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- "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, DC, YOUR HOST--JOHN COOKE. - HELLO, I AM 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 DECISIONS REACHED BY THE SUPREME COURT THAT ARE MOST LIKELY TO AFFECT THE WORK OF FEDERAL JUDGES. THE COURT HANDED DOWN 64 SIGNED OPINIONS AFTER ARGUMENT THIS TERM AND ISSUED 11 PER CURIAM DECISIONS. THE DECISIONS THAT ATTRACTED THE MOST ATTENTION WERE THOSE INVOLVING THE CONSTITUTIONALITY OF THE FEDERAL HEALTH CARE LAW AND THE ARIZONA IMMIGRATION STATUTE. WE'LL DISCUSS THOSE, BUT WE WILL FOCUS MOST ON DECISIONS INVOLVING MORE COMMON ISSUES LIKE SEARCH AND SEIZURE, THE CONFRONTATION CLAUSE, AND SENTENCING. WE ARE FORTUNATE TO HAVE OUR EXPERT FACULTY WITH US AGAIN TO EXPLORE AND EXPLAIN THIS TERM'S DECISIONS. THEY ARE ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF CALIFORNIA AT IRVINE LAW SCHOOL; PROFESSOR EVAN LEE OF THE HASTINGS COLLEGE OF LAW IN SAN FRANCISCO; PROFESSOR LAURIE LEVENSON OF LOYOLA LAW SCHOOL IN LOS ANGELES; AND PROFESSOR SUZANNA SHERRY OF THE VANDERBILT UNIVERSITY LAW SCHOOL. OUR OWN BETH WIGGINS AND JIM CHANCE WILL BE MODERATING OUR DISCUSSIONS. IN OUR FIRST SEGMENT, BETH WIGGINS, ERWIN CHEMERINSKY, AND SUZANNA SHERRY WILL DISCUSS SOME FIRST AMENDMENT DECISIONS. - HELLO, I AM BETH WIGGINS FROM THE FEDERAL JUDICIAL CENTER. WITH ME TO DISCUSS 3 FIRST AMENDMENT DECISIONS REACHED BY THE COURT THIS TERM ARE SUZANNA SHERRY AND ERWIN CHEMERINSKY. LET'S START WITH THE DECISION REGARDING THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT. THIS WAS HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL VERSUS THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. HOSANNA-TABOR IS A RELIGIOUS SCHOOL IN MICHIGAN THAT HAS TWO KINDS OF TEACHERS--LAY TEACHERS AND THOSE WHO ARE CALLED. CALLED TEACHERS ARE CONSIDERED TO BE MINISTERS. CHERYL PERICH BEGAN AS A LAY TEACHER AND THEN BECAME A CALLED TEACHER AFTER TAKING THE REQUIRED COURSES. AFTER TEACHING AT THE SCHOOL FOR 5 YEARS, SHE BECAME ILL AND HAD TO TAKE LEAVE. WHEN HER DOCTOR TOLD HER SHE WAS WELL ENOUGH TO RETURN TO WORK, PERICH INFORMED THE SCHOOL BUT WAS TOLD THAT THEY HAD FILLED HER POSITION WITH A LAY TEACHER. THE SCHOOL OFFERED TO PAY PART OF HER HEALTH INSURANCE IF PERICH RESIGNED BUT SHE REFUSED, THREATENED TO FILE A COMPLAINT WITH THE EEOC, AND THEN WAS FIRED. THE EEOC COMPLAINT SAID THE SCHOOL HAD VIOLATED PERICH'S RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT BOTH FOR DENYING HER A JOB AFTER HER ILLNESS AND FOR FIRING HER IN RETALIATION FOR ASSERTING HER RIGHTS UNDER THE ADA. THE SCHOOL RAISED THE FIRST AMENDMENT RELIGION CLAUSES AS A DEFENSE. ERWIN, WHAT DID THE COURT DECIDE? - THE SUPEME COURT UNANIMOUSLY HELD THAT IT WOULD VIOLATE BOTH THE ESTABLISHMENT CLAUSE AND THE FREE ACCESS CLAUSE TO HOLD THE SCHOOL LIABLE FOR THE CHOICES THAT IT MAKES AS TO WHO WILL BE ITS MINISTERS. CHIEF JUSTICE ROBERTS WROTE FOR THE COURT-- HE SAID IT'S NOT JUST ABOUT EMPLOYMENT DECISIONS. THIS WOULD INTRUDE ON THE INTERNAL DECISION MAKING OF A RELIGIOUS INSTITUTION AS TO WHO'LL BE ITS MINISTERS. SO THE COURT SAID IT WOULD VIOLATE THE FREE EXERCISE CLAUSE TO INTERFERE WITH WHO WILL BE THE CHOICE AS TO MINISTERS, IT WILL INTERFERE WITH THE ESTABLISHMENT CLAUSE, ONCE THE SCHOOL IS BEING INTERFERED WITH, WITH THEIR FUNDAMENTAL RELIGIOUS CHOICES. - WELL, SUZANNA, THAT SOUNDS PRETTY STRAIGHTFORWARD. WAS IT? - WELL, THAT PART WAS STRAIGHFORWARD, BUT THERE WERE SOME COMPLICATING ISSUES. FIRST, THERE WAS THE QUESTION OF WHETHER PERICH REALLY WAS A MINISTER. THE COURT SAID THAT SHE WAS A MINISTER, BUT IT DECLINED TO ADOPT ANY PARTICULAR TEST, NO RIGID TESTS. PERICH, FOR EXAMPLE, HAD ARGUED THAT SHE WASN'T A MINISTER BECAUSE LAY TEACHERS PERFORMED MANY OF THE SAME DUTIES THAT SHE DID AND ALSO BECAUSE THE STRICTLY RELIGIOUS PART OF HER JOB DID NOT TAKE UP VERY MUCH OF HER TIME. THE COURT SAID THAT, NO, THOSE FACTS DON'T CHANGE THEIR CONCLUSION THAT SHE IS A MINISTER, AND JUSTICES ALITO AND KAGAN WROTE A CONCURRENCE ON THIS POINT HIGHLIGHTING THE FACT THAT THE COURT HAD ADOPTED A FUNCTIONAL TEST, NOT A MECHANICAL TEST. THE TITLE OF MINISTER, FOR EXAMPLE, WAS NOT SUFFICIENT OR NECESSARY TO DETERMINE THAT SOMEBODY WAS A MINISTER. THE SECOND IMPORTANT ISSUE WAS WHETHER RECOGNIZING THE MINISTERIAL EXCEPTION WAS INCONSISTENT WITH THE COURT'S PREVIOUS DECISION IN EMPLOYMENT DIVISION VERSUS SMITH. YOU MIGHT REMEMBER, THAT DECISION HELD THAT THE RELIGION CLAUSES DO NOT RELIEVE INDIVIDUALS OF THE OBLIGATION TO COMPLY WITH GENERALLY APPLICABLE LAWS, WHICH, OF COURSE, THE ADA IS, AND THE COURT SAID THERE'S NO CONFLICT. IT DISTINGUISHED THE CASE FROM SMITH BY SAYING THAT SMITH INVOLVED REGULATION OF OUTWARD PHYSICAL ACTS, WHEREAS PERICH'S CASE WAS ABOUT REGULATION OF WHAT THEY SAID WAS AN INTERNAL CHURCH DECISION THAT AFFECTS THE FAITH AND THE MISSION OF THE CHURCH ITSELF. - SO, ERWIN, WHAT ARE THE IMPLICATIONS OF THIS DECISION? - CHIEF JUSTICE ROBERTS' MAJORITY OPINION IS VERY BROADLY WRITTEN. WHAT IF A RELIGIOUS SCHOOL-- K-THROUGH-12, COLLEGE, UNIVERSITY-- DECIDES THAT IT'S GONNA MAKE ALL OF ITS EMPLOYEES MINISTERS? IN FACT, WHAT IF ANY RELIGIOUS INSTITUTION DECIDES TO DESIGNATE ALL OF ITS EMPLOYEES AS MINISTERS? IS IT THEN COMPLETELY EXEMPT FROM EMPLOYMENT DISCRIMINATION LAW? THIS WAS SOMETHING THAT I THINK JUSTICE ALITO AND JUSTICE THOMAS WERE ALSO TRYING TO ADDRESS IN THEIR CONCURRING OPINIONS. WE OBVIOUSLY DON'T KNOW, BUT IT'S CERTAINLY IMPORTANT TO REMEMBER, THIS IS THE FIRST TIME THE SUPREME COURT HAS EVER SAID THAT THE FREE ACCESS CLAUSE AND THE ESTABLISHMENT CLAUSE GIVE RELIGIOUS INSTITUTIONS AN EXEMPTION FROM FEDERAL CIVIL RIGHTS LAWS. - ONE FINAL IMPORTANT NOTE, THE COURT MADE VERY CLEAR THAT THE MINISTERIAL EXCEPTION IS AN AFFIRMATIVE DEFENSE. IT'S NOT A JURISDICTIONAL BAR. - THANK YOU. LET'S MOVE ON TO TWO DECISIONS DEALING WITH FREEDOM OF SPEECH. THE FIRST ONE OF THESE IS KNOX V. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000, OR KNOX V. SEIU. CALIFORNIA LAW ALLOWS PUBLIC EMPLOYEES' UNIONS TO COLLECT DUES FROM NON-MEMBERS FOR COLLECTIVE BARGAINING ACTIVITIES THAT ARE DIRECTLY RELATED TO REPRESENTING THE EMPLOYEES' INTERESTS, BUT THE SUPREME COURT SAID IN AN EARLIER DECISION, ABOOD V. DETROIT BOARD OF EDUCATION, THAT INDIVIDUALS HAVE A RIGHT NOT TO PAY FOR POLITICAL ACTIVITIES OF A UNION, AND SINCE THE COURT'S DECISION IN TEACHERS V. HUDSON, PUBLIC EMPLOYEE UNIONS MUST ANNUALLY CALCULATE WHAT PERCENTAGE OF THEIR DUES GO TO COLLECTIVE BARGAINING AND WHAT PERCENTAGE GO TO POLITICAL ACTIVITY. THEN THEY HAVE TO SEND A SO-CALLED HUDSON LETTER TO ALL NON-MEMBERS GIVING THEM THE OPPORTUNITY TO OPT OUT OF PAYING THE PERCENTAGE OF THE DUES GOING TO POLITICAL ACTIVITIES. SUZANNA, WHAT HAPPENED THAT BROUGHT THIS CASE FORWARD? - WELL, IN THIS CASE, THE UNION LOCAL, THE SEIU, WAS FIGHTING THEN- GOVERNOR SCHWARZENEGGER OVER SOME PROPOSALS OF HIS THAT WOULD HAVE REDUCED THE INFLUENCE OF PUBLIC EMPLOYEE UNIONS. SO FIRST, THEY SENT OUT A HUDSON LETTER, AND THEY STATED IN THAT HUDSON LETTER THAT THE DUES MIGHT INCREASE AT ANY TIME. SO THEY RESERVED THAT RIGHT, AND THEN AFTER THE OPT-OUT PERIOD HAD EXPIRED, THEY IMPOSED A NEW SPECIAL ASSESSMENT, ADDITIONAL DUES, AND THEY SAID THAT THAT SPECIAL ASSESSMENT, ALL OF IT, WOULD GO TO FIGHTING THE GOVERNOR'S PROPOSAL. SO IT WOULD ALL BE POLITICAL, AND SOME OF THE NON-MEMBERS OBJECTED BECAUSE THEY DIDN'T THINK THAT THEY SHOULD HAVE TO PAY THE SPECIAL ASSESSMENT THAT WAS ALL GOING TO BE USED FOR POLITICAL PURPOSES. THEY SAID THAT WOULD VIOLATE THEIR FIRST AMENDMENT SPEECH RIGHTS BY FORCING THEM TO SUBSIDIZE SPEECH THAT THEY DIDN'T NECESSARILY AGREE WITH. - SO HOW DID THE CASE COME OUT? - WELL, IT WAS MIXED. 7 JUSTICES AGREED THAT THE SEIU SHOULD HAVE SENT OUT A HUDSON LETTER WHEN IT IMPOSED THE SPECIAL ASSESSMENT AND THAT THEY SHOULD HAVE ALLOWED ALL NON- MEMBERS TO AVOID ALL OF THE DUES BECAUSE OF THE SPECIAL ASSESSMENT BECAUSE THE ENTIRE SPECIAL ASSESSMENT WAS GONNA BE USED FOR POLITICAL PURPOSES, BUT 5 OF THE JUSTICES IN THE MAJORITY WENT EVEN FURTHER, AND THEY SAID THAT WHEN IT COMES TO A SPECIAL ASSESSMENT, INSTEAD OF GIVING THE NON-MEMBERS AN OPPORTUNITY TO OPT OUT OF THE SPECIAL ASSESSMENT, THEY HAD TO GIVE THEM AN OPPORTUNITY TO OPT IN SO THAT UNLESS THEY OPTED IN, THEY WOULD NOT BE CHARGED ANY OF THE SPECIAL ASSESSMENT, AND THIS IS WHERE THE MAJORITY LOST JUSTICES GINSBERG AND SOTOMAYOR. THEY STRONGLY OBJECTED THAT THE QUESTION OF OPT OUT VERSUS OPT IN HAD NOT BEEN BRIEFED OR ARGUED. - JUSTICE ALITO QUESTIONED THE PRECEDENTS THAT SAID THAT IT'S SUFFICIENT TO HAVE THE NON-MEMBERS OPT OUT. HE SAID AS A MATTER OF FIRST AMENDMENT LAW, AT LEAST WITH REGARD TO THE SPECIAL ASSESSMENT, THEY HAVE TO MAKE THE CHOICE TO OPT INTO SUPPORTING THE POLITICAL ACTIVITIES. JUSTICE BREYER, IN A DISSENT THAT WAS JOINED BY JUSTICE KAGAN, SAID IT'D BE ENOUGH TO JUST GIVE THEM NOTICE IN THE FOLLOWING YEAR AS TO THE PERCENTAGE OF THE DUES THAT WENT TO COLLECTIVE BARGAINING, AS OPPOSED TO POLITICAL ACTIVITIES, INSTEAD OF OPT IN, BUT JUSTICE BREYER'S REAL ANGER --AND I THINK IT WAS THAT-- IN THE DISSENT WAS--THIS WAS JUSTICE SOTOMAYOR--THAT THIS WAS REALLY A CHANGE IN THE LAW THAT WAS NOT BRIEFED AND ARGUED, THAT THE SUPREME COURT HAD LONG SAID THAT OPT OUT IS SUFFICIENT AND TO GO TO OPT IN WOULD REALLY MEAN A GREAT DEAL WITH REGARD TO THE POLITICAL INFLUENCE OF PUBLIC EMPLOYEE UNIONS IN THE UNITED STATES, AND SO IT'S A VERY SHARP DIVISION, 5-4, ON THAT, AND I THINK WE GET A VERY SIGNIFICANT EFFECT IF WHAT THE SUPREME COURT IS SAYING IS THAT NON-MEMBERS ALWAYS MUST MAKE THE CHOICE TO OPT IN BUT OPT OUT IS NEVER CONSTITUTIONALLY SUFFICIENT. - OUR SECOND FREEDOM OF SPEECH DECISION CAME DOWN ON THE LAST DAY OF THE TERM. THIS WAS THIS UNITED STATES V. ALVAREZ. XAVIER ALVAREZ LIED ABOUT WINNING THE CONGRESSIONAL MEDAL OF HONOR. IN DOING THAT, HE VIOLATED THE STOLEN VALOR ACT, WHICH MADE IT A FEDERAL CRIME TO FALSELY CLAIM RECEIVING MILITARY HONORS OR DECORATIONS. ALVAREZ WAS CONVICTED UNDER THE LAW BUT CHALLENGED IT AS A VIOLATION OF HIS FIRST AMENDMENT FREE SPEECH RIGHTS. ERWIN, HOW DID THE COURT COME DOWN ON THIS? - THE SUPREME COURT, IN A 6-3 DECISION WITHOUT A MAJORITY OPINION, DECLARED THE STOLEN VALOR ACT UNCONSTITUTIONAL. JUSTICE KENNEDY WROTE FOR THE PLURALITY. HIS OPINION WAS JOINED BY CHIEF JUSTICE ROBERTS AND ALSO JUSTICE GINSBERG AND SOTOMAYOR. HE SAID THE LAW IS A CONTENT- BASED RESTRICTION OF SPEECH. HE SAID IT DOESN'T FIT INTO ANY OF THE CATEGORIES OF UNPROTECTED SPEECH, SAID, THEREFORE, THE COURT HAS TO USE THE MOST EXACTING SCRUTINY, AND IT SEEMS THAT THIS WAS JUST A SYNONYM FOR STRICT SCRUTINY. HE SAID THAT THE GOVERNMENT COULD NOT PROVE A CAUSAL CONNECTION TO THESE FALSE CLAIMS BRINGING HARM TO THE MILITARY. HE ALSO SAID THERE'S LESS RESTRICTIVE ALTERNATIVES, SUCH AS THE POSSIBILITY THAT THE GOVERNMENT JUST PUBLISH A DATABASE OF ALL THAT RECEIVED THE HONORS TO QUICKLY BE ABLE TO SPOT THE LIARS. - SO, SUZANNA, WHAT DID THE OTHER JUSTICES WRITE? - WELL, JUSTICES BREYER AND KAGAN CONCURRED IN THE JUDGMENT ONLY, NOT JOINING THE PLURALITY, BECAUSE THEY EXPLICITLY REJECTED THE PLURALITIES STRICT CATEGORICAL ANALYSIS. THEY WANTED THE COURT TO USE INTERMEDIATE SCRUTINY OR WHAT THEY CALLED A PROPORTIONALITY TEST TO BALANCE THE HARM TO SPEECH AGAINST THE GOVERNMENT'S OBJECTIVES, AND THEY THOUGHT THE HARM DONE TO SPEECH BY THE STOLEN VALOR ACT WAS SOMEWHAT LESS THAN THE PLURALITY THOUGHT IT WAS BECAUSE THEY SAID THAT THE DANGER OF SUPPRESSING VALUABLE IDEAS IS MUCH LOWER WHEN THE GOVERNMENT IS ONLY PROHIBITING FALSE FACTUAL STATEMENTS, BUT EVEN UNDER THEIR TEST, THEY FELT THE STATUTE FAILED BECAUSE IT WAS POSSIBLE TO ACHIEVE THE GOVERNMENT'S INTERESTS IN A LESS BURDENSOME WAY. SO THEY SUGGESTED, FOR EXAMPLE, THAT CONGRESS MIGHT REWRITE THE STATUTE TO LIMIT IT TO ONLY SOME MILITARY HONORS OR TO REQUIRE A SHOWING OF SOME SPECIFIC HARM OR MAYBE TO LIMIT THE CONTEXT OR THE TYPE OF LIE WHICH WOULD BE SUBJECT TO PROSECUTION. - OK. WHAT ABOUT THE DISSENTS? - WELL, JUSTICES ALITO, SCALIA, AND THOMAS THOUGHT THAT FALSE FACTUAL STATEMENTS HAVE NO VALUE AND, THEREFORE, ARE NOT PROTECTED UNDER THE FIRST AMENDMENT AT ALL. - REALLY IS IMPORTANT TO NOTE IN THAT REGARD THAT THOUGH THERE WAS NO MAJORITY OPINION, 6 OF THE JUSTICES REJECTED THE GOVERNMENT'S ARGUMENT THAT FALSE SPEECH IS INHERENTLY OUTSIDE THE SCOPE OF THE FIRST AMENDMENT. - THANKS, ERWIN. THANKS, SUZANNA. BEFORE WE END THIS PANEL, THERE ARE TWO OTHER DECISIONS IN THIS AREA. IN FCC VERSUS FOX, THE COURT WAS EXPECTED TO RULE ON WHETHER THE FEDERAL COMMUNICATIONS COMMISSION'S STANDARDS THAT BAN FLEETING EXPLETIVES OR BRIEF NUDITY VIOLATED THE FIRST AMENDMENT. INSTEAD, THE COURT HELD THAT THE FCC DID NOT GIVE BROADCASTERS FAIR NOTICE THAT IT WOULD APPLY THE STANDARDS THE WAY IT DID AND, THEREFORE, VIOLATED THE BROADCASTERS' DUE PROCESS RIGHTS, AND FINALLY, IN AMERICAN TRADITION PARTNERSHIP V. BULLOCK, THE COURT SUMMARILY REVERSED A MONTANA SUPREME COURT DECISION UPHOLDING THAT STATE'S CAMPAIGN FINANCE REGULATIONS. THE MONTANA HIGH COURT HAD DISTINGUISHED ITS DECISION FROM THE U.S. SUPREME COURT'S RECENT RULING IN CITIZENS UNITED V. FEC ON GROUNDS THAT MONTANA'S UNIQUE HISTORY ALLOWED THE STATE LEGISLATURE TO ENACT A CAMPAIGN FINANCE LAW TO SERVE A COMPELLING INTEREST IN PREVENTING CORRUPTION. THE U.S. SUPREME COURT 5-JUSTICE MAJORITY MADE IT CLEAR THAT IT WASN'T INTERESTED IN RECONSIDERING CITIZENS UNITED AND THAT IT'S RULING IN THAT CASE IMPOSES A BLANKET BAR ON LIMITING CORPORATE CAMPAIGN EXPENDITURES WHICH CANNOT BE OVERCOME BY FACTUAL FINDINGS. - HELLO, I AM JIM CHANCE FROM THE FJC, AND HERE WITH ME TO DISCUSS FOURTH AMENDMENT DECISIONS BY THE COURT ARE LAURIE LEVENSON AND EVAN LEE. THE 3 CASES WE ARE GOING TO LOOK AT AROSE IN VERY DIFFERENT SITUATIONS AND DEAL WITH DIFFERENT ASPECTS OF THE FOURTH AMENDMENT'S PROTECTIONS. WE'LL START WITH UNITED STATES VERSUS JONES, A CASE THAT STARTED HERE IN THE WASHINGTON AREA. ANTOINE JONES WAS BEING INVESTIGATED BY THE FBI FOR DRUG TRAFFICKING. THE BUREAU GOT A 10-DAY WARRANT TO ATTACH A GPS TRACKING DEVICE TO JONES' WIFE'S CAR IN THE DISTRICT OF COLUMBIA, A CAR THAT ANTOINE JONES USED ALMOST EXCLUSIVELY, BUT AGENTS DID NOT ATTACH THE DEVICE TO THE CAR UNTIL THE 11th DAY AND THEN NOT IN DC, BUT IN MARYLAND. THEY THEN TRACKED THE CAR FOR 28 DAYS. WELL, WHEN PROSECUTORS ATTEMPTED TO USE THE EVIDENCE, JONES OBJECTED THAT IT HAD BEEN GATHERED IN VIOLATION OF THE FOURTH AMENDMENT, FIRST, BECAUSE THE WARRANT WAS FOR DC, NOT MARYLAND, AND SECOND, BECAUSE IT HAD LAPSED BEFORE THE POLICE ATTACHED THE TRACKING DEVICE. DID THE LOWER COURTS SEE IT THAT WAY, EVAN? - PARTIALLY. THE DISTRICT COURT IN JONES' FIRST TRIAL SUPPRESSED THE DATA THAT WAS COLLECTED WHILE THE CAR WAS IN JONES' GARAGE BECAUSE THAT'S PART OF HIS HOUSE, BUT IT ADMITTED THE REST OF THE EVIDENCE BECAUSE, IT SAID--QUOTING FROM A 1984 SUPREME COURT DECISION, UNITED STATES VERSUS KNOTTS, AND HERE I QUOTE--"A PERSON TRAVELING IN A VEHICLE "ON A PUBLIC THOROUGHFARE HAD NO REASONABLE EXPECTATION "OF PRIVACY IN HIS MOVEMENTS FROM ONE PLACE TO ANOTHER," END QUOTE. THEREFORE, THE COURT REASONED, NO WARRANT WAS NECESSARY FOR THE TRACKING EVIDENCE. THAT FIRST TRIAL RESULTED IN A HUNG JURY ON THE CONSPIRACY COUNT. GOVERNMENT WENT AFTER HIM AGAIN, AGAIN GOT THE GPS TRACKING EVIDENCE ADMITTED. THIS TIME, IT RESULTED IN A CONVICTION, AND THE COURT SENTENCED HIM TO LIFE IMPRISONMENT, BUT DC CIRCUIT REVERSED ON THE GROUND THAT THE ADMISSION OF THE TRACKING DATA GATHERED WITHOUT A VALID WARRANT VIOLATED THE FOURTH AMENDMENT. - LAURIE, WERE THERE ANY SURPRISES IN THE SUPREME COURT'S DECISION? - WELL, NOT SO MUCH IN THE RULING. THIS WAS A UNANIMOUS DECISION BY THE COURT SAYING THAT IT WAS A FOURTH AMENDMENT VIOLATION, BUT THERE WERE REAL DIVISIONS IN REASONING FOR THIS DECISION. SO YOU HAVE JUSTICE SCALIA WHO WRITES THAT, IN FACT, HE'S MOVING FROM THE STANDARD IN KATZ FROM 1967, WHICH FOUND THAT THERE WAS A SEARCH IF THERE WAS BOTH A SUBJECTIVE AND A REASONABLE EXPECTATION OF PRIVACY, TO A STANDARD THEY ACTUALLY WERE OVERRULING IN KATZ, THE OLD OLMSTEAD PHYSICAL TRESPASS APPROACH, AND HE RETURNED TO THAT PHYSICAL TRESPASS APPROACH AND SAYS, "LOOK. "IN THIS CASE, THEY PHYSICALLY PLANTED A BEEPER ON JONES' CAR. "THAT WAS A TRESPASS. "IT WAS A TRESPASS AT THE TIME OF THE ADOPTION "OF THE FOURTH AMENDMENT. "THAT VIOLATES THE CONSTITUTION." I THINK THAT WHAT THAT MEANS, THOUGH, FOR JUDGES AND LAWYERS IS THAT THEY'RE REALLY GOING TO HAVE TO STUDY UP ON WHAT TRESPASS LAW IS ABOUT, ESPECIALLY WHEN YOU HAVE MULTIPLE OWNERS OF PROPERTY. - NOW, AS WE SAID, THE HOLDING WAS UNANIMOUS, BUT THERE WERE OTHER OPINIONS ON THE REASONING, RIGHT, EVAN? - THAT'S TRUE. JUSTICE SOTOMAYOR STRESSED IN HER CONCURRENCE THAT THE TRESPASS TEST IS CUMULATIVE, THAT IT'S NOT A SUBSTITUTE FOR THE REASONABLE EXPECTATION OF PRIVACY TEST. ON THE OTHER HAND, YOU HAD 4 JUSTICES-- ALITO, BREYER, GINSBURG, AND KAGAN--WHO ALL WOULD HAVE RELIED EXCLUSIVELY ON THE REASONABLE EXPECTATION OF PRIVACY TEST. THEY DIDN'T THINK THAT THE GOVERNMENT'S ACTIONS WOULD CLEARLY BE A SEARCH OR A SEIZURE UNDER THE NEW TEST BECAUSE OF THE DIFFERENCES IN PROPERTY LAW AMONG THE DIFFERENT STATES, BUT CLEARLY WHAT BOTHERED THE CONCURRING JUSTICES THE MOST IN THIS CASE WAS THE LENGTH OF THE SURVEILLANCE THAT WENT ON HERE, 28 DAYS, AND THAT WAS, OF COURSE, MADE POSSIBLE BY THIS HIGH-TECH, LOW-COST GPS DEVICE. THEY THOUGHT THAT VIOLATED HIS REASONABLE EXPECTATION OF PRIVACY ON THE PUBLIC THOROUGHFARES. NOW, I THINK THAT AT LEAST SOME OF THOSE CONCURRING JUSTICES MIGHT HAVE ACCEPTED THIS EVIDENCE HAD THE DURATION OF THE TRACKING BEEN VERY BRIEF. - AND WHEREAS THIS MIGHT HAVE WORKED OUT JUST FINE FOR MR.JONES, THE HARD CASES ARE THE ONES COMING DOWN THE PIKE THAT INVOLVE SURVEILLANCE THAT DOES NOT INVOLVE A PHYSICAL BEEPER. WE KNOW THAT LAW ENFORCEMENT ARE STOPPING AND NOT USING THOSE ANYMORE. SO WHAT ABOUT THE CASES THAT USE, FOR EXAMPLE, CELL PHONE TECHNOLOGY WHERE WIRELESSLY, THEY CAN LOCATE INDIVIDUALS? HOW WILL THOSE BE ANALYZED UNDER THE FOURTH AMENDMENT? WE DON'T HAVE AN ANSWER TO THAT YET. - WELL, THERE WAS NOTHING REMOTE ABOUT THE SEARCHES IN FLORENCE VERSUS BOARD OF FREEHOLDERS. ALBERT FLORENCE WAS IMPROPERLY ARRESTED ON AN EXPIRED WARRANT AND SENT FIRST TO THE COUNTY JAIL AND THEN TO A LARGER FACILITY, AND BOTH TIMES, HE WAS SUBJECTED TO A VISUAL STRIP SEARCH, IN THE SECOND CASE, A VISUAL FULL-BODY CAVITY SEARCH. WHEN THE MISTAKE WITH THE WARRANT WAS DISCOVERED, HE WAS RELEASED, AND ALL THE CHARGES WERE DROPPED. WELL, FLORENCE SUED UNDER SECTION 1983 FOR A FOURTH AMENDMENT VIOLATION, ARGUING THAT THE STRIP SEARCHES FOR MINOR OFFENSES WERE UNCONSTITUTIONAL, AND WHAT DID THE COURT SAY, LAURIE? - THE COURT UPHELD THE CONSTITUTIONALITY OF THE SEARCH, AND IT DID SO UNDER THE SPECIAL NEEDS DOCTRINE. GIVING DEFERENCE TO THE JAIL AND PRISON OFFICIALS, THEY BASICALLY SAID THAT THE CORRECTIONAL INSTITUTION'S NEEDS FOR SECURITY OUTWEIGHED THE INTRUSION AND, THEREFORE, NO REASONABLE SUSPICION WAS REQUIRED FOR THE SEARCH. - THAT'S EXACTLY RIGHT. JUSTICE KENNEDY WROTE FOR THE MAJORITY AND CITED TWO DECISIONS-- BELL VERSUS WOLFISH, TURNER VERSUS SAFLEY--FOR THE PROPOSITION THAT COURTS HAVE TO DEFER TO THE JUDGMENT OF CORRECTIONAL OFFICIALS UNLESS THERE IS SUBSTANTIAL EVIDENCE THAT THEIR POLICIES ARE UNNECESSARY OR UNJUSTIFIED AS A RESPONSE TO PROBLEMS OF JAIL SECURITY. THE COURT SAID THAT VISUAL SEARCHES OF PRISONERS ARE NECESSARY TO IDENTIFY PRISONERS WITH CONTAGIOUS DISEASES, GANG TATTOOS, WEAPONS, DRUGS, MONEY, AND JUSTICE KENNEDY WROTE THAT THERE HAVE TO BE READILY ADMINISTRABLE RULES PURSUANT TO WHICH CORRECTIONAL OFFICERS ARE NOT GONNA GET SECOND-GUESSED BY COURTS, ALTHOUGH HE DID LEAVE OPEN THE DOOR FOR RULES TO BE DIFFERENT IF THE PEOPLE ARE ADMITTED NOT TO THE GENERAL POPULATION OF A JAIL OR A PRISON. - RIGHT, BUT I THINK THAT YOU HAD 4 DISSENTERS IN THIS 5-4 CASE, AND THE DISSENTERS--JUSTICES BREYER, KAGAN, SOTOMAYOR, AND GINSBURG--THOUGHT THAT THE MAJORITY WAS REALLY UNDERESTIMATING THE INTRUSION THAT WENT ON WITH THESE SEARCHES AND WOULD HOLD THAT THESE WERE UNREASONABLE SEARCHES, ESPECIALLY WHEN YOU'RE DEALING WITH SUSPECTS CHARGED WITH MINOR CRIMES THAT ARE ALMOST LIKE CIVIL MATTERS. - FINALLY, WE ARE GOING TO LOOK AT THE COURT'S DECISION IN MESSERSCHMIDT VERSUS MILLENDER. DETECTIVE CURT MESSERSCHMIDT SEARCHED THE HOME OF AUGUSTA MILLENDER PURSUANT TO A WARRANT ALLOWING THE DETECTIVE TO SEARCH FOR GUNS, AMMUNITION, AND EVIDENCE OF STREET GANG MEMBERSHIP OR AFFILIATION. MESSERSCHMIDT WAS LOOKING FOR MILLENDER'S FORMER FOSTER SON JERRY RAY BOWEN, WHO HAD FIRED A SAWED-OFF SHOTGUN AT HIS GIRLFRIEND SHELLY KELLY WHEN SHE MOVED OUT OF THEIR APARTMENT. KELLY HAD TOLD THE POLICE ABOUT THE INCIDENT AND THAT BOWEN BELONGED TO A COUPLE OF LOCAL GANGS. THE POLICE ALSO HAD AN ARREST WARRANT FOR BOWEN. WELL, THE SEARCH TURNED UP A SHOTGUN, A BOX OF AMMUNITION BELONGING TO MILLENDER, AS WELL AS A LETTER TO BOWEN, BUT NOT BOWEN HIMSELF AND NO FIREARMS THAT COULD HAVE BELONGED TO BOWEN. MILLENDER SUED MESSERSCHMIDT UNDER 1983 FOR A VIOLATION OF HER FOURTH AMENDMENT RIGHTS, CONTENDING THAT THE WARRANT WAS UNCONSTITUTIONALLY OVERBROAD. WHAT DID THE COURTS BELOW DECIDE, EVAN? - THE DISTRICT COURT HELD THAT NO REASONABLE OFFICER IN MESSERSCHMIDT'S POSITION WOULD THINK THAT A WARRANT THAT BROAD WOULD BE JUSTIFIED BY THE MERE EVIDENCE THAT BOWEN HAD USED A SINGLE WEAPON DURING THE INCIDENT WITH HIS GIRLFRIEND, AND THE NINTH CIRCUIT EN BANC AGREED. - WHAT DID THE JUSTICES DECIDE, LAURIE? - WELL, 7 OF THE JUSTICES DECIDED THAT, INDEED, THE OFFICERS WERE ENTITLED TO QUALIFIED IMMUNITY, THAT A REASONABLE POLICE OFFICER COULD PRESUME THAT THIS WARRANT THAT HAD BEEN ISSUED BY A MAGISTRATE WAS, IN FACT, VALID AND THAT EVEN THE REQUEST FOR THE GANG EVIDENCE WAS OK BECAUSE IT'S POSSIBLE THAT THIS ASSAULT WAS BASED UPON A NEED TO KEEP THE VICTIM QUIET ABOUT THE DEFENDANT'S GANG ACTIVITIES. THE MAJORITY THOUGHT THAT THE OFFICERS HAD SHOWN GOOD FAITH, THAT IT'S NOT DETERMINATIVE, BUT BY THE OFFICERS GOING TO GET A WARRANT, THAT'S SOME TYPE OF INDICATION OF THEIR GOOD-FAITH BEHAVIOR. - AND, EVAN, WHAT DID THE OTHER TWO JUSTICES BELIEVE? - WELL, JUSTICES GINSBURG AND SOTOMAYOR FELT THAT THERE WAS NO PROBABLE CAUSE FOR SUCH A BROAD WARRANT, ALSO THAT THE OFFICERS HAD NOT ACTED IN GOOD FAITH AND THAT THE MAJORITY WAS BASICALLY ALLOWING FISHING EXPEDITIONS WHICH LEFT OFFICERS WITH INSUFFICIENT REASON TO REFLECT BEFORE THEY REQUEST WARRANTS IN THESE KINDS OF CASES. - THANKS, EVAN. THANK YOU, LAURIE. I WILL BE BACK WITH LAURIE AND ERWIN CHEMERINSKY TO LOOK AT SOME FIFTH AMENDMENT DECISIONS. LAURIE LEVENSON IS BACK WITH ME. WE'VE BEEN JOINED BY ERWIN CHEMERINSKY FOR A DISCUSSION OF FIFTH AMENDMENT DECISIONS BY THE COURT THIS TERM. THESE DECISIONS COVERED A NUMBER OF FIFTH AMENDMENT PROTECTIONS. WE'LL START WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION. THIS WAS HOWES VERSUS FIELDS. RANDALL FIELDS WAS SERVING TIME IN A MICHIGAN STATE PRISON WHEN HE WAS TAKEN FROM HIS CELL TO A PRIVATE ROOM, WHERE TWO SHERIFF'S DEPUTIES QUESTIONED HIM ABOUT ALLEGATIONS THAT BEFORE COMING TO PRISON, HE HAD ENGAGED IN SEX WITH A 12-YEAR-OLD BOY. FIELDS WAS QUESTIONED FOR 5 TO 7 HOURS BUT WAS TOLD SEVERAL TIMES THAT HE COULD LEAVE WHENEVER HE WANTED. HE WAS NEVER GIVEN HIS MIRANDA RIGHTS. HE TOLD THE DEPUTIES MORE THAN ONCE THAT HE WANTED TO LEAVE AND GO BACK TO HIS CELL, BUT HE FAILED TO DO SO UNTIL AFTER HE HAD MADE SOME INCRIMINATING STATEMENTS. THE SIXTH CIRCUIT COURT OF APPEALS GRANTED FIELDS HABEAS RELIEF ON THE GROUND THAT A PRISONER IS PER-SE "IN CUSTODY" FOR THE PURPOSES OF MIRANDA IF HE IS TAKEN ASIDE AND QUESTIONED ABOUT PRIOR EVENTS THAT HAPPENED OUTSIDE THE PRISON. LAURIE, WHAT DID THE MAJORITY HOLD? - JUSTICE ALITO, WRITING FOR THE MAJORITY, SAID THAT FIELDS WAS NOT IN CUSTODY FOR MIRANDA PURPOSES AND THAT THERE IS NO CATEGORICAL RULE THAT SAYS JUST BECAUSE A PRISONER IS WITHIN AN INSTITUTION THAT IF THEY'RE QUESTIONED, THEY'RE IN CUSTODY AND GET THEIR MIRANDA RIGHTS. IT'S NOT THE SAME COERCIVENESS THAT THE COURT HAD BEEN LOOKING FOR IN MIRANDA CASES, AND IT'S NOT LIKE FIELDS WAS DENIED HIS SUPPORT SYSTEM BY BEING ASKED A QUESTION. - SO, ERWIN, HOW ARE LOWER COURTS TO DETERMINE IF A PRISONER IS IN CUSTODY FOR PURPOSES OF MIRANDA WHEN THEY'RE INTERROGATED IN PRISON? - THE SUPREME COURT SAID THAT A PRISONER IS IN CUSTODY IF THE REASONABLE PERSON IN THOSE CIRCUMSTANCES WOULD NOT FEEL FREE TO LEAVE AND IF THE SITUATION IS AS COERCIVE AS QUESTIONING IN A STATION HOUSE. HERE THE COURT LOOKED TO THE CIRCUMSTANCES AND EMPHASIZED, AS LAURIE JUST POINTED OUT, THAT HE WAS REPEATEDLY TOLD THAT HE COULD LEAVE IF HE WANTED TO, AND THAT'S WHY THE COURT SAID IN THIS CIRCUMSTANCE, THE INDIVIDUAL IS NOT IN CUSTODY. - THERE WAS A COMBINATION CONCURRENCE AND DISSENT HERE BY THE REMAINING JUSTICES. SO WHAT DID THEY THINK THE ISSUE WAS? - WELL, WHAT JUSTICE GINSBURG WROTE FOR HERSELF AND JUSTICES BREYER AND SOTOMAYOR IS THAT THEY AGREED THAT THE LAW WAS NOT AS CLEARLY ESTABLISHED AS THE SIXTH CIRCUIT HAS SAID IT WAS, BUT THEY DISAGREED WITH THE OTHERS THAT FIELDS WAS NOT IN CUSTODY. IN FACT, THEY THOUGHT HE WAS IN CUSTODY AND THAT HE WAS BEING HELD A BIT IN INCOMMUNICADO FOR THIS QUESTIONING. - I THINK IT'S IMPORTANT TO NOTE THAT THIS IS THE SECOND TIME IN THE LAST 3 YEARS THE SUPREME COURT HAS CONSIDERED THE ISSUE--WHEN IS A PRISONER WHO'S QUESTIONED WHILE IN CUSTODY IN CUSTODY FOR PURPOSE OF MIRANDA? AND IN BOTH INSTANCES, THE SUPREME COURT SAID THE PRISONER WAS NOT IN CUSTODY FOR PURPOSES OF THE FIFTH AMENDMENT. AND AS LAURIE SAID EARLIER, THE COURT'S BEEN CLEAR, THERE'S NO CATEGORICAL RULE THAT SAYS THAT EVERY TIME A PRISONER IS QUESTIONED, MIRANDA WARNINGS HAVE TO BE GIVEN. - IN OUR NEXT DECISION, "BLUEFORD V. ARKANSAS," THE APPELLANT, ALEX BLUEFORD, WAS CHARGED WITH THE CAPITAL MURDER OF A 1-YEAR-OLD CHILD. HE WAS ALSO CHARGED WITH THE LESSER OFFENSES OF FIRST-DEGREE MURDER, MANSLAUGHTER, AND NEGLIGENT HOMICIDE. THE JURY WAS INSTRUCTED THAT IF IT HAD REASONABLE DOUBT ABOUT BLUEFORD'S GUILT ON THE CHARGE OF CAPITAL MURDER-- IT WOULD CONSIDER THE CHARGE OF MURDER IN THE FIRST DEGREE. IF IT HAD REASONABLE DOUBT OF HIS GUILT ON THAT CHARGE, IT WOULD THEN CONSIDER THE CHARGE OF MANSLAUGHTER. AND IF IT HAD REASONABLE DOUBT ON BLUEFORD'S GUILT ON THAT CHARGE, IT WOULD THEN CONSIDER THE CHARGE OF NEGLIGENT HOMICIDE. THE JURY WAS GIVEN VERDICT FORMS THAT ALLOWED IT TO CONVICT BLUEFORD ON ONE OF THE CHARGES OR TO ACQUIT HIM ON ALL OF THEM. ACQUITTING ON SOME BUT NOT OTHERS WAS NOT AN OPTION. AFTER DELIBERATING FOR SOME TIME, THE JURY FOREPERSON DECLARED IN OPEN COURT THAT THE JURY WAS UNANIMOUS AGAINST THE GUILT ON CAPITAL OR FIRST DEGREE MURDER BUT IT WAS DEADLOCKED ON MANSLAUGHTER AND HAD NOT VOTED ON NEGLIGENT HOMICIDE. SO THE JUDGE SENT THEM BACK TO DELIBERATE SOME MORE BUT FINALLY DECLARED A MISTRIAL. BLUEFORD WAS RETRIED BY THE STATE, WHICH CHARGED HIM AGAIN WITH CAPITAL AND FIRST-DEGREE MURDER. BLUEFORD CLAIMED IT VIOLATED HIS RIGHTS AGAINST DOUBLE JEOPARDY TO BE TRIED FOR CAPITAL AND FIRST-DEGREE MURDER WHEN HIS FIRST JURY HAD VOTED HE WAS NOT GUILTY OF THOSE CRIMES. SO HOW DID THE COURT SEE IT, ERWIN? - THE SUPREME COURT HELD THAT IT WAS NOT A VIOLATION OF DOUBLE JEOPARDY. THE SUPREME COURT SAID THAT THE JURY HAD NEVER COME TO A VERDICT, EITHER ACQUITTAL OR GUILTY. THEN WHEN THE FOREPERSON DECLARED WHERE THE JURY WAS, THE JURY HADN'T COMPLETED ITS DELIBERATIONS. THE JURY COULD CHANGE ITS MIND AT ANY POINT. AND SINCE THERE HAD NOT BEEN A VERDICT BY THE JURY, THERE WASN'T A VIOLATION OF DOUBLE JEOPARDY IN HAVING THE RETRIAL. - BUT AS THE DISSENTERS POINT OUT, THIS WAS AN ACQUITTAL FIRST JURISDICTION. AND THEREFORE, THE JURORS MUST HAVE FOUND THAT THEY HAD ACQUITTED ON THE FIRST TWO CHARGES IN ORDER TO GET TO THAT CHARGE. AND THE DISSENTERS ARGUED THAT THAT JURY DECISION SHOULD HAVE BEEN GIVEN EFFECT. - I THINK THIS IS THE COURT TAKING A MUCH MORE FORMALISTIC APPROACH DECIDING WHEN THERE'S A VIOLATION TO THE RIGHT AGAINST DOUBLE JEOPARDY. - TWO DECISIONS NOW DEALING WITH DIFFERENT ASPECTS OF THE FIFTH AMENDMENT'S GUARANTEE OF DUE PROCESS. THE FIRST, "SMITH V. CAIN," INVOLVING THE REQUIREMENT THAT PROSECUTORS TURN OVER POTENTIALLY EXCULPATORY EVIDENCE TO CRIMINAL DEFENDANTS. THAT HAS BEEN THE LAW FOR NEARLY 50 YEARS SINCE THE COURT'S RULING IN "BRADY V. MARYLAND." WHAT WERE THE FACTS THERE, ERWIN? - JUAN SMITH WAS CONVICTED OF 5 MURDERS. THE EVIDENCE AGAINST HIM AT TRIAL WAS SOLELY THE TESTIMONY OF ONE WITNESS, LARRY BOATNER. AFTER SMITH WAS CONVICTED AND AFTER HIS CONVICTION WAS AFFIRMED AND APPEALED, A POST-CONVICTION PROCEEDING WAS FILED. AT THIS TIME, THERE WAS THE ABILITY OF THE DEFENSE LAWYERS TO OBTAIN THE DETECTIVE'S NOTES. TURNS OUT THAT THE DETECTIVE THAT INTERVIEWED BOATNER THE NIGHT OF THE MURDER, IS THAT HE COULDN'T IDENTIFY WHO THE ASSAILANT WAS. FIVE DAYS LATER, THE SAME DETECTIVE INTERVIEWED BOATNER. AND BOATNER SAID HE DIDN'T GET A CLEAR ENOUGH VIEW TO BE ABLE TO DO AN IDENTIFICATION OF THE PERSON WHO WAS THE ASSAILANT. AND THEN, OF COURSE, THE ARGUMENT WAS THAT THIS WAS EVIDENCE THAT SHOULD HAVE BEEN TURNED OVER AND THE FAILURE TO DO SO VIOLATED "BRADY V. MARYLAND." - THAT SEEMS PRETTY STRAIGHTFORWARD, LAURIE. DID THE COURT THINK SO? - WELL, THE MAJORITY DID. AND IT WAS AN 8-1 DECISION WITH JUST JUSTICE THOMAS DISSENTING. BUT THE MAJORITY SAID THAT THIS WAS A CLEAR VIOLATION OF "BRADY." AND THE KEY ISSUE IS WHETHER THIS WITNESS STATEMENT WOULD HAVE BEEN MATERIAL. WHEN THIS IS THE KEY EYEWITNESS IN THE CASE, THE COURT FOUND NO PROBLEM IN SAYING THIS WOULD HAVE HELPED WITH IMPEACHMENT. AND, MOREOVER, I ACTUALLY THINK THAT THIS MAY BE A SIGN THAT THE COURT IS BEGINNING TO CRACK DOWN ON SOME OF THESE "BRADY" CASES. - OUR SECOND DUE PROCESS DECISION INVOLVES EYEWITNESS IDENTIFICATION. THIS IS "PERRY V. NEW HAMPSHIRE." ON AUGUST 15, 2008, A MAN IN NASHUA, NEW HAMPSHIRE, CALLED THE POLICE TO REPORT THAT HE HAD SEEN SOMEONE BREAKING INTO CARS IN THE PARKING LOT OF HIS APARTMENT HOUSE. AN OFFICER RESPONDED AND FOUND BARION PERRY STANDING IN A PARKING LOT HOLDING TWO CAR STEREO SPEAKERS NEAR THE CAR WITH A SMASHED WINDOW AND A BASEBALL BAT AT HIS FEET. MEANWHILE, ANOTHER OFFICER WENT TO THE APARTMENT OF THE PERSON WHO CALLED IN THE ORIGINAL REPORT AND ASKED THAT WOMAN WHO LIVED THERE IF SHE COULD IDENTIFY THE MAN WHO BROKE INTO THE CAR IN THE PARKING LOT. SHE WALKED OVER TO THE WINDOW AND SAID THE MAN SHE SAW STANDING NEXT TO THE POLICE OFFICER IN THE LOT, AND POINTED AT PERRY. ABOUT A MONTH LATER, POLICE SHOWED THE WOMAN A PHOTO ARRAY THAT INCLUDED A PICTURE OF PERRY AND ASKED IF SHE COULD IDENTIFY THE MAN WHO HAD BROKEN INTO THE CAR THAT FIRST NIGHT. SHE COULD NOT. PERRY MOVED TO SUPPRESS THE IDENTIFICATION FROM THE NIGHT OF THE CRIME, ARGUING THAT IT AMOUNTED TO A ONE-PERSON SHOW-UP IN THE PARKING LOT BY POLICE AND THAT THAT SHOW-UP HAD ALL BUT GUARANTEED THAT SHE WOULD I.D. HIM AS THE CULPRIT. SO DID THE COURT SIDE WITH MR. PERRY, ERWIN? - NO. IN AN 8-1 DECISION, THE SUPREME COURT HELD THAT THERE WAS NOT A CONSTITUTIONAL VIOLATION. JUSTICE GINSBURG WROTE FOR THE COURT, AND SHE EXPLAINED THAT THE POLICE HAD NOT IN ANY WAY BEEN INVOLVED IN CREATING A SUGGESTIVE SITUATION FOR THE EYEWITNESS. THE COURT SAID THAT THERE HAS TO BE A JUDICIAL INQUIRY WITH REGARD TO THE RELIABILITY OF EYEWITNESS TESTIMONY IF THE POLICE ARE INVOLVED IN CREATING A SUGGESTIVE SITUATION. THAT WASN'T PRESENT HERE. THE SUPREME COURT SAID THAT THERE ARE OTHER WAYS OF ENSURING THE RELIABILITY OF THE EYEWITNESS TESTIMONY. THERE CAN BE CROSS-EXAMINATION; THERE CAN BE IMPEACHMENT; THERE CAN BE INVOCATION OF THE RIGHT TO HAVE NO CONVICTION WITHOUT PROOF BEYOND A REASONABLE DOUBT. - AND IN THIS CASE, YOU DID HAVE A SOLE DISSENT BY JUSTICE SOTOMAYOR, WHO REALLY EMPHASIZED THE TREMENDOUS PROBLEMS THERE ARE WITH EYEWITNESS IDENTIFICATION THAT WE KNOW FROM THE EXONERATION CASES THAT ABOUT 75% OF THE 250 EXONERATION CASES HAVE BEEN BASED UPON EYEWITNESS I.D. AND SO SHE EMPHASIZED IN HER DISSENT THAT THERE SHOULD BE DUE PROCESS PROTECTION AGAINST UNRELIABLE IDENTIFICATIONS, EVEN IF THE POLICE DID NOT MAKE THE IDENTIFICATION HAPPEN. - THANK YOU, LAURIE. THANK YOU, ERWIN. BETH WIGGINS WILL BE TAKING A LOOK AT THE COURT'S SIXTH AMENDMENT DECISIONS WITH OUR NEXT PANEL. - THE SUPREME COURT DEALT WITH 3 SETS OF ISSUES CONCERNING THE SIXTH AMENDMENT THIS TERM. THE COURT RETURNED TO THE CONFRONTATION CLAUSE AND THE QUESTION OF HOW LABORATORY REPORTS MIGHT BE INTRODUCED INTO EVIDENCE. IT ALSO EXPANDED THE SCOPE OF ITS RULING IN "APPRENDI V. NEW JERSEY" REGARDING TRIAL BY JURY AND PROOF BEYOND A REASONABLE DOUBT. AND IT DECIDED 4 CASES INVOLVING INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT. WE'RE GOING TO START WITH THE CONFRONTATION CLAUSE DECISION. BUT FIRST LET'S REVIEW A LITTLE BACKGROUND. IN "CRAWFORD V. WASHINGTON," THE COURT INTERPRETED THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT TO HOLD THAT PROSECUTORS MAY NOT USE TESTIMONIAL STATEMENTS FROM UNAVAILABLE WITNESSES, EVEN IF THOSE STATEMENTS ARE RELIABLE. FIVE YEARS LATER, IN "MELENDEZ-DIAZ V. MASSACHUSETTS," THE COURT RULED THAT THIS APPLIES TO LABORATORY REPORTS AND THAT THE LABORATORY ANALYSTS WHO PREPARED THE LABORATORY CERTIFICATE MUST TESTIFY. FINALLY, LAST TERM, THE COURT REAFFIRMED THIS RULING IN "BULLCOMING V. NEW MEXICO," WHERE IT HELD THAT THE CONFRONTATION CLAUSE WAS VIOLATED WHEN ANOTHER ANALYST FROM THE LAB TESTIFIED RATHER THAN THE ANALYSTS WHO ACTUALLY PREPARED THE REPORT. ALL THAT LEADS US TO THIS TERM'S DECISION ON THE CONFRONTATION CLAUSE, "WILLIAMS V. ILLINOIS." AMONG OTHER THINGS, THIS MAY BE THE MOST FRACTURED OPINION OF THE TERM. ERWIN, CAN YOU GIVE US THE CENTRAL FACTS OF THIS CASE? - A RAPE OCCURRED IN ILLINOIS. BIOLOGICAL EVIDENCE WAS SENT TO A LAB IN MARYLAND. IT DID A DNA PROFILE OF THE RAPIST AND SENT IT BACK TO ILLINOIS. SANDY WILLIAMS WAS ARRESTED ON ANOTHER CHARGE. BLOOD WAS TAKEN FROM HIM, AND A DNA PROFILE WAS DONE OF HIM. THE ILLINOIS CRIME LAB DID A MATCH BETWEEN SANDY WILLIAMS' DNA AND THE DNA THAT HAD COME BACK ON THE PROFILE FROM THE MARYLAND LAB. AT WILLIAMS' TRIAL, THE MARYLAND LAB REPORT WAS NOT INTRODUCED AS EVIDENCE. INSTEAD, SOMEONE FROM THE ILLINOIS CRIME LAB TESTIFIED AS AN EXPERT WITNESS THAT THERE WAS A ONE IN QUADRILLION CHANCE THAT IT WAS ANYBODY OTHER THAN SANDY WILLIAMS WHO COMMITTED THE RAPE. WILLIAMS WAS CONVICTED. ON APPEAL, HE ARGUED THAT IT VIOLATED THE CONFRONTATION CLAUSE TO NOT HAVE AN ANALYST FROM THE MARYLAND LAB TESTIFY AGAINST HIM. THE ILLINOIS SUPREME COURT AFFIRMED THE CONVICTION. THEY SAID IT'S PERMISSIBLE TO HAVE AN EXPERT TESTIFY WITHOUT THE LAB REPORT BEING INTRODUCED. THE ILLINOIS SUPREME COURT SAID THE DEFENSE LAWYER HAD AMPLE OPPORTUNITY TO CROSS-EXAMINE THE ANALYST FROM THE ILLINOIS LAB, AND THAT WAS SUFFICIENT TO MEET THE CONFRONTATION CLAUSE. - SO WHAT DID THE SUPREME COURT DECIDE, AND WHAT WAS ITS REASONING? - WELL, THAT'S KIND OF A COMPOUND, COMPLEX QUESTION. AND IT'S EASIER TO SAY WHAT THE NARROW HOLDING OF THE CASE WAS THAN WHAT THE COURT'S REASONING WAS. YOU HAD A 4-JUSTICE PLURALITY THAT FOUND THAT THERE HAD BEEN NO VIOLATION OF THE CONFRONTATION CLAUSE FOR TWO DIFFERENT REASONS. FIRST OF ALL, THE FINDINGS OF THE MARYLAND LAB WERE NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. THAT IS TO SAY, THE MARYLAND LAB PROFILE WAS NOT OFFERED INTO EVIDENCE ITSELF. IT WAS SIMPLY USED AS THE BASIS FOR THE ILLINOIS LAB'S EXPERT'S OPINION. SECOND, THE MARYLAND LAB REPORT CITED BY THE EXPERT WITNESS WAS NOT CREATED FOR AN ACCUSATORIAL PURPOSE BECAUSE THE POLICE HADN'T YET ARRESTED WILLIAMS. AND SO HE WAS STILL AT-LARGE, AND THE REPORT WAS MADE PRIMARILY TO CATCH AN UNKNOWN RAPIST WHO WAS STILL A FUGITIVE. - SO HOW DID THIS PLURALITY OF OPINION BECOME A MAJORITY? - JUSTICE THOMAS WAS THE FIFTH VOTE TO AFFIRM THE ILLINOIS SUPREME COURT, THOUGH HE DISAGREED WITH THE REASONING OF THE PLURALITY. FOR JUSTICE THOMAS, WHAT WAS KEY WAS THAT THE MARYLAND DNA REPORT WAS NOT IN HIS VIEW TESTIMONIAL. THEREFORE, THE CONFRONTATION CLAUSE WOULDN'T APPLY. HE SAID IN ORDER FOR SOMETHING TO BE TESTIMONIAL, IT MUST BE "SOLEMN AND FORMAL." HE SAID, HERE IT WASN'T SIGNED OR ATTESTED TO UNDER OATH. IT WASN'T NOTARIZED. THAT MEANT IT WASN'T TESTIMONIAL. - SO WHAT ARE THE IMPLICATIONS? - I THINK THE IMPLICATIONS ARE BROAD. AT THE VERY LEAST, I THINK THIS MEANS THAT A LAB ANALYST CAN TESTIFY AS AN EXPERT WITHOUT THE REPORT COMING IN WHERE THE REPORT IS NOT DEEMED TESTIMONIAL. I THINK THAT JUSTICE THOMAS' OPINION, THEN, REALLY OPENS THE DOOR TO PROSECUTORS BEING ABLE TO CIRCUMVENT "MELENDEZ-DIAZ" AND "BULLCOMING." THEY CAN HAVE AN ANALYST TESTIFY AS AN EXPERT WITNESS WITHOUT THE LAB REPORT COMING IN SO LONG AS THE LAB REPORT WAS NEVER SIGNED, ATTESTED TO UNDER OATH, OR NOTARIZED. - YEAH. JUSTICE ALITO WAS NOT DISMISSIVE OF THOSE KINDS OF CONCERNS, BUT HE SAID THAT THERE WERE A NUMBER OF WAYS THAT TRIAL COURTS COULD PREVENT ABUSES LIKE THE ONES THAT YOU'RE TALKING ABOUT. FIRST OF ALL, HE SAID THEY CAN SCREEN OUT EXPERTS WHO WOULD ACT AS MERE CONDUITS FOR HEARSAY BY STRICTLY ENFORCING THE REQUIREMENT THAT EXPERTS HAVE TO DISPLAY SOME KIND OF GENUINE SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE THAT WILL HELP THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT THAT'S AN ISSUE. SECONDLY, HE SAID EXPERTS ARE GENERALLY PRECLUDED FROM EXPOSING INADMISSIBLE EVIDENCE TO A JURY. THIRD, JUSTICE ALITO STRESSED THAT IF SUCH EVIDENCE IS DISCLOSED, THEN TRIAL JUDGES MAY--AND IN MOST CASES, ARE-- REQUIRED TO ACTUALLY INSTRUCT THE JURY THAT OUT-OF-COURT STATEMENTS CAN'T BE ACCEPTED FOR THEIR TRUTH AND THAT AN EXPERT'S OPINION IS REALLY ONLY AS GOOD AS THE INDEPENDENT EVIDENCE THAT ESTABLISHES ITS UNDERLYING PREMISES. AND FINALLY, JUSTICE ALITO SAID, IF THE PROSECUTION CANNOT PROVE, CANNOT MUSTER ANY INDEPENDENT ADMISSIBLE EVIDENCE TO PROVE THE FOUNDATIONAL FACTS THAT ARE ESSENTIAL TO THE RELEVANCE OF THE EXPERT'S TESTIMONY, THEN THE EXPERT'S TESTIMONY CANNOT BE GIVEN ANY WEIGHT BY THE TRIER OF FACT. - WHAT WERE THE OTHER OPINIONS IN THIS CASE? - JUSTICE BREYER WROTE A FASCINATING-- I THINK POTENTIALLY VERY IMPORTANT CONCURRING OPINION. HE SAID THERE WERE SO MANY ANALYSTS INVOLVED WITH REGARD TO A DNA REPORT, THE QUESTION HAS TO BE FACED, HOW MANY OF THEM WILL NEED TO COME AND TESTIFY? HE HAD A CHART WHERE HE SHOWED 9 DIFFERENT ANALYSTS THAT WERE INVOLVED. AND WHERE ARE WE GOING TO DRAW THAT LINE? HE SAID THE COURT DIDN'T ADDRESS THAT. AND HE FELT THAT THE PLURALITY OF OPINION WAS CLOSEST TO THE PRIOR DECISIONS AND HIS POSITION ON THE PRIOR DECISIONS, AND THAT THEREFORE HE WAS GOING TO ADHERE TO THAT. JUSTICE KAGAN WROTE A VERY SHARP DISSENT. NOW, IT'S GOT TO BE REMEMBERED THAT SHE WAS JOINED IN THAT BY 3 OTHER JUSTICES WHO WERE IN THE MAJORITY IN "BULLCOMING" AND ALSO WERE IN THE MAJORITY EARLIER IN "MELENDEZ-DIAZ." AND SHE SAID THAT IT MAKES NO SENSE TO SAY THAT AN EXPERT CAN TESTIFY WITHOUT THE LAB REPORT BEING INTRODUCED AND THAT IT DOESN'T VIOLATE THE CONFRONTATION CLAUSE. SHE ALSO DISAGREED WITH JUSTICE THOMAS THAT SOMETHING BECOMES NON-TESTIMONIAL JUST BECAUSE IT'S NOT NOTARIZED OR JUST BECAUSE IT'S NOT ATTESTED TO UNDER OATH. - YEAH, IF I COULD JUST ADD, I THINK THIS MOTLEY COLLECTION OF OPINIONS PUTS ON PUBLIC DISPLAY AN INTERNAL STRUGGLE WITHIN THE COURT WITH RESPECT TO WHAT TO DO WITH "CRAWFORD" AND ITS PROGENY, THE PRACTICAL RAMIFICATIONS OF THOSE DECISIONS IN THE FORENSIC EVIDENCE CONTEXT. - IT SURE DOES. 12 YEARS AGO IN "APPRENDI V. NEW JERSEY," THE COURT HELD THAT THE SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND PROOF BEYOND A REASONABLE DOUBT REQUIRES THAT ANY FACTOR OTHER THAN A PRIOR CONVICTION THAT LEADS TO A SENTENCE GREATER THAN THE STATUTORY MAXIMUM MUST BE PROVEN TO THE JURY BEYOND A REASONABLE DOUBT. THE COURT HAS REAFFIRMED AND APPLIED "APPRENDI" IN A SERIES OF DECISIONS, ALL OF THEM INVOLVING A PRISON SENTENCE. THE ISSUE THIS TERM IN "SOUTHERN UNION COMPANY V. UNITED STATES" IS WHETHER "APPRENDI" APPLIES TO A CRIMINAL FINE. DOES IT, EVAN? - IT DOES FOR A COUPLE OF REASONS. FIRST OF ALL, AT LEAST FOR "APPRENDI" PURPOSES, THE COURT SAID, THERE'S NO BASIS FOR TREATING A CRIMINAL FINE ANY DIFFERENTLY THAN TREATING IMPRISONMENT OR EVEN DEATH. SECOND, IF THE FINE IS REALLY THAT INSUBSTANTIAL, THEN THE CRIME IS CONSIDERED A PETTY ONE. AND THE SIXTH AMENDMENT-- RIGHT TO A JURY TRIAL-- DOESN'T APPLY. BUT WHERE THE SIXTH AMENDMENT DOES APPLY, THEN "APPRENDI" APPLIES AS WELL. - SO WAS THIS A SURPRISE DECISION? - I DON'T THINK IT WAS A SURPRISE FOR JUST THE REASONS THAT EVAN SAID. WHAT THE SUPREME COURT SAID IS WHERE THE SIXTH AMENDMENT APPLIES, THEN THE JURY HAS TO FIND ANY FACTS OTHER THAN A PRIOR CONVICTION TO LOOK AT A SENTENCE GREATER THAN THE STATUTORY MAXIMUM. I THINK, THOUGH, IT'S WORTH NOTING THAT IN BOTH "APPRENDI" AND IN "BOOKER," JUSTICES STEVENS AND SOUTER WERE IN THE MAJORITY. IF EITHER OF THEIR REPLACEMENTS-- JUSTICES KAGAN OR SOTOMAYOR-- HAD COME OUT DIFFERENTLY, THEN THERE COULD HAVE BEEN A MAJOR RECONSIDERATION OF "APPRENDI" AND OF "BOOKER." BUT THE FACT THAT THEY'RE TAKING THE SAME POSITION AS THE JUSTICES REPLACED MEANS THAT "APPRENDI" AND "BOOKER" AND THE WHOLE PROGENY OF THOSE CASES IS STILL INTACT. - NOW LET'S MOVE ON TO OUR 4 "INEFFECTIVE ASSISTANCE OF COUNSEL" DECISIONS. IN TWO OF THESE DECISIONS-- "LAFLER V. COOPER" AND "MISSOURI V. FRYE"-- THE COURT HELD THAT THE RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL APPLIES AT THE PLEA BARGAINING STAGE. THE FACTS IN THESE TWO CASES WERE VERY DIFFERENT, BUT THE COURT'S REASONING WAS THE SAME IN BOTH. FRYE WAS CHARGED WITH A MISDEMEANOR-- DRIVING WITH A REVOKED LICENSE-- AND WAS OFFERED A PLEA BARGAIN THAT HIS DEFENSE ATTORNEY FAILED TO TELL HIM ABOUT. INSTEAD OF THE 90 DAYS THE PROSECUTOR OFFERED, FRYE WAS CONVICTED OF A FELONY AT TRIAL AND SENTENCED TO 3 YEARS. COOPER WAS CHARGED WITH ASSAULT WITH INTENT TO KILL FOR SHOOTING A WOMAN 3 TIMES WHILE SHE WAS FLEEING. HE INITIALLY ACCEPTED A PLEA BARGAIN BUT LATER REJECTED IT WHEN HIS LAWYER CONVINCED HIM THAT THE STATE COULD NOT PROVE ASSAULT WITH INTENT TO KILL BECAUSE HE ONLY SHOT THE VICTIM BELOW THE WAIST, WHICH WAS SERIOUSLY ERRONEOUS ADVICE. EVAN, WHAT WAS THE COURT'S REASONING IN THESE TWO CASES? - WELL, IN ESSENCE, THE COURT APPLIED THE TWO-STEP APPROACH OF "STRICKLAND V. WASHINGTON" REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL. AND THAT'S FAMILIAR TO US NOW, BUT JUST TO REVIEW VERY, VERY BRIEFLY, YOUR FIRST PRONG IS THAT THE PERFORMANCE OF DEFENSE COUNSEL HAS TO BE SO DEFICIENT AS TO NEGATE THE SIXTH AMENDMENT RIGHT TO COUNSEL. AND, SECOND OF ALL, THE DEFENDANT HAS TO HAVE BEEN PREJUDICED OR HAS TO SHOW THAT HE'S BEEN PREJUDICED BY THE INADEQUATE REPRESENTATION. SO AS IT APPLIES TO THE LAW OF PLEA BARGAINING, THE SECOND PART OF THE TEST REQUIRES THAT THE DEFENDANT SHOW A REASONABLE PROBABILITY THAT HE WOULD HAVE ACCEPTED THE PLEA OFFER; THAT THE PROSECUTOR WOULDN'T HAVE WITHDRAWN THAT OFFER; AND THAT THE COURT WOULD HAVE ACCEPTED IT. - WHAT ABOUT THE DISSENTS? - THE MAJORITY REJECTED JUSTICE SCALIA'S ARGUMENT THAT THE SIXTH AMENDMENT IS CONCERNED SOLELY WITH THE RIGHT TO A FAIR TRIAL AND HIS OTHER CORRELATIVE ARGUMENT THAT INEFFECTIVE ASSISTANCE IS WHOLLY DERIVATIVE OF THE TRIAL RIGHT. JUSTICE SCALIA ALSO SAID THAT THE MAJORITY WAS OPENING A WHOLE NEW FIELD OF CONSTITUTIONALIZED CRIMINAL PROCEDURE AND THAT BEING PLEA BARGAINING LAW. - MM-HMM. SO, ERWIN, HOW IMPORTANT WERE THESE TWO CASES? - I THINK THESE CASES ARE TREMENDOUSLY IMPORTANT. I THINK FROM THE PERSPECTIVE OF FEDERAL DISTRICT COURT JUDGES, THESE ARE PROBABLY THE MOST IMPORTANT DECISIONS OF THE TERM. 97% OF ALL THE CONVICTIONS IN FEDERAL COURT AND 94% OF ALL THE CONVICTIONS IN STATE COURT ARE GAINED VIA GUILTY PLEAS. AS EVAN POINTED OUT, THE SUPREME COURT REJECTED JUSTICE SCALIA'S VIEW THAT A FAIR TRIAL IS ALL THAT THE SIXTH AMENDMENT REQUIRES. I THINK THAT THESE DECISIONS FOLLOW FROM THE SUPREME COURT'S RULING A COUPLE YEARS AGO IN "PADILLA V. KENTUCKY" WHERE THE SUPREME COURT SAID THAT INACCURATE ADVICE WITH REGARD TO IMMIGRATION-- CONSEQUENCES OF A GUILTY PLEA-- IS INEFFECTIVE ASSISTANCE OF COUNSEL. BY THE WAY, IT'S WORTH NOTING THAT THE SUPREME COURT HAS GRANTED REVIEW FOR NEXT TERM IN "CHAIDEZ V. UNITED STATES" ON THE QUESTION OF WHETHER OR NOT "PADILLA" APPLIES RETROACTIVELY. BUT I THINK THIS WILL ALSO APPLY AND CHANGE THE PRACTICE OF LAW. I THINK YOU'LL SEE THAT PLEA BARGAINING IN MANY JURISDICTIONS WILL BECOME MUCH MORE FORMAL THAN IT'S TRADITIONALLY BEEN. - YEAH. AND I JUST WANT TO SAY A WORD ABOUT PREJUDICE HERE. IT'S A COMPLICATED QUESTION. IN DEALING WITH PREJUDICE, THE MAJORITY SUGGESTED THAT THE COURTS MIGHT HOLD HEARINGS IN WHICH IT CAN RESENTENCE PETITIONERS TO SOMETHING BETWEEN THE PLEA BARGAIN ON THE ONE HAND AND THE TRIAL SENTENCE ON THE OTHER HAND, OR WHERE THE DEFENDANT'S CONVICTED OF A MORE SERIOUS CHARGE THAN THOSE TO WHICH HE WOULD HAVE PLED, THE COURT MIGHT ORDER THE PROSECUTION TO REOFFER A PLEA. AND THEN THE COURT COULD USE ITS DISCRETION WHETHER TO VACATE THE CONVICTION AND ACCEPT THE PLEA BARGAIN. - ONE OF THE MOST IMPORTANT QUESTIONS THAT DISTRICT COURT JUDGES ARE GOING TO FACE IS WHETHER THIS APPLIES RETROACTIVELY. I THINK IT'S IMPORTANT TO NOTE THAT "LAFLER" CAME UP VIA HABEAS AND THE STANDARD UNDER 2254(d) IS WHERE THE STATE COURT DECISION IS CONTRARY TO AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED LAW AS ALREADY ARTICULATED BY THE SUPREME COURT. AND JUSTICE KENNEDY FOUND THAT THAT STANDARD WAS MET HERE. IN OTHER WORDS, THE COURT WAS SAYING, IT'S NOT CREATING A NEW RULE. - THAT'S RIGHT. AND THAT'S A REALLY IMPORTANT POINT, IS THAT WE SHOULDN'T BE WAITING FOR A FOLLOW-ON DECISION TO SAY, "AND THIS IS RETROACTIVE." IT WAS ON HABEAS CORPUS. - OUR FINAL TWO CASES DEALING WITH INEFFECTIVE ASSISTANCE OF COUNSEL ASK WHEN SUCH CLAIMS CAN EXCUSE A PROCEDURAL DEFAULT ON HABEAS CORPUS. IN MARTINEZ V. RYAN, THE SPECIFIC QUESTION WAS WHETHER A PRISONER HAS A RIGHT TO EFFECTIVE COUNSEL IN COLLATERAL PROCEEDINGS WHICH FIRST PROVIDE THE OCCASION TO RAISE A CLAIM OF INEFFECTIVE ASSISTANCE AT TRIAL. ERWIN, HOW DID THIS PLAY OUT? - IT'S IMPORTANT TO NOTE THAT IN ARIZONA, CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL CANNOT BE RAISED ON DIRECT APPEAL. IN THIS INSTANCE, A PERSON, AFTER BEING CONVICTED AND HAVING THE CONVICTION AFFIRMED, FILED A PROCEEDING FOR POST-CONVICTION RELIEF IN THE ARIZONA COURT. HE DIDN'T RAISE INEFFECTIVE ASSISTANCE OF COUNSEL AT THAT TIME. HE THEN FILED A SUBSEQUENT PETITION FOR POST-CONVICTION RELIEF IN THE ARIZONA COURTS, AND THIS TIME HE DID RAISE INEFFECTIVE ASSISTANCE OF COUNSEL, CLAIMING THAT IN HIS FIRST PETITION FOR POST-CONVICTION RELIEF, THERE WAS INEFFECTIVENESS OF COUNSEL IN NOT CHALLENGING REPRESENTATION AT TRIAL. THE ARIZONA COURT SAID PROCEDURAL DEFAULT, THAT HE DIDN'T RAISE INEFFECTIVENESS OF COUNSEL IN HIS FIRST PETITION, AND THEREFORE HE COULDN'T RAISE IT IN THE SECOND. AND GENERALLY THERE IS NO RIGHT TO COUNSEL IN POST-CONVICTION PROCEEDINGS. HOWEVER, THE SUPREME COURT, IN A 7 TO 2 DECISION, WITH JUSTICE KENNEDY WRITING THE OPINION FOR THE MAJORITY, SAID THAT THERE WAS JUSTIFICATION FOR FINDING CAUSE TO EXCUSE THE PROCEDURAL DEFAULT. JUSTICE KENNEDY SAID HERE THERE WASN'T THE OPPORTUNITY TO RAISE INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL. SO IN ESSENCE, THE PETITION FOR POST-CONVICTION RELIEF TOOK THE FORM OF A DIRECT APPEAL. AND IN THESE CIRCUMSTANCES, THEN, THERE CAN BE A CLAIM OF INEFFECTIVENESS OF COUNSEL WITH REGARD TO POST-CONVICTION RELIEF. BUT I WANT TO EMPHASIZE I THINK THE COURT'S HOLDING IS NARROW. I THINK IT APPLIES ONLY IN STATES WHERE INEFFECTIVE ASSISTANCE OF COUNSEL CANNOT BE RAISED ON DIRECT APPEAL. THEN, IT SEEMS, THERE'S A RIGHT TO EFFECTIVENESS OF COUNSEL IN THE FIRST PETITION FOR POST-CONVICTION RELIEF TO BE ABLE TO RAISE INEFFECTIVE ASSISTANCE COUNSEL CLAIMS. - THANKS, ERWIN. EVAN, COULD YOU TELL US ABOUT OUR LAST CASE, MAPLES V. THOMAS? - YEAH. COREY MAPLES WAS SENTENCED TO DEATH IN ALABAMA IN 1997. TWO YOUNG LAWYERS AT SULLIVAN AND CROMWELL IN NEW YORK VOLUNTEERED TO REPRESENT HIM PRO SE. THEY FOUND LOCAL COUNSEL, THEY PETITIONED TO BE ALLOWED TO PRACTICE IN ALABAMA FOR THE LIMITED PURPOSES OF THAT CASE, AND THEY FILED A PETITION FOR POST-CONVICTION RELIEF ON MAPLES' BEHALF, ALLEGING INEFFECTIVE ASSISTANCE OF HIS COUNSEL AT TRIAL. LOCAL COUNSEL MADE IT CLEAR THAT HE WAS ONLY INVOLVED IN THE CASE FOR THE LIMITED PURPOSE OF GETTING THEM ADMITTED PRO HAC VICE AND THAT HE DID NOT KNOW ANYTHING ABOUT CRIMINAL LAW AND THAT HE WASN'T TAKING ANY SUBSTANTIVE RESPONSIBILITY FOR THE CASE. NOW, WHILE THE PETITION FOR POST-CONVICTION RELIEF WAS PENDING, THOSE TWO ASSOCIATES LEFT THE EMPLOY OF SULLIVAN AND CROMWELL FOR POSITIONS THAT, LET'S JUST SAY, PRECLUDED THEM FROM ANY FURTHER REPRESENTATION OF MR. MAPLES. THE PROBLEM WAS THEY FAILED TO INFORM THE ALABAMA COURT, LOCAL COUNSEL, OR THEIR CLIENT THAT THEY COULD NO LONGER REPRESENT HIM. WHEN THE TRIAL COURT DENIED THE PETITION FOR POST-CONVICTION RELIEF, IT SENT THE NOTICE TO THE FIRM, WHERE THE MAILROOM RETURNED THAT NOTICE STAMPED, QUOTE, UNQUOTE, "RECIPIENT UNKNOWN." LOCAL COUNSEL FIGURED THAT THE NEW YORK FIRM WAS HANDLING THE MATTER, AND SO HE DIDN'T PAY ANY ATTENTION TO IT. BY THE TIME MAPLES LEARNED WHAT HAD HAPPENED, HIS TIME FOR APPEAL HAD LAPSED, AND THE ALABAMA COURTS DENIED HIM RELIEF ON THE GROUNDS THAT HIS SUBSEQUENT APPEAL WAS UNTIMELY. A MAJORITY OF THE UNITED STATES SUPREME COURT HELD THAT ALTHOUGH IT WAS TRUE THAT NEGLIGENCE ON THE PART OF A LAWYER WOULD NOT COUNT AS CAUSE TO EXCUSE A PROCEDURAL DEFAULT, THIS WAS MORE THAN NEGLIGENCE. IT WAS A COMPLETE ABANDONMENT BY HIS COUNSEL, AND THEREFORE, THAT WAS SUFFICIENT TO CONSTITUTE CAUSE FOR PURPOSES OF PROCEDURAL DEFAULT. - THANKS, EVAN. THANKS AGAIN, ERWIN. - 4 DECISIONS NOW ON SENTENCING, WITH THE COURT ADDRESSING IMPORTANT QUESTIONS ABOUT JUDGES' DISCRETION AND DEALING WITH ISSUES OF BOTH CONSTITUTIONAL LAW AND STATUTORY INTERPRETATION. MILLER V. ALABAMA AND JACKSON V. HOBBS BOTH INVOLVED 14 YEAR-OLD DEFENDANTS CONVICTED OF HOMICIDE WHO WERE GIVEN MANDATORY LIFE WITHOUT PAROLE SENTENCES. THE QUESTION BEFORE THE COURT WAS WHETHER SUCH SENTENCES VIOLATED MILLER'S AND JACKSON'S PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT. HOW DID THE COURT ANSWER THAT QUESTION, LAURIE? - WELL, THE COURT ANSWERED IT BY SAYING, YES, THERE WAS AN EIGHTH AMENDMENT VIOLATION, AND THE COURT DID SO BY REACHING BACK TO A COUPLE OF DECISIONS THE COURT HAS MADE RECENTLY. ONE WAS ROPER V. SIMMONS, WHERE THE COURT HELD THAT THE DEATH PENALTY FOR JUVENILES VIOLATED THE EIGHTH AMENDMENT, AND ALSO GRAHAM V. FLORIDA, WHERE THE COURT FOUND THAT LIFE IN PRISON WITHOUT POSSIBILITY OF PAROLE FOR NON-HOMICIDE CRIMES FOR JUVENILES WOULD VIOLATE THE EIGHTH AMENDMENT. THE COURT HAD MADE A POINT IN BOTH OF THOSE DECISIONS OF SAYING JUVENILES ARE DIFFERENT-- THEY'RE MORE IMPULSIVE, THEY'RE LESS ABLE TO JUDGE THE CONSEQUENCES OF THEIR ACTS, THEY'RE MORE SUSCEPTIBLE TO PEER PRESSURE. AND THEREFORE, EVEN, CONSTITUTIONALLY, THE COURT WOULD LOOK AT IT DIFFERENTLY. SO HERE, THE COURT USED THE SAME LOGIC, AND IT SAID YOU COULD NOT HAVE MANDATORY LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR JUVENILES, EVEN ON HOMICIDE CRIMES. - BUT, TO BE CLEAR, THE COURT DID NOT SAY THAT JUVENILES COULD NOT BE GIVEN A SENTENCE OF LIFE WITHOUT PAROLE, JUST THAT IT COULD NOT BE MANDATORY. - YES, THAT IS RIGHT. JUDGES CAN STILL SENTENCE JUVENILES TO LIFE WITHOUT PAROLE, BUT THEY HAVE TO BE ABLE TO CONSIDER MITIGATING CIRCUMSTANCES. THEY HAVE TO BE ABLE TO CONSIDER THOSE FUNDAMENTAL DIFFERENCES BETWEEN CHILDREN AND ADULTS THAT LAURIE TALKED ABOUT, TAKE INTO CONSIDERATION THINGS LIKE FAMILY SITUATION, BEFORE THEY GET SENTENCED. THE MAJORITY DISTINGUISHED A FAMOUS EIGHTH AMENDMENT PRECEDENT, HARMELIN V. MICHIGAN, WHERE THE DEFENDANT WAS GIVEN LIFE WITHOUT POSSIBILITY OF PAROLE FOR SIMPLY POSSESSING A LARGE AMOUNT OF COCAINE, AND THE MAJORITY SAID THAT'S DIFFERENT, HARMELIN HAD NOTHING TO DO WITH JUVENILES. - AND THE MAJORITY AND THE DISSENTERS DIDN'T JUST DISAGREE ON THE DECISION IN THIS CASE, BUT ON THE PROCESS THE MAJORITY USED TO REACH THAT DECISION, DIDN'T THEY? - ABSOLUTELY. IN FACT, CHIEF JUSTICE ROBERTS MADE A POINT OF SAYING THAT THE STANDARD OF EVOLVING STANDARDS OF DECENCY DOESN'T ALWAYS MEAN MORE LENIENCY TOWARDS THE DEFENDANT. TO ANSWER THAT QUESTION OF WHAT'S AN EVOLVING STANDARD, HE SAYS THAT THE COURTS SHOULD BE LOOKING TO THE STATE LEGISLATURES TO SEE WHAT WOULD BE THE APPROPRIATE SENTENCE. - YEAH, AND THE MAJORITY ANSWERS BY SAYING, WELL, THERE IS NO NATIONAL CONSENSUS FOR MANDATORY LWOP SENTENCES FOR JUVENILE MURDERERS, DESPITE THE FACT THAT 28 STATES AND THE DISTRICT OF COLUMBIA HAVE SUCH LAWS ON THEIR BOOKS. AND JUSTICE SCALIA WRITES THAT THE MAJORITY IS IGNORING THE EVIDENCE OF TRENDS IN THE STATES IN DECIDING WHAT IS, QUOTE, UNQUOTE, "UNUSUAL" AND IS INSTEAD SUBSTITUTING THEIR OWN VALUE JUDGMENT. - AND IN FACT, THE MAJORITY GOES A STEP FURTHER AND SAYS NOT ONLY DO THEY THINK A MANDATORY LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL, BUT THEY THINK EVEN WHEN IT'S NOT MANDATORY, IT WILL BE UNCOMMON. - NOW A SECOND SET OF COMPANION CASES, DORSEY V. UNITED STATES AND HILL V. UNITED STATES. HERE THE QUESTION WAS, DID THE FAIR SENTENCING ACT OF 2010, WHICH WENT INTO EFFECT ON AUGUST 3 OF THAT YEAR, AND WHICH READJUSTED THE MANDATORY SENTENCING DISPARITIES FOR CRACK AND POWDER COCAINE, APPLY TO OFFENDERS WHO WERE CONVICTED BEFORE AUGUST 3 BUT SENTENCED AFTERWARDS? A LITTLE BACKGROUND HERE. THE 1986 DRUG ACT ESTABLISHED A 100 TO 1 DISPARITY IN THE AMOUNT OF CRACK AND POWDER COCAINE REQUIRED TO TRIGGER MANDATORY MINIMUM SENTENCES. SO 5 GRAMS OF CRACK GOT YOU THE SAME SENTENCE AS 500 GRAMS OF POWDER COCAINE. WELL, THE FAIR SENTENCING ACT REDUCED THOSE DISPARITIES TO 18 TO 1 BY INCREASING THE AMOUNT OF CRACK COCAINE NEEDED TO TRIGGER THE 5- AND 10-YEAR MINIMUMS. THE CHANGE WAS ALSO MADE TO THE FEDERAL SENTENCING GUIDELINES. THE COURT DECIDED IN THESE TWO CASES THAT THE FAIR SENTENCING ACT'S NEW LOWER MANDATORY MINIMUMS APPLY TO POST-ACT SENTENCING OF PRE-ACT OFFENDERS. SO WHAT WAS THE CORE DISPUTE IN THIS CASE, EVAN? - WELL, YOUR PROBLEM IS YOU'VE GOT TWO STATUTES THAT ARE POINTING IN OPPOSITE DIRECTIONS. ONE, AS YOU MENTIONED, IS THE FAIR SENTENCING ACT, SUGGESTING BY ITS TERMS THAT DEFENDANTS SENTENCED AFTER THE ACT'S EFFECTIVE DATE SHOULD RECEIVE THE MORE LENIENT PUNISHMENT THAT'S SET FORTH THERE. BUT THEN YOU HAVE THIS OTHER STATUTE, THE GENERAL FEDERAL SAVINGS STATUTE, WHICH SAYS THAT A STATUTE THAT REPEALS AN OLDER STATUTE DOES NOT CHANGE THE PENALTIES, QUOTE, UNQUOTE, "INCURRED" UNDER THE OLDER STATUTE UNLESS THE REPEALING ACT SO PROVIDES. NOW, BOTH THE MAJORITY AND THE DISSENTERS AGREED THAT THE SAVINGS STATUTE DID NOT REQUIRE AN "EXPRESS" STATEMENT THAT THE NEW THRESHOLDS APPLY. IT WAS ENOUGH THAT THE PLAIN IMPORT OF THE NEW STATUTE WAS THAT THE NEW STANDARDS WOULD APPLY. - BUT I THINK THAT'S THE PROBLEM THAT THE MAJORITY AND DISSENT HAVE WITH EACH OTHER AS TO WHETHER THIS STATUTE, THE NEW THE FAIR SENTENCING ACT, ACTUALLY HAS THAT PLAIN IMPORT STANDARD. - WHAT DO YOU THINK IS THE IMPACT OF THIS DECISION? - WELL, CERTAINLY ONE IMPACT IS THAT IT'S GOING TO HELP OFFENDERS WHO COMMITTED THEIR CRIMES BEFORE THE FAIR SENTENCING ACT BECAME EFFECTIVE BUT WERE SENTENCED AFTERWARDS, BUT I THINK THERE'S ALSO AN INDICATION IN HOW THE COURT DID ITS STATUTORY INTERPRETATION THAT IT'S GOING TO LOOK BEYOND THE LANGUAGE OF THE STATUTE TO SEE IF IT ALSO IMPACTS SENTENCING DISPARITIES. - FINALLY WE ARE GOING TO LOOK AT SETSER V. UNITED STATES, WHICH ASKS WHETHER A DISTRICT JUDGE IN SENTENCING A DEFENDANT FOR A FEDERAL OFFENSE HAS THE AUTHORITY TO ORDER THAT THE FEDERAL SENTENCE BE CONSECUTIVE TO AN ANTICIPATED STATE SENTENCE THAT HAS NOT YET BEEN IMPOSED. SETSER WAS ARRESTED FOR POSSESSING METHAMPHETAMINE WHILE SERVING A 5-YEAR TERM OF PROBATION FOR A PREVIOUS STATE LEVEL DRUG CRIME. HE WAS INDICTED IN STATE COURT FOR POSSESSION WITH INTENT TO DELIVER AND IN FEDERAL COURT FOR WHAT WAS ESSENTIALLY THE SAME CRIME. THE STATE ALSO MOVED TO REVOKE HIS PROBATION, AND THE FEDERAL JUDGE IMPOSED A 151-MONTH SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE THE STATE MIGHT YET IMPOSE FOR THE PROBATION VIOLATION BUT CONCURRENT TO ANY NEW STATE DRUG SENTENCE. SO, EVAN, IF THE DISTRICT JUDGE DID NOT HAVE THE DISCRETION TO DO THAT, WHO SUPPOSEDLY DID? - WELL, SETSER AND THE FEDERAL GOVERNMENT ARGUED THAT IT WAS THE BUREAU OF PRISONS AND NOT THE DISTRICT COURT THAT SHOULD HAVE THE AUTHORITY TO DECIDE WHETHER THE FEDERAL SENTENCE SHOULD RUN CONCURRENTLY OR CONSECUTIVELY WITH ANY STATE SENTENCES THAT WOULD BE IMPOSED. BUT THE UNITED STATES SUPREME COURT SIDED WITH FEDERAL JUDGES, SAID THAT THEY SHOULD BE DECIDING--MAJORITY SAID THAT THERE WAS A COMMON LAW TRADITION IN FAVOR OF FEDERAL TRIAL JUDGES EXERCISING BROAD DISCRETION ON THE CONCURRENT VERSUS CONSECUTIVE QUESTION AND THAT THERE WAS NOTHING IN THE STATUTES THAT TAKES THAT DISCRETION AWAY. - I THINK THE MAJORITY SAID ALSO YOU HAVE THE JUDGES APPLYING THE 35-53A STANDARD AND THE FACTORS IN IT, AND SO THAT A TRIAL COURT, IF THEY MAKE A MISTAKE ON THIS, THEY CAN RECONSIDER IT IF THE BUREAU OF PRISONS COME BACK AND MAKES A MOTION TO REDUCE OR CHANGE THE SENTENCE. - YEAH. YOU KNOW, THE DISSENTERS FELT THAT IT MADE MORE SENSE FOR THE BOP TO MAKE THE DECISION BECAUSE OF AN INFORMATIONAL PROBLEM, THAT THE DISTRICT COURT WOULD NOT YET HAVE ALL THE FACTS, BECAUSE THE STATE SENTENCES WOULDN'T HAVE BEEN HANDED DOWN YET, BUT THAT THE BOP WOULD HAVE THE BENEFIT OF THAT HINDSIGHT. - THANKS, EVAN. THANK YOU, LAURIE. UP NEXT, A DISCUSSION OF THE COURT'S LONG-AWAITED DECISION ON THE FEDERAL HEALTH CARE LAW. - NO DECISION THIS TERM WAS MORE INTENTLY AWAITED THAN THE COURT'S OPINION ON THE CONSTITUTIONALITY OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT, THE 2009 LAW THAT EXPANDS HEALTH CARE COVERAGE IN THIS COUNTRY FOR TENS OF MILLIONS OF PEOPLE. THERE WERE 3 CASES CHALLENGING THE LAW THAT WORKED THEIR WAY UP THROUGH THE COURTS OF APPEALS IN THE LAST 3 YEARS, AND THESE CASES PRESENTED THE COURT WITH TWO MAJOR ISSUES. FIRST, WAS THE SO-CALLED INDIVIDUAL MANDATE CONSTITUTIONAL? THE INDIVIDUAL MANDATE REQUIRES THAT BY 2014, EVERYONE IN THE UNITED STATES WHO DOES NOT ALREADY HAVE HEALTH INSURANCE MUST PURCHASE IT OR PAY AN AMOUNT TO THE FEDERAL GOVERNMENT. UNDOCUMENTED ALIENS DO NOT COME UNDER THE MANDATE, AND ALSO, THERE IS FINANCIAL AID TO HELP PAY FOR INSURANCE FOR PEOPLE WHO CAN'T AFFORD IT BUT AREN'T POOR ENOUGH TO QUALIFY FOR MEDICAID. SECOND, WAS THE FEDERAL GOVERNMENT COERCING THE STATES TO DO ITS BIDDING, AND VIOLATING THE PRINCIPLES OF FEDERALISM, BY THREATENING TO TAKE AWAY ALL MEDICAID FUNDING FROM THE STATES IF THEY DID NOT EXPAND MEDICAID COVERAGE UNDER THE NEW LAW? THERE WERE 4 OPINIONS IN THIS CASE: A MAJORITY OPINION, A COMBINATION CONCURRENCE AND DISSENT, AND TWO COMPLETE DISSENTS. SUZANNA, CAN YOU START PARSING ALL OF THIS FOR US? - LET'S START BY TALKING ABOUT THE GOVERNMENT'S ARGUMENTS TO UPHOLD THE INDIVIDUAL MANDATE. THE GOVERNMENT ARGUED THAT THE MANDATE COULD BE UPHELD ON 3 SEPARATE CONSTITUTIONAL GROUNDS: CONGRESS' POWER UNDER THE COMMERCE CLAUSE, ITS AUTHORITY UNDER THE NECESSARY AND PROPER CLAUSE, AND FINALLY ITS TAXING POWER. NOW, BECAUSE 5 JUSTICES REJECTED THE COMMERCE CLAUSE AND NECESSARY AND PROPER ARGUMENTS, WHICH WE'LL TURN TO IN A MINUTE, THE COURT HAD TO REACH THE QUESTION OF WHETHER THIS CAME WITHIN CONGRESS' POWER TO TAX. - AND THE SUPREME COURT HELD 5-4 THAT THE INDIVIDUAL MANDATE WAS CONSTITUTIONAL BECAUSE IT DOES FIT WITHIN THE SCOPE OF CONGRESS' TAXING AND SPENDING POWER. CHIEF JUSTICE ROBERTS WROTE FOR THE MAJORITY HERE. CHIEF JUSTICE ROBERTS EXPLAINED THAT THE INDIVIDUAL MANDATE IS IN EVERY WAY FUNCTIONALLY A TAX. IT'S CALCULATED AS A PERCENTAGE OF INCOME, OR A SMALL FLAT RATE. FOR 2014, IT'S 1% OF INCOME OR $95. IT'S COLLECTED BY THE INTERNAL REVENUE SERVICE. IT GOES TO GENERAL FEDERAL REVENUE. IT'LL BE ABOUT $4 BILLION FOR THE FEDERAL GOVERNMENT IN 2014. CHIEF JUSTICE ROBERTS, RELYING ON EARLIER CASES, SAID THE LABEL USED BY THE PRESIDENT AND CONGRESS ISN'T DETERMINATIVE. BECAUSE THIS IS A TAX, IT FALLS WITHIN THE SCOPE OF CONGRESS' ARTICLE 1 SECTION 8 TAXING AND SPENDING POWER. CHIEF JUSTICE ROBERTS' OPINION HERE WAS JOINED BY JUSTICES GINSBURG, BREYER, SOTOMAYOR, AND KAGAN. - SO THERE WERE TWO QUESTIONS HERE. FIRST, IS IT A PENALTY, OR IS IT A TAX? AND SECOND, IF IT IS A TAX, IS IT A DIRECT TAX THAT NEEDS TO BE APPORTIONED TO BE CONSTITUTIONAL? SUZANNA? - WELL, THE COURT SAID THAT EVEN THOUGH IT COULD BE CONSTRUED AS A TAX, IT WAS NOT A DIRECT TAX, SO IT DIDN'T HAVE TO BE APPORTIONED. BUT I THINK A MORE INTERESTING QUESTION IS, THE CHIEF JUSTICE'S VOTE TO UPHOLD THE MANDATE AS A TAX HAS SOME OTHER IMPLICATIONS. HE WROTE THAT EVEN THOUGH INTERPRETING IT AS A TAX IS NOT ITS MOST NATURAL READING, THE COURT HAD TO USE EVERY REASONABLE CONSTRUCTION OF THE STATUTE IN ORDER TO GIVE THE STATUTE THE FULL MEASURE OF DEFERENCE THAT'S OWED TO CONGRESS AND TO SAVE A STATUTE FROM UNCONSTITUTIONALITY. NOW, THIS IS CONSISTENT WITH ESSENTIALLY A LOT OF PRECEDENT THAT SAYS IF CONGRESS CAN ENACT A STATUTE UNDER ONE POWER, IT DOESN'T REALLY MATTER WHAT POWER CONGRESS THINKS IT'S ACTING UNDER. BUT JUSTICE GINSBURG IN HER OPINION ASKED WHY IF THE CHIEF JUSTICE WAS GOING TO VOTE TO UPHOLD IT UNDER THE TAXING POWER, WHY DID HE NEED TO REACH THE COMMERCE CLAUSE AND NECESSARY AND PROPER QUESTIONS? AND HIS RESPONSE WAS THAT HE ONLY ADOPTED THIS "SAVING CONSTRUCTION" OF THE MANDATE AS A TAX, WHICH, AS HE SAYS, IS NOT A NATURAL READING--HE ONLY ADOPTS IT BECAUSE HE HAS TO. IF IT WASN'T FOR THE UNCONSTITUTIONALITY UNDER THE COMMERCE CLAUSE, HE WOULDN'T EVEN HAVE TO REACH THE QUESTION OF A TAX AND HE WOULDN'T HAVE INTERPRETED THE STATUTE AS A TAX. SO THE WAY I READ THIS, I THINK IT'S A FAIRLY STRONG REAFFIRMATION OF TWO LONGSTANDING PRINCIPLES. ONE IS THE CANON OF AVOIDANCE OF CONSTITUTIONAL QUESTIONS, AND THE OTHER IS THE DEFERENCE OWED TO CONGRESS WITH THE PRESUMPTION OF CONSTITUTIONALITY. NOW, THE COURT HAS, OF COURSE, APPLIED THOSE PRINCIPLES BEFORE, BUT SOMETIMES IT'S BEEN A LITTLE UNEVEN IN ITS APPLICATION. SO IT'S NOT ENTIRELY CLEAR HOW STRONG THIS REAFFIRMATION OF THOSE PRINCIPLES IS. - I THINK YOU'RE RIGHT. I THINK IT IS A REAFFIRMATION OF CONGRESS' POWER TO TAX, AND I THINK THE MESSAGE IS, SHOULD CONGRESS EVER WANT TO DISCOURAGE BEHAVIOR IN THE FUTURE, CONGRESS CAN DO SO BY IMPOSING A TAX ON IT. - YEAH. I GUESS WE WILL HAVE TO WAIT AND SEE HOW THE LOWER COURTS INTERPRET THAT PART OF THE DECISION AND ULTIMATELY HOW THE SUPREME COURT RULES. SO LETS TALK ABOUT THE GOVERNMENT'S ARGUMENTS BASED ON THE COMMERCE CLAUSE AND THE NECESSARY AND PROPER CLAUSE. - WELL, WITH REGARD TO THE COMMERCE CLAUSE, 5 JUSTICES--CHIEF JUSTICE ROBERTS, WRITING FOR HIMSELF, AND THE 4 DISSENTING JUSTICES--REJECTED THE ARGUMENT THAT THE INDIVIDUAL MANDATE'S IN THE SCOPE OF CONGRESS' COMMERCE POWER. CHIEF JUSTICE ROBERTS REAFFIRMED ALL OF THE EXISTING PRECEDENTS WITH REGARD TO THE SCOPE OF CONGRESS' COMMERCE POWER, BUT HE SAID WHAT THEY ESTABLISHED WAS THAT CONGRESS CAN REGULATE ECONOMIC ACTIVITY. BOTH CHIEF JUSTICE ROBERTS AND THE DISSENTING JUSTICES SAID WHEN CONGRESS WAS FORCING PEOPLE TO PURCHASE INSURANCE, THEY WERE REGULATING THOSE WHO WERE NOT ENGAGED IN COMMERCE. THEY WERE REGULATING INACTIVITY, AND THAT WAS BEYOND THE SCOPE OF CONGRESS' POWER. JUSTICE GINSBURG, JOINED BY JUSTICES BREYER, SOTOMAYOR, AND KAGAN, STRONGLY DISAGREED WITH THAT. JUSTICE GINSBURG SAID EVERYONE IN THE UNITED STATES IS USING HEALTH CARE, THEREFORE EVERYONE IS ENGAGED IN ECONOMIC ACTIVITY. EVERYONE'S EITHER BUYING INSURANCE OR SELF-INSURING. WHAT CONGRESS IS DOING IS REGULATING THOSE WHO ARE SELF-INSURING, AND THAT'S PERMISSIBLE, IN HER VIEW, UNDER THE COMMERCE POWER. - THE CHIEF'S ARGUMENTS IN THIS CASE, I THINK, WERE MOSTLY SLIPPERY SLOPE ARGUMENTS. HE WAS WORRIED THAT IF THE GOVERNMENT CAN FORCE PEOPLE TO BUY HEALTH INSURANCE, THE GOVERNMENT CAN FORCE PEOPLE TO BUY ANYTHING. AND CERTAINLY THE DISSENT'S ARGUMENT--THE JOINT DISSENT'S ARGUMENT--WAS ALSO A SLIPPERY SLOPE ARGUMENT. IN THEIR UNSIGNED OPINION THAT WAS JOINTLY WRITTEN BY JUSTICES KENNEDY, SCALIA, ALITO, AND THOMAS, THEY SAY SEVERAL TIMES SOMETHING ALONG THE LINES OF IF THIS LAW DOES NOT EXCEED CONGRESS' CONSTITUTIONAL POWERS, THEN NOTHING DOES. BUT I THINK THE MOST IMPORTANT THING TO KNOW ABOUT THE COMMERCE CLAUSE ANALYSIS IS THAT IT MAY NOT MATTER IN THE FUTURE. HEALTH CARE AND HEALTH INSURANCE IS PRETTY UNIQUE. CONGRESS ISN'T LIKELY TO TRY AND FORCE PEOPLE TO BUY ANYTHING ELSE. SO EVEN THE MAJORITY HOLDING THAT CONGRESS IS HERE REGULATING INACTIVITY AND THAT THE COMMERCE CLAUSE PROHIBITS THEM FROM REGULATING INACTIVITY, THAT IT'S NOT WITHIN THEIR COMMERCE CLAUSE POWER, I DON'T THINK THAT THAT'S GOING TO MAKE ANY DIFFERENCE IN THE FUTURE. FOR ALL PRACTICAL PURPOSES, AS YOU SAY, THE COURT REAFFIRMED--JUSTICE ROBERTS AND THE DISSENTING JUSTICES REAFFIRMED ALL OF THE EXISTING COMMERCE CLAUSE JURISPRUDENCE. SO I THINK THAT THE COMMERCE CLAUSE JURISPRUDENCE IS EXACTLY WHERE IT WAS BEFORE THIS CASE. - I HAVE A SOMEWHAT DIFFERENT TAKE ON THAT. I CERTAINLY AGREE WITH YOU THAT I THINK IT'S UNLIKELY THAT CONGRESS IS GONNA BE COMPELLING ECONOMIC TRANSACTIONS INTO THE FUTURE. CERTAINLY THE UNPOPULARITY IN CERTAIN QUARTERS OF THE INDIVIDUAL MANDATE MAKES IT EVEN LESS LIKELY TO HAPPEN. ON THE OTHER HAND, WHENEVER THE COURT DRAWS A DISTINCTION, LIKE ACTIVITY VERSUS INACTIVITY OR DIRECT VERSUS INDIRECT, I THINK THAT'S AN OPEN INVITATION TO LITIGATION. IT'S UNCERTAIN WHAT THE COURTS WILL DO WITH IT. LET ME GIVE YOU AN EXAMPLE. TITLE II OF THE 1964 CIVIL RIGHTS ACT, WHICH WAS ADOPTED BY CONGRESS UNDER ITS COMMERCE CLAUSE POWER, PREVENTS HOTELS AND RESTAURANTS FROM DISCRIMINATING ON THE BASIS OF RACE. WERE HOTELS AND RESTAURANTS THAT DISCRIMINATED BASED ON RACE ENGAGING IN INACTIVITY, OR IS THAT ACTIVITY? NOW, I DON'T THINK THE SUPREME COURT'S GONNA DECLARE TITLE II OF THE 1964 CIVIL RIGHTS ACT UNCONSTITUTIONAL, BUT I DO THINK IT SHOWS HOW CHARACTERIZATIONS AND LABELS CAN LEAD TO CHALLENGES, AND I THINK THEY WILL IN THE FUTURE. - NO, I DISAGREE. I DON'T THINK TITLE II IS ANY DANGER, BECAUSE HOTELS AND RESTAURANTS ARE ENGAGED IN COMMERCE JUST BY OPERATING THEIR BUSINESS, AND CONGRESS CAN REGULATE HOW THEY OPERATE THAT BUSINESS. WHAT'S UNIQUE ABOUT HEALTH INSURANCE IS THAT THE PEOPLE WHO DON'T HAVE HEALTH INSURANCE ARE NOT ENGAGED IN COMMERCE AT ALL. THEY ARE NOT DOING ANYTHING. AND THE QUESTION IS WHETHER CONGRESS CAN FORCE THEM TO ENTER INTO A COMMERCIAL TRANSACTION, AND THE DISAGREEMENT BETWEEN CHIEF JUSTICE ROBERTS AND THE PARTIAL DISSENT IS WHETHER THE FACT THAT MOST PEOPLE WILL INEVITABLY NEED HEALTH CARE IN THE FUTURE, WHETHER THAT'S ENOUGH TO REQUIRE THEM TO BUY HEALTH INSURANCE NOW. - SO, ERWIN, WHAT ABOUT THE NECESSARY AND PROPER CLAUSE ARGUMENT? - CHIEF JUSTICE ROBERTS WROTE HERE THAT THE NECESSARY AND PROPER CLAUSE IS NOT AN INDEPENDENT POWER OF CONGRESS. HE SAID WHAT THE NECESSARY AND PROPER CLAUSE DOES IS ALLOW CONGRESS TO CHOOSE THE MEANS TO CARRY OUT ITS OTHER POWERS, AND THUS IT WASN'T A SUFFICIENT INDEPENDENT BASIS FOR UPHOLDING THE INDIVIDUAL MANDATE. - WELL, LET'S TURN TO THE OTHER MAJOR ISSUE IN THIS CASE, WHETHER CONGRESS WAS COERCING THE STATES BY THREATENING TO TAKE AWAY ALL OF THEIR MEDICAID FUNDING IF THEY DID NOT EXPAND COVERAGE IN THAT PROGRAM UNDER THE NEW HEALTH CARE ACT. WHAT DID THE COURT DECIDE HERE? - WELL, HERE THE DECISION WAS ACTUALLY 7 TO 2. ONLY JUSTICES GINSBURG AND SOTOMAYOR DISSENTED, AND WHAT THE COURT HELD THAT THE CONGRESS WAS IMPERMISSIBLY COERCING THE STATES BY THREATENING TO TAKE AWAY ALL OF THEIR MEDICAID FUNDING BECAUSE SOME STATES STOOD TO LOSE AS MUCH AS 20% OF THEIR ANNUAL BUDGET IF CONGRESS TOOK AWAY THEIR MEDICAID FUNDING. AND THE COURT SAID THAT CONGRESS COULD WITHHOLD THE EXPANSION OF THE MEDICAID FUNDS--THE NEW MEDICAID FUNDS-- IF THE STATES DID NOT ABIDE BY THE EXPANSION, BUT THEY COULDN'T TAKE AWAY THE STATES' PRE-EXISTING MEDICAID FUNDS. NOW, WHAT'S THE DIFFERENCE BETWEEN COERCION AND ENCOURAGEMENT? NEITHER THE CHIEF JUSTICE'S MAJORITY NOR THE JOINT DISSENT SAID EXACTLY WHERE THE LINE WAS BETWEEN ENCOURAGEMENT AND COERCION, BUT THEY BOTH SAID THAT CONGRESS HAD CROSSED IT. AND I THINK THIS MAY WELL BE THE MOST DOCTRINALLY SIGNIFICANT PART OF THE DECISION. - I AGREE WITH THAT. I THINK IT'S THE PART OF THE CASE THAT'S MOST LIKELY TO LEAD TO FUTURE LITIGATION. THIS IS THE FIRST TIME THE SUPREME COURT HAS EVER FOUND THAT ANY CONDITIONS ON FEDERAL MONEY WERE SO COERCIVE AS TO EXCEED THE SCOPE OF CONGRESS' POWER AND TO VIOLATE THE TENTH AMENDMENT. THERE ARE SO MANY FEDERAL LAWS THAT TIE FEDERAL MONEY TO STATE AND LOCAL GOVERNMENTS TO CONDITIONS, AND THE QUESTION IS WHEN ARE THEY TOO COERCIVE? THINK OF THE SOLOMON AMENDMENT THAT SAYS THAT IF A LAW SCHOOL REFUSED TO ALLOW THE MILITARY TO RECRUIT ON CAMPUS, THE UNIVERSITY WILL LOSE ALL OF ITS FEDERAL MONEY. IS THAT TOO COERCIVE? OR THINK ABOUT FEDERAL CIVIL RIGHTS LAWS THAT SAY THAT IF ANY PART OF A UNIVERSITY DISCRIMINATES ON THE BASIS OF RACE OR GENDER, THE ENTIRE UNIVERSITY WILL LOSE ALL OF ITS FUNDS. OR NO CHILD LEFT BEHIND. - NO, I DON'T THINK THAT'S RIGHT. WELL, FIRST OF ALL, THE CHIEF JUSTICE DESCRIBED THE MEDICAID EXPANSION AS A "GUN TO THE HEAD." SO I THINK THAT REQUIRES A VERY STRONG LEVEL OF COERCION, AND IN PARTICULAR, I THINK IT REQUIRES THAT A VERY HIGH PERCENTAGE OF THE STATE'S BUDGET BE AT ISSUE. SO YOUR EXAMPLE OF THE UNIVERSITIES, I DON'T THINK THAT ANY LAWS AFFECTING STATE UNIVERSITIES ARE LIKELY TO FALL UNDER THIS--UNDER THIS CASE BECAUSE THE UNIVERSITY BUDGET IS SUCH A SMALL PART OF THE STATE'S BUDGET. NOW, YOUR NO CHILD LEFT BEHIND EXAMPLE IS DIFFERENT. THERE MIGHT BE ENOUGH THERE, BUT STILL I THINK THAT THE PART OF THE STATE'S BUDGET THAT WOULD BE AFFECTED IF CONGRESS WERE TO TAKE AWAY FUNDING UNDER THAT STATUTE IS STILL SOMETHING LIKE 5% TO 10% OF A STATE'S BUDGET, WHICH IS MUCH MORE SIMILAR TO WHAT WAS AT ISSUE IN DOLE V. SOUTH DAKOTA, THE HIGHWAY FUNDING CASE, WHERE THE COURTS SAID THAT CONGRESS WAS NOT BEING COERCIVE. SO I THINK I'M STICKING TO MY VIEW THAT NO OTHER FEDERAL STATUTE IS ACTUALLY LIKELY TO BE HELD COERCIVE, ALTHOUGH YOU'RE RIGHT, THERE MIGHT BE CHALLENGES. - THOSE DEVELOPMENTS WILL BE INTERESTING TO WATCH. THANKS, SUZANNA. THANKS, ERWIN. - NOW, TWO DECISIONS ABOUT FEDERALISM AND TWO REGARDING THE AUTHORITY OF THE FEDERAL COURTS. FIRST, ONE OF THE MOST ANTICIPATED DECISIONS OF THE TERM, ARIZONA V. UNITED STATES. AN ARIZONA LAW MADE STATE CRIMES OUT OF SOME ACTIONS BY UNDOCUMENTED IMMIGRANTS AND GAVE POLICE OFFICERS IN ARIZONA AUTHORITY TO ENFORCE SOME FEDERAL IMMIGRATION VIOLATIONS. THE COURT REVIEWED 4 SECTIONS OF THE LAW AND CAME TO DIFFERENT CONCLUSIONS ABOUT THEIR CONSTITUTIONALITY OR UNCONSTITUTIONALITY. EVAN, CAN YOU START US OUT? - WELL, WHY DON'T I START WITH THE 3 THAT THE COURT STRUCK DOWN? THERE WAS SECTION 3 OF THE LAW, WHICH MADE FAILURE TO COMPLY WITH FEDERAL ALIEN REGISTRATION LAW A MISDEMEANOR IN ARIZONA; THEN THERE WAS SECTION 5-C, WHICH MADE IT A MISDEMEANOR FOR AN UNDOCUMENTED ALIEN TO SEEK OR ENGAGE IN EMPLOYMENT IN THE STATE OF ARIZONA; AND THEN THERE WAS SECTION 6, WHICH AUTHORIZED STATE LAW ENFORCEMENT TO CONDUCT WARRANTLESS ARRESTS OF PERSONS WHEN THEY HAD PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAD COMMITTED A DEPORTABLE OFFENSE. THE 5-JUSTICE MAJORITY IN THIS CASE FOUND THAT THESE 3 SECTIONS CONFLICTED WITH A COMPREHENSIVE SYSTEM OF FEDERAL IMMIGRATION REGULATION AND THEREFORE WERE IMPLIEDLY PREEMPTED BY FEDERAL LAW. - AND WHAT ABOUT THE FOURTH SECTION, SUZANNA? - WELL, THE FOURTH SECTION WAS SECTION 2-B, THE "SHOW ME YOUR PAPERS" SECTION, AND THAT WAS THE ONE THAT GATHERED MOST OF THE ATTENTION. UNDER 2-B, STATE OFFICERS ARE REQUIRED TO MAKE A REASONABLE ATTEMPT TO DETERMINE AN IMMIGRATION STATUS OF ANYONE THAT THEY PROPERLY STOP OR DETAIN. AND WHAT THE COURT FOUND HERE WAS THAT IT WAS PREMATURE TO DECIDE WHETHER THAT STATUTE, THAT SECTION, WAS OR WAS NOT PREEMPTED BECAUSE THE SECTION COULD BE INTERPRETED AND APPLIED IN WAYS THAT WERE CONSTITUTIONAL AND WAYS THAT WERE NOT PREEMPTED. THE COURT POINTED OUT THAT STATE LEVEL LAW OFFICERS ALREADY HAVE THE AUTHORITY TO CHECK WITH FEDERAL IMMIGRATION OFFICIALS ON THE STATUS, AND SO THEY CAN JUST DO THAT, AND THAT WOULD BE FINE. THE MAJORITY, THOUGH, ALSO POINTED OUT THAT THE STATUTE COULD BE CHALLENGED-- THIS SECTION OF THE STATUTE COULD BE CHALLENGED LATER AS IT'S INTERPRETED AND APPLIED ONCE IT GOES INTO EFFECT. AND THEY GAVE AS AN EXAMPLE THAT IF 2-B WAS INTERPRETED AND APPLIED TO ALLOW OFFICERS TO DETAIN SOMEONE FOR AN UNREASONABLE AMOUNT OF TIME JUST TO CHECK THEIR IMMIGRATION STATUS, THAT THAT COULD BE UNCONSTITUTIONAL. - AND WHAT ABOUT THE DISSENTS? - JUSTICE SCALIA WROTE A VERY, VERY STRONG DISSENT IN THIS CASE. HE DEFENDED ARIZONA'S SOVEREIGN AUTHORITY TO DEFEND ITS BORDERS AND TO EXCLUDE PERSONS FROM THE STATE THAT IT DIDN'T WANT TO BE THERE. HE SAID THAT FIELD PREEMPTION, WHICH IS WHAT HE REALLY THOUGHT WAS GOING ON IN THIS CASE, IS NOT SUFFICIENT TO OVERCOME STATE SOVEREIGNTY IN THE IMMIGRATION FIELD. - THAT'S WHAT HE SAID. THERE ARE A COUPLE OF OTHER POINTS THAT ARE INTERESTING-- SIDE POINTS--ABOUT THIS CASE. FIRST OF ALL, JUSTICE KAGAN RECUSED HERSELF, PRESUMABLY BECAUSE SHE HAD DEALT WITH THE ISSUE WHEN SHE WAS SOLICITOR GENERAL. BUT THAT MEANS THAT IF THE COURT HAD SPLIT 4-4 WITHOUT HER, THE NINTH CIRCUIT DECISION WOULD HAVE BEEN AFFIRMED, BUT THERE WOULD HAVE BEEN NO SUPREME COURT DECISION, AND THAT WAS PREVENTED BECAUSE CHIEF JUSTICE ROBERTS DID JOIN THE MAJORITY. AND HE DID SO IN FULL. HE DIDN'T WRITE A SEPARATE OPINION. HE DIDN'T EXPLAIN ANY OTHER REASONS. SO THAT'S INTERESTING. THE SECOND INTERESTING POINT IS NOT ONE OF THE OPINIONS IN THIS CASE CITED THE COURT'S DECISION FROM A FEW TERMS AGO IN AT&T V. CONCEPCION, WHICH IS ONE OF THE COURT'S MOST RECENT AND MOST ELABORATED DISCUSSIONS OF IMPLIED PREEMPTION. I THINK CONCEPCION WOULD HAVE SUPPORTED THE MAJORITY'S DECISION IN THIS CASE, BUT 3 OF THE JUSTICES WHO WERE IN THE MAJORITY IN THIS CASE DISSENTED IN CONCEPCION, AND SO THEY PROBABLY DIDN'T WANT TO CITE IT. - OUR SECOND FEDERALISM DECISION, COLEMAN V. MARYLAND COURT OF APPEALS, INVOLVES THE FEDERAL FAMILY AND MEDICAL LEAVE ACT. UNDER THAT LAW, EMPLOYERS MUST ALLOW EMPLOYEES TO TAKE LEAVE TO CARE FOR THEMSELVES WHEN ILL OR TO CARE FOR A NEW CHILD OR A SICK FAMILY MEMBER. THE QUESTION BEFORE THE COURT WAS IF A STATE EMPLOYER--HERE, THE MARYLAND COURT OF APPEALS-- DOES NOT ALLOW AN EMPLOYEE SUCH LEAVE TO CARE FOR HIMSELF, DOES THE STATE'S SOVEREIGN IMMUNITY PROTECT IT FROM BEING SUED IN THE FEDERAL COURT? AND WHAT DID THE COURT DECIDE, SUZANNA? - WELL, THAT TAKES A LITTLE EXPLAINING. WE HAVE TO START WITH THE FIRST THING TO REMEMBER, WHICH IS THAT A STATE--AS LONG AS IT DOESN'T WAIVE ITS SOVEREIGN IMMUNITY, A STATE CAN ONLY BE SUED IF CONGRESS ABROGATES ITS IMMUNITY, AND CONGRESS CAN ONLY ABROGATE A STATE'S IMMUNITY WHEN CONGRESS IS ACTING UNDER SECTION 5 OF THE 14th AMENDMENT. SO THE REAL QUESTION IN THIS CASE IS WHETHER THE FAMILY AND MEDICAL LEAVE ACT WAS A VALID ACT OF CONGRESS UNDER SECTION 5. IT'S CLEARLY VALID UNDER THE COMMERCE CLAUSE, BUT THE QUESTION IS WHETHER IT'S VALID UNDER SECTION 5. SO A FEW YEARS AGO, IN 2003, IN NEVADA DEPARTMENT OF HUMAN RESOURCES V. HIBBS, THE COURT DECIDED THAT CONGRESS DID VALIDLY ABROGATE THE STATE'S SOVEREIGN IMMUNITY WHEN IT REQUIRED LEAVE FOR FAMILY CARE AND SO EMPLOYEES COULD SUE STATES FOR VIOLATING THAT PORTION OF THE FMLA. BUT HERE IN COLEMAN, THE COURT HELD THAT CONGRESS' ATTEMPT TO ABROGATE SOVEREIGN IMMUNITY IN REQUIRING LEAVE FOR SELF-CARE WAS NOT VALID UNDER SECTION 5 BECAUSE IT WAS NOT A CONGRUENT AND PROPORTIONAL REMEDY FOR A CONSTITUTIONAL VIOLATION, AND SO CONGRESS COULDN'T DO IT. - CAN YOU EXPLAIN THAT A LITTLE MORE, EVAN? - WELL, IN THE HIBBS DECISION, THE COURT FOUND THAT THE STATES HAD FAMILY LEAVE POLICIES THAT DIFFERENTIATED ON THE BASIS OF GENDER AND DISCRIMINATED AGAINST FEMALE EMPLOYEES. THERE WAS EVIDENCE OF A PATTERN OF SUCH DISCRIMINATION AGAINST WOMEN OVER A NUMBER OF YEARS THAT WAS UNCONSTITUTIONAL. THAT'S THE HIBBS CASE. COLEMAN, ON THE OTHER HAND, COULD NOT PROVE THAT PATTERN OF DISCRIMINATION. THE EVIDENCE HERE WAS THAT MEN TOOK SELF-CARE LEAVE AT ABOUT THE SAME RATE THAT WOMEN WERE TAKING IT, AND THERE WAS NO WIDESPREAD DISCRIMINATION AGAINST WOMEN FOR TAKING SELF-CARE LEAVE. - SO HOW DOES THIS DECISION AFFECT THE LAW IN THIS AREA? - I THINK IT BASICALLY SENDS A SIGNAL THAT THE HIBBS CASE, AS WELL AS A 2004 CASE WHICH ALSO ALLOWED CONGRESSIONAL ABROGATION, TENNESSEE V. LANE, WERE SOMEWHAT OF ABERRATIONS IN ALLOWING CONGRESS BROAD LATITUDE UNDER SECTION 5 IN ABROGATING STATE SOVEREIGN IMMUNITY. I THINK WHAT THIS TELLS US IS THAT CONGRESS, IN ORDER TO ABROGATE STATE SOVEREIGN IMMUNITY, IS REALLY GOING TO HAVE TO PROVIDE SOLID EVIDENCE OF A PATTERN OF STATE CONSTITUTIONAL VIOLATIONS. - YEAH. JUSTICE SCALIA ONLY CONCURRED IN THE JUDGMENT. AND HE WOULD GO ALL THE WAY. HE WOULD SAY, LET'S GET RID OF THE CONGRUENCE AND PROPORTIONALITY TEST. IT'S IMPROPER FOR THE COURT TO BE ENGAGING IN THAT. AND LET'S PROHIBIT CONGRESS FROM ADOPTING ANY KIND OF PROPHYLACTIC REMEDIES, EXCEPT IN RACE DISCRIMINATION CASES, WHERE STARE DECISIS WOULD CONTROL. - NOW LET'S LOOK AT OUR TWO DECISIONS AFFECTING JURISDICTION AND PROCEDURE IN THE FEDERAL COURTS. THE FIRST OF THESE IS ANOTHER DECISION DEALING WITH THE RIGHTS OF PUBLIC EMPLOYEES TO BRING EMPLOYMENT ACTIONS IN FEDERAL COURT. THE DECISION INVOLVES THE RIGHT OF FEDERAL EMPLOYEES TO BRING EMPLOYMENT DISCRIMINATION CLAIMS IN FEDERAL COURT. THAT'S ELGIN V. DEPARTMENT OF THE TREASURY. THE CIVIL SERVICE REFORM ACT ALLOWS CERTAIN FEDERAL EMPLOYEES TO OBTAIN ADMINISTRATIVE AND JUDICIAL REVIEW OF SPECIFIED ADVERSE EMPLOYMENT ACTIONS. JUDICIAL REVIEW TAKES PLACE IN THE FEDERAL CIRCUIT COURT OF APPEALS. NOW, THE QUESTION BEFORE THE COURT WAS WHETHER THAT PROCESS WAS EXCLUSIVE UNDER THE STATUTE OR IF AFFECTED EMPLOYEES CAN BRING SUIT IN FEDERAL DISTRICT COURT ALLEGING THAT THEIR DISMISSAL WAS UNCONSTITUTIONAL. SO WHAT DID THE COURT ANSWER IN THAT SITUATION, SUZANNA? - THE MAJORITY HELD THAT THE CSRA PROVIDED THE EXCLUSIVE AVENUE FOR REVIEW OF COVERED DECISIONS. - WAS IT UNEXPECTED? - NO, I DON'T THINK IT WAS VERY SURPRISING. CONGRESS' INTENT WAS PRETTY CLEAR--THE STATUTE WAS PRETTY CLEAR--THAT THEY WANTED THE CSRA TO BE EXCLUSIVE. THE STATUTE DOES MAKE SOME OTHER EXCEPTIONS. SO, FOR EXAMPLE, EMPLOYMENT ACTIONS THAT ARE ALLEGED TO VIOLATE ONE OF THE FEDERAL EMPLOYMENT DISCRIMINATION STATUTES ARE ACCEPTED FROM THE STATUTE--EXEMPTED FROM THE STATUTE, AND SO CONGRESS KNOWS HOW TO MAKE AN EXCEPTION TO THE CSRA IF IT WANTS TO. AND THE LAW ALSO DOES PROVIDE FOR SOME JUDICIAL REVIEW IN THE FEDERAL CIRCUIT, AS YOU SAID, SO IT DOESN'T RAISE ANY REALLY HARD QUESTIONS ABOUT WHAT DO YOU DO IF THERE'S A DECISION BY AN AGENCY THAT IS NOT REVIEWABLE AT ALL IN COURT? - THE FEDERAL EMPLOYEE WHO BROUGHT THE ACTION IN THIS CASE, MICHAEL ELGIN, WAS TERMINATED BECAUSE HE REFUSED TO REGISTER WITH THE SELECTIVE SERVICE. HE CLAIMED THAT THE REGISTRATION REQUIREMENT WAS UNCONSTITUTIONAL ON ITS FACE AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE AND ALSO THE BILL OF ATTAINDER CLAUSE. THE COURT FOUND THAT WHILE THE MERIT SYSTEM PROTECTION BOARD, WHICH IS CHARGED IN THE ACT TO REVIEW THE EMPLOYEE'S COMPLAINT, LACKED JURISDICTION TO ADJUDICATE A FACIAL CONSTITUTIONAL CHALLENGE TO A STATUTE, IT COULD FIND ENOUGH FACTS TO PROVIDE THE FEDERAL CIRCUIT WITH A SUFFICIENT RECORD TO ENGAGE IN AN AS-APPLIED ANALYSIS OF THE STATUTE. - WE SHOULD NOTE THAT THERE WAS A DISSENT IN THIS CASE. THE DISSENTERS ARGUED THAT THESE CONSTITUTIONAL CLAIMS THAT EVAN WAS TALKING ABOUT ARE NOT THE KINDS OF CLAIMS THAT CONGRESS WANTED TO CHANNEL THROUGH THE CSRA, BUT I THINK THAT IS A REALLY HARD ARGUMENT TO MAKE IN LIGHT OF THE LANGUAGE AND HISTORY OF THE STATUTE. - YEAH, AND I THINK THE TAKE-HOME MESSAGE FOR FEDERAL JUDGES IN THIS CASE IS THAT THE BURDEN IS ON THE PLAINTIFF TO SHOW THAT IT IS NOT, QUOTE, UNQUOTE, "FAIRLY DISCERNIBLE" THAT CONGRESS INTENDED TO PRECLUDE SUCH AN ACTION FROM BEING BROUGHT IN FEDERAL COURT. - EARLIER WE MENTIONED AT&T V. CONCEPCION IN REGARDS TO FEDERAL PREEMPTION. NOW, THE FACTS OF THAT CASE INVOLVED AN ARBITRATION CLAUSE IN A CONSUMER CONTRACT, THE ENFORCEABILITY OF WHICH THE COURT UPHELD. BUT THIS TERM, IN COMPUCREDIT V. GREENWOOD, THE COURT ADDRESSES ARBITRATION CLAUSES FOR THE FIRST TIME SINCE CONCEPCION AND AGAIN FINDS THEM TO BE BROADLY ENFORCEABLE. THE QUESTION HERE IS ONE OF STATUTORY INTERPRETATION REGARDING WHAT SEEM TO BE CONFLICTING MANDATES BETWEEN TWO FEDERAL STATUTES. SO CAN YOU, EVAN, HELP US EXPLAIN THE CONFLICT? - THE CREDIT REPAIR ORGANIZATIONS ACT, OR CROA, ESTABLISHES A CONSUMER'S RIGHT TO SUE IN DISAGREEMENTS WITH COMPANIES THAT HAVE PROVIDED THEM WITH CREDIT. GREENWOOD WAS PART OF A CLASS ACTION SUIT AGAINST COMPUCREDIT OVER CREDIT CARDS THAT IT HAD ISSUED TO THE MEMBERS OF THE CLASS. BUT THE AGREEMENT THEY SIGNED WHEN THEY APPLIED FOR THE CARD SAID THAT ANY CLAIM, DISPUTE, OR CONTROVERSY BETWEEN THE PARTIES WOULD HAVE TO BE RESOLVED IN BINDING ARBITRATION. SO THE QUESTION BEFORE THE COURT WAS WHETHER CONGRESS MEANT TO OVERRIDE THE FEDERAL ARBITRATION ACT, WHICH PROMOTES ENFORCEMENT OF ARBITRATION CLAUSES WHERE THEY EXIST, WHEN IT ENACTED THE CROA? - AND WHAT DID THE COURT DECIDE, SUZANNA? - IT HELD THAT CONGRESS DID NOT INTEND TO OVERRIDE IT. IT SAID THAT WHILE THE CROA PROVIDED FOR A RIGHT TO SUE-- IT ESTABLISHED A RIGHT TO SUE-- IT DID NOT ESTABLISH A RIGHT TO SUE IN COURT. SO IT WAS POSSIBLE FOR INDIVIDUALS TO WAIVE THE RIGHT TO SUE IN COURT. ALL THE CROA DOES IS GIVE NOTICE, THE COURT SAID, OF REMEDIES THAT ARE AVAILABLE ELSEWHERE, AND THERE'S NO REMEDY THAT REQUIRES THAT THEY BE ALLOWED TO SUE IN COURT. - YEAH, AND THE COURT EXPLAINED THAT BECAUSE ARBITRATION AGREEMENTS IN FEDERAL STATUTES WERE COMMONPLACE WHEN CROA WAS ENACTED, THE FACT THAT CONGRESS DID NOT EXPRESSLY RULE OUT ENFORCEMENT OF AN ARBITRATION AGREEMENT, THAT INCLINED THE MAJORITY TO BELIEVE THAT CONGRESS FULLY EXPECTED THAT THE FAA WOULD APPLY. - THIS IS VERY MUCH IN KEEPING WITH A SERIES OF CASES THAT THE COURT'S BEEN DECIDING THAT HAVE BASICALLY BEEN HOLDING THAT IF CONGRESS WANTS SOMETHING TO OVERRIDE THE FAA, CONGRESS HAS TO DO SO QUITE EXPLICITLY. - THANK YOU, EVAN. THANKS, SUZANNA. - FINALLY, WE LOOK AT 3 CIVIL RIGHTS DECISIONS REACHED BY THE COURT THIS TERM. ALL 3 INVOLVED SUITS AGAINST INDIVIDUALS WORKING FOR THE GOVERNMENT, AND ALL 3 RULED AGAINST THE PLAINTIFFS. ERWIN, CAN YOU TELL US ABOUT MINECCI V. POLLARD? - POLLARD WAS A PRISONER AT A PRIVATE PRISON THAT WAS OPERATING UNDER A CONTRACT WITH THE FEDERAL GOVERNMENT. HE FELL WHILE IN THE PRISON, LANDED ON HIS ARMS, AND FRACTURED BOTH ELBOWS. HE CLAIMED THAT HIS MEDICAL TREATMENT SHOWED DELIBERATE INDIFFERENCE AND THIS WAS CRUEL AND UNUSUAL PUNISHMENT. HE SAID WHEN HE WAS TAKEN TO THE HOSPITAL HE WAS PUT IN ARM RESTRAINTS WHICH CAUSED HIM EXCRUCIATING PAIN. HE SAID THAT ALSO HE WASN'T TAKEN FOR APPROPRIATE X-RAYS AND REHABILITATION. AND HE BROUGHT A SUIT AGAINST THE PRIVATE PRISON GUARDS UNDER BIVENS, CLAIMING IT WAS A VIOLATION OF HIS CONSTITUTIONAL RIGHTS. - WHY DID THE COURT RULE AGAINST POLLARD, LAURIE? - WELL, BECAUSE THE COURT USED A TWO-PART TEST TO DECIDE WHETHER THERE WAS A RIGHT UNDER BIVENS TO SUE. AND THE COURT SAID FIRST, IS THERE AN ALTERNATIVE PROCESS FOR POLLARD TO USE TO PROTECT HIS CONSTITUTIONAL RIGHTS? AND HERE, THERE IS A STATE TORT ACTION THAT HE COULD USE. AND SECOND, EVEN IF THERE IS NO ALTERNATIVE PROCESS THAT WOULD BE AS GIVING AS A BIVENS ACTION, ARE THERE OTHER FACTORS COUNSELING AGAINST AUTHORIZING THE FEDERAL LITIGATION? SO IN THIS CASE, THE COURT SAID A BIVENS IS THE WRONG REMEDY. THERE IS A STATE TORT LAW AVAILABLE. IT'S ADEQUATE ENOUGH TO DETER THIS TYPE OF CONSTITUTIONAL VIOLATION. AND EVEN THOUGH THE STATE TORT ACTON MIGHT HAVE LIMITATIONS THAT FORBID RECOVERY FOR EMOTIONAL DAMAGES OR THE AMOUNT OF RECOVERY, IT DIDN'T MEAN THAT IT AUTHORIZED A BIVENS ACTION. - I THINK THERE ARE A COUPLE OF THINGS THAT ARE SIGNIFICANT HERE. IN 2001, IN CORRECTIONS DEPARTMENT V. MALESKO, THE SUPREME COURT SAID THAT PRIVATE PRISONS CANNOT BE SUED UNDER BIVENS. NOW THE SUPREME COURT HAS ALSO SAID THAT PRIVATE PRISON GUARDS AT THOSE ENTITIES ALSO CAN'T BE SUED UNDER BIVENS. AND SECOND, THIS IS THE FIRST TIME THE SUPREME COURT HAS EVER SAID THAT THE EXISTENCE OF A STATE TORT REMEDY PRECLUDES THE AVAILABILITY OF A BIVENS CAUSE OF ACTION. IN BIVENS ITSELF, THERE WAS A STATE TORT REMEDY AVAILABLE, BUT THE SUPREME COURT SAID THAT THE VINDICATION OF FEDERAL CONSTITUTIONAL RIGHTS SHOULDN'T DEPEND ON THE VAGARIES OF STATE TORT LAW. NOW THE SUPREME COURT IS SAYING AT LEAST IN THIS CONTEXT, THE EXISTENCE OF STATE TORT REMEDY PRECLUDES THE BIVENS CAUSE OF ACTION. - THE APPELLEE IN THE NEXT CASE, JAMES PAULK, WAS THE CHIEF INVESTIGATOR IN THE D.A.'s OFFICE. PAULK TESTIFIED 3 TIMES BEFORE A GRAND JURY THAT CHARLES REHBERG HAD HARASSED THE PERSONNEL OF A LOCAL HOSPITAL. 3 TIMES THE GRAND JURY INDICTED REHBERG, AND 3 TIMES REHBERG GOT THE INDICTMENTS DISMISSED. FINALLY, REHBERG SUED PAULK UNDER SECTION 1983 FOR DENYING HIM HIS CIVIL RIGHTS UNDER COLOR OF LAW. PAULK ASSERTED ABSOLUTE IMMUNITY AS HIS DEFENSE. THE QUESTION BEFORE THE COURT WAS, DOES ABSOLUTE IMMUNITY PROTECT A GOVERNMENT OFFICIAL WHO IS A COMPLAINING WITNESS IN A GRAND JURY PROCEEDING? LAURIE, WHAT WAS THE COURT'S REASONING HERE? - WELL, THE COURT CAME OUT WITH A UNANIMOUS DECISION HERE, AND THEY SAID IN FACT, IF YOU LOOK AT COMMON LAW PRINCIPLES, TRIAL WITNESSES HAD THE IMMUNITY, SO THE SAME THING SHOULD APPLY HERE FOR GRAND JURY WITNESSES. AND FOR POLICY REASON, THE COURT THOUGHT IT WAS IMPORTANT TO PROVIDE THIS IMMUNITY. ONE, THEY DIDN'T WANT WITNESSES TO BE RELUCTANT TO COME BEFORE THE GRAND JURY, AND SECOND OF ALL, THEY WERE WORRIED ABOUT GRAND JURY SECRECY. SO THE COURT SAYS, WE'RE GONNA TAKE THE PRINCIPLES FROM COMMON LAW THAT APPLY TO TRIAL WITNESSES AND APPLY IT TO GRAND JURY WITNESSES. NOW, ONE THING WE SHOULD MAKE A POINT OF IS THAT THE COURT DIDN'T SAY THAT THAT IMMUNITY APPLIED TO THINGS THAT HAPPENED OUTSIDE THE GRAND JURY ROOM. SO IF THERE WERE FALSE AFFIDAVITS OR OTHER TYPES OF MISCONDUCT, MAYBE THERE WOULD BE AN ACTION. - SO WAS THIS A SIGNIFICANT EXPANSION ON EARLIER RULINGS? - IN BRISCOE V. LAHUE, THE SUPREME COURT SAID THAT POLICE OFFICERS HAVE ABSOLUTE IMMUNITY TO CIVIL SUITS FOR DAMAGES IF THEY GIVE FALSE TESTIMONY AT TRIAL. I DO THINK THAT THIS IS AN EXPANSION BECAUSE THIS SAYS IT DOESN'T MATTER WHETHER IT'S A POLICE OFFICER OR AN INVESTIGATOR. IT DOESN'T MATTER WHETHER IT'S A TRIAL OR A GRAND JURY. IT DOESN'T MATTER THAT IT'S THE CHIEF COMPLAINING WITNESS. ABSOLUTE IMMUNITY STILL APPLIES. AND I THINK THE QUESTION IS, HOW FAR WILL THIS EXTEND? WHAT ABOUT TESTIMONY AT A PRELIMINARY HEARING? WHAT ABOUT TESTIMONY AT A SUPPRESSION MOTION? OR LAURIE GIVES THE EXAMPLE ABOUT, WHAT ABOUT FALSE STATEMENTS IN AN AFFIDAVIT OR DECLARATION? IN KALINA V. FLETCHER IN 1997, THE SUPREME COURT SAID, THOSE AREN'T PROTECTED BY ABSOLUTE IMMUNITY, BUT IS THERE REALLY A MEANINGFUL DISTINCTION BETWEEN THIS CASE AND THAT ONE? - AND OUR FINAL DECISION IS ABOUT QUALIFIED IMMUNITY. THIS IS FILARSKY V. DELIA. QUALIFIED IMMUNITY HERE MEANS THAT GOVERNMENT OFFICIALS WHO ARE NOT PROTECTED BY ABSOLUTE IMMUNITY ARE STILL PROTECTED BY QUALIFIED IMMUNITY WHEN SUED FOR MONEY DAMAGES SO LONG AS IT CANNOT BE PROVED THAT THEY VIOLATED CLEARLY ESTABLISHED LAW THAT A REASONABLE OFFICER SHOULD KNOW. THE ISSUE IN FILARSKY IS WHETHER PRIVATE INDIVIDUALS WHO ARE CONTRACTING WITH A STATE OR LOCAL GOVERNMENT AND ACTING UNDER COLOR OF LAW CAN CLAIM QUALIFIED IMMUNITY AS A DEFENSE. ERWIN, WHAT WERE THE FACTS? - DELIA WAS A FIREFIGHTER WHO THEN TOOK TIME OFF WORK FOR A MEDICAL DISABILITY. BUT HE WAS SEEN GOING TO A HOME IMPROVEMENT STORE BUYING BUILDING SUPPLIES. WHEN THAT WAS REPORTED TO HIS EMPLOYER, THEY WERE THINKING, MAYBE HE'S NOT REALLY DISABLED. SO THEY HIRED A PRIVATE INVESTIGATOR TO GO TO HIS HOME TO SEE, AND THE PRIVATE INVESTIGATOR AND OTHERS WENT AND SAID, WE WANT TO SEE THE BUILDING MATERIALS TO SEE THAT YOU HAVEN'T INSTALLED THEM. HE BELIEVED THAT HE WAS BEING HARASSED AND THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED, AND HE BROUGHT A CIVIL SUIT AGAINST THAT PRIVATE INVESTIGATOR, WHO WAS CONTRACTED WITH THE GOVERNMENT, SAYING THERE WAS A CONSTITUTIONAL VIOLATION. - SO HOW DID THE COURT ANALYZE THIS? - WELL, AGAIN THE COURT LOOKED TO HISTORY, AND THE COURT SAID THAT THERE WAS A LONG TRADITION OF PRIVATE CITIZENS HELPING WITH GOVERNMENT WORK. SO WHEN 1983 WAS ACTUALLY ENACTED, PRIVATE INDIVIDUALS WERE DOING ALL SORTS Of GOVERNMENT SERVICES. THEY WERE SERVING WITH SHERIFF POSSES, THEY WERE FERRYMEN, THEY WERE EVEN SOMETIMES PART-TIME PROSECUTORS. BASED UPON THAT, THAT THE COMMON LAW DID NOT DRAW A DISTINCTION BETWEEN A FULL-TIME PUBLIC SERVANT AND A PRIVATE INDIVIDUAL WHO MIGHT HELP WITH GOVERNMENT SERVICE, THE COURT SAID THAT IT WOULD NOT. SO, BOTTOM LINE OUT OF THIS CASE, PRIVATE INDIVIDUALS WHO ARE DOING THE WORK FOR THE GOVERNMENT WILL HAVE THE SAME TYPE OF IMMUNITY WHETHER OR NOT THEY'RE FULL-TIME PUBLIC SERVANTS. - THIS IS A SIGNIFICANT CHANGE TO THE LAW. IN TWO PRIOR CASES, WYATT V. COLE AND RICHARDSON V. McNIGHT, THE SUPREME COURT SAID THAT WHEN PRIVATE INDIVIDUALS ARE ACTING UNDER COLOR OF LAW, THEY ARE NOT PROTECTED BY QUALIFIED IMMUNITY. THE SUPREME COURT DID NOT OVERRULE THOSE DECISIONS, BUT CLEARLY LIMITED THEM ESSENTIALLY TO THE FACT--AND I AGREE WITH LAURIE'S CONCLUSION-- THAT APART FROM FACTS LIKE THOSE EARLIER DECISIONS, WHEN A PRIVATE INDIVIDUAL ACTING UNDER COLOR OF LAW IS SUED, THAT PERSON CAN RAISE QUALIFIED IMMUNITY AS A DEFENSE. - YOU KNOW, ERWIN, I THINK WE CAN SUM UP THESE CASES BY SAYING IT IS A LOT EASIER NOW TO DEFEND AGAINST CIVIL RIGHTS ACTIONS, AND IF YOU LOOK AT WHAT WE HAVE IN THESE 3 CASES-- FIRST, THAT THERE IS NO BIVENS ACTION UNLESS THERE ARE NO OTHER ADEQUATE REMEDIES; TWO, THAT THE COURT IS GOING TO CONTINUE TO LOOK AT IMMUNITY AS EVOLVED UNDER THE COMMON LAW; AND THIRD, THAT A PERSON BEING SUED DOESN'T HAVE TO HAVE THAT FULL-TIME RELATIONSHIP AS A GOVERNMENT SERVANT TO HAVE THE IMMUNITY; IT DOES MAKE IT HARDER TO BRING THESE CIVIL RIGHTS ACTIONS. - THANKS, LAURIE, THANKS, ERWIN. HERE'S JOHN COOKE WITH SOME FINAL WORDS. - THAT'S OUR PROGRAM FOR THIS YEAR. I THANK OUR FACULTY FOR THEIR THOUGHTFUL DISCUSSION. WE HOPE YOU FOUND THE PROGRAM USEFUL AND INTERESTING.