Steven R. Smith, JD

Continuing Education Information

It was certainly a Term to remember. Even without the healthcare decision[1] it would have been important. The drama, conflict and suspense of the healthcare decision, delivered on the last day of the Term and full of surprises, made it truly an extraordinary Term.

During this Term, the Court:

  • Upheld the health reform law’s individual mandate under the taxation power, but limited Medicaid expansion incentives to the states.[2]
  • Muddied the rules concerning when experts must appear in court in criminal cases to testify concerning studies and reports they have conducted.[3]

Prohibited mandatory life-without-parole sentences for juveniles who commit murder, but allowed such sentences following consideration of mitigating evidence.[4]

  • Declined to direct judges to review eyewitness evidence in criminal cases so that only reliable eyewitness evidence would be introduced.[5]

Limited the patentability of statements regarding the correlation between drug concentration levels and patient health, thus making it easier for generic drug companies to challenge the claims of brand-name drugs.[6]

  • Struck down most of an Arizona law related to immigration as a violation of the federal government’s exclusive right to enforce immigration and naturalization rules, but for now allowed the “show me your papers” provision to go into effect.[7]

The Court also decided cases involving governmental immunity, ineffective assistance of counsel in plea bargaining, habeas corpus, employment and religion, search and seizure, and public employee union funding.

In this article we will first look closely at the healthcare decision and several other major cases. Then we will look more briefly at other important cases of interest. We conclude with a look back at the meaning of the Term just ended and a look forward to the Term about to begin.


The most anticipated decision of the Term was the healthcare decision, National Federation of Independent Business v. Sebelius.[8] The case involved the constitutionality of the Patient Protection and Affordability Care Act [ACA]. The decision was full of surprises.

Because of the importance of this case, both in terms of upholding a major law and in terms of constitutional precedent, this article discusses it at some length. Even so, it can only scratch the surface of the very complicated decisions and nuances in the case.

In short, the Court upheld the individual mandate in the act but made expansion of the Medicaid program voluntary. The first surprise: Chief Justice Roberts was the deciding vote.

Most of the decisions was in the case were a 5-4 majority, although part of the Medicaid decision was 7-2. There were three opinions covering nearly 200 pages. Four justices in the “Joint Dissent Opinion” would have struck down the entire law (Justices Scalia, Kennedy, Thomas and Alito). A second group of four justices, “the Ginsburg Opinion” (Justices Ginsburg, Sotomayor, Breyer and Kagan), would have upheld almost the entire law, except for part of the Medicaid expansion (which only two of these justices agreed to strike down). The third opinion, by Chief Justice Roberts alone, was the vote that decided most of the issues. There were two major questions in the case, the individual mandate and the expansion of the Medicaid system.

The Individual Mandate

The legal issue regarding the individual mandate—that is, the requirement that most Americans maintain minimum health insurance or pay a penalty—came down to a question of whether the Constitution gives Congress the authority to require individuals to purchase health insurance. A common constitutional question is whether an act of Congress has violated a specific provision of the Constitution, e.g., the First Amendment. But this was different. Under the Constitution the federal government (unlike the states) has limited powers and Congress may not constitutionally adopt a law unless it finds an affirmative grant of authority to do so in the Constitution. The question in this case was: Where in the Constitution is the authority for the individual mandate?

Does the Commerce Clause authorize the individual mandate?

In adopting the ACA, Congress said it was authorized to do so by the Commerce Clause of the Constitution which (in Article I, Section 8) allows Congress to "regulate commerce with foreign nations, and among the several states." The provision is enhanced by the Constitution’s Necessary and Proper Clause (Article I, Section 8), which empowers Congress to "make all laws which shall be necessary and proper for carrying into execution” the enumerated powers of the Constitution.

Five justices (the Chief Justice plus the four Joint Dissent justices) held that the Commerce Clause did not provide a constitutional basis for the individual mandate. They said that the individual mandate was not a regulation of commerce at all. It penalized people for not entering into commerce (that is, for not buying insurance).[9] These five justices indicated that “regulating” commerce means that Congress may deal with how commerce is transacted, or prohibit certain conduct. It is a much different matter, they said, to require someone affirmatively to enter into commerce. This is where the possibility of Congress requiring that someone purchase automobiles or vegetables, broccoli being the favorite example, came into play. In theory, these justices noted, if inactivity could be prohibited, the Constitution would give Congress the authority to require someone to buy a new automobile in order to save the U.S. automotive industry.

The four justices who disagreed with the Commerce Clause conclusion (Ginsburg Opinion justices) would have found that inactivity in some circumstances can be considered commerce under the Constitution. They emphasized that healthcare is different from most other activities because everyone will require it at some time or another, and therefore everyone will eventually enter into this form of commerce.[10] As such, the ACA was just regulating when and how Americans entered commerce. Furthermore, unlike the automobile, if someone cannot pay for care when needed, the cost of that care will be passed on to others. Therefore, the ACA was legitimately regulating a market (healthcare) in which everyone will be a part. The Ginsburg Opinion justices also noted that the ACA, notably the preexisting condition prohibition, could not work without near-universal coverage.

So, a majority of the Court held that the Commerce Clause did not provide authority for the individual mandate. This holding was something of a surprise to some legal experts. In the last seventy years, the Court has had an expansive reading of the Commerce Clause. Some commentators see the health decision as a change in the basic direction of Commerce Clause jurisprudence, while others maintain that the Court merely found the outer limit of the Commerce Clause and this was over the line.

Is the individual mandate a tax?

The surprising answer to the question of whether the individual mandate is a tax: yes and no. Chief Justice Roberts and four justices—this time the four “liberal” justices, the Ginsburg Opinion group—held that the individual mandate could be based on the constitutional power of Congress to "lay and collect taxes.” They held that the penalty for not buying health insurance was a tax, not a penalty as Congress had labeled it.[11]

This holding was a surprise to many because Congress repeatedly declined to call the individual mandate a tax. The justices who found the mandate to be a tax noted that it is collected by the IRS, is paid when a tax return is filed, and is not really a punishment/penalty because it did not require a criminal state of mind.[12] Chief Justice Roberts emphasized the fact that Congress called this a penalty rather than a tax is not determinative; the Court had to make that decision on its own.

The Joint Dissent asserted that there was no way to escape the fact that "what Congress enacted [was] a mandate that individuals maintain minimum essential coverage, enforced by a penalty."[13] They also noted that the Court, "never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax."[14] These justices also said that if penalties could be considered a tax, the taxing power of Congress would be essentially unlimited.  That is, all Congress would have to do to grant itself unlimited power under the Constitution would be to impose a penalty that could be described as a tax (for example, imposing a tax on the failure to purchase broccoli.). This would eviscerate the concept of limited federal authority.

Thus, a majority upheld the individual mandate because it was a tax. The Court also held (and this may surprise you) that the individual mandate was not a tax. Since 1793 the federal Anti-Injunction Act has prohibited federal courts from deciding cases concerning the assessment or collection "of any tax" until the tax is paid.[15] IF the individual mandate penalty is a tax, because that tax could not be collected until 2014, the Anti-Injunction Act would seem to preclude the Court from considering its constitutionality of that tax until after 2014. But (depending on your interpretative point of view) with either careful parsing of the Anti-Injunction Act or a bit of a sleight of the judicial hand, Chief Justice Roberts wrote that although the individual mandate was a tax for the purpose of the constitution, it was not a tax for the purpose of the Anti-Injunction Act.[16]

Chief Justice Roberts said that because Congress the individual mandate a penalty rather than a tax, Congress took it out of the category of “taxes” covered by the Anti-Injunction Act, even though it was a tax for constitutional purposes.[17] The point essentially is that the Anti-Injunction Act was a creation of Congress, and because Congress said it was not a tax, that was good enough for that act.

The Joint Dissent noted that this “it’s a tax, it’s not a tax” reasoning was thin. They claimed that calling it a tax for constitutional purposes but not a tax for statutory purposes "carries verbal wizardry too far, deep into the forbidden land of the Sophists."[18]

Expansion of Medicaid

A major part of the ACA relies on a significant increase in Medicaid coverage. Perhaps one half of the uninsured who will have coverage after full implementation are as a result of the expansion of Medicaid. (There are many estimates. Here is one set: approximately 25 million of the 40-50 million uninsured in the US are likely to be covered after implementation of the ACA. Of that 25 million, perhaps 16 million were planned to be covered be through Medicaid.)

Medicaid is a cooperative federal-state program. As with all federal spending programs adopted under the Constitution’s Article I, Section 8 grant of congressional power to spend tax money to "pay the debts and provide for the common defense and general welfare of the United States," the federal government may entice states to participate in Medicaid, but may not require it. All states currently participate in Medicaid, although the level of benefits varies considerably from state to state. The federal government pays, on average, approximately 60% of the costs of the existing program.

The ACA’s major change in Medicaid eligibility is to cover all those (excluding undocumented aliens and a few others) who have incomes less than 133% of the poverty level (approximately $30,000 for a family of four). The current minimum Medicaid eligibility is for children and only certain adults below 100% of the poverty level (approximately $22,000 for a family of four).

To get states to agree to participate in the expansion of Medicaid, the ACA did two things. First, the federal government agreed to initially pay 100% of the cost of expansion, but when the ACA is fully implemented, it will pay 90% of the cost for the expanded coverage, with the states picking up the other 10% of the expansion. The second thing the ACA did was more draconian: if states did not agree to the expansion, they would lose all Medicaid funding. Several states claimed that this funding mechanism was unconstitutionally coercive in a “your money or your life” way. Seven justices (all except Justices Ginsburg and Sotomayor) agreed that removing all Medicaid funds from a state refusing the expansion was coercive and improper.

This result surprised Court watchers. While the Court has previously suggested that Congress may not use its power to tax and spend to coerce states into participating in federal programs, the Court had never in the past relied on this coercion to strike down a program. The Court has not defined when the financial persuasion of a good deal stops and unconstitutional “coercion” begins.

Five justices upheld the new Medicaid program for states that voluntarily accepted both the new Medicaid money and the new Medicaid obligations. The four Joint Dissent justices would have found the entire Medicaid provisions of the ACA to be coercive and unenforceable. These four justices would have struck down the entire ACA saying it was impossible to sever the parts of the act that were constitutional from those that were unconstitutional.[19]

The Box Score

In summary, a majority of the Court:

  • Upheld the individual mandate as a form of taxation. It surprised many by holding that the act was not constitutionally supported by the Commerce Clause and by using the Taxing Clause to sustain it. (All 5-4 decisions.)
  • Struck down part of the Medicaid expansion. The threat to take away all Medicaid funding if a state did not participate in the expansion of the Medicaid program was held coercive and unconstitutional by seven justices—another surprise. The Court upheld (5-4) the provision that the states accepting the new Medicaid money must also accept the new Medicaid obligations.

The implications of this case are substantial. First, of course, is that it allows the implementation of much of the ACA. Second, it complicates the implementation if a number of states do not participate in the expanded Medicaid program, something states are studying now because of fear that the expansion could, over time, threaten state budgets. The expansion is likely to be most expensive in those states that currently have a substantial number of uncovered, low-income people. If a number of states do not participate, the coverage of the ACA will be reduced significantly.

There were substantial constitutional departures (or surprises) in the opinion: the limitation on the use of the Commerce Clause, the expansion in the Taxing Clause, and the limitation on the use of “coercive” incentives for states to participate in federally-funded programs. Sorting out the many questions left unanswered by the opinion will take years and is likely to be a rocky road regardless of one's view of the wisdom of the federal law.

The positions of Chief Justice Roberts and Justice Kennedy in this case were surprising. It was generally expected that Justice Kennedy would be the deciding vote. Instead, it was Chief Justice Roberts in that role. Justice Kennedy was one of the four justices who would have held the entire law unconstitutional. It was a case of great importance and many surprises.


Courts increasingly rely on expert witnesses to resolve difficult issuesPsychologists, physicians and other scientists are frequently called to present testimony. It is common for the results of mental health evaluations and scientific testing to be admitted in court. Ironically, at the same time as this increasing use, there is increasing concern that such expert testimony is misused and leads to incorrect resultsParticularly in civil trials, problems with "junk science" have led to greater scrutiny of the testimony and reliability of experts.[20]

In the criminal area, it is increasingly clear that expert testimony results in wrongful convictionsOne study of the first 250 exonerations from innocence projects indicated that in 52% of the exonerations unreliable forensic science played a role in the wrongful conviction.[21] A report from the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, noted a distressing number of problems with forensic science and expert testimony presented in criminal trials.[22]

The difficulties with forensic science become a constitutional issue in criminal cases because of the provisions of the Constitution meant to protect against wrongful convictions. One of these protections is the Sixth Amendment’s guarantee that, "in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." Over the past several Terms the Court has considered the meaning of this Confrontation Clause as applied to scientific experts and reportsAs a general matter, "testimonial statements of witnesses absent from trial” can be admitted only where both the witness is unavailable, and the defendant has had a prior opportunity to cross-examine that witness.[23]

In 2009 and 2011 the Court held that the Confrontation Clause requires that scientific reports entered against a criminal defendant must be presented by the analyst who prepared the testing report.[24] That way, the defendant can cross-examine analysts to determine how the testing was done and how the conclusions were reachedFor example, a laboratory test that determined that a compound was cocaine or that the defendant's blood contained alcohol in excess of the legal limit could be offered as evidence only if the lab analyst was present in court. The written report alone was insufficient.[25] The Court noted that the issue of out-of-court testing does not apply solely to laboratory testing, but could apply more broadly to other kinds of testing (presumably including psychological testing and interviews) where the person testifying may lack first-hand knowledge of how testing and “scoring” was actually done.

This Term, in a very difficult and confusing case, the Court muddied the waters regarding the presentation of the results of scientific testing and reportsIn Williams v. Illinois a hospital, using a standard rape kit, obtained vaginal swabs which the Chicago police sent to the Illinois State Police Lab.[26] That lab sent to the swabs to the Cellmark Diagnostics Laboratory which did a DNA profileThat profile was returned, with the specimen, to the State Police Lab where a forensic specialist conducted a computer search to determine if that DNA profile matched anyone in the state database. It didThe police charged Sandy Williams with the rape based in part on the matching DNA.

At trial the forensic specialist who did the computer match testified, but no one from Cellmark testified regarding the DNA profiling processThe specialist testified that there was a computer match between the DNA "found in semen from the vaginal swabs" of the victim and the DNA of the defendant.[27] The constitutional question was whether the absence of anyone from Cellmark who actually did the DNA testing was a denial of the defendant's right to confront the witnesses against him.

The Court was divided between two opinions, each with four justices, with Justice Thomas being the fifth and deciding vote. Four justices (Alito, Roberts, Kennedy and Breyer) found no violation of the Confrontation Clause primarily because the laboratory report itself was relied upon to do the DNA match, but was not technically admitted at trialThese four justices held that the fact the analyst relied upon a report from Cellmark in reaching her conclusions did not involve testimony against the defendant.[28] Although he joined in the opinion of these four justices, Justice Breyer wrote separately to urge the Court to ask more generally how the legal system should deal with forensic reports offered at criminal trials.[29] He noted that in this case six to twelve lab technicians dealt with the specimen during the DNA testing and it would be impractical to call all of themJustice Breyer asserted that the realities of modern forensic expert witnesses deserved special study.[30]

Four justices (Kagan, Scalia, Ginsburg and Sotomayor) reached the opposite conclusion.[31]  They would have held that the defendant should have had an opportunity to cross-examine an analyst who was responsible for that DNA testingTheir opinion began by describing another case in which DNA profiling was done but the analyst who did the profiling realized during cross-examination that there had been an error in the profiling, and in fact the wrong DNA sample had been used.[32] The punchline from the earlier case: the laboratory involved was Cellmark, the same accredited laboratory involved in this case. These justices wrote that the approach taken by the other justices "would allow prosecutors to do through subterfuge and indirection what we previously have held the Confrontation Clause prohibits."[33] That is, allowing the analyst who did testify to rely on laboratory testing about which she knew nothing permitted the state to present the evidence in "through the back [door]. What a neat trick--but really, what a way to run a criminal justice system."[34]

Justice Thomas was the fifth, and deciding, voteHe held that it was not a violation of the Confrontation Clause to allow the testimony of the analyst based on the lab reportFrom his perspective, the Cellmark lab report "lacked the requisite formality and solemnity to be considered testimonial under the Confrontation Clause.”[35] Justice Thomas agreed with the "Dissenting Justices" that there was no meaningful distinction between disclosing, on one hand, introducing the report into evidence and allowing the expert to rely on it as the basis for her testimony.[36] But if a report is not formally a certificate, attested to, sworn to, notarized or the like, Justice Thomas was of the opinion that it should not be considered testimonial and therefore not subject to the Confrontation Clause limitations.

So where does that leave the law? One commentator suggested (rightly), “Reasonably sophisticated people can’t even tell what [the case] holds, much less what practices it approves or disapproves.”[37] Four justices would not have permitted the testimony of the state analyst. Five justices permitted the testimony of the state lab analyst, but only four of them did so because relying on the report without introducing it into evidence was not “testimonial.” (“Testimonial” is complicated but it essentially means something that is accepted as evidence.) The deciding justice (Thomas) focused on the formality and certification of the reportThis seems like a somewhat unstable or even artificial place for the law to beAdditional cases will be required to resolve this questionIn the meantime, expert witnesses relying on out-of-court reports or interviews need to be careful about the nature of the out-of-court information that is used to provide the basis for in-court testimonyTo the extent formal reports are sworn statements, the Confrontation Clause probably requires that the expert be present to testify how the work was done.

Despite all of the confusion in this case, the real difficulty with expert testimony remains a significant problem for the criminal lawJustice Breyer's call for a serious re-examination of how forensic evidence is gathered and reported to juries deserves considerationIt may be that courts are not the right body for that task, but the rules of evidence and criminal procedure are eventually going to have to take better account of the problem.

Expert Witnesses on Appeal

Another expert witness case this Termfocused on judges overturning a jury's conclusions regarding the validity or persuasiveness of expert testimony.[38] The Supreme Court reminded trial and appellate courts that a judge "may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury."[39]  The Supreme Court noted that a federal court may overturn a state court decision regarding the adequacy of evidence only if the decision was "objectively unreasonable."[40]

Cavazos v. Smith involved a "shaken baby" death and grandmother's conviction of the homicideThree experts testified for the prosecution that the injuries were “consistent with” shaken baby death, while two experts testified for the defense that the injuries were not. Subsequent to the decision substantial new medical literature raised additional questions about this being a shaken baby case.[41] An interesting aspect of this case, which was a per curiam (an unsigned opinion for the Court) for six justices, was the Court’s clear unhappiness with the Ninth CircuitThe Supreme Court had twice before sent this case back to the Ninth Circuit and the Supreme Court felt that its instructions to that Court had been ignored.[42]


This Term Miller v. Alabama answered this question: May juveniles who commit murder receivemandatory life sentences without the possibility of parole? (For this purpose a juvenile is someone who is 18 or younger at the time the crime was committed.) In a 5-4 decision the Supreme Court answered no, such mandatory sentences are precluded by the Eighth Amendment's prohibition of "cruel and unusual punishment.”[43] This case was viewed as sufficiently important that both the American Psychological Association and the American Psychiatric Association joined (with social workers) in presenting an amicus curiae (“friend of the court”) brief to the Court.

The Miller decision (and a companion case from Arkansas) concerned 14-year-olds who were involved with murders.[44] They were removed from juvenile court to adult court, tried, convicted and given mandatory life-without-parole sentencesIn each case the life term was mandatory because state statutes did not allow any discretion, but rather required the life-without-parole sentence.

A five-justice majority held that such mandatory sentences violate the Eighth Amendment. They found that this case was similar to other cases in recent years in which the Court has limited harsh penalties for juvenilesIn Roper v. Simmons, for example, the Court found that imposing the death penalty on juveniles violated the Constitution.[45] In 2010 the Court held that mandatory life sentences for juveniles who commit non-homicide offenses are unconstitutional.[46] This case went the next step by precluding mandatory life-without-parole sentences for juveniles who commit homicides.[47]

The prohibition on cruel and unusual punishment is guided by "evolving standards of decency." An important element in determining the evolving standard of decency is whether only a few states provide for punishment or states are increasingly moving away from itIn the case of mandatory life sentences for juveniles, the dissent made a point of the fact that the punishment could not be unusual if most states have it.[48] In large measure, it seemed, the majority was left with its own analysis of whether the punishment is warranted in a modern society.

The majority recognized that children are different from adults and different constitutional rules should apply to themIt noted that juveniles lack maturity, have an underdeveloped sense of responsibility, are more vulnerable to outside pressures and influences, and have less well-formed characters compared with adults.[49]  In addition, the majority noted that there is likely to be less public feeling of retribution directed to juveniles and there is a greater opportunity for rehabilitation than with adults.[50]

The Court did not hold that juveniles could never be subject to life sentences without parole for homicide offensesRather, it held that it was unconstitutional for a state to mandate such sentences.Thus, a jury (or possibly a judge) must have the opportunity to consider mitigating and aggravating factors in determining whether a sentence of life without possibility of parole should be imposed on someone who was under 18 years old when the murder was committed.[51] In dicta (comments by the Court not part of the holding), the Court majority said that given "children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty [life without parole] will be uncommon.”[52] Some experts disagreed with the Court’s prediction (one, for example, said, “many of these juvenile killers would, by their violence and savagery, make Ted Bundy blush, and are going to get life without parole anyway”).[53] But whomever is correct, the majority’s dicta may mean that the Court will make it difficult for states to impose the life-without-parole sentence based on consideration of individualized factors; it certainly gives federal courts the hint that it may be okay to overturn juvenile life-without-parole sentences from state courts .Interestingly, two justices in the majority (Breyer and Sotomayor) indicated that they would have gone farther, prohibiting all life-without-parole sentences for juveniles whether mandatory or not.[54]

Four dissenting justices argued that mandatory life sentences for juveniles who commit homicides are not “unusual” because the majority of states allow them, [55] and there are nearly 2500 prisoners now in prison serving life sentences for crimes committed before the age of 18.[56] Justice Thomas wrote that the majority deviated considerably from the meaning of “cruel and unusual” in the Constitution and that the majority’s decision is based on little more than its own sense of morality.[57] Justice Alito objected that there is no longer any objective standard used by the Court for interpreting the Eighth Amendment.[58]

The joint brief of the two APAs and the National Association of Social Workers was well written and effective.[59] I have sometimes criticized the amicus briefs of mental health organizations for mostly restating legal arguments that the parties had madeThis brief, however, nicely summarized the social science literature regarding developmental issues for juvenilesIt took the legal standards and described the social science, psychological and neuroscience research that was relevant to these legal questionsThe majority cited the brief for exactly those propositions.[60] This kind of careful, science-oriented amicus brief is especially useful to the Supreme Court.

One interesting aspect of the APA's brief is that it responded to earlier criticism from Justice Scalia that the APA believes juveniles are highly sophisticated and competent when it comes to making abortion decisions, but incompetent and impulsive when they are being sentenced.[61]  The APA brief in this case explained that the juvenile abortion brief “focused on adolescents’ cognitive abilities, which approximate those of adults by mid-adolescence,” while the sentencing briefs concerned “the degree ofculpability and reformability of adolescents who commit criminal acts that often evince impulsivity and ill-considered choices resulting from psychosocial immaturity.”[62] (Emphasis in original.)

If states (or the federal government) wish to impose life-without-parole for juveniles who commit murder, Miller v. Alabama will require them to establish formal, individualized sentencing processesThose formal hearings, which are more likely to be before a jury than a judge, will have to permit juveniles to present mitigating evidence—that is, the reasons that the sentence should not be imposed. The prosecution, of course, will be permitted to challenge such evidence and will presumably be permitted to present aggravating evidence. Such hearings will consider some objective matters such as the juvenile's age, but much evidence will be more intangible, including maturity, IQ, mental status and suggestibilityMental health experts may expect to be called frequently by the defense or the prosecution to present evidence tending to justify a life-without-parole sentence or to present mitigating factors that argue against such a sentenceSuch hearings are common in adult capital cases, but the number will expand considerably following this case.


The American Psychological Association presented an amicus brief in a case dealing with eyewitness reliability.[63] Perry v. New Hampshire involved the question of whether it is a violation of constitutional due process in a criminal trial to admit into evidence an eyewitness identification that is unreliable.[64] An eyewitness identified the defendant at 3:00 AM from a fourth floor apartment window overlooking a parking lotIt was important in this case that the police had done nothing to set up the identificationRather, when the police asked the witness at the scene if she could identify someone breaking into cars, she went to the window and identified the defendant. The witness was later unable to pick the defendant out of a photo array.[65]

Eight justices found that it was not a violation of due process for the state to introduce this eyewitness identification at the criminal trialRather, the Court said that in such circumstances a jury is permitted the hear the evidence but can decide not to give much weight to the identificationCross-examination of the witness can point to the apparent limitations on the ability to make the identification.

In essence the Court said that without police misconduct or interfering with the identification, for example by using an inappropriate lineup, due process does not require that the identification be withheld from the juryThe Court was particularly concerned about state and federal trial courts having to determine the reliability of many eyewitness identificationsThis would be, the Court indicated, a very substantial burden and one not required by the Constitution.

Justice Sotomayor, in dissent, argued that the problems with eyewitness reliability are now so well documented that due process requires some reliability review by judges before it is presented to jurors.[66] Her opinion in many ways tracked the social science data presented by the APA brief.

The APA brief was in many respects a model of an amicus brief and what it should doIt was clear, balanced and persuasiveUnfortunately, it faced an uphill battle related to the long history of depending on eyewitnesses and the sense (despite evidence to the contrary) that juries can sort out unreliable eyewitnesses. It could not change the Court's view of due process, in part because of the practical difficulties that would arise from courts having to assess the reliability of many eyewitness identifications.

The answer to the very real problem identified in the APA brief may in part lie in creating a series of standard jury instructions that inform jurors of the risky nature and a high rate of false identification by eyewitnessesMuch of the information that the APA presented in its brief would not be intuitively obvious to lay jurors. The practical difficulties in creating such jury instructions are considerable, but may be the best option with the “due process” exclusion of such evidence precluded.

Other Eyewitness Cases This Term

The importance of eyewitness statements is underlined by another case this TermIn Smith v. Cain, after the defendant was convicted at trial, the defense found that the prosecution had failed to provide the defense with information that cast doubt on the reliability of the eyewitness.[67] It is a violation of due process for the prosecution to withhold evidence that is favorable to the defense and material or significant in the trial.[68] Therefore, the Court found that the failure to turn over statements by the complaining witnesses contradicting his testimony at trial was a violation of the defendant’s due process rights.

In the third eyewitness case, Hardy v. Cross, the Court held that in a second trial of a defendant, when an eyewitness cannot be found and the witness was subject to cross-examination in the first trial, it is constitutionally permissible for the earlier testimony to be read to the jury in the second case.[69] The opportunity to confront the witness to cross-examine the witness in the first trial is sufficient in those unusual circumstances where the witness cannot be found for the second trial.


Issues related to pharmaceuticals have appeared on the Court's docket often in the last several years and did again this TermThe Court considered two important cases regarding pharmaceutical patentsOne particularly created great concern within the medical community, with the AMA and Association of American Medical Colleges, among others, filing amicus briefs in Mayo v. Prometheus Laboratories.[70] The concern of these and other organizations was that the Court might read medical patents so broadly that it would limit or discourage further innovation in an area.[71]

The case involved the use of a known drug (not under patent)—thiopurine—for the treatment of such autoimmune diseases as Crohn's disease and ulcerative colitisThe drug is metabolized differently from one person to another, and it has been difficult for physicians to determine the right dose for a given patient.[72] The patent Prometheus held related to a statement of the range of the metabolites of thiopurine high enough to be effective but not so high as to damage the patient(The tests to determine the concentrations of the metabolites were not under patent.)Mayo announced a similar statement of effective metabolite levels, although marginally different, and Prometheus sued for invasion of its patentMayo claimed that the Prometheus patent was no good and should not have been granted by the patent office.

The law has long been that "the laws of nature, natural phenomena and abstract art ideas" are not patentable.[73] The question in this case was whether the Prometheus system of suggesting levels of a drug was a patentable process, or merely a reflection of the law of natureBecause neither the drugs nor the tests to determine levels of metabolites were under patent, the real focus was whether establishing the best range of the relevant metabolites in the blood was patentableThe Supreme Court unanimously held that the Prometheus system was not patentable.

This holding was consistent with the briefs filed by the AMA and others warning the Court that expanding the patentability of such systems would slow medical progress. The fact that the Court was unanimous may suggest that a somewhat more stringent standard will be applied in issuing patents that are discoveries of naturally occurring events.

In a second case the Court was unanimous in making it easier for generic drug companies to challenge the broad patent claims of brand-name drug manufacturers.[74] As a way of extending the brand-name patent rights and excluding generic competition, some brand name companies have made very broad patent claims in their filing with the FDAThe FDA does not review the legitimacy of these patent claims but will not license generic pharmaceuticals to be sold that would infringe the claim of the brand-name drug. So brand-name companies may overstate the patents on the brand-name drugs, creating create roadblocks within the FDA process to generic companies selling generic equivalents. The Court unanimously held that the Hatch-Waxman Act [75] permits generic pharmaceutical companies to challenge these excessive claims made by brand-name companies to the FDA. The purpose of this challenge is to force correction of the brand-name claims to the FDA, thereby allowing the generic drugs to be sold.

In a different pharmaceutical area, the Court held that pharmaceutical sales representatives, known as detailers, are "outside salesmen" for the purposes of the wage and hour laws. [76]  The practical consequence is that detailers will not receive overtime pay for work beyond 40 hours a week. The companies were concerned that a different outcome would have cost millions of dollars in past wages.



The most watched case involving immigration was Arizona v. United States,[77] but actually this case was not about immigrant rights but about the relative authority of federal and state governments. Arizona adopted a state statute intended to address problems with a large number of unlawful aliens in that state.[78] The federal government challenged this law on the basis that the Constitution gives the federal government exclusive jurisdiction over immigration and naturalizationArticle 1, Section 8, of the Constitution provides that Congress shall "establish a uniform Rule of naturalization." Immigration policies also inevitably affect the right of the federal government to conduct foreign policyThe Supremacy Clause (Article 6, Clause 2) establishes the Constitution and federal law as "the supreme law of the land." State laws that conflict with federal laws are, therefore, unconstitutional.

The Supremacy Clause gives Congress the power to preempt state law. It may do so expressly, by saying it is doing so. In addition, under some circumstances the courts will find an implied preemption of state lawThis may occur where state law conflicts with federal law or the state law is an obstacle to accomplishing federal law ("conflict preemption")Or it may occur where federal regulation is so pervasive that there is no room for additional state regulation ("field preemption")(A very helpful discussion of this complicated area can be found in Constitutional Law for Dummies at pages 28-31—not for dummies, despite the title.)[79]

In a 5-3 decision (Justice Kagan recused herself)[80] the Court held that three parts of the Arizona law were preempted by federal lawMaking failure to comply with federal alien-registration requirements a state misdemeanor was field preempted because Congress’ registration scheme was so pervasive. Arizona criminal sanctions on employers who hire unauthorized workers was conflict preempted because Congress had decided that only employers of undocumented workers, not the workers themselves, should be punished.  The authorization for state officials to arrest, without a warrant, someone on suspicion of committing an offense that made the person deportable was conflict preempted because Congress intended deportability to be within the discretion of only federalofficials.[81]

The Court did not prohibit the implementation of the “show me your papers” part of the Arizona law. It directs that when Arizona officers make an ordinary stop or arrest, if there is a reasonable suspicion that the person is illegally in the US, that the officers make a “reasonable attempt to determine the immigration status.” It also provides for consultation with federal agencies about the person’s status.[82] The Court indicated that this provision did not inevitably have to be implemented in a way that conflicted with federal authority. Although the Court held the door open for later challenges based on the implementation of the law, these challenges could be determined only on the basis of a factual record concerning its actual implementation.

Justices Scalia, Thomas and Alito issued strong dissenting opinions.[83] Each of these justices found that the Arizona law was not preempted by federal law, but the state law was the legitimate exercise of authority by a sovereign state.

Other Immigration Decisions

In unanimous decisions the Court held that a child cannot rely on a parent's period of residence to qualify for permanent residency benefits,[84] and struck down as arbitrary and capricious rules of the Bureau of Immigration Appeals regarding discretionary review of eligibility to stay in the country.[85] In 6-3 decisions (with a different alignment of justices in the two cases) the Court held that making or aiding others in making false tax returns that cause a loss to the government of $10,000 or more is an offense making the perpetrator deportable,[86] and precluded the retroactive application of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.[87]

Collectively these cases do not suggest either a clear "pro-unlawful alien" or "anti-unlawful alien” direction of the CourtThe great public attention given to the Arizona law was often couched in those terms, but the opinion itself is really about federal versus state authorityThe range of immigration laws and policies is extensive and there is controversy about how they are administered, so it is reasonable to expect the Court will be visiting more immigration issues in the coming Terms.


The federal government and states have "sovereign immunity" under which they ordinarily can be sued only with their consentFederal officers and state officers may be sued for violations of civil rights under some limited circumstancesThe federal government and all of the states have passed tort claims acts of various types that allow some legal claims to be filed against them.

The question of immunity is really whether a federal or state actor (including employees or agents) or the government itself is protected from liability by some form of legal immunityThis Term the Court decided a large number of cases involving immunityOne particularly interesting question was whether a prisoner denied adequate medical care in a prison run by a private company on behalf of the government can seek damages for violation of the Eighth Amendment ban on cruel and unusual punishmentThat amendment applies only to governments (and their officers) so it is not applied to private citizens unless they are acting under government’s authority or are performing government-like functionsThe Court held that because state tort law allows adequate malpractice and other damages, no Eighth Amendment action could be implied or sustained.[88]

In other cases the Court held that:

  • Police officers who obtain unconstitutionally overbroad search warrants have a qualified immunity from liability unless it was obvious that any reasonably competent officer would have realized that a search warrant was improper.[89]
  • Secret Service agents have a qualified immunity in protecting the President and Vice President when they arrest or detain someone they in good faith believe might pose some threat.[90]
  • Peace officers have a qualified immunity from liability when, without a warrant, they enter a house where there is an objectively "reasonable basis for fearing that violence is imminent.” [91]
  • Witnesses testifying before grand juries have an absolute immunity from federal civil rights liability.[92]
  • The sovereign immunity of states precludes suing the states under the self-care provision of the Family and Medical Leave Act of 1993.[93]
  • The Privacy Act of 1974 authorizes only a limited waiver of the sovereign immunity of the federal government, and does not permit recovery for mental or emotional distress.[94]
  • Federal employees discharged for failing to register for the Selective Service do not have a right to seek federal district court review or damages. They may seek review by appealing to the Merit Systems Protection Board and ultimately to the Federal Circuit Court.[95]

It is fair to say that during this Term the Court was friendly to immunity claimsIn the cases just reviewed immunity was generally the winner.

Ineffective Assistance of Counsel

Perhaps only lawyers get excited about ineffective assistance of counsel casesThe Sixth Amendment provides that in criminal cases “the accused shall have the assistance of counsel.”The Court has held that grossly inadequate counsel is so damaging to a criminal defendant as to be no counsel at allThus, the claim of ineffective assistance of counsel is an assertion that there has been a violation of the Sixth Amendment right to counsel.

In two cases this Term the Court expanded the right to effect counsel to include not only the defendant’s trial, but also during the preliminary stages prior to trialThis includes plea-bargaining, which is particularly important because 94% of state convictions and 97% of federal convictions result from plea bargainingIn Lafler v. Cooper the defendant was charged with intent to commit murderHis attorney bizarrely told him to reject a plea bargain inasmuch as he could not be found guilty of the intent to murder because he had "shot the victim below the waist."[96] He was subsequently convicted of intent to commit murder and sentenced to a much longer term than the plea bargain would have been. Not surprisingly, this was deemed ineffective assistance. Four dissenting justices would not apply the ineffective assistance to plea bargaining.[97]

In Missouri v. Frye the defense attorney did not convey to the defendant offers by the prosecution to settle the case on advantageous terms.[98] This was also found to be ineffective assistance. To succeed in ineffective assistance of counsel cases the defendant will have to show that the performance of counsel was highly inadequate and that the case would have come out differently except for the attorney’s mistakes.

In two other cases the Court very slightly opened the ineffective assistance of counsel door. In a capital murder case it allowed a waiver of the time to file a habeas corpus petition when the attorney of record essentially disappeared.[99] In another case the Court allowed just a little more latitude for state defendants to raise federal habeas corpus claims regarding ineffective assistance.[100]

Habeas Corpus

The Writ of Habeas Corpus, the Great Writ, has been an important part of Anglo-American justice for most of a thousand yearsIt is been a route for challenging improper imprisonment and for applying constitutional rightsThe mechanism for raising federal constitutional rights concerning state criminal convictions has been through habeas corpus.

The operation of habeas corpus has been dramatically affected in the U.S. by the Anti-Terrorism and Effective Death Penalty Act of 1996 and by the Court's application of the act. It has become much more difficult for criminal defendants to effectively use habeas corpus to challenge unconstitutional elements of a conviction or confinement. This Term the Court decided more than a dozen cases involving habeas corpus. A significant portion of these decisions essentially swatted circuit courts for not being rigorous enough in weeding out improper habeas casesReaders will be relieved to know we will not discuss each of them, but the application of habeas corpus law has become extremely technical and difficult. Ongoing retrenchment in habeas rights threatens to ignore the lessons of history regarding the long-term benefits provided by The Great Writ.

Employment and Religion: Pastoral Counselors?

This Term the Court unanimously expanded the “ministerial exception” to some employment laws. That exception implements the First Amendment’s freedom of religion by precluding “ministers” from bringing lawsuits against their churches under employment discrimination laws.[101] The definition of a minister used in this Term’s case was broadThe Court declined to announce a clear definition of a “minister,” but it is not limited to formally ordained preachersThe Court held that even a religious-school teacher may be included with in the ministerial exception when she is a "called" teacher, meaning that she had been called to the vocation of teaching by God.[102]

Many churches provide pastoral counseling that includes mental health services of various typesUnder some circumstances, where there is a close connection to the religious mission of the church, these psychologists, social workers and counselors may be considered ministers and not subject to the employment discrimination laws.

Search and Seizure

The Court considered several interesting search and seizure casesThe most notable may have beenUnited States v. Jones, in which the government attached a GPS device to a vehicle and monitored its movements in detail for 28 days.[103] The Court was unanimous that this was a “search” violating the Fourth Amendment because the authorities had not valid warrant. But there was a split on the basis for this conclusionFive justices believed the process of attaching the device was a physical intrusion on the property of the defendant,[104] while four justices concluded that it was an invasion of a reasonable expectation of privacy.[105] Justices Alito and Sotomayor emphasized the difficulty the law faces in trying to protect privacy in a high-tech era.

In another case the Court held that it is not a violation of the Fourth Amendment for jail officials to conduct searches, including very intrusive strip searches, of those detained in jail even for minor offenses.[106] The justices have allowed considerable discretion in prison and jail officials in maintaining security.

Public Employee Union Dues

The sleeper case of the Term may be Knox v. Service Employees International Union.[107] The case involved the issue of how public-employee unions may assess workers for political activitiesThe Court had previously determined that nonunion members may be assessed for collective bargaining activities but may not be assessed involuntarily for political activities.[108] In this case the Court held that when a public-sector union imposes a special assessment or dues increase for political purposes, it may not extract any funds from nonmembers of the union without their affirmative consent. That is, the employee must “opt in” for political assessments rather than “opt out” by objecting to the assessment.[109] Although this was related to special assessments, the reasoning of the case could be applied generally to the view that nonmembers must opt in before their funds can be used for political activitiesIf that is the case, it could substantially affect the ability of public-employee unions to gather political activity funds.

Other Interesting Cases

In other cases this Term, the Court:

  • Struck down as a violation of the First Amendment the Stolen Valor Act which made it a crime to falsely claim military honors.[110]

Strongly supported arbitration agreements in three cases.[111] In one it struck down a state law meant to protect victims of nursing home injuries by prohibiting pre-dispute arbitration agreements.[112]

  • Held that the determination of whether a convicted prisoner currently housed in prison is in “custody” for purposes of the Miranda warning is determined by a “totality of the circumstances.”[113]

Expanded somewhat the ability of a state to retry a defendant on capital murder charges following a mistrial.[114]

  • Delayed a much anticipated decision regard state reductions in Medicaid reimbursement.[115]

Gave discretion to federal judges and the federal Bureau of Prisons to decide when federal sentences may be served consecutively with state sentences.[116]

  • Held that more lenient minimum sentences for crack cocaine apply only to sentences imposed after the Fair Sentencing Act was passed.[117]

Determined that defendants have a right for juries, not just judges, to determine the facts that may result in an increased or higher criminal fine.[118]

  • Held that twins conceived through in vitro fertilization after their father’s death are not entitled to Social Security benefits.[119]

Delayed deciding whether sex offenders convicted before the adoption of a federal sex offender registration law must eventually register, but for now they do not.[120]

  • Held that the Torture Victim Protection Act does not impose liability against organizations (in this case the PLO and Palestinian Authority), just individuals.[121]

Struck down penalties against TV networks for fleeting expletives and momentary nudity because the FCC failed to give adequate notice of a change in its anti-indecency policy.[122]


The Term, which officially is known as the October 2011 Term, began on Monday, October 3, 2011, and concluded with the final opinions announced on June 28, 2012. Between those dates the Court decided 75 merits cases, including 65 after oral argument. Ten cases were summary reversals of lower courts, a very large number. The 65 decisions included 64 “signed” opinions and one per curiam (for the Court) opinion. The 65 opinions after oral argument were the lowest number of such opinions in 20 years.[123]

The healthcare decision was such an extraordinary case, in terms of importance, drama, divisiveness and surprises, that it overwhelmed the rest of the Term. In fact, however, the Court this Term was much less contentious than it may seem: 33 of the 75, or 44%, of the decided cases were unanimous judgments. Given the fact that the Court usually takes the “close cases” in which lower courts were split, that is considerable unanimity.

At the other end of the “agreement” spectrum, 15 of the 75 cases (20%) were 5-4 decisions, a fairly low number.  In those cases, Justice Kennedy was most likely to have supplied the fifth vote—he did so in 12 of the 15 5-4 decisions. Justice Kennedy was in the majority 69 of the 74 cases (93%). Chief Justice Roberts was a close second at 92%.

Justices Scalia and Thomas were the justices in agreement with each other most often—93%. Justices Scalia and Ginsburg disagreed most often—56%. Justices Scalia and Breyer tied for the most total opinions, including the ten dissents each wrote.

The Sixth Circuit had the worst record of being overturned. All five of their cases were reversed. (There is a joke going around that one justice wanted to begin an opinion with: “This case comes on a writ of certiorari from the Sixth Circuit, but there are additional reasons to reverse.”)

Court trackers are rivaling baseball writers for the level of trivial data collected. The number of questions asked, for example, shows that in the typical case Justice Scalia asked 24 questions. Justice Sotomayor asked an average of 21, Justice Alito 11, and Justice Thomas 0. There are even “laugh watch” data. The New York Times joined in (noting there had been 10, 13, 16 and 24 laughs during oral argument on the four issues in the healthcare case).[124] But my favorite was the “laugh index” that calculated the total number of laughs each justice got during this Term. Justice Scalia was tops with 83, followed by Justice Breyer at 56. The lowest were Justice Ginsburg with two and Justice Thomas with none.[125]

Commentators had many different views on the Term as a whole. Some seasoned Court-watches saw it as a Term that tended to limit federal power. Other, equally seasoned, experts too the opposite view, that it was a Term that expanded federal power. There is evidence for each position.

Perhaps the most common theme of the commentators was that this Term the Court had become the “Roberts Court,” particularly as a result of the Chief Justice’s role in the healthcare case. On one level, this was because the Chief Justice was the deciding vote in the healthcare case and several parts of his opinions were a break with expectations. Justice Kennedy, however, was still the deciding vote in slightly more cases than Chief Justice Roberts. On another more subtle level, however, the effort of the Chief Justice to keep the Court more focused on narrow rulings, and to consider the place of the Supreme Court in American society and government does appear to be having some impact. Still others suggest that Chief Justice Roberts has moved left, as evidenced by the healthcare and Arizona immigration cases. That view does not appear to get much support from the Term as a whole.

Another role of the Chief Justice in the healthcare case cannot be ignored. There has been much speculation about the process within the Court that resulted in this decision, mostly based on unreliable rumors, not hard evidence.[126] Part of that speculation is that the Chief Justice changed his vote during the opinion-writing stage. Such changes sometimes occur during the opinion-writing stage, but it is not clear that this happened. The rumor is that the four Joint Dissent justices were very upset with the change, resulting in their refusal to join formally any part of the Chief Justice’s opinion—even the parts with which they agreed.

One version of the “changed vote” theory has it that the Chief Justice’s well-known concern about the place of the Court in the American mind caused him to worry that if the law were struck down (divided along political lines) the decision and the Court would be viewed as political.[127] In light of that discussion, which was based almost solely on rank speculation, it is interesting to note the public reaction to the decision. More than half those polled indicated that the decision was based mainly on the personal or political views of justices rather than a legal analysis. Disapproval of the Court among independent voters, for example, rose from 32% to 43% following the decision.[128]

The effect of the rift within the Court, if in fact one exists, could make the coming Term more tense, but that is unlikely. On one hand the Court is a rarified atmosphere in which the same people have to work together week after week, in very close proximity under considerable stress. They have no chance to take a sabbatical or get away from it (other than the summers) for extended periods. “Normal” retirement has no meaning. On the other hand, these are very seasoned professionals who have considerable experience finding ways of working together even in the face of very serious disagreements. While bygones may not be bygones, they are not likely to lead to visible battles either.

No member of the Court announced plans to step down, and none seems ready to do so. Still, the age of the justices (four are over 70 years old) and some health issues (Justice Ginsburg was treated for pancreatic cancer but seems to be doing well) suggest the likelihood that the next President will have one or more appointments to make to the Court. Among the other important issues of this presidential election, the future direction of the Court may be at stake.

Meanwhile, back at the Court, cases already accepted for the coming Term promise another exciting and emotional year. Affirmative action and college admissions, in Fischer v. University of Texas, are receiving a lot of attention and will be argued early in the Term. The American Psychological Association, the Association of American Medical Colleges and seemingly much of the rest of the country, have already filed amicus briefs.[129] Also on the Court’s agenda will be issues related to the mental competency of criminal defendants (the AMA, American Psychiatric Association and others have filed an amicus brief), the federal Voting Rights Act, class actions, limits on the conduct of some foreign intelligence gathering and dog sniff searches. It is likely that the Court will also accept cases involving gay marriage, perhaps related to state referenda prohibiting gay marriage and on the federal Defense of Marriage Act. It will be a Term worth watching.

Notes on Endnotes

The Endnotes for this article appear online at the Register’s website. For most of the cases and many other citations, clicking on the citation will take the reader to the original material.

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It is The website for the opinions for this Term is Any of the cases discussed in this article are available from that source and interested readers are urged to look at that website to review the cases. This article gives the direct link to cases decided this Term. By clicking on the name of the case for cases decided this Term, you should be taken to the official internet site for the opinion of the Court and any concurring and dissenting opinions. (Some computers may require pressing <ctrl> while clicking.)

Anyone who is interested can also sign up for free same-day, digested notification of the decisions of the Supreme Court. The website is: An excellent site for all things Supreme Court is SCOTUSBLOG at

The citations in this article are to the Slip Opinions of the Court as published on the Court’s web site. Readers should note that in Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case the majority opinion begins on page one, a concurring opinion will again begin on page one and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other volumes, however, pagination is continuous.

* Professor of Law, California Western School of Law, 225 Cedar Street, San Diego, CA 92101. © Steven R. Smith, 2012. The author wishes to thank Andrew Boucher, Steven Ciceron, Eric Drogin, Judy Hall, Glenn Smith, Lera Smith and Debbie Wilson and for their valuable comments on this article. Any remaining errors are in spite of their best efforts to correct the author.


Steven R. Smith, JD, is Professor of Law and Dean Emeritus of the California Western School of Law in San Diego, CA. He received his JD from the University of Iowa College of Law. Smith served as a public member on the APA Ethics Committee, ABPP Board of Trustees, and National Register Board of Directors.


National Federation of Independent Business v. Sebelius, decided June 28, 2012

2 The health case is discussed in footnotes 8-19 and the accompanying text.

3 The expert witness case and a related case are discussed in footnotes 20-42 and the accompanying text.

4 The juvenile life-without-parole case and the amicus brief by the APA and others are discussed in footnotes 43-63 and the accompanying text.

5 The eyewitness reliability case is discussed in footnotes 64-69 and the accompanying text.

6 The patent cases are discussed in footnotes 70-76 and the accompanying text.

7 The Arizona immigration law and several other immigration cases are discussed in footnotes 77-87 and the accompanying text.

National Federation of Independent Business v. Sebelius, decided June 28, 2012.  Most of the decision was a 5-4 majority, although portions of the Medicaid decision were 7-2.  Chief Justice Roberts wrote the opinion that expressed the majority of the Court.

9 Roberts Opinion for the Court at 16-30; Joint Dissent at 4-16.

10 Ginsburg Opinion at 12-36.

11 Roberts Opinion at 15-44; the Ginsburg Opinion justices joined with the Chief Justice’s opinion on this point.

12 Id.

13 Joint Dissent at 18.

14 Id, at 18.

15 Anti-Injunction Act, 28 U.S.C. §2283 (2011).

16  Roberts Opinion at 11-15.

17 Id. at 12-13.

18 Joint Dissent at 28.

19 Id. at 64.

20 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

21 Innocence Project, 250 Exonerated: Too Many Wrongfully Convicted 22 (2010), available at

22 National Research Council, National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009).

23 Crawford v. Washington, 541 US36 (2004).

24 Bullcoming v. New Mexico 131 S. Ct. 2705 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

25 These were the facts in the Bullcoming and Melendez-Diaz cases, cited in the previous note.

26 Williams v. Illinois, decided June 18, 2012.  A 5-4 decision, but the Court actually split 4-4 with Justice Thomas providing the deciding vote.  It left the result of the case somewhat in doubt.

27 4.

28 Id. at 16-27.

29 Breyer concurring at 1-15.

30 Id.

31 Kagan dissenting.

32 Id.  at 1.

33 Id. at 16.

34 Id. at 17.

35 Thomas concurring  at 1.  (Internal quotes omitted.)

36 Id. at 3.

37 William G. Otis, quoted in Lance J. Rogers, Cases on Right to Counsel, Searches Top Supreme Court's 2011-2012 Term, published in BNA Criminal Law Reporter, August 1, 2012.  Available at:

38 Cavazos v. Smith, decided October 31, 2012.  This was a 6-3 decision .  It was a per curiam opinion.

39 Id. at 1.

40 Id.

41 Ginsburg dissenting.

42 Per curiam opinion at 8-9.

43 Miller v. Alabama, decided June 25, 2012.  This was a 5-4 decision.  Justice Kagan wrote for the majority.

44 In one case the juvenile was directly involved with the murder and in the other case the juvenile was involved in a robbery in which there was a murder.

45 Roper v.Simmons, 543 U.S551 (2005).

46 Graham v. Florida, 560 U.S. __ (2010).

47 Miller v. Alabama at 15.

48 Chief Justice Roberts dissenting.

49 Miller v. Alabama at 8.

50 Id. at 19-24.

51 Id. at 27.

52 Id. at 17.

53 William G. Otis, quoted in Lance J. Rogers, Cases on Right to Counsel, Searches Top Supreme Court's 2011-2012 Term, published in BNA Criminal Law Reporter, August 1, 2012.  Available at:

54 Breyer concurring.

55 Chief Justice Roberts dissenting.

56 Id. at 1.

57 Thomas dissenting at 9.

58 Alito dissenting.

59 The brief of the American Psychological Association, American Psychiatric Association and National Association of Social Workers is available on the web at:  .

60 Id. at 23, the Court wrote: “The evidence presented to us in these cases indicates that the science and social science supporting Roper's and Graham's conclusions have become even stronger. See, e.g.,Brief for American Psychological Association et al. as Amici Curiae 3 ("[A]n ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Court's conclusions"); id., at 4 ("It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance")….”

61 In his Roper dissent Justice Scalia wrote (at 543 U.S. 551, 617-618):
“[T]he American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.  Brief for APA as Amicus Curiae, O. T. 1989, No. 88-805 etc., p. 18.  The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning  [*618]  about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems."  Id., at 19-20 (citations omitted).  Given the nuances of scientific methodology and conflicting views, courts--which can only consider the limited evidence on the record before them--are ill equipped to determine which view of science is the right one.”

62  The following is footnote 29 from the APA brief:
The dissent in Roper criticized the American Psychological Association for taking allegedly inconsistent positions regarding adolescent maturity with respect to severe criminal sanctions for juveniles (inRoper) and the competence of minor females to obtain abortions absent parental notification (inHodgson v. Minnesota, 497 U.S. 417 (1990)). See 543 U.S. at 617-618 (Scalia, J., dissenting).  These are different questions concerning distinct aspects of mature judgment. Hodgson addressedcompetence to make medical decisions that can be made in a relatively unhurried manner in consultation with medical professionals, and the Association’s brief
thus focused on adolescents’ cognitive abilities, which approximate those of adults by mid-adolescence. The questions presented in RoperGraham, and this case concern the degree of culpability andreformability of adolescents who commit criminal acts that often evince  impulsivity  and ill-considered choices resulting from psychosocial immaturity.  See Laurence Steinberg et al., Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop,” 64 Am. Psychologist 583, 592-593 (2009); Elizabeth Scott et al., Evaluating Adolescent Decision Making in Legal Contexts, 19 Law & Hum. Behav. 221, 226-235 (1995).

63 The APA brief may be found at:  .

64 Perry v. New Hampshire, decided January 11, 2012.  This was an 8-1 decision.  Justice Ginsburg wrote for the majority.  Justice Sotomayor dissented.

65 Id. at 15.

66 Sotomayor dissenting.

67 Smith v. Cain, decided January 10, 2012.  It was an 8-1 decision with Chief Justice Roberts writing for the Court.  Justice Thomas dissented.

68 Brady v. Maryland, 373 U.S83 (1963).

69 Hardy v. Cross, decided December 12, 2011.  It was a unanimous, per curiam opinion.

70 Mayo Collaborative Services v. Prometheus Laboratories, Inc., decided March 20, 2012.  It was a unanimous decision of the Court.  Justice Breyer wrote for the Court.

72 Id. at 4.

73 Diamond v. Dieher, 450 U.S.175, 185 (1981).

74 Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, decided April 17, 2012.  This was a unanimous decision. Justice Kagan wrote for the Court and Justice Sotomayor wrote a concurring opinion.

75 21 U.S.C. §355(j)(5)(C)(ii)(I) (2011).

76 Christopher v. SmithKline Beecham Corp., decided June 18, 2012.  Justice Alito wrote for a majority of the Court. It was a 5-4 decision with Justice Breyer writing for the dissenters.

77 Arizona v. United States, decided June 25, 2012.  Most of this decision was 5-3, with Justice Kennedy writing for the majority.  Justice Sotomayor did not participate in the case.

78 Arizona S.B1070 (2010).

79 Glenn C. Smith and Patricia Fusco, Constitutional Law for Dummies (2012).  This is an excellent and comprehensive review of the complex constitutional principles.  It is not, despite what the name suggests, intended for dummies.  It provides a very reasonable and readable explanation of complicated constitutional issues.

80 Justice Kagan had worked on this case for the federal government while she was Solicitor General and it would have been improper for her to have heard the case.

81 Arizona v. United States at 8-19.

82 Id. at 19-24.

83 Each justice filed separate dissents.  Dissenting opinions were filed by Justices Scalia, Thomas and Alito.

84 Holder v. Martinez Gutierrez, decided May 21, 2012.  This was a unanimous decision, with Justice Kagan writing the opinion.

85 Judulang v. Holder, decided December 12, 2012.  This was a unanimous decision.  Justice Kagan wrote for the Court.

86 Kawashima v. Holder, decided February 21, 2012.  Justice Thomas delivered the opinion of the Court in this 6-3 decision.  Justice Ginsburg filed the dissenting opinion.

87 Vartelas v. Holder, decided Marsh  28, 2012.  Justice Ginsburg wrote the majority opinion in the 6-3 decision.  Justice Scalia wrote the dissent.  The Court did not prohibit the enforcement of this act.  It only precluded the retroactive application of it.

88 Minneci v. Pollard, decided January 10, 2012.  This was an 8-1 decision.  Justice  Breyer wrote for the majority, Scalia filed a dissenting opinion as did Justice Ginsburg.

89 Messerschmidt v. Millender, decided February 22, 2012.  This was a 6-3 decision.   Chief Justice Roberts delivered the opinion of the Court.

90 Messerschmidt v. Millender, decided June 4, 2012.  This was a unanimous decision, with Justice Kagan recused in the case.  Six justices joined the opinion of Justice Thomas and two justices concurred.

91 Ryburn v. Huff, decided January 23, 2012, at 8-9.  This was a unanimous, per curiam opinion.

92 Rehberg v. Paulk, decided April 2, 2012.  Justice Alito wrote for a unanimous Court.

93 Coleman v. Court of Appeals of Md., decided March 20, 2012.  The Court was badly split.  A total of four justices signed onto the opinion of Justice Kennedy, and two other justices concurred in the judgment.  Four justices dissented.

94 FAA v. Cooper, decided March 28, 2012.  This was a 5-3 decision.  Justice Alito wrote for the Court.  Justice Kagan was recused.

95 Elgin v. Department of Treasury, decided June 11, 2012.  This was a 6-3 decision.  Justice Thomas wrote for the Court.

96 Lafler v. Cooper, Decided March 21, 2012.  It was a 5-4 decision with Justice Kennedy writing for the majority.

97 Scalia dissenting.

98 Missouri v. Frye, decided March 21, 2012.  Justice Kennedy wrote for the majority in a 5-4 decision.

99 Maples v. Thomas, decided January 18, 2012.  This was a 7-2 opinion with Justice Ginsburg writing for the Court.

100 Martinez v. Ryan, decided March 20, 2012.  This was a 7-2 decision.  Justice Kennedy wrote for the majority.

101 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, decided January 11, 2012.  Chief Justice Roberts wrote for a unanimous Court.

102 Id. at 15-23.

103 United States v. Jones,  decided January 23, 2012.  This was a unanimous decision, but the Court split 5-4 in the case.  Justice Scalia wrote for the majority.

104 Justices Scalia, Roberts, Kennedy, Thomas and Sotomayor.

105 Justices Alito, Ginsburg, Breyer and Kagan.

106 Florence v. Board of Chosen Freeholders of County of Burlington, decided April 2, 2012.  This was a unanimous decision, although 5-4 split on the basis for the decision.

107 Knox v. Service Employees [SEIU], decided June 21, 2012. This was a 5-4 decision in part and 7-2 in part .

108 Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

109 Knox v. SEIU at 22.

110 United States v. Alvarez, decided June 28, 2012.  It was a 6-3 decision.  Justice Kennedy wrote for a plurality.

111 Two of the cases were CompuCredit Corp. v. Greenwood, decided January 10, 2012 (involving arbitration of credit card disputes), and KPMG LLP v. Cocchi, decided November 7, 2012 (requiring that, when some claims are arbitrable and some not, that all arbitrable claims be identified and sent to arbitration).

112 Marmet Health Care Center, Inc. v. Brown, decided February 21, 2012.  This was a unanimous, per curiam decision.

113 Howes v. Fields, decided February 21, 2012.  This was essentially a 6-3 decision.  Justice Alito wrote for the majority.

114 Blueford v. Arkansas, decided May 24, 2012.  This was a 5-4 decision, with Chief Justice Roberts writing for the majority.

115 Douglas v. Independent Living Center of Southern Cal., Inc., decided February 22, 2012. This was a 5-4 decision, with Justice Breyer writing for the majority.

116 Setser v. United States, decided March 28, 2012.  This was a 6-3 decision, with Justice Scalia writing for the majority.

117 Dorsey v. United States, decided June 21, 2012.  This was a 5-4 decision with Justice Breyer writing for the majority.

118 Southern Union Co. v. United States, decided June 12, 2012.  Justice Sotomayor wrote for the Court.  It was a 6-3 decision.

119 Astrue v. Capato, decided May 21, 2012.  Justice Ginsburg delivered the opinion for a unanimous Court.

120 Reynolds v. United States, decided January 23, 2012.  This was a 7-2 decision.  Justice Breyer wrote for the majority.  Justices Scalia and Ginsburg dissented.

121 Mohamad v. Palestinian Authority, decided April 18, 2012.  This was essentially a unanimous decision.  Justice Sotomayor wrote for the Court.

122 FCC v. Fox Television Stations, Inc., decided June 21, 2012.  This was essentially a unanimous decision, with Justice Kagan recused.

123 The data reported in this section generally come from, an excellent source of information on the work of the Court.

125 DC Dicta: Lawyers USA, April 26, 2012, available at

126 Here is the CBS News report that gave rise to much of the speculation:

129 The APA brief is available at: