Supreme Court: The Term in Review (2010-2011), Part 1 of 2
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Supreme Court: The Term in Review (2010-2011), Part 1 of 2


Supreme Court: The Term in Review. An FJTN program for judges, staff
attorneys, and law clerks. Now from the television studios of the
Federal Judicial Center in Washington, D.C., your host, John Cooke. Hello, I’m John Cooke, Deputy Director of the Federal Judicial
Center. Welcome to this year’s Supreme Court: The
Term in Review, our annual look at the Court’s
decisions most likely to affect the day-to-day work of federal judges. This year the Court decided
well-publicized cases dealing with campaign finance, class action suits, and the sale of
violent video games to children. But it also decided less widely
known cases dealing with the Confrontation Clause of the Sixth
Amendment, interpretation of the federal Sentencing
Guidelines, and the Federal Arbitration Act. This term will also be remembered as the
first for Justice Elena Kagan, who joined the Court after serving as the Solicitor
General of the United States. In all, the Court decided 80 cases on
the merits this term. In 38 of those 80 cases,
all justices who participated in the case agreed on the result. In 13 cases, the vote was 5 to
4. Today we will examine 41 of the
decisions with our faculty of scholars. We’re fortunate again this year to be
joined by Erwin Chemerinsky, Dean of the University of California Irvine
School of Law; Evan Lee of the Hastings College of Law; Laurie Levenson of Loyola Law School in
Los Angeles; and Suzanna Sherry of the Vanderbilt
University Law School. In the first half of our program, we will
consider decisions involving the First, Fourth, Fifth, and Sixth Amendments,
criminal law, prisoner litigation, sentencing, and civil
rights. Then, after a short break, we will discuss
opinions dealing with federalism, the federal courts, and federal
regulations and statutes. The written materials that accompany
this program at our intranet site, FJC Online, include an outline with a summary
of each of the decisions that we will consider, along with an appendix with summaries of
the remaining cases decided by the Court this term. The online outline contains links to
the full opinions. Beth Wiggins will be here in a moment
to discuss the first set of decisions. Hello. I am Beth Wiggins, and with me to discuss
a number of the Court’s decisions this term are Laurie Levenson and Erwin Chemerinsky. We are going to start with three First
Amendment decisions, most of which were eagerly anticipated. Let’s start with the Court’s election law
decision in Arizona Free Enterprise Club v. Bennett. The law in question was an Arizona statute
that gave candidates who chose to participate public funds to conduct their campaigns. If their opponents chose not to take
public financing, then the publicly financed candidate was given additional funds to match the
money spent by the privately funded candidate and any independent groups
that supported him or her. It was a dollar-for-dollar match, minus 6 percent to account for the
fundraising expenses of the privately funded candidates. The public money topped out at twice the
amount the candidate was initially given by the state when he or she agreed to public funding. Erwin, the Court found this system of
public funding violated the First Amendment. Why? The
Supreme Court said that this decision was controlled by its earlier ruling, three years ago, in Davis v. Federal Election
Commission. In that case, the Supreme Court declared
unconstitutional the so-called millionaire’s provision of the Bipartisan Campaign Finance
Reform Act. That provision said that if a candidate
spent more than $350,000 of his own money in a federal election
campaign, opponents could take advantage of higher contribution and expenditure limits. The Supreme Court, 5 to 4, said that this violated the First Amendment
because it imposed a penalty on those who were spending their own money to get elected
and would thus have a deterrent–a chilling– effect on people from spending money on elections. The Court said that the Arizona law,
in this case, had exactly the same effect. In fact, the Supreme Court said that the
Arizona law was worse than the federal provision struck down in Davis because the amount of public funding in
Arizona would increase based on both what an opponent would spend but also what supporters of the opponent
would spend. And the Court said that it was going to
use the strict scrutiny test to take a look at this, and it didn’t find that
there was a compelling interest. In fact, it rejected the state’s argument
that their interest was in preventing corruption or even the perception of
corruption. The Supreme Court said is what you’re really trying to do here is level
the playing field, and that is not a compelling state interest. However, the majority also said that they
were not striking down all public finance schemes. I mean, they said that
public spending cannot be in direct response to spending by a
privately funded candidate or independent group, but you could have schemes that were
likely constitutional as long as the candidates can opt in and the amount
of money is not increased by the other’s spending. Now, another much awaited First Amendment
decision in a much different context: this is Brown v. Entertainment
Merchants. It involved a California state law prohibiting the sale of violent video
games to minors. The state argued that there was no sound
basis for treating offensively violent, harmful material with no redeeming value for children any differently than sexually explicit
material. The Court has allowed states to ban the
sale of sexually explicit materials to minors, but games manufacturers argue that unlike
explicit sexuality, violence is not and never has been a taboo subject for
children. So, Laurie, which argument did the Court
agree with? Well, the Court agreed with the
manufacturers in this case. But, of course, it’s a little more complicated than that. Once again, we have the Court using the
strict scrutiny standard here, and it said that the law was not narrowly tailored and there was no compelling state
interest. First of all, they said minors do have a
First Amendment right, and there’s not the same history of
trying to shield minors from violence as there is from sexually explicit
obscenity-type materials. It also followed up on last term’s
decision in Stevens v. United States and said that it would reject new categories of unprotected speech
because it was somewhat too harmful. And finally, the Court noted that this law
is underinclusive and overinclusive. It’s underinclusive because it doesn’t
bar children from viewing violence on television or other media sources, and it’s overinclusive because it bars
the sales to minors even if their parents would allow it. But what about the state’s evidence
of the need for the law? Justice Scalia, who wrote the majority,
said that the evidence presented by the state was insufficient to meet strict scrutiny.
So the state couldn’t prove a causal relationship between renting violent video games and harmful social behavior. In fact, he said the evidence didn’t
demonstrate that experiencing video games was more likely to cause
these harms than engaging in other media. It will also be pointed out that there is a
voluntary system of regulation in place, and it is being basically complied with and thus is adequate to protect children and
serve the state’s interest. There were both concurrences and dissents in
this case, weren’t there, Laurie? That is right, and Justice Alito–with the Chief
Justice–said in a concurrence that they agreed that the law was overbroad and
it didn’t provide fair notice. On the other hand, they said they would not
apply the strict scrutiny test that they could have in other
more narrowly drawn statutes that they would find to be constitutional. I think
it’s notable that Justice Alito’s position was not that adopted by the
majority. Justice Alito in his concurring opinion–
concurring judgment– would have declared the law unconstitutional on vagueness and overbreadth grounds but left open the possibility that states
could adopt more narrowly tailored laws to deal with violent video games. Justice
Scalia’s majority opinion is much broader than that. It makes clear that such laws almost
inherently are unconstitutional. Our next decision was one of the most
emotionally charged cases brought before the Court this term, Snyder v. Phelps. Here, the First Amendment rights of the
Westboro Baptist Church to protest at the funerals of U.S. troops were
challenged. Church members protested peacefully on
public land approximately 1,000 feet from the church where Marine Lance
Corporal Matthew Snyder’s funeral was being held. They displayed signs saying, “Thank God for dead soldiers,” “Fags doom nations,” and “You’re going to
hell.” Westboro members believe that U.S.
servicemen who fall in battle are God’s revenge against
the United States for tolerating homosexuality, particularly in the military. Laurie, how did this get to the Court? This got to the Court because Snyder,
the father, sued the church leader, Fred Phelps, in federal court. And, in fact, he claimed intentional
infliction of emotional distress and was able to get a 10 million dollar
judgment both in compensatory and punitive damages. Phelps, in turn, said he had a First
Amendment right and that the verdict violated that right. Did the Supreme Court agree? The Supreme Court, 8 to 1, ruled in
favor of Phelps and the members of the Westboro Baptist Church, saying the speech was protected by the
First Amendment. Chief Justice Roberts wrote the opinion
for the Court. He emphasized that this was speech
involving matters of public concern. There’s a major national debate about
rights for gays and lesbians. He said also with regard to the claim of
intrusion, this wasn’t a private place, so there couldn’t be a claim that there’s
a captive audience. Phelps and the members of the Westboro Baptist
Church at all times were lawfully on public property. They were never
disruptive of the funeral. But the Court also did say that there
are some things that states and government can do to protect in this
situation as long as they are content- neutral laws. But they can have like buffer zones that
you see at reproductive health care clinics. I think this case stands for a very basic proposition that the government can’t punish
speech or create liability just because the speech is offensive, even as here, deeply offensive. Laurie, Erwin, and I will be back to
discuss some Fourth Amendment decisions. We have three Fourth Amendment decisions
to look at, two that are more traditional and another that arises in the qualified
immunity context. The exigent circumstances exception to
the Fourth Amendment’s warrant requirement, as the name suggests, allows police to enter
a premise without a warrant if circumstances require it. In Kentucky v. King, the police pursued
a suspected drug dealer into an apartment building, but were not sure which apartment he
entered. They smelled a strong odor of marijuana coming
from one apartment, and thinking that was the right one, knocked on the door and identified
themselves. After hearing people moving around– what they believed were the sounds of
physical evidence being destroyed– they entered the apartment and found a
large quantity of drugs. It was not the apartment of the person they
were pursuing. When a perceived need to preserve
physical evidence is created by police knocking on a door, is the exigent
circumstances exception triggered? Erwin? And the Supreme Court said yes. The Supreme Court said that the exigent circumstances exception can be applied so
long as there is not an actual or threatened violation of the
Fourth Amendment by the police. In this instance there was neither
an actual nor a threatened violation of the Fourth Amendment. The Supreme Court said if police hear sounds consistent with the destruction of evidence, that allows them to go in so as to
preserve the evidence. The Supreme Court said there’s no Fourth Amendment right
to destroy evidence. And it’s behavior like this that triggers the ability for police to go
in, as I said, to preserve the evidence. So, the Supreme Court said so long as
the police are not engaging in unreasonable conduct, they can use the exigent circumstances
exception. And now the bottom line here is that
it’s probably going to make it easier for the police to use this exception
and go in without a warrant. In our next decision, Davis v. United States, police involved in a routine traffic
stop arrested the car’s driver, Stella Owens, and her passenger, Willie Davis. With Owens and Davis now handcuffed and
sitting in separate police cruisers, police searched the car and Davis’s jacket
on the front seat and found a gun in one of the pockets. Charged with being a felon in possession
of a firearm, Davis tried to suppress the gun evidence
as being gathered in violation of the Fourth Amendment. The motion was rejected by both the trial
and the appellate courts. But while the case was still on appeal, the Court handed down its decision in
Arizona v. Gant, which held that “police may search a vehicle incident to
a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” The question before the Court in Davis
was whether to apply the exclusionary rule when the police conduct a search in compliance with binding precedent
that is later overruled. Did Davis win his argument, Laurie?
Well, Davis lost his argument here. What the Supreme Court said is that you shouldn’t use
the exclusionary rule when the officers are relying in good
faith on prior Court precedent, because the whole purpose of the
exclusionary rule is to deter police from bad behavior. Here they were trying
to follow the law as it was set at the time. And what the Supreme Court said is that
you can separate in this case the constitutional violation from the
remedy. So even if there’s a Fourth Amendment
violation here, under the good faith exception, you don’t
use the exclusionary rule. It is important to emphasize that this wasn’t
a case about retroactivity because the Gant case came down while the
Davis appeals were pending. Instead, this was a decision that said that the exclusionary rule doesn’t apply
in these circumstances because the police where acting in good
faith at the time of the search. I think this is one of a series of cases we’ve seen for the last several years of the Supreme Court cutting back on the
application of the exclusionary rule–the Supreme Court holding that the exclusionary rule applies only when it will have a
significant deterrent effect on illegal police behavior. So how does this case fit in with the prior
rulings? Well, I think this case fits very much
with the prior decisions, especially in Herring, where the Supreme Court said the exclusionary rule applies only to intentional or reckless violation of the
Fourth Amendment. It doesn’t apply if it is a negligent or good
faith violation of the Fourth Amendment. Here, the Supreme Court says in essence that is was a good faith violation because the police couldn’t have known
their conduct was impermissible at the time that it occurred. Our final decision, Ashcroft v. al-Kidd, involves a Fourth Amendment issue that
arises in the context of a civil suit charging that then Attorney General John
Ashcroft violated Abdullah al-Kidd’s rights in misusing a material witness warrant. Al-Kidd was a U.S. citizen on his way to
study in Saudi Arabia when he was arrested at Dulles Airport on that material witness warrant. He then spent 16 days confined
and shackled in high-security cells in detention
centers in three states. After his release, by court order,
he was required to live with his wife and in-laws, report to a probation officer,
and consent to home visits. All this was done so federal authorities could prevent
al-Kidd from leaving the country while they
continued to investigate his acquaintance to another person with alleged terrorist
ties. Laurie, what was the holding here? The
Supreme Court held that the Attorney General indeed had qualified immunity. It went beyond that and said that there
really was no Fourth Amendment violation, because he used a valid material witness warrant and that he was
covered by qualified immunity because there are no cases on point up
to that point that said that he couldn’t use a material witness warrant in this
way. So what the Supreme Court emphasized is that the focus should not be on
the Attorney General’s motive–whether this was a pretext rule used on a
material witness warrant or not— only on whether there was enough basis–
as you say, individualized suspicion–to get such a warrant from the magistrate. So
the prosecutor’s motive is irrelevant to Fourth Amendment law? Generally
it’s an objective standard under the Fourth Amendment. On the other hand, there are two areas
the Court noted where you might look at the subjective purpose of the plan, and that would be when you take a look
at administrative searches or checkpoints. Erwin, this was an 8 to 0
decision, of course, with Justice Kagan recusing herself. But there were three concurrences
that raised some additional points and disagreed with the reasoning of the
majority, weren’t there? Yes. Two of the concurring opinions questioned
whether there really was a valid warrant in this case. They pointed out, for example, that it was
never disclosed to the magistrate judge who issued the warrant that al-Kidd was married to an American
citizen, his children were American citizens. It was never pointed out to the judge who
issued the material witness warrant that al-Kidd was fully cooperating with
federal authorities. It was never pointed out to the magistrate judge who issued the
warrant that there was never any desire to use al-Kidd as a material witness. Justice Kennedy wrote a concurring opinion
that three other justices joined that might have even more far-reaching implications. He questioned whether or not the
material witness statute could be used to hold individuals under circumstances like
this. I think the courts will need to revisit that question in the foreseeable future. Thanks. We’ll be right back. Turning to some Fifth and Sixth
Amendment decisions from this term, we find the Court being called on to both
clarify some previous decisions and break new ground. In 2004, in Crawford v.
Washington, the Court held that an out-of-court statement that is deemed
testimonial is not admissible at trial unless the witness who made this
statement is unavailable and the accused had a prior opportunity to cross-examine
the witness. Although the Court found that after-the-
fact police interrogations are testimonial, it held in a later
decision that the interrogation was not
testimonial if its purpose was to assist police in meeting an ongoing emergency. This term, in Michigan v. Bryant, the Court returned to the question of
what is testimonial in deciding the admissibility of the fatally wounded Anthony Covington’s accusation that he was shot earlier at another
location by Richard Bryant. Covington died that night, but his statement
was admitted into evidence and helped convict Bryant. Was the purpose of Covington’s
accusation to assist police in an ongoing emergency, or did the time and distance from the
incident make it an after-the-fact interrogation? Erwin, where did the Court come down on this
question? The Supreme Court, in an opinion by Justice Sotomayor, said it was not testimonial because the primary purpose of the police
was dealing with an ongoing emergency. In Davis v. Washington, the case that
you alluded to, the Supreme Court articulated this test where the focus has
to be on the primary purpose of the questioning. This case is important in clarifying that
test, saying it’s an objective inquiry that looks at the primary purpose of the
participants in the discussion. But, Erwin, in this case, the Supreme Court did give
prosecutors a pretty lenient standard as to what would be nontestimonial, and as you pointed out,
under Davis, the standard is whether the primary purpose was to serve an
ongoing emergency. Here, the shooting had taken place a half-
hour before, the shooter was not nearby, and there could have, in fact, been mixed motives
by the police. Nonetheless, the Supreme Court said this would meet the ongoing
emergency test. I think you’re right, and I think the key
inquiry for trial courts all over the country is going to be, How do you determine what was the
primary purpose of the questioning? There will obviously be clear cases where it
was dealing with an emergency, and clear cases where it’s in-custodial
questioning and less testimonial. But there is such a myriad of situations where it is unclear and the courts are going to have to grapple
with. So I think the Supreme Court is going to have to return to this issue and provide more clarity still. In its 2009 decision in Melendez-Diaz v.
Massachusetts, the Court held a forensic laboratory
report was deemed testimonial under the Confrontation Clause and that a
prosecutor could not introduce it at trial without offering a live witness
competent to testify to the substance of the report. This term, in Bullcoming v. New
Mexico, the Court was asked to decide whether the Confrontation Clause allowed
prosecutors in the DUI trial of Donald Bullcoming to introduce a lab
report on his blood alcohol level through the testimony of a supervisor
who did not perform or observe the reported test. So, Laurie, was this another decision
favorable to the prosecution? Not at all. I actually think this will make it
harder for the prosecutors because they can’t just put on these
forensic reports without calling the person who actually did the tests or
at least the certifying analyst. In this case, the certifying and testing
analyst wasn’t available. He was on unpaid leave for reasons we don’t even
know. And the defendant complained and said, What about my right to cross-examine–my
confrontation rights? The Supreme Court agreed. It wasn’t good
enough for them to send a supervisor from the
lab who didn’t actually have contact with this testing. There were some separate opinions that tried to
lessen the harsh impact on prosecutors that Laurie describes. Justice Ginsburg, in a part of her opinion that was
joined just by Justice Scalia, said, well, the government can save some of the
specimen for retesting and thus avoid the problem by having a new analyst test it and thus be able to testify. She also suggested
that it’s only a relatively small number of cases being issued because usually a defendant is willing to
stipulate to allowing the testimony of the
evidence to come in. Justice Sotomayor wrote a concurring opinion that could prove to be very
important. She said there’s many things that aren’t
being considered in this case. So, for example, this isn’t a situation where the
testing was done for non-law enforcement purposes, like for a medical purpose. So this isn’t the situation where the person
is offering expert evidence–expert testimony to evidence that was not
admitted. And she said that there were other circumstances as well where the
evidence might be able to come in, like if it was a supervisor who is
testifying about something that he or she observed. Finally, our Fifth Amendment decision: J.D.B. v. North Carolina. In this case, 13-year-old J.D.B.
was taken out of class by a detective and questioned in a school conference room about some local burglaries. Besides the juvenile and the detective,
an assistant principal, a school resource officer, and an intern were present during
questioning. The door was closed but not locked. J.D.B. was not given his Miranda
rights until after he was questioned, and later moved to have his confession
thrown out on those grounds. So, Laurie, could a court consider the age in determining whether a reasonable
person in the juvenile’s position would have felt comfortable terminating this police
inquiry? Beth, not only could a court, but the Supreme Court says a
court should–that, in fact, even though we have this objective standard for determining
whether somebody’s in custody for Miranda purposes, what we really have to
consider is who’s the reasonable person in that
situation, and age is an objective enough factor to do it here. That you don’t need to have advanced
psychology training for courts to use this as the standard. That, therefore, the police, if they know
the suspect’s age or they reasonably should know the suspect’s age, can use that to
determine whether the person’s in custody and
should be given Miranda rights. The problem, though, is that the Court doesn’t
clarify how police and courts are to determine the
relationship between age and whether a person is in custody. This is what Justice Alito objects to
in his dissent. He said the virtue of Miranda is it gives
clear bright-line rules to police. Here, it’s uncertain how police are to
determine whether or not somebody’s then age sufficient and whether the person is in
custody or not in custody. Thanks, Erwin. Thanks, Laurie. Mark Sherman will be talking about some
criminal law decisions next with Laurie and Evan Lee. Hello. I’m Mark Sherman, and with me to talk about three of this
term’s criminal law decisions are Laurie Levenson and Evan Lee. Our first decision, Sykes v. U.S., deals with what constitutes a violent
felony under the Armed Career Criminal Act, or specifically, whether fleeing police in a car after
being told to stop constitutes such a crime. Criminals with three violent felony
convictions receive harsher penalties under the ACCA. Marcus Sykes already had two. Sykes failed to stop after being told to
do so by a police officer in Indiana. That’s normally a Class A misdemeanor
in that state, but it is upgraded to a Class D felony if the car is used to commit a crime. Sykes was convicted of using the car to
knowingly or intentionally flee from a police officer after being ordered to stop. Sykes objected to the application of the
enhanced penalty provision of the ACCA, arguing it conflicted with then current
Supreme Court jurisprudence in the area. Laurie, this statute offers some
examples of violent felonies that trigger harsher sentences. But the
decision hinged on the majority’s reading of the residual clause, didn’t it? Oh,
that’s right. I mean the law itself sets forth some crimes that are crimes of
violence, and those include burglary, arson, extortion, and crimes using explosives.
But then there is, as you said, a residual clause that finds a state law
to be a violent felony if it is punishable by more than one year
imprisonment and “involves conduct that presents a serious potential risk
of physical injury to another.” And how does the trial judge make that
finding, Evan? Well, the majority seems to be employing
a test that asks first what an ordinary or typical commission of
this offense looks like, and then it takes that and it asks whether
that imagined offense presents the serious
potential risk of physical injury. And, in this case, the majority found that
fleeing the police in an automobile met that description? Yes, because when somebody flees in a car
and then the police often chase after them, and then all
sorts of dangers are created to the point where the fleeing car might be 20 percent
more dangerous than either an arson or a burglary, which is one of the stated
crimes in the statute. So what’s the test after this decision? Well, I think Laurie just said it. It has to do with statistics. I think a district judge has to
consider the statistics on the rate of injury
for whatever felony is in question. If that rate of injury is close to the
rate of injury for burglary or arson, the enumerated
felonies in the ACCA, then– then it’s violent. Unless it’s non-purposeful and non-aggressive, such as a DUI,
which was the holding in Begay v. U.S., which the Court seemed to back off of a
little bit but it’s not clear, you know, that it backed off of it completely. In DePierre v. U.S., the
question was, again, centered on an enhanced sentencing statute,
this time involving the ongoing question of how to deal with so-called crack
cocaine. The issue: whether an enhancement for
possession of 50 grams or more of cocaine base, which carries a 10-year
minimum sentence, refers to any form of cocaine that is chemically classified as
a base or is limited to crack cocaine. The unanimous decision carefully parsed the
statute’s text and decided that the law made the most sense if “cocaine base” is
interpreted to include all forms of cocaine in its alkaloid form, not just crack cocaine. The Court suggests that if its
holding leads to some sentencing disparities, it will be the result of the differences between the
fixed minimum sentences Congress imposed by statute and the graduated scheme set by the
Sentencing Guidelines. And finally, in Fowler v. U.S., the Court was asked to decide whether, to
prove a criminal violation of the federal witness tampering statute when a
defendant allegedly kills a witness, the government must prove that
the victim would have provided information
regarding a crime to a federal court or law enforcement
officer. Charles Fowler was convicted of killing
Florida police officer Christopher Horner. The federal grand jury indicted Fowler in
part for murdering Horner “with the intent to
prevent any person from communicating with a
[federal] law enforcement officer or judge of the United States about the commission or possible
commission of a federal offense.” Fowler argued that in order to charge him
under that statute, the government was required to prove that Horner would have transferred information to federal
officers if he had not been killed. The government had offered no proof to that effect at trial. Laurie, what did the majority say that the
government has to prove to make its case under the statute? Well, let’s start with what the Court
said the government does not have to prove. And the government does not have to
prove beyond a reasonable doubt that the hypothetical communication would
have been made directly to a federal officer. On the other hand, the government does
need to prove more than an indefinite intent to prevent a communication to any type of
law enforcement officer. Otherwise, I think that this decision would note that the scope of the
statute would cover all sorts of what would be purely state witness tampering
violations. So where does that leave federal prosecutors, Evan? Well, I think prosecutors have to prove that if the victim had communicated with law enforcement officers, there’s a reasonable likelihood that at least one of those law
enforcement officers would have been a federal law enforcement officer. In the Court’s words, the likelihood of
the communication to a federal officer has to be “more than remote, outlandish, or simply hypothetical.” It can be hypothetical; it just
can’t be purely hypothetical. Thanks. Laurie, Evan, and I will turn next to
discussing the Court’s decisions involving prisoner litigation. Hello. The decision in this group that
generated the most discussion was Brown v. Plata. Here, five justices upheld the injunction of a
federal district court that ordered California to reduce its prison
population by 46,000 prisoners in order to remedy a number of Eighth
Amendment violations. Laurie, this case has a long history. Can you
remind us of some of that? Yes, Mark, it certainly does. You know the
California prisons were designed to accommodate about 80,000
prisoners. And it ended up having twice as many
prisoners, and that caused many serious problems, including–from the overcrowding–
mental health problems, physical health problems. So over the course of the last
21 years, federal courts have repeatedly found that there are serious constitutional
violations, and that there’s been a deliberate indifference to the conditions of
the prisoners. Then what happened is that there was the three-judge court
under the Prison Litigation Reform Act, and that court heard extensive testimony,
made findings of fact, and ordered the state to reduce its prison population
to only 137 1/2 percent over its maximum, and gave it two years to do so.
So the question for the Supreme Court was whether that three-judge court exceeded its authority under the statute. So how big a
decision is this, Laurie? I actually think that this is a landmark
decision under PLRA. It put some real teeth into that statute. Evan, what do you think influenced the
Court to reach the decision that it did? Well, I think it was the expert testimony regarding the conditions in the
prisons, which the Court recounted in great and
graphic detail in some cases. For example, there was a story about a mentally
ill inmate who was held in a cage for 24 hours, standing
in his own waste, waiting for treatment. There was
another case where there were 50 sick inmates who
were held in a cage that was 12 by 20 feet for– I think it was 5 hours waiting for treatment. Justice Kennedy even took the
unusual step of including photographs of some of these conditions in the
Supreme Court opinion. But the question, of course, was not
whether the conditions were horrendous; even California conceded that. The question was what did the
three court–did the three-court judge– three-judge court overstep its authority in issuing
the injunction to the state to
reduce its population? The Court said that under the PLRA, a three-judge court may not enter a
population reduction decree unless overcrowding is the “primary cause” of the constitutional violations. Now, does that mean the only cause? The Court said no. Here it was the main cause, and that was good enough. And the justices found that the remedy was
narrow enough and that there really was no other remedy that would solve
those problems. Moreover, it gave the State of California
two years to reduce its overpopulation. Our second decision, Walker v. Martin, may make it a little harder for
prisoners in California to gain their freedom. Under the Court’s precedent, federal habeas relief is unavailable to those convicted in state court if, first, a state court has declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement, and, second, the state judgment rests on an
independent state– independent and adequate state procedural
grounds. Charles Martin waited nearly five years
after his conviction before filing a state habeas petition for ineffective assistance of counsel. He gave no reason for the delay, and the California Supreme Court denied
his petition as untimely. When Martin filed a federal habeas
petition based on the same grounds, the federal district court dismissed it because of Martin’s failure to seek
relief in state court “without substantial delay.” But because California directs
petitioners to file known claims “as promptly as the circumstances allow,” instead of setting statutory filing
deadlines for determining timeliness, Martin argued that it did not qualify as
an independent state ground adequate to bar habeas relief in federal courts. A unanimous Court held that even though the
California rule allows courts discretion to decide the question of timeliness, the rule was an adequate and
independent state ground for denying federal habeas relief. The Court said that the rule–that this
rule was in line with its 2009
decision in Beard v. Kindler, where it wrote that a rule can be “firmly
established” and “regularly followed” even if the appropriate exercise of
discretion permits consideration of a claim in some cases but not in others. However, the Court was careful to say that it could reach this decision
because Martin did not allege that California used this rule, either by
design or in operation, to discriminate against federal claims or claimants. A federal court may only grant habeas relief on a claim that was adjudicated on the merits in state court if the federal court determines that the state court decision involved
an objectively unreasonable application of federal law. But, of course, that determination is dependent on the
facts to which the state court applied the federal law. So, is the federal court limited to the
facts that were before the state court when
it applied the federal law, or may the federal court hold an evidentiary
hearing where it hears new facts not previously
before the state court? That was the question before the Supreme
Court in Cullen v. Pinholster. And how
did the Court answer it, Evan? Well, the majority held that a
federal court’s review of the habeas claim is limited to the record before the state court when that court
adjudicated the merits of the claim. The Court said it doesn’t make any sense to say that the state court unreasonably
applied the law to facts that weren’t before it. So, Laurie, can a federal court still hold
an evidentiary hearing on a claim that was not adjudicated on the
merits in state court? Only if it meets the standards set forth
in 2254(e)(2) of the Criminal Code, which requires that there is either a
new rule of constitutional review that’s been made retroactive to the case or, second,
that the claim depends on a factual predicate that could not have
been discovered with due diligence and that that claim would be sufficient
to establish by clear and convincing evidence that but for the constitutional
error, the defendant would not have been found guilty. So, Evan, what’s the significance of this decision for state court defendants seeking habeas relief? Well, I think petitioners are going to
have to present everything in state court, or they’re likely
to be barred from presenting it in federal court. Frankly, I’m not sure what is left for the petitioners to present in federal evidentiary hearings on habeas corpus
that might be held at this point. Our next decision, Wall v. Kholi, again deals with the
effect of state law on the availability of federal habeas relief. Under AEDPA, “a properly filed application for state
post-conviction or other collateral review with respect to the pertinent judgment or claim” tolls the one-year limitation
period for filing a federal habeas petition. Khalil Kholi filed and lost numerous
appeals in state court. One of them was a motion to reduce his
sentence under Rule 35 of the Rhode Island Superior Court Rules of
Criminal Procedure. While that last motion was still pending
Kholi filed an application for state post-conviction relief challenging his conviction. That motion was also denied. The question that brought the case into
federal court asked whether Kholi’s Rule 35
motion triggered the tolling provision. The Court held unanimously that it did. The justices said that collateral means
lying aside from the main subject, and since the Rule 35 motion was not part
of the direct review, it came under AEDPA’s definition and tolled
the limitation period. In Skinner v. Switzer, the Court sought to answer a question
that it failed to resolve two terms ago in District Attorney’s Office for the
Third Judicial Circuit v. Osborne. The question was, May a convicted– convicted state prisoner seeking
DNA testing of crime scene evidence assert that claim in a civil rights
action under 18 U.S.C. section 1983, or is such a claim cognizable in
federal court only when asserted in a petition for a writ of habeas
corpus under 28 U.S.C. section 2254? Henry Skinner was convicted of
murder in a Texas state court. His post-conviction challenges included
an attempt to have DNA tests run on evidence police collected at the crime
scene. Even though Texas had a statute allowing
prisoners post-conviction DNA testing in limited circumstances, Skinner’s claims were denied. Finally, Skinner named Lynn Switzer, the district attorney who handled his
prosecution, in a section 1983 suit, alleging that Texas violated his
Fourteenth Amendment right to due process by refusing to provide the DNA
testing he requested. What did the lower federal courts say, Evan? The district court denied his petition on the grounds that under governing circuit precedent, a post-conviction request for DNA
evidence could only be heard in habeas corpus hearings, and the Fifth Circuit, of
course, affirmed that. So what did Switzer argue? Switzer–well, Texas in the person of
Switzer–argued that Skinner’s challenge was jurisdictionally barred by something
called the Rooker-Feldman doctrine. Laurie, could you remind us
of what that is? Absolutely. It comes from two Supreme Court
cases–first, Rooker v. Fidelity Trust Company and,
then, the District of Columbia Court of Appeals v. Feldman–and basically
together they say that the district court lacks subject matter jurisdiction to
overturn state court judgments. Only the Supreme Court has the jurisdiction to do
that. And so did that bar Skinner’s claim in federal court? Well, actually no, because the Court said
that the Rooker-Feldman doctrine only applies to state court judgments, not challenges
to a state court statute, as there was here. Yeah, and the Court also cited a
2005 decision, Wilkinson v. Dotson, where it affirmed that habeas was the
exclusive remedy for a prisoner who seeks either immediate or speedier release
from confinement. But where the claim would not
necessarily speed release, the suit can be brought under
section 1983. The majority also found that its decision
was not barred by its earlier decision in Heck v. Humphrey because a favorable ruling in Skinner’s case, his 1983 claim, would not necessarily imply the invalidity of his underlying
conviction or underlying sentence. All it would do is give him access to DNA testing. Our final decision in this group, Sossamon v. Texas, deals with the Religious Land Use and
Institutionalized Persons Act, or RLUIPA. Harvey Leroy Sossamon sued Texas, claiming it violated his rights under
RLUIPA when it prevented him from attending religious services while on cell
restriction for disciplinary infractions and would not
allow him to use the prison chapel for religious worship. These were general policies of the
prison. Sossamon sued under RLUIPA’s private cause
of action section, seeking injunctive and monetary relief. Evan, how did the lower courts respond to the
claim? The district court held that sovereign
immunity barred Sossamon’s claims for monetary relief. And the Fifth
Circuit affirmed, saying that Texas hadn’t waived its sovereign immunity simply on the ground that it
had accepted federal funding. And what did the Supreme Court rule? The Court said that although RLUIPA
provides for a private cause of action “for appropriate release– relief against a government,” that phrase is ambiguous with respect to money damages. But I think the Court emphasized that sovereign
immunity is an important constitutional limitation on the federal courts and that, therefore,
the test must be a strict one to see if the states have waived it. In other words,
Congress must have a very clear indication that they meant to have damages. Yeah, the majority reiterated
its precedents that a state’s consent to sue in federal court for damages must be “unequivocally expressed” on the face of the statute. So, Mark,
I think overall that this decision will sort of lessen the burden of RLUIPA on the states. Thanks, Laurie. Thanks, Evan. Erwin and Susanna Sherry have joined me to
talk about some of the term’s sentencing decisions. The defendant in Pepper v. United States
was originally given an approximately 75 percent
downward departure from the U.S. Sentencing Guidelines
after pleading guilty in a conspiracy to distribute
methamphetamine. Reversed and remanded for resentencing by the
appellate court, the district court, hearing testimony
about Pepper’s completing a drug rehabilitation program, beginning college, and reconciling with
his father, sentenced Pepper to time served. The most important question before the
Supreme Court was, When the defendant’s sentence is set aside
on appeal, may a district court at resentencing
consider the defendant’s post-sentencing rehabilitation? Erwin? Yes, Justice Sotomayor, writing for the
Court, said that a federal district court judge may consider post-sentencing rehabilitation when deciding the appropriate sentence. First, the Sentencing Reform Act, which
created the guidelines, allows judges to consider the defendant’s background, character, and conduct. And second, to the extent that the
Sentencing Reform Act precludes sentences outside the guideline range, that’s now been declared
unconstitutional in the Booker case, which says that the judges have
to have discretion and the guidelines are just advisory. But
that does leave one question: If the guidelines are advisory rather than
mandatory–if they are not mandatory–how should judges treat them? The majority didn’t really answer that
question. But Justice Breyer wrote a concurrence
suggesting that it’s a two-step approach. First, he decided that a judge can in general consider post-sentence
rehabilitation in departing from the guidelines, and then he asked whether this
particular judge in this particular case was reasonable in considering the post-
sentence rehabilitation. The case is so important in reaffirming
the discretion that judges have under Booker, but there’s an ongoing debate about how easy it should be for judges to depart
from the Sentencing Guidelines, and this is something that I think we’re going to hear a lot
more about in future cases in future years. Our next decision, Tapia v. United States, is also about the relationship between
rehabilitation and the length of a prison sentence. Only in this case, the question is if a
judge may lengthen the sentence, not shorten it. The district court sentenced Tapia to
the top of the guidelines range for smuggling unauthorized aliens into the
country, indicating that it was giving this sentence so that Tapia would be in prison long
enough to qualify for the drug rehabilitation program offered there. The question before the Supreme Court: Does the Sentencing Reform Act preclude
federal judges from imposing or lengthening a prison sentence in order to
facilitate a defendant’s rehabilitation? What did the Court decide, Suzanna? The
Court decided that the Act does indeed preclude a federal court from either
imposing or lengthening a defendant’s sentence in order to promote
rehabilitation because the judge can look at the factors that the Act
lists to the extent that they are applicable, but noted that the Act also says, and the
judges have to recognize, that “imprisonment is not an
appropriate means of promoting correction and rehabilitation.” The Court said if Congress wanted judges to be able to
consider the possibility for rehabilitation in deciding the sentence, they would have given to the judges the ability to
ensure that the defendants actually participate in rehabilitative
programs. And it didn’t. The Court also explicitly didn’t
decide whether a sentence could be shorter in order to promote rehabilitation, which
I think is interesting in light of the discussion that we just had about the Pepper case. And there is an
irony, if not a tension, between these two cases. In Pepper, the Court is talking about the importance of
discretion of the judges and wanting to promote rehabilitation. In the Tapia case, the Court is talking about
the need to limit the discretion of the judges, and it seems to reject the importance of
rehabilitation. I don’t know if it’s an inconsistency, but it’s certainly a tension between these
cases. In McNeill v. United States, the Court once again is trying to
clarify the meaning of the Armed Career Criminal Act. Under the ACCA, a felon unlawfully in possession of a
firearm is subject to a 15-year minimum
prison sentence if he has three prior convictions for a
violent felony or serious drug offense. The Act defines a serious drug offense
as one for which the law prescribes a maximum term of imprisonment of 10 years
or more. McNeill received the enhanced sentence
because at the time of his state convictions, the maximum sentence was 10 years or
more, and he was sentenced to 10 years. But after he received those state sentences, the
state law changed and those sentences would’ve been less
than 10 years. So the question in this case for
purposes of the ACCA was, Does a federal court look at the
state law penalties at the time of conviction or subsequently? The Court held that a sentencing judge
should look at the law at the time of conviction for the previous offense, not
to subsequent developments. Otherwise, some convictions would
effectively disappear for ACCA purposes, or a sentence might depend on the exact
timing of a federal sentencing proceeding. And one final decision in this area:
United States v. Abbott. Federal law makes it a separate offense
to use, carry, or possess a deadly weapon in connection with any crime of violence
or a drug trafficking crime. The minimum prison term for this offense
is five years, to be served consecutively, except–and this is the language that the
Court was asked to parse— “to the extent that a greater minimum
sentence is otherwise provided.” The question before the Court was,
Otherwise provided for what? The Court held that the most logical
reading of the statute refers to a greater mandatory minimum
provided for other provisions of the U.S. Code that punish possession, carrying, or use of a gun during violent or drug trafficking
crimes. So the fact that there was a higher
mandatory minimum for the underlying crimes did not spare
the defendant from the additional five years for
carrying a weapon during those crimes. John Cooke is up next with some civil
rights decisions. The Court decided three cases dealing
with civil rights that we want to tell you about now. Los Angeles County v. Humphries involved
a section 1983 action against LA County seeking damages, an injunction, and a
declaration that the defendants had deprived plaintiffs of their
constitutional rights. The Court’s 1978
decision in Monell v. New York City Department of Social Services held that a municipality could only
be liable under section 1983 when “execution of the government’s policy or
custom . . . inflicts the injury.” The question before the Court in the
Humphries case was whether its decision in Monell, which dealt only with
monetary damages, applied to a case that involved prospective relief, like injunctions and declaratory
judgments. Yes. The Court held that in any section
1983 suit, regardless of the type of relief sought, a local government may be held liable only for actions in execution of a
governmental policy or custom. In Thompson v. North American Stainless, Eric Thompson and his fiancee, Miriam
Regalado, both worked for North American Stainless. Regalado filed a sex discrimination
charge against the company. Three weeks later Thompson was fired. He sued North American Stainless under
Title VII, charging that it had fired him to
retaliate against his fiancee for filing her charge. Two questions before the Supreme Court
were, first, Did the company’s firing of Thompson
constitute unlawful retaliation, and second, If it did, does Title VII grant
Thompson a cause of action? If the facts as they were alleged below
are true, the Court wrote, then Thompson’s firing was indeed
unlawful retaliation. The Court said that a “reasonable worker”
might be dissuaded from claiming discrimination if she knew that her
employer would retaliate against her fiance. This reasonable worker standard is the
one the Court set out for retaliation claims in its 2006 decision in Burlington v. White. The Court also held that an employee who
was terminated for his fiancee’s filing a Title VII claim has a cause of action because he falls into what the Court
calls the “zone of interests” protected by the statute. Our final decision here is Staub v.
Proctor. Vincent Staub, a technician at Proctor
Hospital, drilled one weekend a month and trained for two or three weeks a year in
the U.S. Army Reserve. Both his immediate supervisor, Janice
Mulally, and her supervisor, Michael Korenchuk, disapproved of Staub’s
service, seeing it as a strain on the department. Based on their disciplinary actions and
accusations against Staub, the hospital’s Vice President of Human
Resources fired him. Staub sued for violation of a federal
statute protecting reservists from hostile
employment actions taken because of their service. The question: Was the hospital liable for
violating the statute where Mulally’s and Korenchuk’s antimilitary animus influenced someone else to fire Staub? The answer: Yes. Where the supervisors’ animus was
intended to cause the adverse decision and was its proximate cause, the employer
is liable. While this decision was about a
different statute, it is likely to have an effect on Title
VII cases because they also have the same motivating factor language. That’s it for the first half of our
program. We will be back to discuss decisions regarding federalism and the
federal courts, among other topics.

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