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2002 term per curiam opinions of the Supreme Court of the United States

From Wikipedia, the free encyclopedia

The Supreme Court of the United States handed down twelve per curiam opinions during its 2002 term, which began October 7, 2002 and concluded October 5, 2003.[1]

Because per curiam decisions are issued from the Court as an institution, these opinions all lack the attribution of authorship or joining votes to specific justices. All justices on the Court at the time the decision was handed down are assumed to have participated and concurred unless otherwise noted.

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  • ✪ Supreme Court: The Term in Review (2014–2015) Part 1 of 2
  • ✪ Supreme Court: The Term in Review (2008-2009) Part 1of 2
  • ✪ Supreme Court: The Term in Review (2013–2014) Part 1 of 2

Transcription

>> "SUPREME COURT: THE TERM IN REVIEW," A FEDERAL JUDICIAL CENTER PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM OUR STUDIO IN WASHINGTON, D.C., HERE'S JOHN COOKE. COOKE: HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR AT THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR'S EDITION OF "SUPREME COURT: THE TERM IN REVIEW." AS ALWAYS, THE PURPOSE OF OUR PROGRAM IS TO TELL YOU ABOUT THE DECISIONS REACHED BY THE SUPREME COURT THIS TERM THAT ARE MOST LIKELY TO AFFECT THE WORK OF FEDERAL JUDGES. THE COURT ISSUED 66 SIGNED OPINIONS AFTER ORAL ARGUMENT THIS TERM, AND 8 PER CURIAM DECISIONS. WE WILL DISCUSS OR DESCRIBE 38 OF THOSE CASES TODAY. THESE INCLUDE THE DECISION PROHIBITING STATES FROM DENYING SAME-SEX COUPLES THE RIGHT TO MARRY AND THE DECISION ALLOWING SUBSIDIES FOR PEOPLE WHO BOUGHT HEALTH INSURANCE THROUGH FEDERALLY RUN EXCHANGES, BUT THE COURT ALSO DECIDED OTHER LESS HIGH-PROFILE CASES ON SEARCH AND SEIZURE, WORKPLACE RIGHTS, AND OTHER ISSUES AFFECTING THE WORK OF THE FEDERAL COURTS. WE WILL LOOK AT THOSE, TOO. WE'RE 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 SCHOOL OF LAW; 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 SCHOOL OF LAW. IN TWO PRE-RECORDED SEGMENTS, WE'VE CALLED ON THE EXPERTISE OF PROFESSOR MICHELLE HARNER FROM THE UNIVERSITY OF MARYLAND SCHOOL OF LAW TO DISCUSS THIS TERM'S BANKRUPTCY LAW DECISIONS AND PROFESSOR JOHN THOMAS OF THE GEORGETOWN UNIVERSITY LAW CENTER TO ANALYZE THE PATENT AND TRADEMARK DECISIONS. OUR OWN JIM CHANCE AND BETH WIGGINS WILL MODERATE THE PROGRAM. WE'RE DOING MOST OF THE PROGRAM LIVE AGAIN THIS YEAR, AND WE WILL TAKE AND ANSWER YOUR QUESTIONS BY EMAIL DURING THE PROGRAM. THE EMAIL ADDRESS TO WHICH YOU CAN SEND QUESTIONS IS AT THE BOTTOM OF YOUR SCREEN. AT THE END OF EACH PANEL, OUR FACULTY WILL TAKE A COUPLE OF MINUTES TO ANSWER YOUR QUESTIONS ON THE DECISIONS THEY'VE JUST ANALYZED. IF THERE ARE MORE QUESTIONS THAN WE CAN ANSWER DURING THAT TIME, OUR FACULTY WILL TRY TO ANSWER THEM AFTER THE PROGRAM VIA EMAIL, AND TO THE EXTENT WE CAN, WE WILL POST THE UNANSWERED QUESTIONS AND ANSWERS ON THE SAME WEBPAGE, WHERE A RECORDING OF THIS PROGRAM WILL BE AVAILABLE BEGINNING IN EARLY AUGUST. AS ALWAYS, THERE'S AN OUTLINE OF THE CASES WE WILL DISCUSS AS WELL AS BRIEF SUMMARIES OF THE CASES WE WILL NOT DISCUSS ON THE WEBPAGE ON WHICH YOU'RE WATCHING THIS PROGRAM. THERE'S ALSO A LINK TO THE MATERIALS YOU'LL NEED TO APPLY FOR CLE CREDIT. NOW TO OUR FIRST TOPIC--SPEECH. WIGGINS: HELLO. I'M BETH WIGGINS, HERE WITH MY COLLEAGUE JIM CHANCE AND OUR FACULTY TO DISCUSS 4 SPEECH-RELATED DECISIONS THE COURT REACHED THIS TERM. 3 OF THEM TOOK UP THE FIRST AMENDMENT DIRECTLY, WHILE THE FOURTH WAS DECIDED ON STATUTORY GROUNDS. THE VOICE YOU JUST HEARD WAS JUSTICE KAGAN ASKING A QUESTION OF COUNSEL AT ORAL ARGUMENT FOR REED V. TOWN OF GILBERT. GILBERT, ARIZONA, HAD A MUNICIPAL CODE REGULATING THE SIZE AND LOCATION AND DURATION OF OUTDOOR SIGNS--HOW BIG THEY COULD BE, WHERE THEY COULD BE DISPLAYED, AND HOW LONG THEY COULD BE DISPLAYED--DEPENDENT ON WHAT CATEGORY THEY WERE IN. POLITICAL SIGNS, DEFINED AS SIGNS DESIGNED TO INFLUENCE THE OUTCOME OF AN ELECTION, COULD BE UP TO 32 SQUARE FEET AND COULD ONLY BE DISPLAYED DURING ELECTION SEASON. TEMPORARY DIRECTIONAL SIGNS WERE SIGNS DIRECTING THE PUBLIC TO A CHURCH OR OTHER QUALIFYING EVENT. THEY COULDN'T BE LARGER THAN 6 SQUARE FEET, ONLY 4 COULD BE ON A SINGLE PROPERTY AT ANY ONE TIME, AND THEY COULD BE DISPLAYED ONLY FOR 12 HOURS BEFORE AND ONE HOUR AFTER THE QUALIFYING EVENT, AND THEN, IDEOLOGICAL SIGNS COMMUNICATED A MESSAGE OR IDEA THAT DIDN'T FIT INTO ANY OTHER CATEGORY. THEY COULD BE UP TO 20 SQUARE FEET WITH NO PLACEMENT OR TIME RESTRICTIONS. A LOCAL PASTOR, CLYDE REED, SUED THE TOWN BECAUSE HIS CHURCH HELD SERVICES IN VARIOUS TEMPORARY LOCATIONS AND NEEDED TO POST SIGNS TO LET PEOPLE KNOW WHEN AND WHERE THEY WERE MEETING. THE QUESTION BEFORE THE COURT WAS WHETHER THE GILBERT TOWN ORDINANCE VIOLATED THE FIRST AMENDMENT, AND, SUZANNA, DID IT? SHERRY: YES. IT DID. THE COURT HELD THAT IT VIOLATED THE FIRST AMENDMENT BECAUSE IT WAS A CONTENT-BASED REGULATION. IT WAS CONTENT-BASED BECAUSE THE REGULATION, HOW IT WAS REGULATED DEPENDED ON THE TOPIC DISCUSSED OR THE IDEA THAT WAS EXPRESSED, THE MESSAGE THAT WAS EXPRESSED, SO BECAUSE IT WAS CONTENT-BASED, IT WAS SUBJECT TO STRICT SCRUTINY. THAT'S THE COURT'S TOUGHEST STANDARD. THUS, IN ORDER TO BE UPHELD, THE REGULATION WOULD HAVE HAD TO BE NARROWLY TAILORED TO MEET A COMPELLING STATE INTEREST, AND THE COURT HELD THAT IT DIDN'T MEET THAT STANDARD, AND SO THE REGULATION WAS UNCONSTITUTIONAL. WIGGINS: WELL, YOU KNOW, ERWIN, I KNOW THE DECISION WAS UNANIMOUS, BUT THE REASONING WAS DIFFERENT. CAN YOU TELL US A LITTLE ABOUT THAT? CHEMERINSKY: THAT'S RIGHT. JUSTICE KAGAN WROTE AN OPINION CONCURRING IN THE JUDGMENT, JOINED BY JUSTICES GINSBURG AND BREYER. THESE JUSTICES AGREED THAT THIS ORDINANCE WAS UNCONSTITUTIONAL. IN ONE OF THE BETTER LINES OF THE TERM, JUSTICE KAGAN SAID, "THIS WOULD FAIL THE STRICT SCRUTINY TEST, THE INTERMEDIATE SCRUTINY TEST, OR EVEN THE LAUGH TEST," BUT SHE WORRIED THAT THE SUPREME COURT'S DECISION WOULD LEAD TO MANY SIGN ORDINANCES ACROSS THE COUNTRY BEING DECLARED UNCONSTITUTIONAL. SUBJECTED TO THE USE OF STRICT SCRUTINY, WE WANTED TO SEE A TEST THAT WAS MORE DEFERENTIAL TO THE GOVERNMENT. JUSTICE BREYER WROTE A SEPARATE OPINION, ALSO ARGUING AGAINST THE USE OF STRICT SCRUTINY. AS HE HAS IN PRIOR CASES, HE ARGUED FOR WHAT HE CALLS INTEREST BALANCING, SO THE COURT SHOULD DO AS A WAY THE INTRUSION ON SPEECH AGAINST THE GOVERNMENT'S INTEREST IN REGULATION. SHERRY: AND JUSTICE ALITO ALSO WROTE A CONCURRING OPINION, JOINED BY JUSTICES KENNEDY AND SOTOMAYOR. HE WAS TRYING TO CLARIFY THE MAJORITY'S DECISION BY POINTING OUT THAT CONTENT-NEUTRAL SIGN REGULATIONS WOULD STILL BE ALLOWED, SO TOWNS CAN STILL DO THINGS LIKE REGULATE THE SIZE OF SIGNS, DETERMINE WHETHER THEY CAN BE LIT OR WHETHER THEY HAVE TO BE UNLIT, WHETHER THEY CAN BE FREESTANDING, WHETHER THEY CAN BE ATTACHED TO BUILDINGS, AND SO ON. WIGGINS: ERWIN, WHAT ARE THE LIKELY IMPLICATIONS? CHEMERINSKY: THERE'S A REAL DISAGREEMENT AMONG THE JUSTICES TO THE IMPLICATION'S DECISION. JUSTICE KAGAN, AS I SAID, FORESEES THIS LEADING TO MANY SIGN ORDINANCES AROUND THE COUNTRY BE DECLARED UNCONSTITUTIONAL, SAID SHE WORRIES THAT THE SUPREME COURT'S GOING TO BECOME THE SUPREME BOARD OF SIGN REVIEW. ON THE OTHER HAND, JUSTICE THOMAS AT THE END OF THE MAJORITY OPINION AND JUSTICE ALITO IN THE CONCURRING OPINION SAID LOCAL GOVERNMENTS STILL CAN HAVE SIGN ORDINANCES SO LONG AS THEY ARE CONTENT-NEUTRAL. WIGGINS: OK. THANK YOU. WELL, OUR NEXT DECISION WAS WILLIAMS-YULEE V. THE FLORIDA STATE BAR. HERE, THE COURT FOUND AGAIN THAT THE LAW WAS CONTENT-BASED, BUT THIS TIME, THEY UPHELD IT. ERWIN, AGAIN, TELL US THE FACTS HERE. CHEMERINSKY: SURE. FLORIDA IS ONE OF 39 STATES THAT HAS ELECTED JUDGES. LANELL WILLIAMS-YULEE RAN FOR ELECTION TO BE A TRIAL JUDGE IN FLORIDA. SHE SENT A LETTER TO THOSE WHO SHE WANTS TO SUPPORT HER TO CONTRIBUTE TO HER CAMPAIGN. FLORIDA, THOUGH, HAS A RULE, LIKE 30 OTHER STATES, THAT PROHIBITS CANDIDATES FOR ELECTED JUDICIAL OFFICE FROM PERSONALLY SOLICITING OR RECEIVING FUNDS. IT'S BASED ON THE ABA MODEL CODE OF JUDICIAL CONDUCT, RULE 7C(1). AFTER SHE LOST HER ELECTION BID, TO ADD INJURY TO INSULT, THE FLORIDA BAR DISCIPLINED HER FOR VIOLATING THAT IMPERMISSIBLY SOLICITING FUNDS. SHE BROUGHT A FIRST AMENDMENT CHALLENGE TO THE BAR DISCIPLINARY PROCEEDING. WIGGINS: OK, SO THIS WAS ANOTHER CONTENT-BASED REGULATION, BUT, UNLIKE THE LAST CASE, WE GOT A DIFFERENT RESULT. WHY WAS THAT? SHERRY: WELL, BECAUSE IN THIS CASE, THE COURT HELD THAT THE REGULATION MET STRICT SCRUTINY. THE COURT BEGAN BY DISTINGUISHING CAMPAIGNS FOR POLITICAL OFFICE FROM CAMPAIGNS FOR JUDICIAL OFFICE, AND CHIEF JUSTICE ROBERTS' MAJORITY OPINION WROTE THAT THE STATE HAD A COMPELLING INTEREST IN PRESERVING PUBLIC CONFIDENCE IN THE INTEGRITY OF THE JUDICIARY, AND THE STATE DID SO BY PROHIBITING PERSONAL SOLICITATIONS BY THE CANDIDATE, EVEN THOUGH THE CANDIDATE'S CAMPAIGN COMMITTEE COULD SOLICIT CONTRIBUTIONS AND CANDIDATES COULD ACTUALLY WRITE PERSONAL THANK-YOU NOTES AFTER THE CONTRIBUTIONS, SO IT WAS NARROWLY TAILORED TO REACH THAT COMPELLING STATE INTEREST. THE CHIEF JUSTICE WROTE FOR THE MAJORITY THAT EVEN WHEN JUDGES ARE NOT RUNNING FOR PUBLIC OFFICE, FOR ELECTED OFFICE, THEY ARE STILL NOT POLITICIANS. WIGGINS: HMM, OK. WELL, THIS WAS A 5-4 DECISION, BUT EVEN WITHIN THAT 5-JUSTICE MAJORITY, THERE'S SOME SPLIT IN THE REASONING. CAN YOU TELL US A LITTLE ABOUT THAT, ERWIN? CHEMERINSKY: ALL 5 JUSTICES IN THE MAJORITY AGREED THAT THE GOVERNMENT HAS A COMPELLING INTEREST IN PRESERVING PUBLIC CONFIDENCE IN THE JUDICIARY, THUS PROHIBITING CANDIDATES FOR JUDICIAL OFFICE FROM SOLICITING OR RECEIVING FUNDS, BUT JUSTICE BREYER IN A CONCURRING OPINION AND JUSTICE GINSBURG IN AN OPINION CONCURRING IN THE JUDGMENT, ARGUED FOR LESS THAN STRICT SCRUTINY. JUSTICE GINSBURG, IN A MORE LENGTHY OPINION, ARGUED THAT STATES HAVE A VERY IMPORTANT INTEREST IN PRESERVING CONFIDENCE IN THE JUDICIARY, AND THUS SHOULD BE ABLE TO HAVE GREAT LATITUDE IN REGULATING SPEECH BY JUDICIAL CANDIDATES AND FUNDRAISING BY JUDICIAL CANDIDATES. SHERRY: AND THERE WERE, OF COURSE, SEVERAL DISSENTS. JUSTICE SCALIA WROTE A DISSENT SAYING THAT THE LAW WAS A CONTENT-BASED RESTRICTION AND THEREFORE SHOULD BE SUBJECT TO STRICT SCRUTINY, AND HE SAID THAT THE MAJORITY'S OPINION ONLY HAD THE APPEARANCE OF STRICT SCRUTINY. JUSTICE KENNEDY ALSO THOUGHT THE MAJORITY UNNECESSARILY RELAXED THE STRICTURES OF THE FIRST AMENDMENT. HE SAID THAT STATES DO HAVE A COMPELLING INTEREST IN PRESERVING THE APPEARANCE OF THE INTEGRITY OF THE JUDICIARY BUT THAT THE COURT SHOULD NOT ALTER BASIC FIRST AMENDMENT PRINCIPLES WHEN THEY'RE APPLYING-- WHEN THEY'RE LOOKING AT REGULATION OF THE JUDICIARY, AND THEN JUSTICE ALITO ALSO AGREED THAT THERE WAS A COMPELLING INTEREST BUT ALSO FELT THAT THE LAW WAS NOT SUFFICIENTLY NARROWLY TAILORED. WIGGINS: WELL, ONE MORE QUESTION BEFORE WE MOVE ON. DO YOU THINK THIS CASE IS GOING TO REWRITE THE FIRST AMENDMENT LAW WITH RESPECT TO JUDICIAL ELECTIONS? CHEMERINSKY: I THINK IT ALREADY HAS. IN 2002, IN REPUBLICAN PARTY OF MINNESOTA V. WHITE, THE SUPREME COURT STRUCK DOWN A PROVISION IN THE MINNESOTA CODE OF JUDICIAL ETHICS THAT THE CANDIDATES FOR ELECTED JUDICIAL OFFICE COULD NOT MAKE STATEMENTS ABOUT DISPUTED LEGAL AND POLITICAL ISSUES. JUSTICE SCALIA WROTE THAT OPINION, JOINED BY THE 4 MOST CONSERVATIVE JUSTICES THEN ON THE COURT. WHAT THE COURT SAID WAS, WHEN STATES HAVE ELECTED JUDGES, THEY'RE MAKING THE CANDIDATES INTO POLITICIANS, BUT HERE, CHIEF JUSTICE ROBERTS WRITING FOR THE MAJORITY SAYS JUDGES ARE NOT POLITICIANS EVEN WHEN THEY RUN FOR ELECTED OFFICE. A NUMBER OF STATE REGULATIONS ON SPEECH, FUNDRAISING BY CANDIDATES FOR JUDICIAL OFFICE, WERE STRUCK DOWN AFTER REPUBLICAN PARTY OF MINNESOTA V. WHITE. I THINK THOSE CASES ARE GOING TO BE RECONSIDERED AFTER WILLIAMS-YULEE. WIGGINS: OK. WELL, SO IN ONE CASE, WE HAD A CONTENT-BASED SPEECH RESTRICTION FALL TO STRICT SCRUTINY WHILE ON THE SECOND CASE, WE HAD SUCH A RESTRICTION SURVIVE THE TEST. NOW IN OUR THIRD DECISION-- WALKER V. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS-- THE COURT RULED THAT STRICT SCRUTINY DOESN'T APPLY WHEN THE GOVERNMENT ITSELF IS A SPEAKER. THE TEXAS DIVISION OF THE SONS OF CONFEDERATE VETERANS APPLIED FOR A SPECIALTY LICENSE PLATE THAT INCLUDED A CONFEDERATE BATTLE FLAG IN THE DESIGN. THE TEXAS DEPARTMENT OF MOTOR VEHICLES BOARD REJECTED THE DESIGN, AND THE ORGANIZATION THEN CHALLENGED THE DECISION AS A CONTENT-BASED VIOLATION OF ITS FIRST AMENDMENT RIGHTS, BUT THE COURT DIDN'T AGREE, DID IT? SHERRY: NO. IT DIDN'T. THE COURT SAID THAT THE LICENSE PLATES ARE GOVERNMENT SPEECH, AND THAT'S REALLY CRUCIAL BECAUSE THE GOVERNMENT-- IT'S NOT POSSIBLE FOR THE GOVERNMENT TO VIOLATE THE FIRST AMENDMENT. WHEN THE GOVERNMENT SPEAKS, IT IS ALLOWED TO DISCRIMINATE ON THE BASIS OF CONTENT, AND THAT'S NOT A FIRST AMENDMENT VIOLATION. JUSTICE BREYER'S MAJORITY OPINION POINTED OUT THAT IF THE GOVERNMENT COULDN'T MAKE CONTENT-BASED DISTINCTIONS IN ITS OWN SPEECH, THE GOVERNMENT WOULD CEASE TO FUNCTION. THE GOVERNMENT COULDN'T, FOR EXAMPLE, ENCOURAGE RECYCLING OR ENERGY CONSERVATION OR CHILD VACCINATION. CHEMERINSKY: IN HERE, WHAT JUSTICE BREYER SAYS IS A LICENSE PLATE IS LIKE A GOVERNMENT-ISSUED I.D. IT IS INHERENTLY GOVERNMENT SPEECH. THE MAJORITY REJECTED THE ARGUMENT THAT TEXAS WAS CREATING A FORUM FOR PRIVATE SPEECH BY ALLOWING GROUPS TO PUT MESSAGES ON LICENSE PLATES, BUT JUSTICE ALITO, WRITING FOR THE 4 DISSENTING JUSTICES, SAID WHAT TEXAS HAS DONE IS CREATING A FORUM FOR PRIVATE SPEECH, AND THEREFORE IT SHOULDN'T BE ABLE TO DISCRIMINATE BASED ON THE VIEWPOINT EXPRESSED. WIGGINS: SO THE QUESTION I ALWAYS HAVE-- WHAT ARE THE IMPLICATIONS? CHEMERINSKY: WELL, I THINK THAT THE MOST IMPORTANT IMPLICATION WITH REGARD TO THIS CASE IS REAFFIRMING THAT WHEN THE GOVERNMENT ITSELF IS THE SPEAKER, THERE CANNOT BE A SPEECH CHALLENGE BASED ON THE FIRST AMENDMENT. NOW, THIS ISN'T THE FIRST CASE TO HAVE SAID THAT, BUT THE KEY DISTINCTION NOW IN THE LAW IS, IS THE GOVERNMENT THE SPEAKER, SO THERE CAN'T BE A FIRST AMENDMENT CHALLENGE, VERSUS THE GOVERNMENT CREATING A FORUM FOR PRIVATE SPEECH WHERE THE FIRST AMENDMENT APPLIES? AND THE COURT HAS NOT PROVIDED ANY CRITERIA FOR DISTINGUISHING THESE SITUATIONS. THIS CASE IS JUST ABOUT THE NARROW AREA OF LICENSE PLATES. ON THE OTHER HAND, I THINK THAT THE GOVERNMENT SPEECH DOCTRINE CAN HAVE VERY BROAD IMPLICATIONS, BECAUSE WHENEVER THE GOVERNMENT IS SPEAKING OR WHEN THE GOVERNMENT IS ADOPTING PRIVATE SPEECH AS ITS OWN, THERE CAN BE NO SPEECH CHALLENGE BASED ON THE FIRST AMENDMENT. SHERRY: I THINK THERE COULD BE IMPLICATIONS EVEN WITHIN THE NARROW AREA OF SPECIALTY LICENSE PLATES, SO, FOR EXAMPLE, DOES THIS CASE MEAN THAT A STATE CAN CHOOSE TO ISSUE PLATES THAT SAY, "CHOOSE LIFE," BUT REJECT PLATES THAT, SAY, ARE IN FAVOR OF REPRODUCTIVE FREEDOM? AND IT GOES A LITTLE EVEN MORE THAN THAT. THE DISSENT CALLED LICENSE PLATES LITTLE MOBILE BILLBOARDS, SO WHAT HAPPENS WITH REAL BILLBOARDS OR BULLETIN BOARDS, SAY, AT A PUBLIC UNIVERSITY? CAN THE GOVERNMENT-- IS THAT GOVERNMENT SPEECH? AND FINALLY, BECAUSE THE MAJORITY SAID THAT THE LICENSE PLATES ARE NOT A DESIGNATED PUBLIC FORUM OR A LIMITED PUBLIC FORUM SPECIFICALLY BECAUSE THE GOVERNMENT HAD THE FINAL SAY ON THE DESIGN OF THE LICENSE PLATES, THAT SUGGESTS THAT PERHAPS THE MORE AUTHORITY THE GOVERNMENT HAS OVER THE PARTICULAR FORUM, THE LESS LIKELY IT IS TO BE A DESIGNATED OR A LIMITED PUBLIC FORUM. WIGGINS: OK. WELL, LET'S LOOK AT OUR LAST SPEECH-RELATED DECISION-- ELONIS V. UNITED STATES. THIS WAS THE ONE THAT WAS DECIDED ON STATUTORY GROUNDS. ANTHONY ELONIS MADE ANGRY STATEMENTS ON FACEBOOK ABOUT HIS WIFE AS WELL AS ABOUT PATRONS AND COWORKERS AT THE AMUSEMENT PARK HE'D BEEN FIRED FROM. MANY OF THE POSTS REGARDING HIS WIFE TALKED ABOUT HURTING HER OR KILLING HER, AND SOME OF THESE WERE WRITTEN AS RAP LYRICS. ELONIS' WIFE TERRY GOT A COURT RESTRAINING ORDER BECAUSE SHE SAID THAT SEVERAL OF THE MESSAGES MADE HER AFRAID FOR HER LIFE. ELONIS ALSO POSTED ON FACEBOOK THAT HE WAS PLANNING TO COMMIT MASS MURDER AT A LOCAL KINDERGARTEN AND POSTED MORE MESSAGES EXPRESSING THE DESIRE TO HARM A FEMALE FBI AGENT WHO'D COME TO INVESTIGATE HIM. ELONIS WAS INDICTED UNDER 18 USC, SECTION 875(c) WHICH PROHIBITS TRANSMITTING IN INTERSTATE OR FOREIGN COMMERCE ANY COMMUNICATION CONTAINING ANY THREAT TO KIDNAP ANY PERSON OR ANY THREAT TO INJURE THE PERSON OF ANOTHER. ELONIS MOVED TO DISMISS THE INDICTMENT AS A VIOLATION OF HIS FIRST AMENDMENT SPEECH RIGHTS AND ARGUED THAT THERE NEEDED TO BE PROOF THAT HE HAD A SUBJECTIVE INTENTION TO THREATEN. THE DISTRICT COURT REJECTED THAT ARGUMENT AND INSTRUCTED THE JURY THAT THE PROPER STANDARD IS WHEN A DEFENDANT INTENTIONALLY MAKES A STATEMENT IN A CONTEXT OR UNDER SUCH CIRCUMSTANCES WHEREIN A REASONABLE PERSON WOULD FORESEE THAT THE STATEMENT WOULD BE INTERPRETED BY THOSE TO WHOM THE MAKER COMMUNICATES THE STATEMENT AS A SERIOUS EXPRESSION OF AN INTENTION TO INFLICT BODY HARM OR TAKE THE LIFE OF AN INDIVIDUAL. ELONIS WAS CONVICTED, AND THE THIRD CIRCUIT COURT OF APPEALS AFFIRMED. SO, ERWIN, WHAT DID THE SUPREME COURT DO HERE? CHEMERINSKY: THE SUPREME COURT CREATED A REVIEW ON TWO QUESTIONS. FIRST WAS WHETHER THE JURY INSTRUCTIONS IN THE CONVICTION WERE CONSISTENT WITH THE FEDERAL STATUTE, AND, IF SO, THE SECOND QUESTION IS, THEN WAS ELONIS' SPEECH PROTECTED BY THE FIRST AMENDMENT? THE SUPREME COURT DECIDED ONLY THE FIRST QUESTION, THE STATUTORY ISSUE. IT DIDN'T REACH THE CONSTITUTIONAL FIRST AMENDMENT QUESTION. CHIEF JUSTICE ROBERTS WROTE FOR THE COURT. IT WAS AN 8-1 DECISION. CHIEF JUSTICE ROBERTS ACKNOWLEDGED THAT THE STATUTE DIDN'T SPECIFY THE MENS REA REQUIRED FOR CONVICTION, BUT CHIEF JUSTICE ROBERTS SAID THAT, LEST CONGRESS SPECIFIES OTHERWISE, THERE SHOULD BE A REQUIREMENT FOR SUBJECTIVE INTENT. HE SAID IT HAS TO BE, QUOTE, "A CONSCIOUSNESS OF GUILT." HE BASED THIS ON THE PRIOR DECISION IN MORISSETTE V. UNITED STATES. HE SAID HERE, THE JURY'S INSTRUCTION ALLOWED CONVICTION ON THE FINDING OF NEGLIGENCE. THE JURY COULD HAVE FOUND ELONIS GUILTY BY FINDING THAT THE REASONABLE PERSON WOULD HAVE FELT THREATENED IN THE CIRCUMSTANCES, SO ALLOWING THE CONVICTION BASED ON A FINDING OF NEGLIGENCE ISN'T CONSISTENT WITH THE INTENT REQUIREMENT NECESSARY UNDER 875(c). SHERRY: THIS CASE IS PARTICULARLY SIGNIFICANT BECAUSE, AT LEAST WITH REGARD TO THIS STATUTE, THE SUPREME COURT'S REVIEW IS INCONSISTENT WITH ALL OF THE 9 COURTS OF APPEALS THAT HAVE REACHED THE OPPOSITE POSITION. WE SHOULD ALSO NOTE THAT THE COURT DIDN'T ADDRESS THE QUESTION OF WHETHER RECKLESSNESS WOULD BE ENOUGH TO SATISFY THE STATUTE. WIGGINS: SO WHAT DO YOU THINK THE EFFECT OF THE DECISION'S GOING TO BE? SHERRY: WELL, I DON'T-- SORRY. I DON'T THINK THERE'S MUCH PRACTICAL EFFECT BECAUSE I DON'T THINK THERE'S LIKELY TO BE A CASE IN WHICH A REASONABLE PERSON WOULD FIND THERE TO BE A THREAT SATISFYING THE COURT'S STANDARD, BUT A PROSECUTOR COULDN'T CONVINCE A JURY THAT THE PARTICULAR INDIVIDUAL-- THAT THE PARTICULAR INDIVIDUAL PERCEIVED IT AS A THREAT, ALTHOUGH I THINK IT'S IMPORTANT BECAUSE IT REITERATES THAT THERE IS A NEED FOR MENS REA IN CRIMINAL PROSECUTIONS. CHEMERINSKY: I THINK THAT'S THE MOST IMPORTANT. IT DOES RE-AFFIRM MORISSETTE, THAT THERE HAS TO BE A CONSCIOUSNESS OF GUILT UNLESS CONGRESS SPECIFIES OTHERWISE. WHAT I WANTED TO ALSO STRESS WAS THAT THE FIRST AMENDMENT QUESTION REMAINS UNRESOLVED. THERE IS STILL A SPLIT AMONG THE CIRCUITS IN THE STATES AS TO WHAT'S A TRUE THREAT THAT'S UNPROTECTED BY THE FIRST AMENDMENT, AND THIS COULD COME TO THE FEDERAL COURTS IN A DIVERSITY SUIT WITH A TORT CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FOR THREAT, OR IT COULD BE A STATE COURT CONVICTION UNDER A STATUTE THAT REQUIRES LESS IN TERMS OF INTENT WHEN IT COMES TO FEDERAL COURT ON HABEAS CORPUS ON A FIRST AMENDMENT QUESTION, AND THAT'S GOING TO HAVE TO BE RESOLVED BY THE SUPREME COURT. WIGGINS: THANKS, ERWIN. THANKS, SUZANNA. NEXT IS THE COURT'S SAME-SEX MARRIAGE DECISION. CHANCE: FEW DECISIONS IN THE COURT'S HISTORY WERE MORE ANTICIPATED OR HAVE GENERATED MORE DISCUSSION THAN OBERGEFELL V. HODGES. CONTINUING A SERIES OF DECISIONS THAT HAVE EXPANDED THE LEGAL RIGHTS OF GAY AND LESBIAN AMERICANS, OBERGEFELL HELD THAT THE LAWS PROHIBITING SAME-SEX COUPLES FROM MARRYING VIOLATED THEIR RIGHTS UNDER BOTH THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE 14th AMENDMENT. WE'RE GOING TO FOCUS ON THE 5-JUSTICE MAJORITY'S LEGAL REASONING AND ON THE COUNTERARGUMENTS MADE BY THE 4 DISSENTERS. NOW, ERWIN, CAN YOU SUMMARIZE FOR US JUSTICE KENNEDY'S ARGUMENT FOR THE COURT? CHEMERINSKY: JUSTICE KENNEDY FOCUSED PRIMARILY ON THE RIGHT TO MARRY UNDER SUBSTANTIVE DUE PROCESS. HE WENT BACK TO CASES LIKE LOVING V. VIRGINIA AND ZABLOCKI V. REDHAIL, AND HE EXPLAINED THE REASONS WHY THE RIGHT TO MARRY IS REGARDED AS A FUNDAMENTAL RIGHT. HE TALKED ABOUT ITS IMPORTANCE IN TERMS OF THE AUTONOMY OF THE INDIVIDUAL, SIGNIFICANCE IN TERMS OF THE COUPLE'S LIVES. HE TALKED ABOUT THE IMPORTANCE OF MARRIAGE FOR FAMILY AND FOR CHILDREN. HE TALKED ABOUT THE IMPORTANCE OF MARRIAGE AS A UNIT IN SOCIETY, AND HE SAID THAT SAME-SEX COUPLES ARE SITUATED SIMILARLY TO OPPOSITE-SEX COUPLES LITERALLY TO ALL OF THESE PURPOSES IN TERMS OF THE COUPLE'S LIVES, FOR CHILDREN, AND FOR SOCIETY. HE ALSO SAID THAT LAWS THAT PROHIBIT SAME-SEX MARRIAGE DENY EQUAL PROTECTION. THUS, HE CONCLUDED THAT SUCH LAWS VIOLATE THE 14th AMENDMENT. SHERRY: ONE OF THE INTERESTING THINGS ABOUT THIS OPINION IS THAT, JUST LIKE JUSTICE KENNEDY'S OPINION IN WINDSOR V. UNITED STATES A FEW YEARS AGO, HE DOESN'T FOLLOW STANDARD OR CONVENTIONAL DUE PROCESS OR EQUAL PROTECTION ANALYSIS. HE DOESN'T CLEARLY SEPARATE THE TWO CLAUSES. IN FACT, HE SAYS THERE'S A SYNERGY BETWEEN THE TWO. HE NEVER SPECIFIES THE STANDARD OF REVIEW. HE DOESN'T MENTION RATIONAL BASIS OR HEIGHTENED SCRUTINY OR ANYTHING LIKE THAT. HE DOESN'T TALK ABOUT SUSPECT OR QUASI-SUSPECT CLASSIFICATIONS THE WAY MOST EQUAL PROTECTION CASES DO, AND, EVEN THOUGH HE TALKS ABOUT MARRIAGE AS A FUNDAMENTAL RIGHT, HE DOESN'T, AS MOST DUE PROCESS CASES DO, LINK IT TO HEIGHTENED SCRUTINY. LEVENSON: BUT WHAT JUSTICE KENNEDY DOES DO IS ADDRESS THE RESPONDENTS' ARGUMENT THAT HISTORICALLY, TRADITIONALLY MARRIAGE WAS BETWEEN A MAN A WOMAN, AND HE SAYS, WELL, EVEN THE INSTITUTION OF MARRIAGE HAS CHANGED OVER TIME, AND THE FACT THAT THERE HAVE MIGHT HAVE BEEN DISCRIMINATION BEFORE IS NOT A JUSTIFICATION FOR CONTINUING THAT DISCRIMINATION. HE SAYS, LOOKING AT THIS ISSUE NOW, IT'S, QUOTE, "A CLAIM TO LIBERTY THAT MUST BE ADDRESSED." CHANCE: OK. NOW, EVAN, WHAT ABOUT THE DISSENTS? LEE: WELL, NOTABLY, THERE WERE 4 OF THEM. EACH OF THE DISSENTING JUSTICES WROTE HIS OWN SEPARATE DISSENT, AND AS A COMMON REFRAIN, THEY ALL ACCUSE THE MAJORITY OF UNDUE JUDICIAL ACTIVISM AND ARGUED THAT THE ISSUE OF MARRIAGE EQUALITY SHOULD BE LEFT TO THE POLITICAL PROCESS TO DECIDE. EACH OF THEM CLAIMED THAT THE MAJORITY WAS IMPOSING ITS OWN VALUES ON THE COUNTRY, AND THE CHIEF JUSTICE HAD A MEMORABLE LINE. HE SAID THAT THOSE WHO SUPPORTED SAME-SEX MARRIAGE HAD MUCH TO CELEBRATE BUT THAT THE CONSTITUTION WAS NOT AMONG THEM. THE CONSTITUTION HAD NOTHING TO DO WITH IT, HE WROTE. SHERRY: FOR THE MAJORITY, THIS WAS LOVING V. VIRGINIA. THE LOVING V. VIRGINIA WAS THE 1967 CASE THAT STRUCK DOWN BANS ON INTERRACIAL MARRIAGES. FOR THE DISSENT, THIS CASE WAS LOCHNER V. NEW YORK. THAT'S THE CASE THAT STRUCK DOWN, IN 1905, STRUCK DOWN NEW YORK'S LIMITS ON HOURS THAT BAKERS COULD WORK. IN FACT, THE CHIEF IN HIS DISSENTING OPINION CITED LOCHNER AT LEAST 7 TIMES AS AN EXAMPLE OF WHAT THE COURT IS DOING IN THIS CASE AND SHOULDN'T BE DOING. I THINK IT'S ACTUALLY BOTH LOVING AND LOCHNER, AND I DON'T THINK YOU CAN HAVE ONE WITHOUT THE OTHER. SO EVEN THE DISSENTING JUSTICES HAVE TO AGREE THAT SOMETIMES THE COURT IS GOING TO HAVE TO UPHOLD RIGHTS THAT AREN'T APPARENT ON THE FACE OF THE CONSTITUTION. IF NOT, THEN YOU DON'T HAVE BROWN V. BOARD OF ED., AND YOU DON'T HAVE LOVING. THOSE WOULD BOTH BE WRONG. SO THAT'S WHY THIS CASE IS LOVING, BUT IF THE COURT HAS TO LOOK FOR THOSE RIGHTS, OCCASIONALLY, IT'S GOING TO DO IT IN A WAY THAT IS INCONSISTENT WITH WHAT DEMOCRATICALLY-- DEMOCRATIC MAJORITIES PREFER, AND THAT'S WHY THIS CASE IS LOCHNER. IN OTHER WORDS, AS JUSTICE KENNEDY PUT IT, CITING ANOTHER SUPREME COURT PRECEDENT, WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO A VOTE. CHANCE: BUT THE DISSENTS DIDN'T JUST DISAGREE WITH THE MAJORITY DOCTRINALLY. IT PUSHED-- IT SAID THAT THE MAJORITY WAS PUSHING BEYOND ITS ROLE AS-- IN A DEMOCRACY, DIDN'T IT? LEVENSON: THAT'S RIGHT, JIM. I MEAN, JUSTICE SCALIA WROTE THAT THE DECISION WAS LITERALLY A THREAT TO DEMOCRACY, THAT THE COURT WAS TAKING ON SUPER-LEGISLATIVE POWERS HERE AND THAT WAS AN EXERCISE IN HUBRIS. CHANCE: WHAT DO YOU THINK ABOUT THE IMPLICATIONS OF THIS DECISION? CHEMERINSKY: WELL, THE MOST IMPORTANT IMPLICATION IS THAT SAME-SEX COUPLES NOW CAN MARRY IN ALL 50 STATES AND ALL TERRITORIES OF THE UNITED STATES. IN TERMS OF FUTURE LITIGATION THAT MIGHT COME TO FEDERAL COURT, IT'S LIKELY TO BE BASED ON RELIGION CLAIMS. PERHAPS THERE'LL BE A CLERK IN A JURISDICTION WHO OPPOSES ISSUING A MARRIAGE LICENSE TO A SAME-SEX COUPLE BASED ON HIS OR HER RELIGION. IF THERE ARE STATES THAT PROHIBIT DISCRIMINATION IN THEIR LAWS BASED ON SEXUAL ORIENTATION, PERHAPS SOME BUSINESSES WILL ARGUE THAT THEY SHOULDN'T HAVE TO SERVE SAME-SEX COUPLES BECAUSE OF THE RELIGIOUS BELIEFS OF THE OWNERS. SHERRY: THERE MAY ALSO BE A JURISPRUDENTIAL IMPLICATION. GIVEN THE WAY THAT JUSTICE KENNEDY WROTE THIS OPINION AND THE WINDSOR CASE, YOU HAVE TO WONDER WHETHER THE STANDARD 3-TIERED EQUAL PROTECTION ANALYSIS IS ON ITS WAY OUT, AT LEAST FOR GROUPS AND RIGHTS THAT HAVEN'T ALREADY BEEN ESTABLISHED, AND MAYBE IT WILL BE REPLACED BY SOME MORE SORT OF TRANSPARENT BALANCING THAT BALANCES THE IMPORTANCE OF THE RIGHT AGAINST THE MAGNITUDE-- AND THE MAGNITUDE OF THE HARM AGAINST THE STATE'S INTEREST. LEVENSON: WE DO HAVE ONE QUESTION COMING FROM THE COURTS AND THAT IS, WHAT'S THE STATUS OF WASHINGTON V. GLUCKSBERG IN THE WAKE OF THIS DECISION? AND, AS YOU KNOW, THE OPINION-- THE COURT APPEARED TO SUGGEST THAT THE RESTRICTIVE SUBSTANTIVE DUE PROCESS STANDARD APPLIED IN GLUCKSBERG STILL MIGHT BE APPLICABLE TO PHYSICIAN-ASSISTED SUICIDE, BUT THIS CASE PRESENTED NO OCCASION TO OVERRULE THAT CASE, BUT WHAT WOULD BE THE JUSTIFICATION FOR APPLYING ONE STANDARD TO PHYSICIAN-ASSISTED SUICIDE AND ANOTHER STANDARD TO ALL OTHER SUBSTANTIVE DUE PROCESS CLAIMS? SHERRY: WELL, I THINK THE COURT ESSENTIALLY SINGLED OUT MARRIAGE FOR THE REASONS THAT ERWIN TOLD US, ABOUT WHY IT IS SO FUNDAMENTAL. REGARDLESS OF HOW YOU DEFINE IT, MARRIAGE IS FUNDAMENTAL, AND I THINK THAT THEY HAVE NOT YET, AND MAY NOT, FEEL THAT ASSISTED SUICIDE IS FUNDAMENTAL IN THE SAME WAY, SO I DON'T THINK IT'S LIKELY TO BE OVERRULED. CHEMERINSKY: WASHINGTON V. GLUCKSBERG SAID THAT THERE'S NO CONSTITUTIONAL RIGHT TO PHYSICIAN-ASSISTED DEATH, BUT THE SUPREME COURT, EVEN BEFORE THIS CASE, IN DECISIONS LIKE LOVING V. VIRGINIA AND ZABLOCKI V. REDHAIL, HAD SAID THERE IS A FUNDAMENTAL RIGHT TO MARRY. IN HERE, THE COURTS SAID THAT IT APPLIES TO SAME-SEX COUPLES, AS WELL. CHANCE: IN OUR NEXT SEGMENT, ELECTION LAW DECISIONS. STAY WITH US. WIGGINS: THE COURT'S VOTING RIGHTS JURISPRUDENCE HAS OFTEN BEEN SOME OF ITS MOST COMPLEX AND CONTROVERSIAL. THIS TERM WAS NO DIFFERENT. THE STATE OF ALABAMA WAS THE RESPONDENT IN TWO CASES THAT WERE DECIDED TOGETHER BY THE COURT--ALABAMA LEGISLATIVE BLACK CAUCUS V. ALABAMA AND ALABAMA DEMOCRATIC CONFERENCE V. ALABAMA. IN BOTH CASES, THE CHIEF ISSUE WAS HOW THE STATE REDREW ITS STATE LEGISLATIVE DISTRICTS IN 2012 AFTER THE 2010 CENSUS. SO, SUZANNA, WHAT WAS THE CONTROVERSY? SHERRY: WELL, THE MAIN CONTROVERSY WAS ABOUT THE STATE'S DUTY TOWARD MINORITY VOTERS IN THE COURSE OF REDISTRICTING, SO WHEN ALABAMA REDISTRICTED AFTER THE 2010 CENSUS, IT TRIED TO ACHIEVE TWO GOALS. FIRST OF ALL, IT TRIED TO MINIMIZE THE DEVIATION FROM PERFECT POPULATION DISTRIBUTION, TRIED TO KEEP ALL THE DISTRICTS AS MUCH AS THE SAME SIZE AS POSSIBLE, AND SECOND, IT TRIED TO COMPLY WITH THE FEDERAL VOTING RIGHTS ACT, AND IN PARTICULAR, TO AVOID WHAT IS CALLED RETROGRESSION UNDER SECTION 5 OF THE VOTING RIGHTS ACT. IN ORDER TO AVOID RETROGRESSION, ALABAMA THOUGHT THAT IT HAD TO MAINTAIN EXISTING PERCENTAGES OF AFRICAN AMERICAN POPULATIONS IN THE EXISTING MINORITY-MAJORITY DISTRICTS. SO IN ORDER TO ACHIEVE BOTH THESE GOALS, THAT IS, TO KEEP MINORITY PERCENTAGES THE SAME IN THE DISTRICTS AND TO KEEP THE DISTRICT SIZE EQUAL, IT ENDED UP ADDING AFRICAN AMERICANS ALMOST EXCLUSIVELY TO MAJORITY-MINORITY DISTRICTS AND ADDING ALMOST EXCLUSIVELY AFRICAN AMERICANS TO THOSE DISTRICTS. THE PLAINTIFFS IN THESE CASES CHALLENGED THESE NEW DISTRICTS AS UNCONSTITUTIONAL RACIAL GERRYMANDERING, ESSENTIALLY WHAT IS SOMETIMES KNOWN AS PACKING, PUTTING IN MORE MINORITY VOTERS THAN YOU NEED, AND SUGGESTED THAT THE PURPOSE OF IT, OR AT LEAST THE RESULT, WAS TO REDUCE THE ABILITY OF MINORITY VOTERS TO ELECT CANDIDATES OF THEIR CHOICE. NOW, THE STATE INITIALLY WON BEFORE A 3-JUDGE DISTRICT COURT PANEL. WIGGINS: OK. HOW'D IT DO IN THE SUPREME COURT? LEE: WELL, THE SUPREME COURT REVERSED. IT WAS A 5-4 DECISION. JUSTICE BREYER WROTE FOR THE MAJORITY AND GAVE 4 REASONS FOR REVERSING THE LOWER COURT DECISION. NUMBER ONE, RACIAL GERRYMANDERING CHALLENGES HAVE TO BE BROUGHT ON A DISTRICT-BY-DISTRICT BASIS BECAUSE THE CAUSE OF ACTION MUST CONSIST OF HARM TO SPECIFIC VOTERS WHERE THE ALLEGED GERRYMANDERING HAS OCCURRED. THE DISTRICT COURT HAD FOUND THAT THE PLAINTIFFS IN THESE CASES HAD INCORRECTLY ARGUED THAT THERE HAD BEEN RACIAL GERRYMANDERING OF THE STATE AS A WHOLE. THE MAJORITY RULED THAT THE DISTRICT COURT HAD ERRED AND REMANDED FOR CONSIDERATION OF THE PLAINTIFFS' DISTRICT-BY-DISTRICT RACIAL GERRYMANDERING CHALLENGES. NUMBER TWO, THE COURT RULED THAT THE DISTRICT COURT HAD ERRED WHEN IT FOUND THAT THE ALABAMA DEMOCRATIC CONFERENCE LACKED ORGANIZATIONAL STANDING BECAUSE IT HADN'T PROVIDED EVIDENCE THAT IT HAD MEMBERS IN EACH OF THE ALLEGED GERRYMANDERED DISTRICTS. THE JUSTICES SAID THAT THE DISTRICT COURT SHOULD HAVE AT LEAST ALLOWED THE CONFERENCE THE OPPORTUNITY TO PROVE THAT IT DID HAVE MEMBERS IN EACH OF THE AFFECTED DISTRICTS. NUMBER 3, THE COURT HELD THAT THE DISTRICT COURT HAD ERRED WHEN IT CONCLUDED THAT RACE WAS NOT THE PREDOMINANT MOTIVATING FACTOR IN THE CREATION OF ANY OF THE CHALLENGED DISTRICTS ESPECIALLY IN LIGHT OF THE FACT THAT ALMOST 16,000 PEOPLE WERE MOVED INTO ONE DISTRICT AND 36 OF THEM WERE WHITE. NUMBER 4, THE MAJORITY HELD THAT THE DISTRICT COURT USED THE WRONG STANDARD WHEN IT HELD THAT THE REDISTRICTING SATISFIED STRICT SCRUTINY. THE PROPER TEST WASN'T MAINTAINING THE SAME PERCENTAGE OF MINORITY POPULATION IN THE DISTRICTS, BUT RATHER IT WAS MAINTAINING THE ABILITY OF MINORITY VOTERS TO ELECT THEIR PREFERRED CANDIDATES. SHERRY: ON THAT LAST TOPIC, ABOUT STRICT SCRUTINY, THE COURT ACTUALLY GAVE QUITE A BIT OF GUIDANCE FOR FUTURE CASES LIKE THIS. THE COURT DIDN'T WANT TO LEAVE STATE LEGISLATURES IN A POSITION WHERE IF THEY REDUCE THE PERCENTAGE OF MINORITY VOTERS TOO MUCH, THEY WOULD BE VIOLATING THE VOTING RIGHTS ACT, BUT IF THEY REDUCE THE PERCENTAGE TOO LITTLE, THEY MIGHT VIOLATE THE EQUAL PROTECTION CLAUSE, SO WHAT THE MAJORITY SAID IS THAT A STATE, IN ORDER TO AVOID VIOLATION OF THE EQUAL PROTECTION CLAUSE, THE STATE LEGISLATURE JUST HAS TO PROVE THAT IT HAS GOOD REASONS OR A STRONG BASIS IN EVIDENCE FOR BELIEVING THAT ITS ACTIONS ARE NECESSARY UNDER THE VOTING RIGHTS ACT, SO THE COURT ULTIMATELY REMANDED THIS CASE BACK TO THE DISTRICT COURT TO APPLY THAT STANDARD BUT WITH THE CAVEAT, AS EVAN POINTED OUT, THAT THE PROPER STANDARD WAS WHETHER-- THE PROPER TEST WAS WHETHER IT WAS NARROWLY TAILORED TO ALLOW MINORITY VOTERS TO MAINTAIN THE ABILITY TO ELECT THEIR PREFERRED CANDIDATES. WIGGINS: OK. WELL, THE THIRD ELECTION LAW DECISION WE'RE GOING TO LOOK AT IS ALSO ABOUT STATE LEGISLATURES AND REDISTRICTING, BUT THIS TIME, THE QUESTION WAS NOT HOW THE LEGISLATURE COULD DO THAT JOB, BUT WHETHER IT CAN BE KEPT FROM DOING IT AT ALL. THIS CASE WAS ARIZONA STATE LEGISLATURE V. ARIZONA INDEPENDENT REDISTRICTING COMMISSION. THE ARIZONA CONSTITUTION HAD BEEN AMENDED THROUGH REFERENDUM TO TAKE REDISTRICTING AWAY FROM THE LEGISLATURE AND GIVE IT TO A NONPARTISAN INDEPENDENT COMMISSION. THE ARIZONA LEGISLATURE CHALLENGED THAT ACTION AS A VIOLATION OF THE U.S. CONSTITUTION'S ELECTION CLAUSE. WE HAVE THE TEXT OF THAT CLAUSE ON THE SCREEN. IT SAYS... THE LEGISLATURE ARGUED THAT THE TERM "LEGISLATURE" IN THE CLAUSE MEANS ONLY THE ELECTED LEGISLATIVE BODY. A 3-JUDGE DISTRICT COURT FOUND AGAINST THE LEGISLATURE, SO, EVAN, WHAT DID THE SUPREME COURT DECIDE? LEE: WELL, THIS WAS ANOTHER 5-4 DECISION, AND THIS TIME, JUSTICE GINSBURG WROTE ON BEHALF OF THE MAJORITY AND REJECTED THE LEGISLATURE'S ARGUMENT. THE MAJORITY SAID THAT THE ELECTIONS CLAUSE DID NOT PROHIBIT THE VOTERS OF ARIZONA FROM REASSIGNING THE TASK OF, YOU KNOW, REDRAWING THE LINES, CONGRESSIONAL REDISTRICTING, FROM THE STATE LEGISLATURE TO AN INDEPENDENT COMMISSION. THE THRESHOLD MATTER FOR THE SUPREME COURT WAS STANDING, AND IT HELD THAT THE LEGISLATURE DID HAVE STANDING TO SUE DESPITE THE SUPREME COURT'S 1997 DECISION IN RAINES V. BYRD. THAT WAS A CASE IN WHICH A NUMBER OF INDIVIDUAL LEGISLATORS WHO HAD LOST A FIGHT IN CONGRESS OVER A PRESIDENTIAL LINE ITEM VETO, CHALLENGED IT IN COURT, BUT THE SUPREME COURT RULED THAT THEY LACKED STANDING TO BRING THE SUIT BECAUSE THEY COULDN'T PROVE THAT, INDIVIDUALLY, THEY HAD BEEN HARMED. IN THIS CASE, WHAT THE COURT SAYS IS THAT THE ENTIRE ARIZONA LEGISLATURE WAS SUING IN ITS INSTITUTIONAL CAPACITY, SO THE STANDING ISSUE WAS PUSHED OFF TO ONE SIDE. SUBSTANTIVELY, THE MAJORITY SAID THAT THE ARIZONA CONSTITUTION, QUOTE, "ESTABLISHES THE ELECTORATE OF ARIZONA AS A COORDINATE SOURCE OF LEGISLATION," END QUOTE, ON AN EQUAL FOOTING WITH THE REPRESENTATIVE LEGISLATIVE BODY, SO AS FAR AS THE ELECTIONS CLAUSE WAS CONCERNED, THE PEOPLE OF ARIZONA CAN ALSO LEGISLATE, THAT IS TO SAY, MAKE LAWS BY REFERENDUM AND GIVE AN INDEPENDENT COMMISSION THE POWER TO DRAW LEGISLATIVE DISTRICTS. SHERRY: NOW, THE MAJORITY-- THE MAJORITY OPINION CITED EVERYTHING FROM JOHN LOCKE TO CONTEMPORARY DICTIONARIES TO DEFINE THE LEGISLATURE AS THE POWER THAT MAKES LAWS, WHICH IS NOT LIMITED TO THE ELECTED REPRESENTATIVE BODY, BUT IT IS, I THINK, IMPORTANT TO NOTE THAT THE LEGISLATURE IS DEFINED THIS WAY FOR THIS CLAUSE, FOR THE ELECTIONS CLAUSE. FOR SOME OTHER CLAUSES-- INCLUDING, MOST PROMINENTLY, FOR RATIFICATION OF CONSTITUTIONAL AMENDMENTS-- THE LEGISLATURE IS NOT DOING ORDINARY LAWMAKING, AND SO WHEN THE FEDERAL CONSTITUTION ASSIGNS IT TO THE LEGISLATURE, IT MUST BE THE LEGISLATURE THAT DOES IT, BUT THE MAJORITY CITES PRECEDENT FOR THE FACT THAT WHEN A STATE LEGISLATURE IS REAPPORTIONING, DOING REDISTRICTING, THAT'S JUST ORDINARY LAWMAKING, AND IF IT IS ORDINARY LAWMAKING, IT CAN BE ALLOCATED TO WHOEVER THE STATE SAYS IS THE LAWMAKING AUTHORITY. LEE: THE MAJORITY IN THIS CASE CONCEDES THAT THE ADVENT OF THESE INDEPENDENT REDISTRICTING COMMISSIONS ACROSS SEVERAL STATES HASN'T COMPLETELY REMOVED PARTISANSHIP FROM THE REDRAWING OF LINES, BUT THE MAJORITY DOES ASSERT THAT THE ADVENT OF THOSE COMMISSIONS HAS SUBSTANTIALLY REDUCED THE AMOUNT OF PARTISANSHIP, AND PERHAPS MORE FUNDAMENTALLY, THE MAJORITY SAYS THESE COMMISSIONS HELPED TO RESTORE THE CORE PRINCIPLE OF REPUBLICAN GOVERNMENT, THAT THE VOTERS SHOULD CHOOSE THEIR REPRESENTATIVES AND NOT THE OTHER WAY AROUND. WIGGINS: THANK YOU, EVAN. THANK YOU, SUZANNA. AND NOW, SOME CIVIL RIGHTS DECISIONS. CHANCE: WE'RE GOING TO TAKE A LOOK NOW AT SOME DECISIONS THE COURT REACHED INTERPRETING FEDERAL CIVIL RIGHT STATUES. EEOC V. ABERCROMBIE & FITCH HIGHLIGHTED HOW THIS COUNTRY IS DEALING WITH AN INCREASINGLY DIVERSE POPULATION AND HOW, AS YOU JUST HEARD JUSTICE SCALIA SAY, IT CAN SOMETIMES BE CONFUSING. SAMANTHA ELAUF IS A PRACTICING MUSLIM WHO, CONSISTENT WITH HER UNDERSTANDING OF HER RELIGION'S REQUIREMENTS, WEARS A HEADSCARF. WHEN SHE APPLIED FOR A SALES JOB AT ABERCROMBIE & FITCH, THE ASSISTANT MANAGER, HEATHER COOK, WAS TOLD BY HER DISTRICT MANAGER THAT ELAUF'S HEADSCARF WOULD CONFLICT WITH THE COMPANY'S SO-CALLED LOOK POLICY, AS WOULD ANY HEADWEAR, RELIGIOUS OR OTHERWISE, AND TOLD COOK NOT TO HIRE ELAUF. SO, ERWIN, WHAT SPECIFICALLY WAS THE QUESTION HERE? CHEMERINSKY: AMONG OTHER THINGS, TITLE VII PROHIBITS DISCRIMINATION IN EMPLOYMENT BASED ON RELIGION, AND TITLE VII REQUIRES THAT EMPLOYERS MAKE REASONABLE ACCOMMODATION FOR EMPLOYEES' RELIGIONS. THE EEOC BROUGHT A CLAIM AGAINST ABERCROMBIE & FITCH, SAYING THAT IT FAILED TO MAKE REASONABLE ACCOMMODATIONS FOR SAMANTHA ELAUF'S RELIGION. THE UNITED STATES COURT OF APPEALS FOR THE 10th CIRCUIT REJECTED THE CLAIM. THE 10th CIRCUIT SAID ELAUF NEVER TOLD ABERCROMBIE & FITCH THAT HER RELIGION REQUIRED WEARING A HEADSCARF, SO IT CAN'T BE SAID THAT ABERCROMBIE & FITCH HAD THE REQUIRED KNOWLEDGE. OF COURSE, ELAUF DIDN'T MAKE THAT REQUEST BECAUSE SHE DIDN'T KNOW SHE NEEDED TO. CHANCE: ALL RIGHT, SO, LAURIE, WHAT DID THE JUSTICES DECIDE? LEVENSON: THE SUPREME COURT SAID THAT YOU CAN HAVE A TITLE VII DISPARATE TREATMENT ACTION, EVEN IF THE EMPLOYER DOES NOT HAVE ACTUAL KNOWLEDGE OF THE EMPLOYEE'S NEED FOR AN ACCOMMODATION. IT IS SUFFICIENT FOR THE STATUTE THAT THE NEED FOR AN ACCOMMODATION WAS A MOTIVATING FACTOR FOR THE EMPLOYER'S DECISION NOT TO HIRE HER. CHEMERINSKY: JUSTICE SCALIA SAYS THERE ARE CIVIL RIGHTS STATUTES THAT REQUIRE KNOWLEDGE, BUT TITLE VII IS NOT ONE OF THEM. HE SAID THIS IS A STRAIGHTFORWARD CASE UNDER DISCRIMINATORY DISPARATE TREATMENT. HE REJECTED THE CLAIM THAT SUCH ISSUES HAVE TO BE BROUGHT ONLY IN THE CONTEXT OF DISCRIMINATORY IMPACT. CHANCE: SO THERE WAS A CONCURRENCE AND A DISSENT HERE THOUGH, RIGHT? LEVENSON: YES, AND JUSTICE ALITO CONCURRED IN THE HOLDING BECAUSE HE BELIEVED THERE WAS ENOUGH KNOWLEDGE ON THE PART OF ABERCROMBIE TO FIND THE DISCRIMINATION, BUT HE DID SAY THAT GENERALLY THE EMPLOYER MUST AT LEAST KNOW THAT THE EMPLOYEE ENGAGES IN THE PRACTICE FOR RELIGIOUS REASONS, AND THEN FOR JUSTICE THOMAS, HE FELT THAT THERE COULD NOT BE INTENTIONAL DISCRIMINATION WITHOUT KNOWLEDGE THAT THE ACTIONS ARE DISCRIMINATORY, AND HERE THE DISTINCTION BETWEEN KNOWLEDGE AND MOTIVATING FACTOR MAY BE A LITTLE BIT MORE DIFFICULT IN THE REAL WORLD THAN THE OPINION SUGGESTS. CHEMERINSKY: THESE ARE REALLY GOOD POINTS. I THINK IT'S ALSO WORTH EMPHASIZING WHAT THE COURT DIDN'T DECIDE HERE. THE COURT DIDN'T DECIDE THAT SAMANTHA ELAUF HAD A RIGHT TO WEAR THE HEADSCARF AT WORK. WHAT THE COURT DID WAS ARTICULATE THE STANDARD TO BE APPLIED BY THE COURTS IN FUTURE CASES. CHANCE: WHEN AN EMPLOYMENT DISCRIMINATION CLAIM IS BROUGHT TO THE EEOC, THE AGENCY IS REQUIRED BY LAW TO INFORM THE EMPLOYER AGAINST WHOM THE CHARGE HAS BEEN MADE OF THE COMPLAINT AND TO TRY TO ENGAGE THE EMPLOYER IN RECONCILING THE DISPUTE BEFORE IT'S TAKEN TO COURT. WHEN A PERSPECTIVE EMPLOYEE CHARGED THAT MACH MINING HAD REFUSED TO HIRE HER AS A COALMINER BECAUSE OF HER GENDER, THE COMMISSION SENT A LETTER TO THE COMPANY SAYING IT HAD FOUND REASONABLE CAUSE TO BELIEVE THE COMPANY HAD DISCRIMINATED AGAINST A CLASS OF WOMEN WHO HAD APPLIED FOR SUCH JOBS AND INVITING BOTH THE COMPANY AND THE COMPLAINANT TO TAKE PART IN INFORMAL METHODS OF DISPUTE RESOLUTION. IT SAID THAT A REPRESENTATIVE WOULD SOON CONTACT THE PARTIES AND BEGIN THE CONCILIATION PROCESS. WELL, ABOUT A YEAR LATER, THE COMMISSION SENT MACH MINING ANOTHER LETTER SAYING THAT SUCH CONCILIATION AS WAS REQUIRED BY LAW HAD TAKEN PLACE. FURTHER ATTEMPTS AT CONCILIATION WERE FUTILE AND THE COMMISSION WAS SUING THE COMPANY FOR SEX DISCRIMINATION IN HIRING. NOW, MACH MINING CHALLENGED THE COMMISSION'S ASSERTION THAT IT HAD CONCILIATED IN GOOD FAITH BEFORE FILING ITS LAWSUIT. THE COMMISSION MOVED FOR SUMMARY JUDGMENT ON THAT ISSUE CONTENDING THAT ITS CONCILIATION EFFORTS WERE NOT SUBJECT TO JUDICIAL REVIEW. THE TRUTH OF THAT ASSERTION WAS THE QUESTION BEFORE THE COURT, AND WHAT WAS ITS RESPONSE, LAURIE? LEVENSON: WELL, THE COURT'S RESPONSE WAS UNANIMOUS. IN AN OPINION WRITTEN BY JUSTICE KAGAN, SHE SAID IT WAS NOT ENOUGH TO SIMPLY SUBMIT TWO LETTERS TO THE COURT. IN DECIDING WHETHER THE STATUTORY CONCILIATION REQUIREMENT HAD BEEN MET, HERE'S WHAT THEY NEED TO DO. THE EEOC NEEDS TO INFORM THE EMPLOYER AND SHOW THAT IT HAS SPECIFIC ALLEGATIONS IN A LETTER ANNOUNCING ITS DETERMINATION OF REASONABLE CAUSE. IT ALSO HAS TO GIVE NOTICE OF WHAT THE EMPLOYER HAS DONE AND WHAT THE EMPLOYEE HAS SUFFERED, AND THE EEOC HAS TO TRY TO ENGAGE THE EMPLOYER IN A DISCUSSION AND GIVE THEM SOME OPPORTUNITY TO ACTUALLY REMEDY THE SITUATION. IT WOULD BE SUFFICIENT, THE COURT WROTE, IF THE EEOC WERE TO SUBMIT A SWORN AFFIDAVIT THAT IT HAD PERFORMED THESE OBLIGATIONS BUT THAT ITS EFFORTS HAD FAILED. CHEMERINSKY: I THINK IT'S ALSO IMPORTANT TO EMPHASIZE THAT JUSTICE KAGAN'S MAJORITY OPINION SAID THAT THIS HAS TO BE A VERY NARROW STANDARD OF VIEW. THERE'S A GREAT DEAL OF DEFERENCE GIVEN TO THE EEOC HERE. THAT SAID, THIS WAS ALSO A CONFLICT AMONG THE CIRCUITS THAT DOES OPEN THE DOOR TO CHALLENGE THE EEOC HERE. WE MIGHT SEE A LOT OF CASES BEING BROUGHT IN FEDERAL DISTRICT COURT. CHANCE: DISCRIMINATION BASED ON PREGNANCY WAS THE ISSUE IN YOUNG V. UNITED PARCEL SERVICE. WHEN PEGGY YOUNG, WHO'S A PART-TIME DRIVER FOR UPS, BECAME PREGNANT, HER DOCTOR TOLD HER NOT TO LIFT MORE THAN 20 POUNDS. NOW, UPS REQUIRES THAT ITS DRIVERS, LIKE PEGGY, BE ABLE TO LIFT UP TO 70 POUNDS. UPS TOLD HER SHE COULD NOT WORK UNDER SUCH RESTRICTIONS. YOUNG COMPLAINED THAT THE COMPANY ACCOMMODATED OTHER DRIVERS WHO COULDN'T LIFT HEAVY PACKAGES, AND THE COMPANY RESPONDED THAT THOSE EMPLOYEES HAD EITHER BECOME DISABLED ON THE JOB OR WERE COVERED BY THE AMERICANS WITH DISABILITIES ACT WHICH THEY SAID SHE WAS NOT, SO, ERWIN, HOW DID THE COURT RESOLVE THIS CASE? CHEMERINSKY: JUSTICE BREYER WROTE FOR THE COURT, AND JUSTICE BREYER SAID THAT THE KEY UNDER THE PREGNANCY DISCRIMINATION ACT IS TO LOOK TO SEE WHETHER PREGNANT WORKERS ARE TREATED DIFFERENTLY FROM OTHER WORKERS WITH REGARD TO THEIR ABILITY OR TO NOT WORK. WHAT HE SAID HERE IS WHAT'S NECESSARY IS FOR COURTS TO LOOK AT THE PRACTICES OF EMPLOYERS, THE BURDENS PUT ON EMPLOYEES TO DECIDE WHERE THERE'S INTENTIONAL DISCRIMINATION ON THE BASIS OF PREGNANCY. CHANCE: AND WHAT STANDARD DID THE COURT-- IS A COURT SUPPOSED TO USE IN THAT SITUATION? LEVENSON: JIM, THE STANDARD THE SUPREME COURT APPLIED IS WHAT WE KNOW AS THE McDONNELL DOUGLAS FRAMEWORK FOR TITLE VII CASES, AND IT'S A 3-STEP PROCESS. FIRST, IT'S EXPECTED THAT THE PREGNANT WORKER WOULD MAKE A PRIMA FACIE CASE THAT SHE BELONGED TO A PROTECTED CLASS, THAT SHE HAD SOUGHT ACCOMMODATION, THE EMPLOYER DID NOT ACCOMMODATE, BUT THE EMPLOYER DID ACCOMMODATE OTHERS WITH SIMILAR ABILITY OR INABILITY TO WORK. ONCE THAT'S DONE, YOU HAVE STEP TWO WHERE THE EMPLOYER SEEKS TO JUSTIFY THE REFUSAL TO ACCOMMODATE BY RELYING ON LEGITIMATE NON-DISCRIMINATORY REASONS FOR THIS ACTION, AND FINALLY, IT GOES BACK TO THE PLAINTIFF TO PROVE THAT THE REASONS ARE REALLY PRETEXTUAL. CHANCE: AND THE COURT SAID THAT THE PLAINTIFF CAN GET TO THE JURY ON THIS ISSUE BY PROVIDING SUFFICIENT EVIDENCE THAT THE EMPLOYER'S POLICIES IMPOSE A SIGNIFICANT BURDEN ON PREGNANT WORKERS AND THAT THE EMPLOYER'S SUPPOSEDLY LEGITIMATE REASONS, WHEN THEY'RE CONSIDERED ALONG WITH THE BURDEN THAT'S IMPOSED, GIVES RISE TO AN INFERENCE OF INTENTIONAL DISCRIMINATION. CHEMERINSKY: AND I WANT TO EMPHASIZE SOMETHING THAT LAURIE SAID. I THINK THE MOST IMPORTANT PART OF THE HOLDING IS THE COURT SAID THAT THE McDONNELL DOUGLAS FRAMEWORK IS TO BE USED UNDER THE PREGNANCY DISCRIMINATION ACT. THAT'S SOMETHING THAT DISTRICT COURTS ARE FAMILIAR WITH BECAUSE IT'S USED FREQUENTLY FOR A LONG TIME UNDER TITLE VII CASES. LEVENSON: AND, ERWIN, I THINK WE SHOULD POINT OUT THAT THERE ARE NO AUTOMATIC CLAIMS OF DISCRIMINATION BECAUSE PREGNANT WOMEN ARE NOT ACCOMMODATED. THE EMPLOYERS DO HAVE TO BE GIVEN A CHANCE TO SHOW THAT THEY HAD NEUTRAL NON-DISCRIMINATORY REASONS, AND OBVIOUSLY THESE CASES ARE GOING TO BE VERY FACT-DRIVEN. CHEMERINSKY: ONE OTHER THING TO NOTE HERE, JUSTICE BREYER POINTS OUT AT THE END OF HIS MAJORITY OPINION THAT CONGRESS AMENDED THE AMERICANS WITH DISABILITIES ACT IN 2008, AND UNDER THE AMENDMENT, PEGGY YOUNG LIKELY WOULD BE BOUND TO THAT STATUTE SO WHAT THE COURT SAYS WITH REGARD TO THE PREGNANCY DISCRIMINATION ACT PROBABLY ISN'T RELEVANT, AT LEAST TO SITUATIONS LIKE HERS. CHANCE: NOW WE TURN FROM OUR CASES ABOUT POSSIBLE EMPLOYMENT DISCRIMINATION TO A DECISION THAT MAY HAVE SERIOUS IMPACT ON QUESTIONS OF HOUSING DISCRIMINATION. THIS IS TEXAS DEPARTMENT OF HOUSING V. INCLUSIVE COMMUNITIES PROJECT. THE INCLUSIVE COMMUNITIES PROJECT, OR ICP, SUED THE TEXAS DEPARTMENT OF HOUSING OVER THE WAY IT DISTRIBUTED LOW-INCOME HOUSING CREDITS. BASICALLY, THESE ARE FEDERAL MONIES UNDER THE FAIR HOUSING ACT, FHA, AND THEY'RE GIVEN TO PRIVATE DEVELOPERS TO BUILD LOW-INCOME HOUSING. THE ICP CLAIMED THAT THE TEXAS DEPARTMENT OF HOUSING WAS GIVING TOO MANY OF THESE CREDITS TO DEVELOPERS TO BUILD IN LOW-INCOME MINORITY NEIGHBORHOODS AND NOT ENOUGH IN WHITE SUBURBAN NEIGHBORHOODS. THE RESULT, SAID THE ICP, WAS A CONTINUATION OF SEGREGATED HOUSING PATTERNS AND THAT THAT WAS A VIOLATION OF FEDERAL LAW. IMPORTANTLY, THIS WAS A CLAIM BROUGHT UNDER A THEORY OF DISPARATE IMPACT, NOT DISCRIMINATORY MOTIVE, AND, LAURIE, WHAT DID THE COURT HOLD HERE? LEVENSON: THIS WAS A 5-4 DECISION WRITTEN BY JUSTICE KENNEDY, AND WRITING FOR THE COURT, HE SAID THAT DISPARATE IMPACT CLAIMS ARE COGNIZABLE UNDER THE FAIR HOUSING ACT. TO DO THIS, HE LOOKED AT THE HISTORY OF CIVIL RIGHTS STATUTES AT THE SAME ERA OF THE FHA. HE LOOKED AT PRIOR DECISIONS, AND HE SAID ALL OF THOSE SUGGEST THAT, IN FACT, DISPARATE IMPACT CLAIMS SHOULD BE ALLOWED, AND THEN HE ALSO WENT TO CONGRESS' AMENDMENT IN 1988 OF THE FHA. IT RETAINED THE LANGUAGE THAT ALLOWED THE DISPARATE IMPACT LIABILITY. AFTER HE DID FIND THE BASIS FOR THE CLAIM, HOWEVER, HE SAYS BE CAREFUL. STATISTICAL EVIDENCE ALONE IS NOT NECESSARILY ENOUGH TO PROVE THE DISCRIMINATION. YOU HAVE TO SHOW THAT THERE'S A POLICY THAT LED TO THE DISPARATE IMPACT, AND THAT HAS TO BE ALLEGED AT THE PLEADING STAGE. CHEMERINSKY: THIS IS A VERY IMPORTANT CASE FOR CIVIL RIGHTS LITIGATION, OBVIOUSLY IMPORTANT FOR HOUSING LITIGATION. IT'S SO DIFFICULT TO PROVE A DISCRIMINATORY INTENT. RARELY WILL DECISION MAKERS EXPRESS A RACIALLY DISCRIMINATORY MOTIVE, SO THE ABILITY TO ESTABLISH LIABILITY BASED ON DISPARATE IMPACT IS CRUCIAL BUT ALSO ITS IMPLICATIONS FOR OTHER CIVIL RIGHTS STATUTES, AS WELL. IT'S CLEAR FROM THIS CASE AND JUSTICE THOMAS' DISSENT FROM OTHER CASES THAT THERE ARE AT LEAST A FEW JUSTICES ON THE COURT WHO BELIEVE THAT ALL DISPARATE IMPACT LIABILITY VIOLATES THE CONSTITUTION. THEY BELIEVE IT REQUIRES RACE-CONSCIOUS DECISION MAKING WHEN THEY BELIEVE THE CONSTITUTION REQUIRES THAT DECISION MAKERS BE RACE-BLIND, AND IF THE COURT HAD A MAJORITY FOR THAT, IT'D HAVE AN ENORMOUS EFFECT WITH REGARD TO EMPLOYMENT DISCRIMINATION LITIGATION UNDER TITLE VII OR VOTING RIGHTS LITIGATION UNDER THE AMENDMENTS TO THE VOTING RIGHTS ACT, BUT WE SEE HERE THERE ARE AT LEAST 5 JUSTICES ON THE CURRENT COURT WHO CONTINUE TO ALLOW DISPARATE IMPACT LIABILITY. CHANCE: THANK YOU ALL. NOW WE'RE GOING TO TURN TO SOME FEDERAL STATUTES THAT ADDRESS A NUMBER OF DIFFERENT TOPICS. CHANCE: AS JOHN COOKE NOTED AT THE BEGINNING OF THE PROGRAM, THE COURT DECIDED TWO VERY HIGH PROFILE CASES THIS TERM--THE SAME-SEX MARRIAGE CASE WHICH WE ALREADY DISCUSSED, AND OUR NEXT DECISION, KING V. BURWELL, WHICH ASKED IF SUBSIDIES WERE AVAILABLE TO QUALIFIED PEOPLE WHO BOUGHT THEIR HEALTH INSURANCE THROUGH A FEDERALLY ESTABLISHED RATHER THAN A STATE-RUN INSURANCE EXCHANGE. IT WAS A QUESTION OF STATUTORY INTERPRETATION, AND AS YOU JUST HEARD U.S. SOLICITOR GENERAL DON VERRILLI SAY, THE STAKES WERE HIGH. IF THE DECISION HAD BEEN SUBSIDIES WERE NOT AVAILABLE, IT ALMOST CERTAINLY WOULD HAVE MEANT THE END OF THE EXCHANGES AND THE AFFORDABLE CARE ACT AS WE KNOW IT IN 34 STATES WITH FEDERALLY-RUN EXCHANGES, BUT IT DIDN'T COME DOWN THAT WAY, DID IT LAURIE? LEVENSON: NO. IT DID NOT, AND AS I'M SURE, EVERYBODY WATCHING KNOWS BY NOW, THE COURT RULED 6-3 THAT THE WORDS "EXCHANGE ESTABLISHED BY THE STATE" WAS ACTUALLY AMBIGUOUS IN THE CONTEXT OF THE STATUTE AND DID NOT LOGICALLY LIMIT THE AVAILABILITY OF SUBSIDIES IN STATE-RUN EXCHANGES. PERHAPS THE SURPRISING THING TO MANY PEOPLE ABOUT THIS WAS HOW CHIEF JUSTICE ROBERTS WROTE IN HIS REFUTATION THAT SOMEHOW CONGRESS MEANT TO LIMIT THE SUBSIDIES TO THE STATE-RUN EXCHANGES. CHANCE: SUZANNA, WHAT WAS THE STRUCTURE OF THE CHIEF'S DECISION IN THIS CASE? SHERRY: WELL, IT'S ACTUALLY VERY SIMILAR TO WHAT YOU HEARD THE SOLICITOR GENERAL ARGUING A MINUTE AGO. HE STARTED BY SAYING THAT THE PURPOSE OF THE STATUTE IS TO IMPROVE HEALTH INSURANCE MARKETS, NOT TO DESTROY THEM, AND THAT THE STATUTE SOUGHT TO DO SO THROUGH 4 INTERLOCKING PROVISIONS. FIRST, IT GUARANTEES THAT EVEN SICK PEOPLE CAN BUY INSURANCE AT THE SAME RATES AS EVERYBODY ELSE. SECOND, IT MAKES HAVING HEALTH INSURANCE MANDATORY SO PEOPLE DON'T WAIT UNTIL THEY'RE SICK, WHICH WOULD SKEW THE POOLS AND LEAD TO THE SOLICITOR GENERAL'S DEATH SPIRALS. THIRD, IT EXEMPTED THOSE PEOPLE WHO WOULD HAVE TO SPEND MORE THAN 8% OF THEIR INCOME FROM THE MANDATORY INSURANCE PURCHASE REQUIREMENT, AND THEN FINALLY, IT PROVIDED TAX CREDITS TO REDUCE THE NUMBER OF PEOPLE WHO WOULD BE ABLE TO TAKE ADVANTAGE OF THAT EXEMPTION, AND THE END RESULT OF THESE 4 INTERLOCKING PROVISIONS IS THAT IF YOU TAKE THE SUBSIDIES AWAY FROM PEOPLE IN THE 34 STATES IN WHICH THERE ARE FEDERALLY-RUN EXCHANGES, THE ENTIRE PROGRAM WOULD COLLAPSE, AND THE CHIEF JUSTICE CONCLUDED THAT THAT CAN'T POSSIBLY HAVE BEEN THE GOAL OF CONGRESS. CHANCE: NOW WHAT ABOUT THE DISSENT? LEVENSON: WELL, JUSTICE SCALIA WROTE THE DISSENT IN WHICH JUSTICES THOMAS AND ALITO JOINED, AND HE SAID LET'S LOOK AT THE PLAIN MEANING OF THE TEXT IN THE STATUTE'S TEXT THAT REFERS TO EXCHANGE ESTABLISHED BY THE STATE, AND IT MEANS JUST THAT. HE SAID THAT THE MAJORITY WAS ACTUALLY TWISTING THE LANGUAGE OF THE STATUTE TO TRY TO SAVE THE LAW. JUSTICE SCALIA ARGUED THAT THERE ARE OTHER PARTS OF THE STATUTE THAT ACTUALLY DISTINGUISH BETWEEN THE FEDERAL AND STATE-RUN EXCHANGES, AND THAT THIS DECISION COULD AFFECT AT LEAST 7 OTHER PROVISIONS. SHERRY: ONE MORE THING ABOUT THIS CASE THAT'S WORTH MENTIONING IS THAT THE MAJORITY DID NOT GIVE CHEVRON DEFERENCE TO THE IRS's INTERPRETATION OF THE STATUTE ON THE THEORY THAT CONGRESS WOULD NOT HAVE DELEGATED TO THE IRS A DECISION THIS IMPORTANT. CHANCE: ALL RIGHT. OUR NEXT DECISION IS ANOTHER WHERE THE COURT SPLIT OVER WHETHER THE STATUTE SHOULD BE INTERPRETED ACCORDING TO ITS PLAIN TEXT OR ITS MOST LIKELY PURPOSE, BUT THE LINE OF VOTES ON EITHER SIDE OF THE DECISION IS NOT EXACTLY THE SAME. THIS IS YATES V. UNITED STATES. MR. YATES WAS A COMMERCIAL FISHERMAN WHO WAS CAUGHT IN FEDERAL WATERS CATCHING UNDERSIZED FISH. THE OFFICER WHO BOARDED YATES' BOAT AND MEASURED THE FISH TOLD HIM TO KEEP THEM SEPARATE UNTIL THEY RETURN TO PORT, BUT WHEN THE BOAT DOCKED SOME 4 DAYS LATER, THE FISH WERE GONE, AND SOME OF THE CREW MEMBERS ADMITTED THAT MR. YATES HAD TOLD THEM TO DUMP THE UNDERSIZED FISH OVERBOARD AND REPLACE THEM WITH REGULATION-SIZED FISH. SO, LAURIE, HOW DID THE SUPREME COURT DECIDE THIS ONE? LEVENSON: WELL, AS YOU SAID, YATES WAS FISHING IN FEDERAL WATERS, AND HE WAS CHARGED UNDER FEDERAL STATUTE 18 USC, 1519. I THINK WE'RE PUTTING THAT STATUTE UP ON THE SCREEN NOW. IT PROVIDES... SO THIS WAS A LAW THAT WAS PASSED AS PART OF THE 2002 SARBANES-OXLEY ACT MEANT TO PROTECT INVESTORS AND RESTORE CONFIDENCE IN THE FINANCIAL MARKET AFTER THE ENRON COLLAPSE. THE QUESTION BEFORE THE COURT WAS WHETHER DESTROYING TANGIBLE OBJECTS ACTUALLY APPLY TO FISH OR ONLY TO TANGIBLE THINGS LIKE RECORDS AND COMPUTER DRIVES AND DOCUMENTS AND THE LIKE. CHANCE: AND HOW DID THE VOTES BREAK DOWN ON THAT ISSUE IN THIS CASE, SUZANNA? SHERRY: WELL, THERE WAS NO MAJORITY OPINION. THERE WAS A 4-JUSTICE PLURALITY WRITTEN BY JUSTICE GINSBURG AND JOINED BY THE CHIEF AND JUSTICES BREYER AND SOTOMAYOR. THEIR OPINION APPLIED A CONTEXTUAL OR PURPOSIVE READING OF THE LAW, AND THEY CONCLUDED, LOOKING AT THE LEGISLATIVE HISTORY AND THE STRUCTURE OF THE LAW, THAT "TANGIBLE OBJECT" IS AMBIGUOUS AND THAT IT WASN'T MEANT TO INCLUDE FISH. CHANCE: SO THAT WAS A PLURALITY. WHAT GAVE MR. YATES HIS MAJORITY? LEVENSON: JUSTICE ALITO WROTE A CONCURRENCE, BUT HE USED WHAT HE SAID WERE THE TRADITIONAL TOOLS OF INTERPRETATION, AND NOT LEGISLATIVE HISTORY OR PURPOSIVE GOALS. HE LOOKED AT THE TITLES, THE NOUNS, THE VERBS, INCLUDING PHRASES "MAKE A FALSE ENTRY" AND EVEN ASKED THE QUESTION, HOW EXACTLY DO YOU MAKE A FALSE ENTRY IN A FISH? CHANCE: AND THE DISSENT, WHAT ABOUT THAT? SHERRY: WELL, THAT WAS A GROUP THAT YOU DON'T OFTEN SEE WRITING TOGETHER. JUSTICE KAGAN WROTE THE DISSENT, AND SHE WAS JOINED BY JUSTICES SCALIA, THOMAS, AND KENNEDY, AND SHE WOULD DEFINE A TANGIBLE OBJECT AS, WELL, AN OBJECT THAT IS TANGIBLE, AND THE MAJORITY, SHE SAID, SHOULD HAVE LOOKED AT THE PLAIN MEANING OF THE STATUTE. CHANCE: ALL RIGHT. NOW, "CHEVRON DEFERENCE" IS A PHRASE THAT WE'VE USED HERE AND THE DOCTRINE THAT COMES UP OFTEN IN THE INTERPRETATION OF FEDERAL STATUTES. IT REFERENCES THE COURT'S 1984 DECISION IN CHEVRON USA V. NATURAL RESOURCES DEFENSE COUNCIL. THAT DIRECTED FEDERAL COURTS TO ACCEPT AN AGENCY'S REASONABLE RESOLUTION OF AN AMBIGUOUS STATUTE ADMINISTERED BY THAT AGENCY. NOW, OUR NEXT DECISION, MICHIGAN V. EPA, WAS REVIEWED UNDER THIS RELATIVELY LENIENT STANDARD, BUT EVEN THIS DEFERENTIAL APPROACH COULD NOT SAVE THE EPA REGULATION BEING CHALLENGED HERE. THE CLEAN AIR ACT DIRECTS EPA TO REGULATE THE EMISSIONS FROM POWER PLANTS IF THEY FIND THE REGULATION APPROPRIATE AND NECESSARY. EPA CONDUCTED A REGULATORY IMPACT ANALYSIS, BUT DID NOT TAKE INTO CONSIDERATION THE UPFRONT COST IN DECIDING WHETHER THE PERSPECTIVE REGULATIONS WERE APPROPRIATE AND NECESSARY. 23 STATES CHALLENGED EPA's RULE. LAURIE, WHAT DID THE COURT DECIDE? LEVENSON: JUSTICE SCALIA WROTE THE OPINION FOR THE COURT. HE SAID THAT, EVEN USING THE CHEVRON DEFERENTIAL STANDARD, THE EPA's REFUSAL TO TAKE COST INTO ACCOUNT IN ITS INITIAL STAGES OF ANALYSIS WAS UNREASONABLE. HE SAID THAT THE WORD "APPROPRIATE" IS A VERY BROAD, ALL-ENCOMPASSING TERM AND IT SHOULD INCLUDE COST, AND HE POINTED OUT THAT, EVEN THOUGH SECTION "A" OF THE ACT REFERS ONLY TO THE HAZARDS TO HEALTH, SECTIONS "B" AND "C" REFER TO STUDIES AND COST OF TECHNOLOGY, SO THAT COST IS RELEVANT TO DECIDE ON WHETHER TO REGULATE AS WELL AS LATER IN THE PROCEEDINGS. HAVING SAID THAT, HOWEVER, HE LEFT-- HE SAID THAT IT WAS GOING TO BE LEFT UP TO THE AGENCIES TO REALLY DECIDE HOW TO INCLUDE COST ON REMAND. SHERRY: AND THE DISSENT, WHICH WAS WRITTEN BY JUSTICE KAGAN, SAID THAT THE EPA DID CONSIDER COST, AT LEAST IN THE SECOND PART OF THEIR PROCESS. FIRST, SHE SAID, THE EPA DECIDED THAT THE EMISSIONS WERE HAZARDOUS, AND, THEREFORE, REGULATION WAS APPROPRIATE AND NECESSARY, AND THEN THE EPA DID TAKE COST INTO ACCOUNT IN DEVELOPING WHAT THE ADMISSION STANDARD SHOULD BE, AND SHE SAID THIS WAS AN APPROACH THAT WAS CONSISTENT WITH THE LANGUAGE OF THE ACT, AND IT WAS, THEREFORE, A REASONABLE POLICY CHOICE UNDER CHEVRON. CHEMERINSKY: THE FIGHT IS OVER THE MEANING OF THE CLEAN AIR ACT AND THE DEGREE OF DEFERENCE TO BE GIVEN TO THE EPA IN INTERPRETING IT. FOR THE MAJORITY, IN THIS CASE, THEY WANT TO SEE MUCH MORE JUDICIAL OVERSIGHT OF THE EPA, BUT THE DISSENT WANTS TO SEE MUCH MORE DEFERENCE TO THE EPA AND SAYS THAT THE MAJORITY DOESN'T REALLY UNDERSTAND HOW RULEMAKING IS DONE IN THE ENVIRONMENTAL PROTECTION AGENCY. CHANCE: THANK YOU. NEXT, WE'RE GOING TO BRING YOU A CONVERSATION I HAD RECENTLY WITH PROFESSOR JOHN THOMAS OF GEORGETOWN UNIVERSITY LAW CENTER. IT CONCERNS 4 PATENT AND TRADEMARK DECISIONS THAT THE COURT REACHED THIS TERM. AFTER THAT, WE'RE GOING TO TAKE A 5-MINUTE BREAK AND COME BACK WITH THE SECOND HALF OF OUR PROGRAM. PLEASE STICK WITH US. WELCOME, PROFESSOR THOMAS. BEFORE WE GET TALKING ABOUT HANA FINANCIAL V. HANA BANK, CAN YOU BRIEFLY JUST TELL US WHAT TACKING IS? THOMAS: CERTAINLY. TACKING IS A COMMERCIAL PHENOMENON, OR RELATES TO COMMERCIAL PHENOMENON, WHERE MERCHANTS ARE ALWAYS TRYING TO UPDATE THEIR MARKS. THEY WANT TO MAKE THEIR MARKS MORE CONTEMPORARY. THEY WANT TO STRESS THE FACT THAT THEY'RE GOING INTO NEW AVENUES OF BUSINESS OR THAT THEY'RE BROADENING THEIR BUSINESS, SO AT THE TIME WE'RE TALKING, DOMINO'S HAS A BIG MARKETING CAMPAIGN WHERE THEY'RE GOING TO CHANGE THEIR NAME FROM DOMINO'S PIZZA JUST TO DOMINO'S. SO IT'S A COMMERCIAL REALITY THAT MERCHANTS ARE CHANGING THEIR MARKS ALL THE TIME, BUT THAT TENDS TO RUN INTO TROUBLES WITH THE NOTION THAT THE FIRST USER OF A MARK IS THE ONE WHO HAS PRIORITY OF USE AND GETS TO USE THE MARK VERSUS OTHERS. CHANCE: WELL, AND IN HANA FINANCIAL, THE COURT DECIDED THAT TACKING WAS A QUESTION OF FACT FOR THE JURY, AND NOT FOR THE JUDGE. IS THAT RIGHT? THOMAS: THAT'S CORRECT. CHANCE: AND TELL US ABOUT THE COURT'S REASONING AND WHAT YOU THINK WILL BE THE EFFECT OF THAT DECISION. THOMAS: WELL, THE COURT REASONED THAT LAYPERSONS, JURORS, WOULD BE BEST QUALIFIED TO DISCERN WHETHER THERE WAS A CONTINUITY OF COMMERCIAL IMPRESSION SO THAT THE AVERAGE PERSON WOULD BE ABLE TO REALIZE THAT, IN FACT, THIS IS THE SAME MARK AND THE SAME MERCHANT AS THE PREDECESSOR ONE, AND TACKING IS SOMETHING THAT HAPPENS A LOT IN THE MARKETPLACE, BUT COURTS DON'T CONFRONT IT SO MUCH, BUT WHAT'S MORE SIGNIFICANT, IT SEEMS TO ME, IS THE FUNDAMENTAL QUESTION OF LIKELIHOOD OF CONSUMER CONFUSION, SO THAT'S THE FUNDAMENTAL TRADEMARK INQUIRY IN TERMS OF INFRINGEMENT. THE CIRCUIT COURTS ARE SPLIT ON WHETHER THAT'S A QUESTION OF FACT OR A QUESTION OF LAW, SO IF JURORS ARE SO WELL-QUALIFIED TO DECIDE ISSUES OF COMMERCIAL IMPRESSION, IT WOULD SEEM THEY OUGHT TO BE DOING THE INFRINGEMENT INQUIRY, TOO, AND WE'LL SEE IF THE SUPREME COURT DECIDES THAT WAY IF IT'S ASKED TO ADDRESS THE ISSUE. CHANCE: OK. IN THE NEXT CASE, WE WANTED TO TALK ABOUT TEVA PHARMACEUTICALS V. SANDOZ. THE COURT HELD THAT WHILE APPELLATE JUDGES SHOULD USE THE DE NOVO STANDARD WHEN REVIEWING QUESTION-- DISTRICT COURT'S FINDINGS OF LAW, THAT FINDINGS OF FACT, INCLUDING SUBSIDIARY FACTS EXPLORED FOR DECIDING A QUESTION OF LAW, CAN ONLY BE REVERSED ON A FINDING OF CLEAR ERROR. NOW, WHAT DO YOU THINK WILL BE THE EFFECT OF THAT DECISION ON CONSTRUCTION CLAIM CASES? THOMAS: YEAH. TEVA V. SANDOZ DEALS WITH THE MARKMAN CASE, THE SEMINAL OPINION WHERE THE SUPREME COURT SAID THAT THE PATENT CLAIM CONSTRUCTION IS A MATTER OF LAW. THIS FUNDAMENTALLY CHANGED PATENT TRIAL PRACTICE, LED TO A LOT OF LOCAL RULES IN WHICH TRIAL COURTS WILL HAVE CLAIM CONSTRUCTION HEARINGS WHICH THEY RESOLVE AS A MATTER OF LAW. THAT CREATED PROBLEMS BECAUSE THE FEDERAL CIRCUITS TENDS TO REVERSE CLAIM CONSTRUCTIONS QUITE FREQUENTLY SINCE THEY HAVE DE NOVO REVIEW. HERE, THE SUPREME COURT SORT OF RECAST THE PLAYING FIELD AND SAID THAT SOME ISSUES WITH CLAIM CONSTRUCTIONS CAN AND CAN'T BE QUESTIONS OF FACT. ESSENTIALLY, THE COURT SAYS THAT THE INTRINSIC EVIDENCE, THE PATENT ITSELF AND ITS PROSECUTION HISTORY, THOSE ARE TO BE DECIDED AS LEGAL ISSUES. EVERYTHING ELSE IS A QUESTION OF FACT, SO IT'S GOING TO CHANGE PATENT PRACTICE QUITE A BIT, ESPECIALLY WHEN IT COMES TO TRIALS. ALSO, IT SEEMS TO BE A PRO-PATENTEE OPINION. IT FAVORS PATENT HOLDERS. PATENT PLAINTIFFS TYPICALLY WANT TO HAVE ISSUES OF FACT BECAUSE THEY CAN SHOW THAT CASE WELL IN FRONT OF THE JURY AND THEY CAN, YOU KNOW, BUILD UP A BETTER STORY. DEFENDANTS, ACCUSED INFRINGERS, LIKE QUESTIONS OF LAW BECAUSE THOSE CAN BE MORE READILY REVERSED ON APPEAL IF THERE'S A BAD OUTCOME, SO THIS IS SOMETHING THAT'S GOING TO REQUIRE COURTS TO DIG IN A LITTLE BIT MORE. FOR EXAMPLE, WHAT IS THE LEVEL OF ORDINARY SKILL IN THE ART? TYPICALLY THAT'S JUST BEEN A THROWAWAY. NOW THAT'S SOMETHING THE PLAINTIFFS WILL PROBABLY SPEND MORE TIME WITH. CHANCE: OK. IN B&B HARDWARE V. HARGIS INDUSTRIES, THE QUESTION WAS WHETHER A DECISION BY THE TRADEMARK TRIAL AND APPELLATE BOARD--WHICH IS AN ADMINISTRATIVE BOARD UNDER PATENT AND TRADEMARK OFFICE, IF I'M NOT MISTAKEN--SHOULD HAVE PRECLUSIVE EFFECT IN CASES BEFORE AN ARTICLE III DISTRICT COURT ON THE SAME CASE, SO THE COURT GAVE DISTRICT COURTS A NEW RULE TO APPLY, WHICH WE'RE GOING TO PUT UP ON THE SCREEN. THE COURT SAID... NOW, CAN YOU TALK A LITTLE BIT ABOUT THE FACTS IN THIS CASE AND WHETHER OR NOT YOU WERE SURPRISED BY THE DECISION? THOMAS: I WAS CERTAINLY SURPRISED BY THE DECISION. I WAS, YOU KNOW, SURPRISED ABOUT THE NOTION THAT THE TTAB, WHICH LARGELY CONDUCTS ITS PROCEEDINGS THROUGH PAPER--IT'S A PAPER PROCEEDING-- VERY LITTLE DISCOVERY OR OPPORTUNITY FOR EVIDENCE WOULD CONTROL AN INFRINGEMENT LATER-- INQUIRY IN A FEDERAL COURT LATER, SO I WAS A BIT TAKEN ABACK BY IT. THE COURT SEEMS TO STRESS THE FACT THAT THERE CAN BE SIMILARITY OF DECISIONS BY THE TWO TRIBUNALS, THE TTAB DECIDING WHETHER TO REGISTER A LATER MARK THAT'S PRETTY SIMILAR TO AN EARLIER REGISTERED MARK WHILE THE FEDERAL COURTS ARE LOOKING MORE TOWARD INFRINGEMENT. HOWEVER, I'D SAY THAT THE [INDISTINCT] IS PROBABLY GOING TO BE FAIRLY NARROW IN PRACTICE. THE SUPREME COURT SAYS IT'S A CASE-BY-CASE INQUIRY TODAY BEFORE MANY OF THE CIRCUITS HAD SAID THERE SIMPLY WAS NO POSSIBILITY OF PRECLUSION AT ALL. CHANCE: AND THE COURT REVERSED THE EIGHTH CIRCUIT ON THIS, BUT THEY SAID-- I THINK THEY WENT OUT OF THEIR WAY TO SAY A COUPLE OF TIMES THAT IT WAS A SENSIBLE, QUITE SENSIBLE TREATING OF THE ISSUE. THOMAS: YES. THAT'S RIGHT, AND I THINK THAT'S BECAUSE THE COURT RECOGNIZES THAT TTAB PROBABLY WON'T BE GIVEN ISSUE PRECLUSION EFFECTS SO OFTEN, OK? I THINK, FOR THE MOST PART, IT'S ONLY GOING TO BE WHEN THE TWO ISSUES ARE SPOT ON. LET ME SPELL THAT A BIT MORE, IF I MAY. FOR REGISTRATION, THE TTAB IS SIMPLY GOING TO SAY, "WELL, "HERE'S A MARK THAT WE'RE LOOKING TO. LET'S COMPARE THAT TO A PREVIOUSLY REGISTERED MARK." TYPICALLY WHEN YOU'RE LOOKING AT TRADEMARK REGISTRATION, YOU'RE LOOKING AT BROAD CATEGORIES OF GOODS, YOU KNOW-- HOME APPLIANCES, HAMMERS, AND THINGS LIKE THAT. THE INFRINGEMENT INQUIRY TYPICALLY INVOLVES A VERY SPECIFIC PRODUCT, SO JUST BECAUSE YOU WOULDN'T REGISTER A MARK FOR AN ENTIRE CATEGORY OF GOODS DOESN'T NECESSARILY MEAN THAT EVERYONE WILL BE CONFUSED IN VERY SPECIFIC SITUATIONS IN THE MARKETPLACE, SO THAT'S WHY I THINK THERE COULD BE ISSUE PRECLUSION. MY GUESS IS, IT'S NOT GOING TO HAPPEN ALL THAT OFTEN. CHANCE: OK. IN COMMIL USA V. CISCO SYSTEMS, THE COURT DEALT WITH THE QUESTION OF FIRST IMPRESSION. IF A PARTY CHARGED WITH INDUCING OTHERS TO INFRINGE A PATENT HAD A GOOD FAITH BELIEF THAT THE PATENT WAS INVALID, WAS THAT A DEFENSE AGAINST THE CHARGE OF INDUCEMENT, AND WHAT DID THE COURT DECIDE THERE? THOMAS: THE COURT HELD THAT HAVING A GOOD FAITH BELIEF THAT THE PATENT WAS INVALID WAS NOT A DEFENSE TO INDUCEMENT OF INFRINGEMENT, SO THE PATENT STATUTE SAYS THAT YOU CAN INFRINGE A PATENT NOT JUST BY PERFORMING THAT ACTIVITY OR SELLING THAT PRODUCT YOURSELF, BUT BY ENCOURAGING SOMEONE ELSE TO DO SO, BUT TO BE LIABLE FOR INDUCEMENT INFRINGEMENT, YOU HAVE TO KNOW ABOUT THE PATENT. CHANCE: ALL RIGHT. A COUPLE OF QUESTIONS. IS THE DISTINCTION BETWEEN INFRINGEMENT AND VALIDITY AN IMPORTANT ONE GOING FORWARD, AND HOW IS THE DECISION LIKELY TO AFFECT FUTURE INDUCEMENT CASES? THOMAS: IT IS AN IMPORTANT DISTINCTION BETWEEN INFRINGEMENT AND VALIDITY, AND I THINK THE COURT WAS CONCERNED THAT TO SAY THAT JUST BECAUSE THE ACCUSED INFRINGER THINKS THE PATENT WAS IMPROPERLY GRANTED, THAT WOULD REALLY UNDERMINE THE PRESUMPTION OF VALIDITY. IT WOULD MAKE PATENTS ALMOST WORTHLESS, I THINK, AT LEAST WHEN IT COMES TO INDUCED INFRINGEMENT. I ALSO THINK THAT THE COURT WAS CONCERNED ABOUT SPAWNING AN INDUSTRY OF OPINION LETTERS SAYING, "OH, I THINK THIS PATENT IS INVALID," SO THAT ANY ACCUSED INFRINGER CAN SIMPLY SAY, "WELL, I GOT THIS LETTER," SO IT'S GOING TO AFFECT-- IT'S A POSITIVE ELEMENT IF YOU'RE A PATENT HOLDER. IF YOU'RE WORRIED ABOUT PATENT TROLLS AND GET A LOT OF SUITS THAT YOU BELIEVE ARE OF DUBIOUS MERIT, THEN YOU'RE NOT THAT EXCITED BY THE OPINION. CHANCE: OK. PROFESSOR, THANKS FOR JOINING US AGAIN THIS YEAR. THOMAS: THANK YOU FOR HAVING ME.

Contents

Court membership

Chief Justice: William Rehnquist

Associate Justices: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer

Early v. Packer

Full caption:Richard E. Early, Warden, et al. v. William Packer
Citations:537 U.S. 3; 123 S. Ct. 362; 154 L. Ed. 2d 263; 2002 U.S. LEXIS 8314; 71 U.S.L.W. 3312; 2002 Cal. Daily Op. Service 10897; 2002 Daily Journal DAR 12601; 16 Fla. L. Weekly Fed. S 2
Prior history:Petition denied, sub nom. Packer v. Hill, No. 96-04957, C.D. Cal.; affirmed in part, reversed in part, remanded, 291 F.3d 569 (9th Cir. 2001) (as amended, Feb. 27, 2002); rehearing, rehearing en banc denied, 291 F.3d 569 (9th Cir. 2002)
Subsequent history:Rehearing denied, 537 U.S. 1148 (2003)
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Full text of the opinion:Findlaw

537 U.S. 3
Decided November 4, 2002.
Ninth Circuit Court of Appeals reversed

INS v. Ventura

Full caption:Immigration and Naturalization Service v. Fredy Orlando Ventura
Citations:537 U.S. 12; 123 S. Ct. 353; 154 L. Ed. 2d 272; 2002 U.S. LEXIS 8313; 71 U.S.L.W. 3314; 2002 Cal. Daily Op. Service 10898; 2002 Daily Journal DAR 12603; 16 Fla. L. Weekly Fed. S 1
Prior history:Petition for asylum denied, appeal denied, No. A72-688-860, Board of Immigration Appeals; review granted, remanded, 264 F.3d 1150 (9th Cir. 2001)
Subsequent history:On remand, remitted, 317 F.3d 1003 (9th Cir. 2003)
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Full text of the opinion:Findlaw

537 U.S. 12
Decided November 4, 2002.
Ninth Circuit Court of Appeals reversed and remanded

Woodford v. Visciotti

Full caption:Jeanne Woodford, Warden v. John Louis Visciotti
Citations:537 U.S. 19; 123 S. Ct. 357; 154 L. Ed. 2d 279; 2002 U.S. LEXIS 8312; 71 U.S.L.W. 3315; 2002 Cal. Daily Op. Service 10900; 2002 Daily Journal DAR 12605; 16 Fla. L. Weekly Fed. S 6
Prior history:Writ of habeas corpus granted in part, denied in part, No. CV 97-04591, C.D. Cal.; affirmed, 288 F.3d 1097 (9th Cir. 2002)
Subsequent history:Cert. denied, 537 U.S. 1004 (2002)
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Full text of the opinion:Findlaw

537 U.S. 19
Decided November 4, 2002.
Ninth Circuit Court of Appeals reversed

Abdur'Rahman v. Bell

Full caption:Abu-Ali Abdur'Rahman v. Ricky Bell, Warden
Citations:537 U.S. 88; 123 S. Ct. 594; 154 L. Ed. 2d 501; 2002 U.S. LEXIS 9240; 71 U.S.L.W. 4022; 2002 Day 13901; 2002 Cal. Daily Op. Service 11850; 2002 Daily Journal DAR 13901; 16 Fla. L. Weekly Fed. S 22
Prior history:Stay of execution granted, 927 F. Supp. 262; summary judgment denied, 990 F. Supp. 985 (M.D. Tenn. 1998); writ of habeas corpus granted, remanded, 999 F. Supp. 1073 (M.D. Tenn. 1998); affirmed in part, reversed in part, remanded, 226 F.3d 696 (6th Cir. 2000); rehearing, rehearing en banc denied, No. 98-6568, 2000 U.S. App. LEXIS 34098 (6th Cir. Dec. 22, 2000); cert. denied, 534 U.S. 970 (2001); rehearing, rehearing en banc denied, No. 98-6568, 2002 U.S. App. LEXIS 2520 (6th Cir. Feb. 11, 2002); stay of execution granted, 535 U.S. 981 (2002); cert. granted, 535 U.S. 1016 (2002)
Subsequent history:Rehearing denied, 537 U.S. 1227 (2003)
----
Full text of the opinion:Findlaw

537 U.S. 88
Decided December 10, 2002.
Writ of certiorari to the Sixth Circuit Court of Appeals dismissed as improvidently granted.

Stevens filed a dissent.

Kaupp v. Texas

Full caption:Robert Kaupp v. Texas
Citations:538 U.S. 626; 123 S. Ct. 1843; 155 L. Ed. 2d 814; 2003 U.S. LEXIS 3670; 71 U.S.L.W. 3696; 2003 Daily Journal DAR 4865; 16 Fla. L. Weekly Fed. S 263
Prior history:Defendant convicted, Harris County District Court; affirmed, No. 14-00-00128, 2001 Tex. App. LEXIS 3732 (Tex. App. June 7, 2001); review denied, Tex. Crim. App., Apr. 17, 2002
Subsequent history:On remand, remanded, No. 14-00-00128, 2004 Tex. App. LEXIS 718 (Tex. App. Jan. 27, 2004)
----
Full text of the opinion:Findlaw

538 U.S. 626
Decided May 5, 2003.
Texas Court of Appeals, Fourteenth District vacated and remanded

Los Angeles v. David

Full caption:City of Los Angeles v. Edwin F. David
Citations:538 U.S. 715; 123 S. Ct. 1895; 155 L. Ed. 2d 946; 2003 U.S. LEXIS 4059; 71 U.S.L.W. 3720; 2003 Cal. Daily Op. Service 4203; 2003 Daily Journal DAR 5289; 16 Fla. L. Weekly Fed. S 283
Prior history:Judgment for defendant, No. 99-05602, C.D. Cal.; affirmed in part, reversed in part, remanded, 307 F.3d 1143 (9th Cir. 2002)
Subsequent history:On remand, affirmed, 335 F.3d 857 (9th Cir. 2003)
----
Full text of the opinion:Findlaw

538 U.S. 715
Decided May 19, 2003.
Ninth Circuit Court of Appeals reversed

Bunkley v. Florida

Full caption:Clyde Timothy Bunkley v. Florida
Citations:538 U.S. 835; 123 S. Ct. 2020; 155 L. Ed. 2d 1046; 2003 U.S. LEXIS 4273; 71 U.S.L.W. 3732; 2003 Cal. Daily Op. Service 4373; 2003 Daily Journal DAR 5590; 16 Fla. L. Weekly Fed. S 317
Prior history:Motion for post-conviction relief denied, Sarasota County Circuit Court; affirmed, 768 So. 2d 510 (Fla. App. 2000); approved, certified question answered in negative, 833 So. 2d 739 (Fla. 2002)
Subsequent history:On remand, affirmed, 882 So. 2d 890 (Fla. 2004); rehearing denied, No. 01-297, 2004 Fla. LEXIS 1533 (Fla. Sept. 15, 2004); cert. denied, 543 U.S. 1079 (2005)
----
Full text of the opinion:Findlaw

538 U.S. 835
Decided May 27, 2003.
Supreme Court of Florida vacated and remanded

Citizens Bank v. Alafabco, Inc.

Full caption:The Citizens Bank v. Alafabco, Inc., et al.
Citations:539 U.S. 52; 123 S. Ct. 2037; 156 L. Ed. 2d 46; 2003 U.S. LEXIS 4418; 71 U.S.L.W. 3748; 10 A.L.R. Fed. 2d 837; 2003 Cal. Daily Op. Service 4560; 2003 Daily Journal DAR 5807; 16 Fla. L. Weekly Fed. S 324
Prior history:Motion to compel arbitration granted, No. 00-261, Lawrence Circuit Court; reversed and remanded, 872 So. 2d 798 (Ala. 2002); rehearing denied, No. 1010703, 2002 Ala. LEXIS 392 (Ala. Nov. 27, 2002)
Subsequent history:On remand, affirmed, 872 So. 2d 809 (Ala. 2003)
----
Full text of the opinion:Findlaw

539 U.S. 52
Decided June 2, 2003.
Supreme Court of Alabama reversed and remanded

Nike, Inc. v. Kasky

Full caption:Marc Kasky v. Nike, Inc., et al.
Citations:539 U.S. 654; 123 S. Ct. 2554; 156 L. Ed. 2d 580; 2003 U.S. LEXIS 5015; 71 U.S.L.W. 4602; 67 U.S.P.Q.2D (BNA) 1001; 31 Media L. Rep. 1865; 2003 Cal. Daily Op. Service 5569; 2003 Daily Journal DAR 7028; 16 Fla. L. Weekly Fed. S 470
Prior history:Judgment for defendants, No. 994446, San Francisco Superior Court; affirmed, 93 Cal. Rptr. 2d 854 (Cal. App. 2000); reversed and remanded, 45 P.3d 243 (Cal. 2002); rehearing denied, No. S087859, 2002 Cal. LEXIS 5250 (Cal. July 31, 2002); cert. granted, 537 U.S. 1099 (2003)
----
Full text of the opinion:Findlaw

539 U.S. 654
Argued April 23, 2003.
Decided June 26, 2003.
Writ of certiorari to the Supreme Court of California dismissed as improvidently granted.

Stevens filed a concurrence, which was joined by Ginsburg, and by Souter in part. Kennedy filed a dissent, as did Ginsburg, who was joined by O'Connor.

Notes

  1. ^ Three opinions have not been summarized here due to their lack of substantive content: Ford Motor Co. v. McCauley, 537 U.S. 1 (2002) dismissed certiorari as improvidently granted. Borden Ranch Partnership v. Army Corps of Engineers, 537 U.S. 99 (2002) merely stated that the lower court's judgment was affirmed by an equally divided Court. Justice Kennedy did not participate. Dow Chemical Co. v. Stephenson, 539 U.S. 111 (2003) vacated in part and remanded the lower court's decision with regard to two of the six respondents for further consideration in light of Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002). With regard to the remaining four respondents, the opinion noted that the judgment was affirmed by an equally divided Court.

References

  • "2002 Opinions of the Court". Supreme Court of the United States. Archived from the original on 2004-02-02. Retrieved 2010-07-07.
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