of the term “dilution” reveals

contrasting usage that “fortifie[s]” this conclusion. Dilution is defined as “the

lessening of the capacity” of a famous mark to identify and distinguish a

product, regardless of the presence or absence of “likelihood of confusion.”

Mental association of a junior user’s mark with a famous mark is not sufficient

to establish dilution. Neither blurring nor tarnishing is a necessary consequence

of mental association. In this case, there was “a complete absence of any

evidence” that use of the name “Victor’s Little Secret” by a retail store caused

“any lessening of the capacity of the VICTORIA’S SECRET mark to identify

and distinguish goods or services sold in Victoria’s Secret stores or advertised

in its catalogs.”

9-0. Opinion of Court by Stevens, unanimous in part, and joined in separate part

by Rehnquist, O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer.

Concurring opinion by Kennedy.

National Park Hospitality Ass’n v. Department of the Interior 123 S. Ct. 2026, 71

USLW 4399 (5-27-03)

Administrative law, ripeness: The facial challenge to a National Park Service

regulation providing that the Contract Disputes Act (CDA) does not apply to

contracts between the National Park Service and concessioners in the national

parks is not ripe for adjudication. Ripeness of administrative action for judicial

review is evaluated through two inquiries: whether the issues are fit for judicial

decision and whether withholding review would create hardship for the parties.

As a general matter, a regulation is not ripe for review until its application

harms or threatens to harm a party. The National Park Service has no delegated

rulemaking authority under the CDA, and the challenged portion of its

regulation is “nothing more than a general statement of policy” informing the

public of NPS views on applicability of the CDA. The regulation, therefore, has

no effects of a strictly legal kind, and does not adversely affect a concessioner’s

“primary” conduct. The fact that concessioners may wish to take CDA

applicability into account when bidding on contracts merely reflects possible

uncertainty not amounting to hardship. Although the issue raised is “a purely

legal one” that is “final” for purposes of the Administrative Procedure Act,

further factual development would enhance a court’s ability to deal with those

issues, and consequently judicial resolution “should await a concrete dispute

about a particular concession contract.”

7-2. Opinion of Court by Thomas, joined by Rehnquist, Scalia, Kennedy, Souter,

and Ginsburg. Concurring opinion by Stevens. Dissenting opinion by Breyer,

joined by O’Connor.

Nevada Dep’t of Human Resources v. Hibbs 123 S. Ct. 1972, 71 USLW 4375 (5-2703)

Family and Medical Leave Act, state immunity: The Family and Medical

Leave Act of 1993 (FMLA) is a valid exercise of congressional power under

section 5 of the Fourteenth Amendment. The FMLA entitles eligible

employees, including employees of state governments, to take up to 12 weeks

annually of unpaid leave to care for a family member with a serious health

condition, and authorizes suits for injunctive relief and money damages “against

any employer (including a public agency)” that interferes with exercise of

FMLA rights. This authorization of recovery of money damages from state

employers is valid. Congress may, pursuant to a valid exercise of power under

section 5 of the Fourteenth Amendment, abrogate state immunity from suit in

federal court. Under section 5, Congress may enact “prophylactic legislation

that proscribes facially constitutional conduct, in order to prevent and deter

unconstitutional conduct.” The FMLA “aims to protect the right to be free from

gender-based discrimination in the workplace,” and Congress had evidence of

a pattern of gender-based discrimination by states that was “weighty enough to

justify the enactment of prophylactic §5 legislation.” The Kimel and Garrett

decisions are distinguished by the fact that age and disability discrimination are

not subjected to the heightened level of scrutiny that applies to gender

discrimination; heightened scrutiny of state action made it “easier for Congress

to show a pattern of state constitutional violations.” The FMLA’s remedy,

“creating an across-the-board, routine employment benefit for all eligible

employees” rather than simply prohibiting gender discrimination in the

provision of leave benefits, is “congruent and proportional” to the targeted

violation. This approach “attacks the formerly state-sanctioned stereotype that

only women are responsible for family caregiving,” and reduces employers’

incentive to discriminate in the hiring and promotion of women. The

limitations placed on leave availability (e.g., leave is unpaid, employees must

work for a year before qualifying) help to ensure that the means are

“proportionate” to ends that are legitimate under section 5.

6-3. Opinion of Court by Rehnquist, joined by O’Connor, Souter, Ginsburg, and

Breyer. Concurring opinions by Stevens; and by Souter, joined by Ginsburg and

Breyer. Dissenting opinions by Scalia; and by Kennedy, joined by Scalia and

Thomas.

Nguyen v. United States 123 S. Ct. 2130, 71 USLW 4428 (6-9-03)

Appeals courts, designation of district judges: Judges of the District Court

for the Northern Mariana Islands are not “district judges” who may sit by

designation on the U.S. Court of Appeals for the Ninth Circuit. As used in the

applicable statute, 28 U.S.C. § 292(a), which authorizes a circuit’s chief judge

to assign “one or more district judges within the circuit” to sit on the appeals

court, the term “district judges” refers to judges of Article III courts, not to

judges of territorial “Article IV” courts. Several provisions of title 28, read

together, require this conclusion. The term “district court” as used in title 28 is

defined as a “court of the United States” that is constituted pursuant to chapter

five of the title. Chapter five lists all such courts, but the District Court for the

Northern Mariana Islands is not so listed. Moreover, although chapter five

provides that district judges hold office “during good behavior,” another

provision directs that district judges for the Marianas are appointed for a term

of years, and are removable by the President for cause. Case law precedent also

supports the conclusion that the term “United States district court,” as used in

title 28, “ordinarily excludes Article IV territorial courts.” Arguments that the

appellate panel’s judgment should remain undisturbed even though the panel

was improperly constituted are rejected. The “de facto officer doctrine” has

been applied when there were merely technical defects of statutory authority,

but should not apply to contravene Congress’s “weighty” decision to maintain

the Article III character of the appeals courts. Concern for the validity of the

appeals court’s composition also counsels against deciding the case on the basis

of an assessment of the fairness of the petitioners’ convictions. The presence

of a quorum of two qualified judges on the panel is also insufficient to

overcome the defect.

5-4. Opinion of Court by Stevens, joined by O’Connor, Kennedy, Souter, and

Thomas. Dissenting opinion by Rehnquist, joined by Scalia, Ginsburg, and

Breyer.

Norfolk & Western Ry. v. Ayers 123 S. Ct. 1210, 71 USLW 4197 (3-10-03)

Federal Employers’ Liability Act, damages for mental anguish: A railroad

worker suffering from asbestosis caused in part by on-the-job exposure to

asbestos may recover damages under the Federal Employers’ Liability Act

(FELA) for pain and suffering due to fear of developing cancer. Case law

precedents under the FELA have recognized two categories of emotional

distress claims: “stand-alone” claims not provoked by any physical injury, for

which recovery is sharply circumscribed; and claims brought on by a physical

injury, for which pain and suffering recovery is permitted. Asbestosis is a

cognizable injury under the FELA, and fear that cancer will develop is an

emotional disturbance that can be tied to the injury and that can give rise to

recovery. Although it is asbestos exposure rather than asbestosis itself that can

result in cancer, once there has been bodily harm in the form of asbestosis the

responsible parties traditionally can be held liable for emotional distress

“resulting from . . . the conduct which causes [the bodily harm].” “There is an

undisputed relationship between exposure to asbestos sufficient to cause

asbestosis, and asbestos-related cancer.” Claimants must, however, establish

that their alleged fears are “genuine and serious.” The FELA does not authorize

apportionment of damages between railroad and non-railroad causes. Rather,

the FELA provides that, if an injury has resulted “in whole or in part” from a

railroad’s negligence, that railroad is “liable in damages . . . for such injury.”

This means that the railroad is jointly and severally liable for full damages even

if the injuries were caused in part by negligence of third parties. Narrowing this

employer liability without textual warrant would “run counter to a century of

FELA jurisprudence,” and would complicate adjudications.

5-4 (recovery for fear of cancer) 9-0 (joint and several liability). Opinion of

Court by Ginsburg, unanimous in part, and joined in separate part by Stevens,

Scalia, Souter, and Thomas. Concurring and dissenting opinion by Kennedy,

joined by Rehnquist, O’Connor, and Breyer. Concurring and dissenting opinion

by Breyer.

Overton v. Bazzetta 123 S. Ct. 2162, 71 USLW 4445 (6-16-03)

Due process, restrictions on prison visitation: Prison visitation policies

implemented by the Michigan Department of Corrections in 1995 are not

invalid as depriving inmates of associational or due process rights, and do not

constitute cruel and unusual punishment. The right of association “is among the

rights least compatible with incarceration.” Each challenged policy “bears a

reasonable relationship to a legitimate penological interest.” Restrictions on

visitation by children bear a rational relation to the interest in maintaining

internal security and protecting children from exposure to sexual or other inmate

misconduct. Excluding unrelated children or children as to whom the inmate’s

parental rights have been terminated is a permissible means of reducing the

overall number of child visitors. Banning all visits for a two-year period, except

those by lawyers and clergy, for inmates who commit multiple substance abuse

violations is “a proper and even necessary management technique” not shown

to be unconstitutionally severe in application. Inmates have available the

alternative means of letters and telephone calls to exercise the rights they assert;

these alternatives “need not be ideal, [but] need only be available.” Prisoners

have not pointed to a regulatory alternative that accommodates their asserted

rights while imposing only de minimis cost to valid penological objectives; on

the contrary, accommodating the prisoners’ demands would require a

“significant reallocation” of prison resources and would impair the ability of

corrections officers to protect visitors and inmates. The restrictions for

substance-abuse violators do not constitute cruel and unusual punishment, but

a different case would be presented “if the withdrawal of all visitation privileges

were permanent or for a much longer period, or if it were applied in an arbitrary

manner to a particular inmate.”

9-0. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,

Souter, Ginsburg, and Breyer. Concurring opinions by Stevens, joined by Souter,

Ginsburg, and Breyer; and by Thomas, joined by Scalia.

Pacificare Health Systems, Inc. v. Book 123 S. Ct. 1531, 71 USLW 4280 (4-7-03)

Ripeness, arbitration: A federal district court should have granted a motion to

compel arbitration of claims arising under RICO, even though the parties’

arbitration agreements may be construed to limit the arbitrator’s authority to

award treble damages under RICO. The district court ruled that the respondents

could not obtain “meaningful relief” on their RICO claims in an arbitration

forum, but it was unclear how arbitrators might rule. The arbitration agreements

specified that arbitrators have no authority to award “punitive or exemplary”

damages. The Court has recognized, however, that RICO’s treble-damages

provision serves a “remedial function,” and it is “in doubt” whether arbitrators

would consider such damages to be punitive within the meaning of the

agreements.

8-0. Opinion of Court by Scalia, joined by all Justices except Thomas, who did

not participate.

Pharmaceutical Research and Mfrs. of America v. Walsh 123 S. Ct. 1855, 71 USLW

4354 (5-19-03)

Medicaid, burden on commerce, preemption: The Maine Rx Program, under

which the state negotiates rebates with drug manufacturers in order to provide

discounted prescription drugs to Maine citizens, does not impose an

unconstitutional burden on interstate commerce by requiring drug manufacturers

who do not enter into a rebate agreement to obtain prior authorization to qualify

a doctor’s prescription for Medicaid reimbursement. Cases invalidating price

affirmation laws that had the effect of regulating prices of sales in other states

are inapplicable because “the Maine Act does not regulate the price of any outof-state transaction.” Nor does the Maine law benefit in-state companies at the

expense of out-of-state companies. The petitioner did not carry its burden of

establishing a likelihood of success on the merits on its claim that the Maine

program is preempted by the Medicaid Act, and consequently the district court

should not have issued a preliminary injunction.

9-0 (burden on commerce); 6-3 (preemption). Opinion of Court by Stevens,

joined by Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, and Breyer.

Separate parts of Stevens opinion joined by Souter, Ginsburg, and Breyer; and

by Souter and Ginsburg. Concurring opinions by Breyer, by Scalia, and by

Thomas. Concurring and dissenting opinion by O’Connor, joined by Rehnquist

and Kennedy.

Pierce County v. Guillen 123 S. Ct. 720, 71 USLW 4035 (1-14-03)

Commerce power, highway hazards, evidentiary privilege: 23 U.S.C. § 409,

which provides that “data compiled or collected for the purpose of identifying,

evaluating, or planning the safety enhancement of potential [highway] accident

sites . . . shall not be subject to discovery or admitted into evidence in a Federal

or State court proceeding . . . in any action for damages” arising from an

accident at any such site, is a valid exercise of Congress’s authority to regulate

interstate commerce. The Court has jurisdiction under 28 U.S.C. § 1257 to

review as “final” the Supreme Court of Washington’s ruling requiring

disclosure of certain documents under the state’s public disclosure law. The

Court lacks jurisdiction, however, over a parallel tort action that is not yet

“final.” Section 409's privilege applies to data that federal law (23 U.S.C. §

152) requires states to collect and compile for a road hazard elimination

program. Section 409 is correctly interpreted as applying to information

compiled or collected for section 152 purposes, but not to information originally

compiled or collected for other purposes and held by another agency, even if it

has since been collected for section 152 purposes. Section 409 was adopted as

a response to the reluctance of states to comply fully with section 152 for fear

that the assembled data could make them easier targets of negligence actions.

“Congress could reasonably believe that adopting a measure eliminating an

unforeseen side effect of the information-gathering requirement . . . would result

in more diligent efforts to collect the relevant information, more candid

discussions of hazardous locations, better informed decision-making, and,

ultimately, greater safety on our Nation’s roads.” Section 409, therefore, “can

be viewed as legislation aimed at improving safety in the channels of commerce

and increasing protection for the instrumentalities of interstate commerce.”

9-0. Opinion for unanimous Court by Thomas.

Price v. Vincent 123 S. Ct. 1848, 71 USLW 4351 (5-19-03)

Habeas corpus, statutory limits: Federal courts erred in granting habeas

corpus relief to a state prisoner who alleged that his prosecution for first-degree

murder constituted double jeopardy because it came after the trial judge had

indicated that second-degree murder was the “appropriate charge.” Habeas

relief is barred by 28 U.S.C. § 2254(d) because the state court decisions

upholding the first-degree murder conviction were neither “contrary to” nor an

“unreasonable application of, clearly established Federal law, as determined by

the Supreme Court.” The Michigan Supreme Court’s decision was not

“contrary to” clearly established law, but instead followed precedent from the

U.S. Supreme Court. Moreover, the Michigan court’s conclusion that the trial

judge’s comments “simply were not sufficiently final as to terminate jeopardy”

was not an “unreasonable application” of precedent, but instead was consistent

with decisions of other courts requiring some formal indication of finality, such

as a signed order or a jury instruction. Even if such an interpretation is

incorrect, “it was at least reasonable for the state court to conclude otherwise.”

9-0. Opinion for unanimous Court by Rehnquist.

Roell v. Withrow 123 S. Ct. 1696, 71 USLW 4336 (4-29-03)

Magistrate judges, litigants’ consent to use: Consent to trial before a

magistrate judge may be implied from a party’s conduct in submitting to

litigation before the magistrate. The Federal Magistrate Act authorizes

magistrate judges to conduct civil trials if they are specially designated by a

district court and are acting “upon the consent of the parties.” Although the

procedures established by statute and rules envision consent in writing, the text

and structure of the section as a whole suggest that a party’s failure to comply

with the procedures does not deprive a magistrate of jurisdiction. Recognizing

implied consent when parties have submitted to litigation before a magistrate

judge without filing written consent is the better solution to meeting the dual

congressional objectives of relieving court congestion and thereby improving

access for civil litigants, while keeping resort to magistrate judges purely

voluntary. The “virtue” of insistence on express consent is “simply the value

of any bright line” – here assuring that use of a magistrate judge is voluntary.

But insistence on express consent would create the risk of “wasting” a “full and

complicated trial” before a magistrate judge, and of allowing “gamesmanship”

by parties who await the outcome of the trial before objecting to the magistrate

judge’s authority.

5-4. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Ginsburg, and

Breyer. Dissenting opinion by Thomas, joined by Stevens, Scalia, and Kennedy.

Sattazahn v. Pennsylvania 123 S. Ct. 732, 71 USLW 4027 (1-14-03)

Double Jeopardy, death eligibility on retrial: Pennsylvania was not barred

from seeking the death penalty at the defendant’s second trial. At his first trial,

the defendant had been sentenced to life imprisonment by operation of a statute

authorizing the judge to discharge a capital sentencing jury that is deadlocked,

and requiring the judge in such circumstances to impose a life sentence. The

mere imposition of a life sentence does not raise a double jeopardy bar. Rather,

jeopardy attaches only if there is an “acquittal at a trial-like sentencing phase.”

Normally, therefore, a retrial following a “hung” jury does not violate the

Double Jeopardy Clause. Here as well, the jury’s deadlock (9-to-3 in favor of

a life sentence) “cannot fairly be called an acquittal ‘based on findings sufficient

to establish legal entitlement to the life sentence.’” Nor can the court’s

mandated entry of the life sentence be considered an acquittal; the judge “makes

no findings and resolves no factual matter.” There is no merit to a separate due

process claim; the Due Process Clause does not provide “greater doublejeopardy protection than does the Double Jeopardy Clause.”

5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and

Thomas. Separate part of Scalia opinion joined by Rehnquist and Thomas.

Concurring opinion by O’Connor. Dissenting opinion by Ginsburg, joined by

Stevens, Souter, and Breyer.

Scheidler v. NOW 123 S. Ct. 1057, 71 USLW 4116 (2-26-03)

Hobbs Act, RICO, abortion protests: Abortion protesters did not commit

“extortion” within the meaning of the Hobbs Act by using violence and threats

to attempt to shut down abortion clinics, and consequently there were no

“predicate acts” of “racketeering” on which a RICO violation could be based.

The Hobbs Act defines extortion as “the obtaining of property from another,

with his consent, obtained by wrongful use of actual or threatened force,

violence, or fear, or under color of official right.” The allegations, however, are

not that the petitioners used violence, threats, or fear to obtain property, but that

they used such devices to cause the respondents to give up property rights

(rights to seek and to provide medical services). The Hobbs Act language is

consistent with common law interpretations, and is based on the Penal Code of

New York and the Field Code, both of which included acquisition as well as

deprivation of property within the meaning of “obtaining of property.”

Similarly, the Hobbs Act has been interpreted to require acquisition.

Eliminating the requirement that property be “obtained” to constitute extortion

would eliminate the distinction between extortion and the separate crime of

coercion, which involves the use of force to restrict another’s freedom of action,

and which “more accurately describes the nature of petitioners’ actions.”

Congress was aware of the distinction between extortion and coercion when it

adopted the Hobbs Act. Although RICO defines “racketeering activity” to

include “any act or threat of . . . extortion . . . which is chargeable under State

law,” this has been interpreted to apply “a generic definition of extortion” that

requires obtaining or seeking to obtain property. Similarly, the alleged

violations of the Travel Act, which prohibits extortion in violation of state law,

cannot constitute predicate acts for purposes of RICO because the alleged acts

are not extortionate.

8-1. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Ginsburg, joined

by Breyer. Dissenting opinion by Stevens.

Sell v. United States 123 S. Ct. 2174, 71 USLW 4456 (6-16-03)

Due process, forced medication to stand trial; appeals: An individual has a

constitutionally protected liberty interest in avoiding the unwanted

administration of antipsychotic drugs. Although the Constitution allows the

Government to forcibly administer antipsychotic drugs to a mentally ill

criminal defendant in order to render that defendant competent to stand trial for

a serious crime, the requisite findings were not made in this case. The treatment

must be “medically appropriate, . . . substantially unlikely to have side effects

that may undermine the fairness of the trial, and taking account of less intrusive

alternatives, . . . necessary significantly to further important governmental trialrelated interests.” Whether a sufficiently important governmental interest is at

stake will depend upon the facts of the individual case, including the potential

for future confinement. Ordinarily, before a court approves forced

administration of drugs for purposes of rendering a defendant competent to

stand trial, it should determine whether the Government seeks, or has sought,

permission to administer the drugs for purposes of rendering the individual not

dangerous to himself or others. In this case, in which the lower courts held that

a magistrate’s finding of dangerousness was erroneous, it was error to approve

forced medication solely to render the petitioner competent to stand trial. The

appeals court had jurisdiction to hear the appeal in this case even though the

district court’s decision was not “final” within the meaning of 28 U.S.C. § 1291.

The case falls under the exception for “collateral” orders that are “effectively

unreviewable on appeal from a final judgment.” By the time of trial the

defendant would have undergone forced medication – “the very harm that he

seeks to avoid,” and he could not have undone the harm even if acquitted.

6-3. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Kennedy,

Souter, and Ginsburg. Dissenting opinion by Scalia, joined by O’Connor and

Thomas.

Smith v. Doe 123 S. Ct. 1140, 71 USLW 4182 (3-5-03)

Ex Post Facto Clause, “Megan’s Law”: Alaska’s Sex Offender Registration

Act, a “Megan’s Law” which requires persons convicted of sex offenses prior

to the Act’s enactment to register with law enforcement authorities, and which

also requires public notification, does not impose retroactive punishment

prohibited by the Ex Post Facto Clause of Article I, § 10, cl.1. Ex post facto

analysis requires a determination of whether a law is civil or punitive in

purpose. If the legislature’s purpose was to enact a civil regulatory scheme,

then the law is ex post fact only if there is “the clearest proof” of punitive effect.

Here the primary purpose was that of public safety – “protecting the public from

sex offenders.” Although this is also a goal of criminal laws, that fact alone

does not make the objective punitive. Several factors provide “guideposts” for

analysis. Registration and public notification of sex offenders are of recent

origin, and are not viewed as a “traditional means of punishment.” These

requirements do not closely resemble punishments of public disgrace imposed

in colonial times; the stigma of Megan’s Law results not from public shaming

but from the dissemination of information about a criminal record, most of

which is already public. The Act does not subject the registrants to an

“affirmative disability or restraint”; there is no physical restraint or occupational

disbarment, and, unlike conditions of probation, there is no restraint or

supervision of living conditions. Although the Act might help to deter future

crimes, this is consistent with a non-punitive regulatory objective. There is a

rational connection to the non-punitive purpose of protecting public safety; the

statute need not be narrowly tailored for that purpose. Nor is the act

“excessive” in relation to its regulatory purpose. Rather, “the means chosen are

reasonable in light of the nonpunitive objective.” Unlike involuntary civil

commitment, where the “magnitude of restraint [makes] individual assessment

appropriate,” the state may make “reasonable categorical judgments,” and need

not provide individualized determinations of dangerousness.

6-3. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and

Thomas. Concurring opinions by Thomas and by Souter. Dissenting opinions

by Stevens; and by Ginsburg, joined by Breyer.

Sprietsma v. Mercury Marine 123 S. Ct. 518, 71 USLW 4009 (12-3-02)

Preemption, Federal Boat Safety Act: The Federal Boat Safety Act of 1971

does not preempt a state common law tort action for damages from the

manufacturer of an outboard motor not equipped with a propeller guard. The

Act contains an express preemption clause that prohibits states from adopting

or enforcing “a law or regulation . . . not identical to a regulation prescribed

under [the Act].” No federal regulation requires propeller guards on outboard

motors; the Coast Guard studied the matter and decided not to issue a

regulation. The statute’s preemption language “is best read as not

encompassing common-law claims.” Use of the article “a” before “law or

regulation” “implies a discreteness – which is embodied in statutes and

regulations – that is not present in the common law.” Also, use of the words

“law” and “regulation” together suggests that “law” should not be read so

broadly as to encompass “regulation” and thereby render superfluous inclusion

of the latter word. A narrower reading of “law” as excluding “regulation”

could also exclude “common law.” The Act’s saving clause, providing that

compliance with the federal standards or regulations “does not relieve a person

from liability at common law” “buttresses this conclusion.” The common law

claim is not implicitly preempted by the Coast Guard’s decision not to require

propeller guards. That decision was not premised on a federal policy against

propeller guards, and the Coast Guard does not view its refusal to regulate as

having any preemptive effect. Nor does the “statutory scheme as a whole”

preempt the common law claim. The Act “did not so completely occupy the

field of safety regulation of recreational boats as to foreclose state common-law

remedies.”

9-0. Opinion for unanimous Court by Stevens.

State Farm Mut. Auto. Ins. Co. v. Campbell 123 S. Ct. 1513, 71 USLW 4282 (4-7-03)

Due Process, punitive damages: Utah’s award of $145 million in punitive

damages following an award of $1 million in compensatory damages was an

irrational and arbitrary deprivation of property in violation of the Fourteenth

Amendment’s Due Process Clause. The “guideposts” governing appellate

review of punitive damages awards were set forth in BMW v. Gore (1996). The

first guidepost is the degree of reprehensibility of the defendant’s conduct.

While State Farm’s handling of the claims in this case “merits no praise,” the

state’s “legitimate objectives” could have been satisfied by “a more modest

punishment.” Instead, the case was used as a “platform” to expose and punish

State Farm for its nationwide policies, even though much of the out-of-state

conduct was lawful where it occurred, and a state may not punish a defendant

“for conduct that may have been lawful where it occurred.” More important, the

Utah courts awarded punitive damages to punish and deter conduct that bore no

relation to the plaintiffs’ harm. The second Gore guidepost examines the

disparity between the harm suffered by the plaintiff and the punitive damages

award. “Few awards exceeding a single-digit ratio . . . will satisfy due

process.” When compensatory damages are substantial, as they were in this

case, “then a lesser ratio, perhaps only equal to compensatory damages,” can be

upheld. Here the harm was economic, rather than physical, and a component

of the punitive award was likely duplicated in the compensatory award. The

third Gore guidepost, the disparity between the punitive award and civil

penalties authorized or imposed in comparable cases, reveals that the most

relevant civil sanction – a $10,000 fine for an act of fraud – is “dwarfed” by the

punitive damages award. Application of the Gore guideposts, therefore, “likely

would justify a punitive damages award at or near the amount of compensatory

damages.”

6-3. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,

Souter, and Breyer. Dissenting opinions by Scalia, Thomas, and Ginsburg.

Stogner v. California 123 S. Ct. 2446, 71 USLW 4588 (6-26-03)

Ex Post Facto Clause, revival of limitations period: A California statute that

permits resurrection of an otherwise time-barred criminal prosecution for sexual

abuse of a child, and that was itself enacted after the pre-existing limitations

period had expired for the crimes at issue, violates the Ex Post Facto Clause of

Art. I, § 10, cl. 1. The statute threatens the kinds of harms to fairness that the

Clause seeks to avoid. Moreover, the statute falls literally within one of the four

categories of ex post facto laws described by Justice Chase in Calder v. Bull

(1798) – those laws that “aggravate a crime or make it greater than it was, when

committed,” e.g., those laws that “inflict punishment, where the party was not,

by law, liable to any punishment.” The petitioner in this case was not “liable to

any punishment” after California’s three-year statute of limitations had run on

his alleged crimes, alleged to have taken place between 1955 and 1973.

California’s 1993 law authorized prosecution for those alleged crimes however,

and prosecution was initiated 22 years after the original limitations period had

run. Commentators and courts have long believed it settled that the Clause

forbids resurrection of a time-barred prosecutions. Courts that have upheld

extensions of unexpired statutes of limitations have been careful to distinguish

those situations in which limitations periods have expired, suggesting that

resurrection rather than extension would be unconstitutional. To allow

prosecution years after the state has, in effect, granted an amnesty and told the

accused that he need not preserve evidence of innocence, is unfair.

5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter,

and Ginsburg. Dissenting opinion by Kennedy, joined by Rehnquist,

Scalia, and Thomas.

Sygenta Crop Protection, Inc. v. Henson 123 S. Ct. 366, 71 USLW 4001 (11-5-02)

Removal jurisdiction, All Writs Act: The All Writs Act does not furnish

jurisdiction for removal of an action from state to federal court. The governing

statute, 28 U.S.C. § 1441, authorizes removal of “any civil action brought in a

State court of which the district courts of the United States have original

jurisdiction.” The All Writs Act does not provide such original jurisdiction, but

instead authorizes federal courts to “issue all writs necessary or appropriate in

aid of their respective jurisdictions.” Likewise, the All Writs Act in

combination with the doctrine of ancillary enforcement jurisdiction does not

confer the original jurisdiction on which removal must be predicated.

Invocation of ancillary jurisdiction does not eliminate “the need for compliance

with statutory requirements” for removal.

9-0. Opinion for unanimous Court by Rehnquist. Concurring opinion by

Stevens.

United States v. American Library Ass’n 123 S. Ct. 2297, 71 USLW 4465 (6-23-03)

First Amendment, spending power, internet filters: The Children’s Internet

Protection Act (CIPA), which conditions certain Internet-related federal

assistance to public libraries on the libraries’ installation of filters that block

Internet access to images that constitute obscenity or child pornography, or that

are harmful to minors, is not unconstitutional on its face. CIPA provides that

public libraries may disable the blocking filters at the request of a patron, and

thereby allow “access to any speech that is constitutionally protected with

respect to that patron.” If some libraries lack the capacity to unblock a specific

Web site or to disable the filter altogether, then there is the possibility of an asapplied challenge. Because, however, the respondents failed to show that the

ability of adult patrons to access Internet material “is burdened in any significant

degree,” the facial challenge is rejected.

6-3. No opinion of Court. Opinion announcing the Court’s judgment by

Rehnquist, joined by O’Connor, Scalia, and Thomas. Concurring opinions by

Kennedy and by Breyer. Dissenting opinions by Stevens; and by Souter, joined

by Ginsburg.

United States v. Bean 123 S. Ct. 584, 71 USLW 4017 (12-10-02)

Judicial review, inaction on petition to remove firearms disability: A federal

district court lacks authority under 18 U.S.C. § 925(c) to grant relief to someone

whose application to the Bureau of Alcohol, Tobacco, and Firearms (ATF) to

remove his prohibition on possessing a firearm was returned unprocessed in

accordance with a prohibition in the ATF’s appropriation law. Section 925(c)

provides that “[a]ny person whose application for relief from disabilities is

denied by the Secretary may file a petition [in federal district court] for review

of such denial.” ATF’s failure to act “does not amount to a ‘denial’ within the

meaning of § 925(c). . . . An actual decision by ATF on an application is a

prerequisite for judicial review.” The phrase “denied by the Secretary”

references the Secretary’s determinations as to whether the applicant will be

able to act in a manner not dangerous to public safety and as to whether relief

would be contrary to the public interest. Both of these standards “point to ATF

as the primary decisionmaker.” The procedures that the section requires and the

broad discretion conferred on the Secretary also suggest the need for an actual

adverse action on an application. Finally, the admission of additional evidence

in district court proceedings is contemplated only in exceptional circumstances.

Ordinarily, the district court’s determination must rely heavily on the record

compiled by ATF, but there is no such record for the court to rely on when the

application has been returned unprocessed.

9-0. Opinion for unanimous Court by Thomas.

United States v. Jimenez Recio 123 S. Ct. 819, 71 USLW 4076 (1-21-03)

Conspiracy, termination: A conspiracy does not terminate automatically when

the object of the conspiracy becomes impossible to achieve. The Ninth

Circuit’s view that it does is rejected by “almost all courts and commentators.”

Thus, a conspiracy to distribute illegal drugs did not end when government

agents seized the drugs in question; persons caught in a sting operation set up

after the drug seizure can be convicted of conspiracy. The essence of a

conspiracy is an agreement to commit an unlawful act, and the agreement is a

distinct evil that exists regardless of whether the substantive crime ensues. A

conspiracy poses a threat to the public “over and above” the threat of the

commission of the planned crime because the combination makes it more likely

that the conspirators will continue their criminal ways and commit other crimes.

This additional threat persists when conspirators continue to pursue their

objective, unaware that police have frustrated its accomplishment.

9-0 (merits); 8-1 (procedure). Opinion of Court by Breyer, joined by Rehnquist,

O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg. Opinion by

Stevens, concurring in part and dissenting in part.

United States v. Navajo Nation 123 S. Ct. 1079, 71 USLW 4146 (3-4-03)

Indian Tucker Act; Indian Mineral Leasing Act: The Tribe’s claim for

compensation from the United States for breach of trust in connection with the

Secretary of the Interior’s approval of coal lease amendments negotiated by the

Tribe and Peabody Coal Company after alleged pressure brought to bear on the

Tribe by the Secretary must be rejected because the claim does not derive from

any liability-imposing provision of the Indian Mineral Leasing Act (IMLA).

The Indian Tucker Act grants the Court of Federal Claims jurisdiction over

tribal claims against the United States, but is not itself a source of substantive

rights. Existing precedent requires a tribal plaintiff to invoke a rights-creating

law that “can fairly be interpreted as mandating compensation by the Federal

Government for the damages sustained.” The IMLA is not such a law. Rather

than imposing a “detailed fiduciary responsibility” on the Secretary to manage

leasing and mineral resources in the best interests of the tribe, the IMLA

“simply requires Secretarial approval before coal mining leases negotiated

between Tribes and third parties become effective.” In this respect, the IMLA

resembles the General Allotment Act, held not to give rise to a damages action

for breach of trust in managing allotted lands, and may be distinguished from

“a network of other statutes and regulations” later held to impose “full

responsibility to manage Indian resources and land for the benefit of the

Indians.” Moreover, interpreting the IMLA to impose fiduciary duties giving

rise to compensable claims would counter one of the IMLA’s principal purposes

– that of enhancing tribal self-determination by giving tribes the lead role in

negotiating mineral leases.

6-3. Opinion of Court by Ginsburg, joined by Rehnquist, Scalia, Kennedy,

Thomas, and Breyer. Dissenting opinion by Souter, joined by Stevens and

O’Connor.

United States v. White Mountain Apache Tribe 123 S. Ct. 1126, 71 USLW 4139 (3-403)

Indian Tucker Act, management of trust lands: A 1960 law under which the

former Fort Apache Military Reservation is held in trust for the White Mountain

Apache Tribe, subject to a proviso granting the United States the right to use

any part of the land and improvements for administrative or school purposes,

triggered compensable trustee responsibilities over property used under the

proviso. The Indian Tucker Act allows damage actions against the United

States only if the statute conferring substantive rights “can fairly be interpreted

as mandating compensation.” The two Mitchell cases represent the two

categories of fiduciary duties – a “bare trust” under the General Allotment Act

the breach of which is not compensable, and “elaborate control” under timber

management statutes the breach of which is compensable. “The 1960 Act goes

beyond a bare trust and permits a fair inference that the Government is subject

to duties as a trustee and liable in damages for breach.” Although the Act does

not expressly subject the Government to duties of management and

conservation, it does subject the property to a trust, and the Government’s use

of the property, involving daily supervision and daily occupation, creates a “fair

inference [of] an obligation to preserve the property improvements.” The

Government’s defenses are rejected. Property used under the proviso is not

carved out of the trust. Specific language on damages is not needed if the

requisite “fair inference” can be drawn from the trust obligation. A damages

remedy is not “inappropriate” for a failure of maintenance even though

injunctive relief may represent the economic “equivalent.”

5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and

Breyer. Concurring opinion by Ginsburg, joined by Breyer. Dissenting opinion

by Thomas, joined by Rehnquist, Scalia, and Kennedy.

Virginia v. Black 123 S. Ct. 1536, 71 USLW 4263 (4-7-03)

First Amendment, cross burning: A state, consistent with the First

Amendment, may prohibit cross burning carried out with the intent to

intimidate. Intimidation can be a type of true threat that is not protected by the

First Amendment. Given the history of cross burnings in this country, some

cross burnings fit within this category of intimidating expression. Virginia’s

law does not run afoul of R. A. V. v. St. Paul (1992), in which the Court

invalidated as content-based an ordinance that prohibited cross burnings that

constituted “fighting words” only if they offended on the basis of race, color,

creed, religion or gender. “Virginia’s statute does not single out for opprobrium

only that speech directed toward ‘one of the specified disfavored topics.’” Not

all content discrimination is prohibited, however. “Instead of prohibiting all

intimidating messages, Virginia may choose to regulate this subset of

intimidating messages in light of cross burning’s long and pernicious history as

a signal of impending violence.” As a general matter, content discrimination is

permissible if it is “based on the very reasons why the particular class of speech

at issue . . . is proscribable.” However, the Virginia statute’s prima facie

evidence provision, stating that a cross burning “shall be prima facie evidence

of an intent to intimidate,” is unconstitutional.

6-3 (intimidation); 7-2 (prima facie evidence). Opinion of Court by O’Connor,

joined by Rehnquist, Stevens, Scalia, and Breyer. Separate part of O’Connor

opinion joined by Rehnquist, Stevens, and Breyer. Concurring opinion by

Stevens. Concurring and dissenting opinions by Souter, joined by Kennedy and

Ginsburg; and by Scalia, joined in part by Thomas. Dissenting opinion by

Thomas.

Virginia v. Hicks 123 S. Ct. 2191, 71 USLW 4441 (6-16-03)

First Amendment, overbreadth: The Richmond Redevelopment and Housing

Authority’s trespass policy is not facially invalid under the First Amendment’s

overbreadth doctrine. Under the trespass policy, the Authority may ban from

streets within the development any person who is not a resident or employee and

who “cannot demonstrate a legitimate business or social purpose for being on

the premises.” The respondent was arrested for trespass after having received

written notice barring him from the development. The Virginia Supreme Court

held that the ordinance was unconstitutionally overbroad because it granted the

property manager discretion that could be used to prohibit speech protected by

the First Amendment; persons wishing to hand out leaflets in the development’s

property would be required to obtain the manager’s permission. Under the

overbreadth doctrine, a law with legitimate applications can be invalidated if it

punishes a substantial amount of protected free speech, but only if application

to protected speech is substantial not just in an absolute sense, but also in

relation to the scope of the law’s plainly legitimate applications. “Rarely, if

ever, will an overbreadth challenge succeed against a law . . . that is not

specifically addressed to speech.” The trespass policy is addressed to nonexpressive conduct. “Neither the basis for the barment sanction (the prior

trespass) nor its purpose (preventing future trespasses) has anything to do with

the First Amendment.” More important, the policy applies to all persons who

enter the development’s streets, not just to those persons who seek to engage in

expression. The respondent failed to show that the policy would be used to bar

anyone from engaging in constitutionally protected speech, or even that

protected speech falls outside the “legitimate business or social purposes” that

permit entry to the development.

9-0. Opinion for unanimous Court by Scalia. Concurring opinion by Souter.

Washington State Dep’t of Soc. and Health Servs. v. Guardianship Estate of Keffeler

123 S. Ct. 1017, 71 USLW 4110 (2-25-03)

Social Security: The State’s use of foster children’s social security benefits to

reimburse itself for expenditures related to foster care is not prohibited by a

provision of the Social Security Act (42 U.S.C. § 407(a)) that protects benefits

from “execution, levy, attachment, garnishment, or other legal process.” The

State Supreme Court generalized from the text to conclude that it prohibits

“creditor-type acts,” and determined that the State’s reimbursement scheme

violates that principle. Neither the statute nor the regulations, however, “say

anything about ‘creditors.’” Because the reimbursement does not involve

“execution, levy, attachment, or garnishment,” the case boils down to the

meaning of “other legal process.” The interpretive canons noscitur a sociis and

ejusdem generis require that the general phrase be interpreted to embrace

objects similar in nature to the enumerated objects. The processes of execution,

levy, attachment, and garnishment require use of “some judicial or quasijudicial mechanism . . . by which control over property passes from one person

to another in order to discharge . . . [a] liability.” Neither characteristic is

present: the State has no enforceable claim against its foster children, and the

benefits are already in its possession and control. The State Supreme Court’s

reliance on two precedents was misplaced, since both involved forms of legal

process expressly prohibited by § 407(a). Reliance on the “best interest of the

beneficiary foster child” was also misplaced; here too, the state court should

have deferred to the Commissioner’s interpretation, under which the

beneficiary’s best interest is seen as having her basic needs taken care of by a

representative payee.

9-0. Opinion for unanimous Court by Souter.

Wiggins v. Smith 123 S. Ct. 2527, 71 USLW 4560 (6-26-03)

Habeas corpus, ineffective assistance of counsel: The petitioner’s attorneys’

failure to pursue investigation of petitioner’s personal history and to present

important mitigating evidence at his capital sentencing constituted ineffective

assistance of counsel, and the state court’s rejection of his claim involved an

“unreasonable application” of clearly established federal law within the meaning

of 28 U.S.C. § 2254. The petitioner, therefore, was entitled to federal habeas

relief. The governing law was established by Strickland v. Washington (1984),

holding that an ineffective assistance of counsel claim must be based on a

showing of deficient attorney performance that falls below an objective standard

of reasonableness, and that resulted in prejudice to the defense. Under

Strickland, a defense attorney’s strategic judgment made after less than

complete investigation is reasonable “precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Here the

attorneys’ decision not to expand their investigation into their client’s

background fell short of professional standards then governing, and was

unreasonable in light of the information actually discovered. They abandoned

the investigation after having acquired “only rudimentary knowledge” of their

client’s history, but after having acquired information that “any reasonably

competent attorney would have realized [was necessary to pursue in] making an

informed choice among possible defenses.” Under the circumstances, the state

court’s deference to the attorneys’ “strategic decision” not to present the

background mitigating evidence was objectively unreasonable. Actual prejudice

to the petitioner’s case was established. The available mitigating evidence,

taken as a whole, “might well have influenced the jury’s appraisal of [the

petitioner’s] moral culpability.”

7-2. Opinion of Court by O’Connor, joined by Rehnquist, Stevens, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Thomas.

Woodford v. Garceau 123 S. Ct. 1398, 71 USLW 4217 (3-25-03)

Habeas corpus, cases “pending” on AEDPA effective date: For purposes of

applying the rule announced in Lindh v. Murphy (1997) that amendments made

by the Antiterrorism and Effective Death Penalty Act (AEDPA) do not apply to

cases pending on AEDPA’s effective date, a case does not become “pending”

until an actual petition for habeas relief is filed in federal court. Neither the

filing of a motion for appointment of a federal habeas counsel nor the

application for a stay of execution suffices to make a case “pending.” AEDPA

places heavy emphasis on the standards governing review of the merits of a

habeas application, and the meaning of “pending” should reflect that emphasis.

The issue, therefore, is whether on AEDPA’s effective date the state prisoner

“had before a federal court an application for habeas relief seeking an

adjudication on the merits of the petitioner’s claims.” Textual support for the

conclusion that an application is required is found in 28 U.S.C. § 2254(e)(1),

which provides that a presumption of the correctness of the state court’s

determination of factual issues shall apply “in a proceeding instituted by an

application for a writ of habeas corpus.” If a proceeding could be “instituted”

by a request for an attorney or for a stay of execution, then the presumption

would be inapplicable in such cases. Also, the filing of a habeas petition is the

functional equivalent of the filing of a complaint in a civil action, and a civil

action is commenced by the filing of a complaint.

6-3. Opinion of Court by Thomas, joined by Rehnquist, Stevens, Scalia, and

Kennedy. Concurring opinion by O’Connor. Dissenting opinion by Souter,

joined by Ginsburg and Breyer.

Woodford v. Visciotti 123 S. Ct. 357, 71 USLW 3315 (11-4-02)

Habeas corpus, ineffective assistance of counsel: The Ninth Circuit erred in

affirming the grant of habeas corpus relief to a petitioner whose claim was

barred by operation of 28 U.S.C. § 2254(d). That federal statute allows a

federal court to grant habeas relief to a state prisoner whose claim was

adjudicated on the merits in state court only if the state decision was contrary

to, or involved an unreasonable application of, clearly established federal law,

or if the state decision was based on an unreasonable determination of the facts.

The California Supreme Court’s decision was not “contrary to” the Supreme

Court’s decision in Strickland v. Washington (1984), which required a

“reasonable probability” that, but for counsel’s error, the outcome of the case

would have been different. The California court’s “occasional shorthand

reference” to the Strickland standard did not establish error. Nor did the

California court unreasonably apply Strickland. An incorrect application of

federal law is not necessarily an “unreasonable” application under section

2254(d). Although during the sentencing phase of the trial the defense counsel

had made multiple concessions as to the effects of the defendant’s brain injury,

and had failed to introduce mitigating evidence about the defendant’s

background, the state courts could reasonably have concluded that this

mitigating evidence was outweighed by “severe” aggravating factors.

9-0. Per curiam.

Yellow Transportation, Inc. v. Michigan 123 S. Ct. 371, 71 USLW 4003 (11-5-02)

Deference to agency interpretation, motor carrier regulation: The Interstate

Commerce Commission’s (ICC’s) implementation of the Intermodal Surface

Transportation Efficiency Act of 1991 (ISTEA) to require that states consider

fees charged under reciprocity agreements when complying with the statute’s

mandate that registration fees under the new Single-State Insurance Registration

system be “equal to” fees “collected or charged” under the old system as of

November 15, 1991, is entitled to deference under principles established in

Chevron v. NRDC (1984). The statute is ambiguous, and the ICC’s

interpretation is “permissible” and “reasonable.” “ISTEA’s fee-cap provision

does not foreclose the ICC’s determination that fees charged under States’ preexisting reciprocity agreements were, in effect, frozen by the new [system].”

The words “‘collected or charged’ can quite naturally be read to mean fees that

a State actually collected or charged,” and do not instead refer to a “fee system.”

Congress made an express delegation of authority to the ICC to promulgate

standards to implement the new registration system, and “it was thus for that

agency to resolve any ambiguities and fill in any holes in the statutory scheme.”

9-0. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Stevens.

Index

Abortion

protests not "extortion" for purposes of Hobbs Act, RICO . . . . . . . . . . . . . 31

Administrative law

deference to agency interpretation, HUD regulation . . . . . . . . . . . . . . . . . . 24

deference to agency interpretation, ICC regulation . . . . . . . . . . . . . . . . . . . 41

deference to agency interpretation, Treasury Regulation . . . . . . . . . . . . . . . . 3

judicial review of regulation, ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Agent Orange

action against manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

All Writs Act

not authority for removal of cases from state to federal court . . . . . . . . . . . 35

Americans with Disabilities Act

coverage, definition of "employee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Appeals

habeas petitioner, certificate of appealability . . . . . . . . . . . . . . . . . . . . . . . . 24

Appropriations

prohibition on expenditure, effect on administrative action . . . . . . . . . . . . 35

Arbitration

applying time limit is issue for arbitrator, not judge . . . . . . . . . . . . . . . . . . 19

broad applicability of Federal Arbitration Act . . . . . . . . . . . . . . . . . . . . . . . . 7

class arbitration, interpretation of agreement . . . . . . . . . . . . . . . . . . . . . . . . 18

possibility of "meaningful relief" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Bankruptcy

FCC may not revoke license for debtor's failure to pay . . . . . . . . . . . . . . . . 14

settlement debt as "debt for money obtained by fraud" . . . . . . . . . . . . . . . . . 1

Campaign finance

ban on corporate contributions, advocacy group . . . . . . . . . . . . . . . . . . . . . 15

Charitable solicitations

state anti-fraud laws, First Amendment limitations . . . . . . . . . . . . . . . . . . . 20

Civil rights

section 1983, Indian tribe not "person" who may sue . . . . . . . . . . . . . . . . . 20

Title VII, proof in "mixed-motive" cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Clean Water Act

wetlands, "deep ripping" plowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Coal Industry Retiree Health Benefit Act

deadline for assigning retirees to companies . . . . . . . . . . . . . . . . . . . . . . . . . 2

Commerce power

evidentiary privilege, highway hazard information . . . . . . . . . . . . . . . . . . . 29

Federal Arbitration Act, scope of "involving commerce" . . . . . . . . . . . . . . . 7

Commerce, state regulation

congressional authorization for burden, clear statement req'mt . . . . . . . . . . 19

Maine discount drug program not burden on interstate commerce . . . . . . . 29

Congressional redistricting

substitution of federal court plan for state court plan . . . . . . . . . . . . . . . . . . 4

Conspiracy

no automatic termination when object becomes impossible . . . . . . . . . . . . 36

Copyright

different objectives of copyright law, Lanham Act . . . . . . . . . . . . . . . . . . . 10

Counsel, assistance of

habeas corpus, "clearly established federal law" . . . . . . . . . . . . . . . . . . . . . 40

ineffectiveness claim, no procedural default . . . . . . . . . . . . . . . . . . . . . . . . 23

ineffectiveness, capital sentencing, federal habeas corpus . . . . . . . . . . . . . 39

Cross burning

prohibition, consistency with First Amendment . . . . . . . . . . . . . . . . . . . . . 37

Cruel and unusual punishment

prison discipline, restriction on visitation . . . . . . . . . . . . . . . . . . . . . . . . . . 28

proportionality, California "three-strikes" law . . . . . . . . . . . . . . . . . . . . . . . 14

Deadline

effect of agency action after statutory deadline . . . . . . . . . . . . . . . . . . . . . . . 2

Delegation of legislative power

submission of ordinance to referendum vote not invalid . . . . . . . . . . . . . . . . 7

Double Jeopardy

death eligibility, retrial after mandatory life sentence . . . . . . . . . . . . . . . . . 31

Due Process

"Megan's Law," no right to hearing on dangerousness . . . . . . . . . . . . . . . . . 9

delay in hearing, auto impoundment fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

detention of alien during removal proceedings . . . . . . . . . . . . . . . . . . . . . . 11

elements of crime at time of conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

forced anti-psychotic medication to stand trial . . . . . . . . . . . . . . . . . . . . . . 32

interrogation by police as violation of substantive due process . . . . . . . . . . . 6

punitive damages, size of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

relationship to double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

restrictions on prison visitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

submission of ordinance to referendum vote . . . . . . . . . . . . . . . . . . . . . . . . . 7

Texas sodomy law, liberty interest in adult, consensual sex . . . . . . . . . . . . 22

Education

affirmative action, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

affirmative action, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Electricity regulation

preemption, "filed rate" doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Equal protection

racial discrimination, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 17

racial discrimination, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . 18

referendum on low-income housing ordinance . . . . . . . . . . . . . . . . . . . . . . . 7

state taxation, classifications, rational basis . . . . . . . . . . . . . . . . . . . . . . . . 15

ERISA

deference to treating physician not required for benefit plans . . . . . . . . . . . . 3

preemption, insurance law exception, "any willing provider" laws . . . . . . . 22

Ex Post Facto Clause

Megan's law not punitive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

statute of limitations for crime, resurrection after expiration . . . . . . . . . . . 34

Extortion

Hobbs Act definition, abortion protests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Fair Housing Act

vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fair Labor Standards Act

removal of cases from state to federal court . . . . . . . . . . . . . . . . . . . . . . . . . 5

False Claims Act

qui tam suits against local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Federal Arbitration Act

broad scope, "involving commerce" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Federal Boat Safety Act

no preemption of common law tort claim . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Federal courts

appeals courts, designation of district judges . . . . . . . . . . . . . . . . . . . . . . . . 27

removal jurisdiction, All Writs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

removal not prohibited by Fair Labor Standards Act . . . . . . . . . . . . . . . . . . . 5

Federal Employers’ Liability Act

joint and several liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

recovery for mental anguish, fear of cancer . . . . . . . . . . . . . . . . . . . . . . . . . 27

Federal Trademark Dilution Act

required proof of actual injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

First Amendment

application of anti-fraud statute to charitable solicitation . . . . . . . . . . . . . . 20

campaign finance, ban on contributions, advocacy corporation . . . . . . . . . 15

cross burning with intent to intimidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

federal funding conditioned on libraries using Internet filters . . . . . . . . . . . 35

overbreadth, housing auth's trespass policy . . . . . . . . . . . . . . . . . . . . . . . . . 38

right of association, restriction on prison visits . . . . . . . . . . . . . . . . . . . . . . 28

Foreign relations

state law inconsistent with federal policy in exec. agreements . . . . . . . . . . . 1

Foreign Sovereign Immunities Act

"instrumentality" of foreign state, corporate subsidiary . . . . . . . . . . . . . . . . 12

Fourteenth Amendment

enforcement power, Family and Medical Leave Act . . . . . . . . . . . . . . . . . . 26

Fourth Amendment

invalid arrest, suppression of confession . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fraud

state anti-fraud laws, application to charitable solicitation . . . . . . . . . . . . . 20

Full Faith and Credit

sovereign immunity, one state in another state's courts . . . . . . . . . . . . . . . . 16

Habeas corpus

cases "pending" on AEDPA effective date . . . . . . . . . . . . . . . . . . . . . . . . . 40

clearly established federal law -- coercion of jury . . . . . . . . . . . . . . . . . . . . 12

clearly established federal law -- double jeopardy . . . . . . . . . . . . . . . . . . . . 30

ineffective assistance of counsel claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ineffective assistance of counsel, capital sentencing . . . . . . . . . . . . . . . . . . 39

limitation on claims by state prisoners -- 8th Amendment . . . . . . . . . . . . . 23

limitation on claims by state prisoners -- ineffective counsel . . . . . . . . . . . 40

limitations period when no petition for cert. filed . . . . . . . . . . . . . . . . . . . . . 4

no unreasonable application of precedent -- double jeopardy . . . . . . . . . . . 30

showing required for certificate of appealability . . . . . . . . . . . . . . . . . . . . . 24

Highways

hazard information, evidentiary privilege, commerce power . . . . . . . . . . . 29

Hobbs Act

abortion protests not "extortion" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Immigration

detention of aliens pending removal proceedings . . . . . . . . . . . . . . . . . . . . 11

review of BIA decision, political asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Indian Mineral Leasing Act

not basis for suit under Indian Tucker Act . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Indian Tucker Act

Fort Apache Military Reservation, government as trustee . . . . . . . . . . . . . . 37

Indian Mineral Leasing Act not basis for suit . . . . . . . . . . . . . . . . . . . . . . . 36

IOLTA accounts

no loss to clients, no "just compensation" due . . . . . . . . . . . . . . . . . . . . . . . . 5

Judicial review

inaction on petition to remove firearms disability . . . . . . . . . . . . . . . . . . . . 35

limited preclusion under Immigration and Nationality Act . . . . . . . . . . . . . 11

Juries

coercion by court to reach verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

racial discrimination in jury selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Lanham Act

false i.d. of "origin of goods" not copyright protection . . . . . . . . . . . . . . . . 10

Limitations period

habeas corpus, no petition for cert. filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

resurrection after expiration for crimes at issue, ex post facto . . . . . . . . . . 34

tolling of state period for federal supplemental claims . . . . . . . . . . . . . . . . 21

Magistrates

implied consent by litigants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Medicaid

Maine discount drug program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Medication

forced administration of anti-psychotic drugs on criminal def. . . . . . . . . . . 32

Megan’s Law

no due process right to hearing on dangerousness . . . . . . . . . . . . . . . . . . . . . 9

no violation of Ex Post Facto Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Miranda warning

taint of invalid arrest not overcome by . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

National Bank Act

preemption of state usury actions, removal jurisdiction . . . . . . . . . . . . . . . . 3

Native Americans

Fort Apache Military Reservation, government as trustee . . . . . . . . . . . . . . 37

Indian Mineral Leasing Act creates "bare trust" . . . . . . . . . . . . . . . . . . . . . 36

Necessary and Proper Clause

supplemental jurisdiction, tolling of state limitations period . . . . . . . . . . . . 21

Overruled decisions

Bowers v. Hardwick (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Preemption

California Holocaust Victim Insurance Relief Act . . . . . . . . . . . . . . . . . . . . 1

electricity regulation, "filed rate" doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ERISA, exception for laws regulating insurance . . . . . . . . . . . . . . . . . . . . . 22

Federal Boat Safety Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Maine Rx program not preempted by Medicaid Act . . . . . . . . . . . . . . . . . . 29

National Bank Act, state-law usury actions . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Presumption

cross burning as prima facie evidence of intent to intimidate . . . . . . . . . . . 38

Privacy

sexual conduct in the home, Texas sodomy law . . . . . . . . . . . . . . . . . . . . . 22

Privileges and Immunities

no requirement of explicit discriminatory language in statute . . . . . . . . . . . 19

Punitive damages

characterization of RICO treble damages . . . . . . . . . . . . . . . . . . . . . . . . . . 29

due process limit on size of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Racial discrimination

affirmative action, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

affirmative action, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Fair Housing Act, vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

jury selection, "substantial showing" of discrimination . . . . . . . . . . . . . . . . 25

Voting Rights Act, state legis redistricting, retrogression . . . . . . . . . . . . . . 17

Referendum

low-income housing ordinance, equal protection, due process . . . . . . . . . . . 7

Removal

action "arising under" National Bank Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

All Writs Act insufficient basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

FLSA does not bar removal of cases from state to federal court . . . . . . . . . . 5

RICO

abortion protests, absence of "predicate acts" . . . . . . . . . . . . . . . . . . . . . . . 31

treble damages, remedial vs. punitive nature . . . . . . . . . . . . . . . . . . . . . . . . 29

Ripeness

challenge to regulation, absence of harm through application . . . . . . . . . . . 25

possibility of "meaningful relief" through arbitration . . . . . . . . . . . . . . . . . 29

Self-incrimination

no violation when no evidence introduced . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Social Security

protection of benefits from garnishment, other legal processes . . . . . . . . . . 38

Sodomy

Texas prohibition on homosexual sodomy, due process . . . . . . . . . . . . . . . 22

Sovereign immunity

full faith and credit, immunity in another state's courts . . . . . . . . . . . . . . . . 16

Indian tribe not "person" who may sue under sec. 1983 . . . . . . . . . . . . . . . 20

Spending power

condition that libraries use Internet filters, 1st Amendment . . . . . . . . . . . . 35

States

immunity from suit, congressional abrogation . . . . . . . . . . . . . . . . . . . . . . . 26

legislative redistricting, Voting Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes, interpretation

ambiguous word not express prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

avoiding conflict with another statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

broad language not limited by statute's narrower primary purpose . . . . . . . 10

congressional awareness of distinction between technical terms . . . . . . . . 31

contrasting usage in same statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

deadline for agency action, validity of tardy action . . . . . . . . . . . . . . . . . . . . 2

departure from "unequivocal" heightened proof language . . . . . . . . . . . . . . 11

departure from practice of "clear and express" exceptions . . . . . . . . . . . . . 14

dictionary definitions relied upon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

different statutory purposes, different implementing rules . . . . . . . . . . . . . . 3

express preemption language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

False Claims Act definition of "person" includes municipality . . . . . . . . . . . 9

history and purpose of law, reliance on . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

interpretive canons noscitur a sociis and ejusdem generis . . . . . . . . . . . . . . 39

no repeal by implication, redistricting law . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

plain meaning derived from present tense . . . . . . . . . . . . . . . . . . . . . . . . . . 12

plain meaning, "unambiguous" text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

presumption against superfluous words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

presumption that Congress intends conformity to S. Ct. precedent . . . . . . . . 9

presumption that identical words have same meaning, exception . . . . . . . . 21

purpose of statute as guide to meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

reliance on congressional purposes, reading text as a whole . . . . . . . . . . . . 30

repeals by implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

resort to common law to provide definition . . . . . . . . . . . . . . . . . . . . . . . . . . 8

saving clause, effect on interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

statutory silence, presumption that ordinary rules apply . . . . . . . . . . . . . . . 24

superfluous meaning of word avoided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Taking of property

IOLTA accounts, use for charitable purposes . . . . . . . . . . . . . . . . . . . . . . . . 5

Taxation, Federal

DISCs, R&D expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Taxation, State

classification, equal protection challenge . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Territories

judges not Art. III, cannot serve on U.S. appeals court . . . . . . . . . . . . . . . . 27

Three-strikes law

challenge on habeas, "clearly established" law . . . . . . . . . . . . . . . . . . . . . . 23

sentence for stealing golf clubs not "cruel and unusual" . . . . . . . . . . . . . . . 14

Trespass

housing authority's policy, First Amendment . . . . . . . . . . . . . . . . . . . . . . . 38

Unconstitutional state laws

California law reviving time-barred prosecution . . . . . . . . . . . . . . . . . . . . . 34

Texas sodomy statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Virginia cross burning law, presumption of intent to intimidate . . . . . . . . . 38

Voting Rights Act

preclearance, state-ordered congressional redistricting . . . . . . . . . . . . . . . . . 4

state legislative redistricting, retrogression . . . . . . . . . . . . . . . . . . . . . . . . . 17

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