Steven R. Smith, JD

Continuing Education Information

The 2016–2017 Supreme Court session included rulings on professional practice issues and social justice matters. Two cases involved educational opportunities for handicapped children, and three cases involved psychological practice standards related to death penalty situations. Arbitration clauses in healthcare agreements were ruled binding. It was determined that both parents can be listed on birth certificates in same-sex families. Seventy percent of all rulings during the term were unanimous.

When the Supreme Court of the United States convened for the start of its Term on October 3, 2016, there were only eight justices on the bench. Justice Antonin Scalia had died on February 13, 2016. President Obama nominated Judge Merrick Garland to replace him, but the Senate had not voted on the nomination, and it was clear that it would not do so before the election. Judge Garland seemed well qualified but held jurisprudential views inconsistent with the Senate Republican majority.[1]

On that first Monday in October, the speculation mostly was on whether the Senate might confirm Judge Garland following the election or would wait for President Hillary Clinton (the odds-on favorite) to nominate a candidate. On November 8, the speculation changed.

On January 31, 2017, President Donald Trump nominated Judge Neil Gorsuch to fill the position. He seemed well qualified but held jurisprudential views inconsistent with the Democratic Senate minority. They threatened to filibuster, and the Senate rules were changed to preclude filibusters on Supreme Court nominees—the second “Nuclear Option.”[2] Neil Gorsuch was confirmed by the Senate on April 7, 2017, and was present at the Supreme Court for oral arguments beginning April 17.

Justice Gorsuch Arrives

The rules and traditions of the Supreme Court are that to be included in deciding a case, a justice must have been on the Court both when oral arguments were heard and when the decision of the Court is announced. Therefore, Justice Scalia’s vote did not count in cases announced after his death, even though he had heard oral arguments. That was true even when Justice Scalia might have written the draft of the Court’s decision. Justice Gorsuch joined the Court after most of the oral arguments of the 2016–2017 Term had been held, so he did not vote in those cases.[3]

The result was that Justice Scalia’s vote was not included in many of the cases in the previous 2015–2016 Term. And, in this Term, Justice Gorsuch did not participate in most of the decided cases because he had not been on the Court for the oral arguments. Thus, the Court operated for much of the Term with eight justices, creating the possibility of a 4-4 tie. Technically, when that happens, the judgment of the lower court is affirmed, but the Court does not provide a clear answer to the legal question presented by the case. The purpose of the Supreme Court is not just to announce a winner in the cases before it, but to establish legal principles that serve as precedents and direction to lower courts. Hence, the Court tries to avoid tie votes.

There were few 4-4 ties in the two Terms.[4] Narrow rulings that avoided broad statements of principle, careful case selection (not granting certiorari to cases likely to have a 4-4 split),[5] and calendar control (not scheduling some controversial cases to be heard until late this Term) all worked to avoid tied results.

Given all of the distractions and limitations on action, the Court had a surprising number of important cases. Among the important holdings were the following:

  • State laws attempting to limit arbitration agreements in the healthcare arena violate federal law.[6]
  • Individualized educational plans (IEPs) under the federal Individuals with Disabilities Education Act (IDEA) must target more than trivial progress for the students.[7] (The Court also described how the IDEA relates to other federal disability laws.[8])
  • Mental health experts play an important role in determining who is eligible for the death penalty and the Court considered two cases regarding mental health experts.[9] Assessing whether individuals with intellectual disabilities may be subject to the death penalty requires consideration of modern science.[10]
  • A state cannot routinely prohibit sex offenders from using social-media sites.[11]
  • Juries may be questioned about racial bias that was expressed during jury deliberations.[12]

The Court considered nine cases involving revoking citizenship, deportation, and cross-border liability. It also decided a number of cases involving state officials’ liability, patents, trademarks, sentencing, church-state relations, and transgender students using their choice of school bathrooms (actually, declining to decide that case).

We will first look at cases of particular interest from this Term, and then at a number of other cases of more general interest and importance. We conclude with an analysis of the Term and a look at the next Term.

Healthcare Arbitration

Arbitration agreements have become ubiquitous in healthcare. This is increasingly relevant in psychological practice, both between psychologists and third-party payors, and in treatment agreements between psychologists and their patients. This Term the Supreme Court decided a case squarely involving healthcare disputes and arbitration.

On August 16, 2008, Olive Clark became a resident of Winchester Centre for Health and Rehabilitation (owned by Kindred). She died eight months later. At about the same time, Joe Paul Wellner was admitted to Winchester Centre where he resided for 13 months, until a few days before his death in 2009. The relatives of both filed what were essentially malpractice-maltreatment actions against Winchester/Kindred regarding the care Ms. Clark and Mr. Wellner received. They claimed personal injury, violations of Kentucky statutes regarding long-term care facilities, and wrongful death.[13]

Clark and Wellner had each granted power of attorney to a relative (Clark to her daughter, Wellner to his wife). These “attorneys-in-fact” (persons who have the power of attorney and are acting for someone else—as distinguished from attorneys-at-law; for simplicity we will refer to the former as “agents”) signed Clark and Wellner into the care facility. The admission agreements contained an arbitration clause. By signing the agreement, the agents agreed that any dispute or lawsuit against the facility had to be taken to arbitration instead of court.[14]

The case went to the US Supreme Court not about the malpractice or inadequate care, but on the issue of the arbitration agreement.[15] The question was whether Kentucky could allow the heirs of Clark and Wellner to bring the lawsuits rather than go to arbitration. At the center of the dispute was the Federal Arbitration Act (FAA) of 1947. The FAA provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract” (the full provision is set out in the notes).[16]

Because the contract was to arbitrate any disputes that might arise, the center claimed that the maltreatment lawsuits should be dismissed. The center argued that, under the FAA, any claims against the center had to be arbitrated, not litigated.[17]

In a 7-1 decision the Court agreed with the arguments of the center—these claims had to go to arbitration rather than to court.[18] In so ruling, the majority held that states cannot directly or indirectly single out arbitration agreements for special attention. Thus, state contract rules that affect arbitration contracts more so than other contracts are likely to receive a very skeptical look by the federal judiciary.[19]

Justice Kagan, writing for the majority, was a bit sarcastic about the effort of states to limit arbitration. She indicated that the FAA not only precludes a state from prohibiting arbitration, but the “Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.”[20]

In considering healthcare related arbitration, it is helpful to consider the two types of arbitration agreements. In “post-dispute” agreements the parties agree to arbitrate a dispute that has already arisen. They have some idea of what is at stake, the nature of the disagreement, and how the arbitration will be conducted. In “pre-dispute” arbitration agreements (most healthcare arbitration contracts) the agreement is that should a dispute ever arise in the future, the parties cannot take it to court but must arbitrate it. In these situations, of course, the parties do not know what their disagreements are, what effect the arbitration agreement may have on their rights, and so on. Often the dominant party in an agreement inserts an arbitration clause, and may include terms that are favorable to that party (selecting the panel from which the arbitrator will be chosen or prohibiting “class action” arbitration).

Arbitration has a number of important advantages over litigation. It can be faster, more private, and more informal. It often is less expensive than litigation. Pre-dispute arbitration, however, has some disadvantages. The selection of an arbitrator may be subject to manipulation or at least bias.[21] There is often very limited discovery—a distinct disadvantage to the party which must prove something (usually the party bringing the complaint). The absence of a jury trial harms many individuals (in part because juries may be more sympathetic to the injured “little guy”). Class actions are generally prohibited in arbitration—which may preclude some claims from ever being heard.[22] Of great importance is that there is no appeal. In litigation, the actions of the trial court are overseen by appellate courts. In arbitration, most decisions are essentially unreviewable, even when the arbitrator misapplies the law. Arbitrators can almost never be sued for their decisions.

Kindred is consistent with a series of Supreme Court decisions that have applied the FAA aggressively in healthcare and consumer areas, as well as labor and commercial transactions. Only one justice, Justice Thomas (who believes that the FAA does not apply to state court proceedings) dissented from this case.[23]

Congress could, of course, change the FAA statute. There have been a number of suggestions for changes, particularly in the consumer context, but there would also be considerable pushback against changes that would disadvantage large organizations. Arbitration agreements are now common in professional association and partnership contracts.

The clear takeaway for healthcare professionals is that arbitration agreements matter—and should be carefully read and considered before signing. Arbitration agreements you sign will almost certainly be enforced by the courts, and they can have serious consequences. In addition, subject to some limitations, the Kindred case clearly approved the use of pre-dispute arbitration provisions in the healthcare context. It is important to note that in this contract the admissions documents specifically indicated that accepting the arbitration agreement was not necessary in order to receive care. [24] For a variety of reasons, such a voluntary opt-out provision has much to recommend it in the health area.[25] In truth people commonly disregard, or do not consider the importance of, arbitration.

Unthinking acceptance of arbitration agreements may be dangerous. Caveat signator!

Children with Disabilities and Schools: IDEA

The Individuals with Disabilities Education Act (IDEA) is the major law providing educational support for students with disabilities.[26] It creates a deal that all states have accepted: in exchange for federal funds to assist in educating students with disabilities, the states agree to abide by the obligations imposed by IDEA. For the most part, individual school districts are responsible for implementing these obligations.

This Term the Court decided two cases of importance to the future of the IDEA. One dealt with how much educational and social progress students with disabilities should be expected to make. The second dealt with how the IDEA interacts with other statutes protecting those with disabilities. These cases have practical relevance for psychologists working with school-aged children with disabilities.

IDEA and Individualized Plans

At the core of the IDEA is the obligation of the schools to provide a “free, appropriate, public education” (FAPE)[27] to all eligible children. The mechanism to achieve that is the Individualized Education Program (“IEP,” of course). The IEP is a comprehensive annual plan developed by school officials in consultation with the parents (or guardians in some cases).[28] The plans deal both with educational services and with “support services required to assist a child to benefit from instruction.”[29] If the parents and school agree on a plan, it is implemented; if they cannot agree on a plan, there are a series of steps to resolve the differences. If the differences are not resolved, the parents may go to federal court for relief. They may sometimes put their child in another school that does provide the services they want, and seek reimbursement for those expenses.

One element of the IEP is a statement of “measurable annual goals, including academic and functional goals,” and how the child’s progress toward meeting those goals will be assessed.”[30] This process was at the heart of the Endrew F. case decided by the Court this Term. Put simply, the case asked, how much progress is sufficient under IDEA?[31]

Endrew F. had autism. By the time he was in fourth grade, his parents were concerned that his academic and functional progress had stalled. They were also unhappy with the proposed plan for fifth grade, so they removed him from the public school and enrolled him in a private school. He did much better there. Subsequent plans by the public school seemed no better to the parents, so they filed a complaint with the state department of education seeking reimbursement for the tuition at the private school. This required that they demonstrate that the public school’s plan was not “reasonably calculated to enable him to receive educational benefits.” The case eventually reached the Supreme Court, which was asked to define what the standard was for deciding whether the public school was providing enough opportunity for progress.[32]

When a child with disability receives education in a regular classroom, the standard is that the plan “should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”[33] This standard is relatively easy to apply when clearly defined examinations and expectations relate to student achievement generally. More difficult was the question in Endrew F.—how to assess progress where the child is not in a regular classroom and not subject to usual standards of progress.

Chief Justice Roberts wrote for a unanimous Court. The Court recognized that it was not possible to create a precise statement of the progress required by the IDEA when a child is not in a classroom that uses common definitions of passing marks. Instead of a precise standard, the Court announced a more general standard. It held that the IDEA requires “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The key is “appropriate,” which the Court said has to be defined on an individual basis.[34]

An interesting, potentially very important, ambiguity crept in at the end of Chief Justice Roberts’ opinion. On one hand, the Court emphasized that the absence of a bright-line rule was not an invitation to lower courts to substitute their judgment for that of the school authorities—suggesting deference to school authorities. But Chief Justice Roberts’ very next thought was that the schools may, in fact, have the burden of demonstrating “a cogent and responsive explanation” for their decisions.[35] How this ambiguity plays out will be important because these issues are a matter of educational judgment, and proving or disproving that an IEP is “appropriate” can be challenging.

This case gives parents an additional tool in dealing with school districts, at least where their children are not in a regular classroom setting. School districts will need to be able to demonstrate that their proposed “IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[36]

IDEA and Other Civil Rights Laws

Another case called upon the Court to determine how IDEA works with other disability laws—notably the Americans with Disabilities Act (ADA) and the Rehabilitation Act.[37] Those other laws might apply to the same conduct as IDEA does, but there is an ambiguous provision in the statute. It provides that if a child (through the parents) seeks relief “that is also available” through the IDEA, she must exhaust the administrative procedures under the IDEA before bringing suit under one of the other laws.[38]

E.F., a child with cerebral palsy, sought to have a service dog (“Wonder”) in school with her. Instead, the school gave her one-on-one human support, making the dog superfluous.[39] The family began homeschooling E.F. and later sent her to a school that would allow Wonder to go with her.[40] They also filed suit against the school, based on a violation of Title II of the ADA and §504 of the Rehabilitation Act for denying equal access, and refusing the use of a service animal. E.F.’s parents had not, however, exhausted their remedies under IDEA by going through the IDEA administrative processes. The question was whether the parents could maintain their separate suit under the ADA and Rehabilitation Act. This raised the central issue: can a child subject to IDEA separately sue the school district under other disability statutes without exhausting IDEA administrative processes?

The Court unanimously held (Justice Kagan writing for the Court) that when the “crux” of the student’s disability complaint is that it denies her an appropriate education, she must first exhaust the IDEA procedures. When, however, it is essentially a separate complaint not related to education, then the student need not exhaust the IDEA procedures before bringing a suit.

The Court knows how clever lawyers can be with language, so it emphasized that it is not the words used in the lawsuit, but what the essence of the matter is.[41] In determining that question, a lower court might look at three questions: “First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance?” If the answer to either question is “yes” it suggests that the complaint is not specifically related to education.[42] The third question is whether the student invoked the IDEA process and then switched to the other disability claims—if so, it may suggest that the switch was a strategic decision to switch to the disability laws to avoid the IDEA’s administrative procedures.[43]

In the end, the Court returned the case to the Sixth Circuit Court of Appeals to consider whether the history of the proceedings suggested that the crux of the ADA-Rehabilitation Act suit was really IDEA.

IDEA cases depend on expertise in the areas of disabilities, developmental limitations, and a variety of other behavioral sciences. The first of the two cases discussed above is especially likely to increase the call for this expertise in dealing with school districts, as well as in litigation. The cases will, of course, be of particular importance to school psychologists as well as other psychologists working with children where special education or classroom support will be issues.

Mental Health Experts and Standards in Capital Cases

The Supreme Court decides capital punishment cases each Term, which reflects the complexity of the constitutional law surrounding the death penalty. We will look at seven capital cases decided this Term. Mental health experts remain an important part of the process.

Appointed Mental Health Experts for the Defense

More than thirty years ago, in Ake v. Oklahoma, the Supreme Court held that in capital cases the state must provide a mental health expert for indigent defendants when mental health issues arise.[44] “The State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. . . . Our concern is that the indigent defendant have access to a competent psychiatrist” for these purposes.[45] (“Psychiatrist” has generally been taken to mean qualified mental health professionals,[46] given the nature of the case, so “mental health professional” is used throughout this discussion.)

This Term the Court agreed to hear McWilliams v. Dunn, to determine whether the mental health professional provided by the state should become a member of the defense “team,” or if some lesser connection to the defense is sufficient.[47]

[T]he Court emphasized that the function of the expert is not just to examine the defendant, but to help prepare the case for the defense.

In McWilliam the state had appointed a (unfortunately-named) “Lunacy Commission” to examine McWilliams. Two Commission members, Dr. Kamal Nagi and Dr. Norman Poythress, were called by the prosecution to testify at the trial.[48] (The Court incorrectly stated that all of the members of the Commission were psychiatrists.)[49] At the request of the defense, the state also had the defendant examined by Dr. John Goff, a neuropsychologist employed by the state, who produced a report. An unnamed hero was a psychologist from the University of Alabama who provided some pro bono assistance.

The actions of the trial judge were extraordinary in a capital murder trial. The decisions of the judge had the practical effect of limiting the role of the expert. The judge also repeatedly denied efforts by the defense attorney to have assistance in reviewing and understanding mental health evidence presented by the prosecution. The problems were so severe that the defense attorney asked to be excused from the case because the actions of the judge and prosecution are “unconscionable, resulting in this proceeding being a mockery.”[50] McWilliams was sentenced to death. The Supreme Court held that this fell “dramatically short” of what the Constitution requires. A link to the detailed facts is set out in the notes.)[51]

The Court determined that the state expert did not “assist in evaluation, preparation, and presentation of the defense.” In doing so, the Court emphasized that the function of the expert is not just to examine the defendant, but to help prepare the case for the defense. That may include gathering facts, analyzing data, drawing relevant conclusions, helping prepare for cross examination of opposing experts, and interpreting the answers of those experts.[52]

The Court also noted that the overwhelming majority of states have, when an expert needs to be appointed for the defense, simply appoint a “qualified expert retained expressly for the defense team.”[53] Alabama did not follow that process and the cumulative effect of the actions of the prosecution and judge’s rules was to deny the defendant the assistance required by the Constitution, as set out in Ake. The Court reversed the death sentence and remanded the case to the lower courts for consideration.

Four justices dissented. Their essential point was that the majority had not decided the legal question it had agreed to hear, and instead decided the legal question it had rejected.[54] Strangely, this claim appears to be accurate (details are in the notes).[55] It is interesting to speculate why the Court would answer a question it rejected. Perhaps the facts in this case were so outrageous and seemed to call for some resolution, despite some significant technical problems.[56] The rather strange process of accepting the case and answering the rejected question may have been the majority’s effort to void the death sentence under these bad facts.[57]

The American Psychological Association (APA) filed an amicus brief, in cooperation with the American Psychiatric Association and the American Academy of Psychiatry and the Law.[58] (An “amicus,” or “friend of the court” brief is filed not by one of the parties to the litigation, but by others with an interest or expertise that may be of value to the Court.) The brief understandably dealt with the legal question on which certiorari had been granted, rather than the question the Court ultimately decided. This amicus brief went over some of the legal ground covered in the briefs filed by the parties, but there was helpful emphasis on issues of special concern or expertise (including issues of confidentiality).

One apparently minor matter, almost an aside in the amicus brief, took on major significance. The critical sentence was, “Malingering is not inconsistent with serious mental illness; it is not clear that the trial court was aware of this fact.”[59] The brief was making this point to explain why mental health experts are helpful in sentencing. The majority of the Court, however, picked the sentence to demonstrate that what happened to McWilliams was not “harmless error.”[60] That finding was critical to overturning the sentence because the Eleventh Circuit Court of Appeals found that it was harmless error for the trial court not to have the expert more involved with the defense. It is, of course, impossible to know whether this part of the amicus brief convinced the Court, or the Court was using it as cover to disagree with the Eleventh Circuit and send the case back to them. In either event, the brief was a significant part of this case.

The procedural issues aside, this case now clearly stands for the proposition that mental health experts are needed in capital cases, not just to do a one-off assessment. Still open is the question of whether the expert appointed for indigent capital defendants must be independent of the state (part of the defense team).

Misunderstanding the Context and Impact of Opinions in Court

Buck v. Davis illustrates the importance of psychologists understanding the context in which their reports and conclusions will be used in the legal system.[61] The impact may be quite different than in other contexts.

The context of a forensic evaluation is special. It is not a report to other mental health professionals—it is information to lay people . . . who will make decisions on what they think the mental health professional means.

Duane Buck was convicted of capital murder and the jury then considered the issue of punishment: death or life in prison, which essentially came down to the question of dangerousness.[62] The defense asked for the assistance of two psychologists to help establish doubt about Buck’s dangerousness.[63] One was Dr. Walter Quijano, who met with Buck in prison and wrote a report to the defense attorney. Dr. Quijano concluded that future violence was unlikely. Unfortunately, his report also included a review of “statistical factors” related to dangerousness—including Buck’s race, with the entry, “4. Race. Black: Increased probability. There is an overrepresentation of Blacks among the violent offenders.”

Buck’s defense lawyer then compounded the problem by calling Dr. Quijano to testify at the sentencing trial and asking him to explain the statistical factors. Dr. Quijano responded that certain factors were commonly known “to predict future dangerousness” and race was one such factor. He also testified that, “It’s a sad commentary that minorities, Hispanics, and black people, are over represented in the Criminal Justice System.”[64] His report was then admitted in evidence. He also testified he did not think Buck would be dangerous in the future. The jury, which deliberated two days during which it asked to see the psychology reports, ultimately decided on a death sentence.

Dr. Quijano’s consideration of “statistical factors” (especially race) in assessing dangerousness may have been understandable and appropriate in a professional presentation discussing dangerousness. In the context of testifying in a capital murder case, however, it was likely to confuse and mislead the jury. Lay people would understand it as suggesting “his race makes this person more dangerous.” In fact, the Court noted, emphasizing race would naturally risk tying into significant racial stereotypes.[65] Unfortunately, Dr. Quijano made this mistake repeatedly.[66]

A legal question in this case was whether the defense attorney was incompetent in deciding to present Dr. Quijano as a witness. The death sentence was overturned by the Court. (Technical procedural issues in the case are discussed in the notes.)[67]

For mental health professionals, the message is clear. The context of a forensic evaluation is special. It is not a report to other mental health professionals—it is information to lay people (judges, lawyers, and jurors) who will make decisions on what they think the mental health professional means. Relying on jargon, technical terms, or statistical explanations is likely to be inappropriate. One reason that forensic work is especially difficult is that it requires ongoing consideration of the context in which reports and conclusions will be read and used.

This is not at all to suggest that psychologists lie or hide clearly relevant information. Rather, it is important for all experts in the forensic context to consider who a report is for, who will read it, and how they may misunderstand it. “Statistical factors,” for example, report group data, which may or may not be relevant to an individual defendant, but can easily be misunderstood as applying to anyone in a group. In Buck v. Davis the psychologist testified that the defendant might not actually be dangerous, but that conclusion was undoubtedly clouded by the statistical reference to race and dangerousness. Not to put too fine a point on it: psychologists need to consider all of the relevant evidence and scientific data, but in a forensic report intended for a non-professional audience, they should avoid language and considerations likely to be misleading or misinterpreted by a lay audience.[68]

Intellectual Disability and Capital Punishment

Moore v. Texas involved a capital defendant with an intellectual disability. The Court earlier held that it is unconstitutional (under the Eighth Amendment’s prohibition on cruel and unusual punishment) for a state to execute a person who is intellectually disabled.[69] That, of course, created problems defining how severe the disability must be and how it should be measured or proved. This Term the Court dealt with what standards and evidence should be used in making the disability decision.[70]

The Court reaffirmed that “adjudications of intellectual disability should be informed by views of medical experts.”[71] There are three core elements to be considered in the process: “(1) intellectual functioning deficits (indicated by an IQ score ‘approximately two standard deviations below the mean’—i.e., a score of roughly 70—adjusted for ‘the standard error of measurement’); (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to changing circumstances’); and (3) the onset of these deficits while still a minor.”[72]

The Court held that the Texas courts had not applied these requirements properly. The major mistake was that the state had applied old standards that did not take account of new understandings of intellectual disability.[73] The second mistake that Texas made was in the way it addressed IQ scores. Moore had seven IQ scores, five of which were rejected as unreliable, with the other two being 78 and 74. The Court suggested that the state had not applied a proper standard-error range associated with those scores.[74] Texas also took too narrow a view of “adaptive strengths” in several respects, all of which made Moore look more capable than current science would indicate.[75] It also relied on a number of non-clinical factors that were inappropriate as well.[76]

In the final section of the opinion the Court reiterated that states have flexibility in defining intellectual disability. That flexibility, however, is fairly limited because the definition must reflect the “medical community’s current standards.” The Court further indicated that these standards must be based on “current manuals [which] offer ‘the best available description of how mental disorders are expressed and can be recognized by trained clinicians.’”[77]

Three justices dissented. Their position was based primarily on a concern that the majority created a constitutional holding “based solely on what it deems to be medical consensus about intellectual disability.”[78] The dissenters held that judges, not clinicians, who should determent Eighth Amendment standards.[79]

The APA (along with others) filed an amicus brief in this case.[80] The brief appeared to be an especially helpful to the Court. The Court cited it for the proposition that the existence of a personality disorder or mental health issue is “not evidence that a person does not also have intellectual disability.”[81]

The amicus brief applied the understandings of behavioral science in a particularly clear and careful way. It was especially effective in pointing out the inadequacies and scientific errors in the Texas approaches to assessing intellectual disabilities.[82] It repeated the refrain, “There is a consensus among the mental health professions about how properly to diagnose persons with intellectual disability. Texas’s approach to intellectual disability is inconsistent with this consensus.”[83] It backed that conclusion up with detailed analysis of what the problems were. It was an impressive amicus brief.

Moore makes it essential that states routinely update their criteria for intellectual disability. Mental health professionals will play a critical role in this effort, by ensuring that states stay abreast of the latest “consensus” in the assessment. Presently, the constitutional standards discussed in Moore apply only to capital cases. In other areas of criminal law, states may face serious intellectual disability issues in considering culpability or sentencing. The principles discussed in Moore will likely be applied to some non-capital cases (for example, those involving life imprisonment), and future cases will have to resolve the issue of whether the Constitution requires such consideration.

Other Death Penalty Cases

The Court considered the death penalty this Term in two other cases. In Rippo v. Baker the state court judge presiding in Rippo’s murder case was the target of a federal bribery investigation.[84] The district attorney’s office prosecuting the murder case was at the same time likely playing a role in the investigation of the judge. The defendant asked the judge to recuse himself from the murder trial because he might try to curry favor with the prosecutors. The judge did not recuse himself and was later indicted. The Supreme Court held that the question is not whether actual bias had been proved, but whether considering all of the circumstances the risk of potential for bias was great. The Court found that the perception of bias was unacceptable, it sent the case back to the Nevada Supreme Court for reconsideration.

This Term the Court also addressed victim impact statements in capital cases. Shaun Bosse was convicted of triple murder. He was sentenced to death following a hearing at which three of the victim’s relatives testified and recommended the death penalty.[85] The Court reiterated an earlier holding that prohibits victim impact evidence related to the “personal characteristics of the victim and the emotional impact on the victim’s family.”[86] Because the testimony of the victims’ families stepped over the line of acceptable comment, the Court overturned the death sentence.[87]

In the five capital cases discussed above, the defendant won—at a minimum having the sentence reconsidered by lower courts. Two other capital defendants were not as fortunate. Both cases involved “ineffective assistance of counsel” issues,[88] but they were decided on technical failures to raise objections in a timely manner. In one case the Court was unanimous.[89] In the other, involving ineffective assistance of counsel on appeal, it was a 5-4 decision.[90]

These capital cases suggest that the majority of the Court is uncomfortable with the way the death penalty is being implemented. When the vote is close, it is Justice Kennedy who is the deciding fifth vote. In many of these cases the murder had been committed more than thirty years ago. The death penalty, in one sense, is slowly fading away—there were only 20 executions carried out in 2016, although there are 2,900 death row inmates.[91] The battle over imposing the death penalty will continue both at the ballot box [92] and in the Court. As for the Court, it increasingly seems to go “out of its way to reverse the death sentences” it considers, and gives “little deference to state court decisions.”[93] At least two justices have signaled that they think the death penalty is unconstitutional.[94]

Sex Offenders and the Internet

Fearing that sex offenders who had completed their sentences would use social media to find young victims, North Carolina made it a felony for sex offenders to use social media sites that “permit minor children to become members or create and maintain personal web pages.”[95] The statute applies to approximately 20,000 people in North Carolina and the state has prosecuted about 1,000 for violating it. Packingham v. North Carolina asked the Court to decide whether this statute violated the First Amendment rights of sex offenders.[96]

The Court saw the North Carolina law as a restriction on free speech because it limited access to public places where a person can listen and speak. “Social media users employ these websites to engage in a wide array of First Amendment activity as diverse as human thought.”[97]

Where speech is “content neutral” the state must still demonstrate that the law is “narrowly tailored to serve a significant governmental interest.” The state limitation “must not burden substantially more speech than is necessary further the government’s legitimate interests.”[98] The Court assumed (without deciding) that the North Carolina was of a type that required only a “significant” rather than “compelling” state interest (explained in the notes).[99]

The Court held that the North Carolina limitation on sex offenders’ use of social media was too broad.[100] It noted the wide range of political, employment, news, personal, commercial, and religious websites that were off limits to sex offenders under the statute—hardly narrowly tailored. It suggested, however, that it probably would be constitutional for a state to prohibit sex offenders “from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”[101]

Justice Alito and two other justices concurred. They were upset with the opinion of Justice Kennedy, not his invalidation of the state law. “I cannot join the opinion of the Court . . . because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. . . . I am troubled by the implications of the Court’s unnecessary rhetoric.”[102] It seemed to some observers that a few paragraphs in the majority opinion (about technology and the importance of the internet) seemed more suited to The Atlantic than the Court and took the opinion as implying more than it said.[103]

This case will have important implications for professionals who provide therapy or other services to sexual offenders. The decision certainly provides greater latitude for some sexual offenders. But considerable caution is also called for. This decision has a number of important limitations. Packingham (the defendant in this case) had already served his entire sentence and was “no longer subject to the supervision of the criminal justice system.” If he had still been in prison, the state could limit or prohibit his internet use. Even if he had been on probation or parole (under the supervision of the criminal justice system) the restrictions may well have been permitted. In addition, the state could impose new, narrowly tailored restrictions. The penalty for violating these conditions can be severe—in this case it was a felony. In short, without a clear understanding and review of state law, no one should advise a sexual offender (based on this case) that it is fine to go ahead and use social media at will.

Jury Bias

For more than a century the federal courts have struck down state practices that created the risk of biased juries or excluded minorities from jury service.[104] At the same time, courts have generally adhered to a rule prohibiting defendants from challenging a jury verdict based on the deliberation of the jury (known as the “no-impeachment” rule).[105] Much like the psychotherapist-client or doctor-patient privilege, the purpose of the rule is to encourage jury deliberations that are unencumbered and without fear of later exposure. Like those privileges, however, the downside is that some information of importance is not available to courts.

This Term the question arose of what courts should do when these important values collide. In Pena-Rodriguez v. Colorado a juror expressed blatant racial bias against a Hispanic defendant and an alibi witness.[106] Other jurors reported this and the question was whether the state trial court should have accepted their statements and considered overturning the guilty verdict (harassment and unlawful sexual contact).

The Supreme Court announced a new Sixth Amendment (fair trial) rule. When a juror makes “a clear statement that he or she is relying on racial stereotypes or animus to convict a criminal defendant” the no-impeachment rule “must give way in order to permit the trial court to consider the evidence of [a] juror’s statement.”[107] The statements must be troubling enough to “cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Three justices dissented.[108]

This will undoubtedly be the first in a series of cases determining the extent of the rule. For example, the Court did not consider the procedures the trial court must follow in deciding to investigate possible bias, the standards for determining when racial bias is sufficient to overturn a verdict, or the degree to which attorneys and others must be given access to jurors (after a verdict) to look for bias. Also left unanswered is whether rule of this case might apply to other biases, such as those based on religion, gender, or sexual orientation. Although the Court focused on the Sixth Amendment right, which applies to criminal cases, it is possible that other provisions of the Constitution (the Equal Protection Clause) might be used to expand the provision to civil trials. This is, in short, the first step on a considerable path.

Mental health professionals who do “jury work” (e.g., jury selection and persuasion) can expect to see an increase in calls from lawyers trying determine whether a comment by a juror was racial animus, or a “motivating factor” in a juror’s vote for conviction.[109] What motivated a juror may be a difficult question. To make it more difficult, jury deliberations are not recorded, so who said what exactly, and in what context, will be very difficult to determine.

Immigration, Citizenship, and Cross-Border Issues

Nearly a third of all of the cases this Term came from three narrow areas of the law: immigration-border, intellectual property (IP), and capital punishment. In this and the next section we look briefly at the first two of those, beginning with immigration. Immigration and cross-border issues have become increasingly visible—sometimes vividly so. The range of issues is illustrated by the four facets the Court examined this term.

Obtaining (and Keeping) Citizenship

Divna Maslenjak lied on her successful application for U.S. citizenship. She claimed that her family feared prosecution in Bosnia because (in part) her husband had evaded military service. In fact, he had served as an officer in the army, in a brigade involved in the Srebrenica massacre. A jury found her guilty of violating the naturalization law in her application for citizenship—that automatically stripped her of citizenship.[110] The Court this Term held that this conviction required that the falsehood was “material” (that is, it influenced an award of citizenship). Because the jury had not considered the materiality question, the case was returned to the lower court.[111]

Sessions v. Morales-Santana involved the citizenship of a child born abroad when only one parent is a U.S. citizen.[112] Under U.S. law, the U.S. citizen-parent must have spent some period of time in the U.S. (pre-birth of the child) for U.S. citizenship to go to the child. There are complex provisions regarding the amount of time that must have been spent in the U.S. [113] For this case the important provisions required ten years of residence (five after age 14) for unmarried fathers to pass down citizenship, but only one year of residence for unwed mothers to do so. Morales-Santana claimed U.S. citizenship based on his father’s citizenship, but his father had not lived in the U.S. the required period.[114] Morales-Santana claimed that treating mothers and fathers differently violates equal protection.

Nearly a third of all of the cases this Term came from three narrow areas of the law: immigration-border, intellectual property (IP), and capital punishment.

The Court agreed that there was no sufficient basis for the disparate treatment of mothers and fathers. It then faced the issue of whether to treat fathers like mothers (one year residence), or mothers like fathers (ten/five years).[115] The Court held that Congress should address this issue, but until it does, the longer “fathers” time will be applied to mothers.[116] Thus, Morales-Santana won the case but it was a Pyrrhic victory. His father still could not pass citizenship to his son.

Removal and Deportation

The Immigration and Nationality Act provides for the removal of any “alien who is convicted of an aggravated felony.”[117] Although the statute lists categories of removal crimes, there is ongoing dispute about which state offenses qualify. This Term, for example, the Court determined that one provision of California’s statutory rape statute did not constitute “sexual abuse of a minor” for removal purposes.[118] The California law criminalized consensual sexual contact between a minor (a person under 18) and someone three years older than the minor. The Court determined that this was not the form of statutory rape that Congress intended to be an “aggravated felony” and was not the basis for removal.[119]

Lee v. United States also involved the aggravated felony removal provision. Pleading guilty to an aggravated felony has special importance because of the potential for deportation. An attorney advised Lee that pleading guilty to one count of “possessing ecstasy with intent to distribute” would not result in his deportation.[120] In fact, as a result of the plea, deportation was mandatory.[121] When Lee learned of this, he sought to withdraw the plea. The Supreme Court held that, as a result of the ineffective assistance of counsel, Lee should be able to withdraw his plea and go to trial.[122 123]

The Court heard two other removal cases this Term, but did not decide them and instead set them to be reargued next Term. That probably means that that the Court was split 4-4 on two very important questions. One claim is that the “aggravated felony” provision discussed above is vague and therefore invalid.[124] “Void for vagueness” is generally a constitutional requirement in criminal law, but the challengers seek to use the concept to limit the deportation of those convicted of felonies.[125] Another challenge to immigration enforcement seeks to require bail hearings for immigration detention for those facing removal from the U.S. (commonly called “catch and release”).[126] These cases will be reargued in the next Term, and are likely to be of major importance.

Federal Officials’ Liability

Two cases this Term raised the issue of U.S. officials’ liability for cross-border or foreign policy actions. In one, the family of a boy in Mexico, who was killed by a bullet fired by a border patrol agent in the U.S., sought damages from the officer.[127] In the other, foreign nationals (“of interest”) who were in the U.S. illegally on 9-11 were held for several months to determine if they were connected with terrorism, and then removed from the U.S.[128] Both cases were sent back to lower courts for further consideration.

The Court expressed serious reservations about imposing liability on federal officers for foreign policy-related decisions. The basis for such liability arose from a 1971 Supreme Court decision, not from an act of Congress. Especially when the actions involve foreign policy and high-level officials (Attorney General Ashcroft was one defendant), the Court is usually reluctant to find liability without congressional authority.[129] It seems unlikely that either case will result in liability for the officials. Congress could, of course, pass a statute establishing such liability in the future.

President Trump’s Travel Ban

The last decision of the Term concerned the various injunctions that lower courts had granted staying the implementation of the “travel ban” issued by President Trump.[130] The Court’s consideration was preliminary, not a full hearing. It granted the government’s stay but narrowed the injunctions against the travel ban.[131] The stay permits entry into the U.S. by foreign nationals “with a close familial relationship,” or pre-existing ties to U.S. businesses or institutions (such as students who have been admitted to American colleges, workers who have accepted employment in the U.S., or lecturers invited to address American audiences).[132] The Court also granted certiorari to consider the case next Term, although it may be unlikely that the current “temporary” ban will still be in place through the next Term.

Intellectual Property

America runs on intellectual property. Protecting IP (patents, copyrights, and trademarks) just enough to encourage innovation without stifling other innovation is one of the keys to a bright future for the country. The Court decided eight IP cases this Term, which may be a record.


The most important of the patent cases may also be the most boring.[133] In fact, a reader may search the opinion in vain to see why it is so important—there is almost no hint. It is about the proper venue (the court in which a case may be filed) for patent cases. The Court held that the proper venue is where the defendant is incorporated. The reason the decision is important had nothing to do with this case (which was about flavored water) or these parties. Rather, it is the effect that it will have on “patent trolls.”

Trolls gain ownership of patents in order to file suit or threaten major companies to obtain settlements, rather than to actively use the patent.[134] Patent trolls have flocked to the Eastern District of Texas to file patent cases because that court has the reputation of being favorable to patent plaintiffs.[135] In 2015, 44% of patent cases were filed in that remote district. This decision will stop that because not many major companies are incorporated in Texas. Instead, the hub of the patent litigation world is likely to move to Delaware where the majority of major corporations are incorporated. It is likely to be less patent-troll friendly.

On a more substantive level, the Court waded into the complex legal thicket of biologic pharmaceuticals. As a refresher, biologics differ from drug in that they exactly replicate a gene, antibody or hormone in the human body. Biologics, also called large molecule drugs, are based on living tissue but are often produced via recombinant RNA processes, so that they can be manufactured in commercial quantity—human growth hormone is such a biologic. The first common biologic was recombinant insulin—previously insulin dependent diabetics injected animal-derived insulin. More recently, biosimilar drugs have become prominent. These drugs have the same action in the body as a biologic, and by definition cannot differ meaningfully in their potency or safety, but they may differ from a biologic agent in their structure and manufacturing process.

Biologics and biosimilars have become a very important part of healthcare—and may become important in neuropharmacology.[136] Eight of the ten top selling drugs in 2016 were biologics (set out in the notes).[137] Sandoz v. Amgen involved “biosimilar” pharmaceuticals.[138] These are essentially the generics of biologic drugs. Because biologics cannot be duplicated exactly in the way ordinary pharmaceuticals can, they are considered “biosimilar” rather than generics (which are exactly the same chemical as the brand name). Biologics (and therefore biosimilar drugs) will likely affect almost every sector of healthcare practice and research.

While biologics hold great promise, they are generally very expensive. Because these products will likely be of considerable importance in healthcare in the decades ahead, how pricey the compounds are will also be important. Just as with generics, brand-name companies (generally referred to as “reference” biologics) want to keep biosimilars off the market as long as possible—thereby extending the advantages of monopolistic pricing.

This Term the Court considered the complex statutory rules for licensing biosimilar drugs. The most important aspect of the decision is that it will allow biosimilar companies to speed up the licensing process by at least 180 days.[139] Given the price of biologics that is at least a modest win for biosimilar products and patients.

In the Apple-Samsung war (and one other case), the Court held that damages in a patent case relate only to the component that violates another’s patent, not to the profit of the entire device.[140] In other patent cases, the Court held that injured patent holders may file an infringement action within the statute of limitations (generally six years) even though they could have filed earlier;[141] and once a company sells a patented product it can no longer control the object through the patent laws—it has exhausted its patent rights.[142]

Medical devices and pharmaceuticals, of course, live and die by patents, and the cases this Term help define how patent law will be applied in a number of areas. The intellectual property law mental health professionals ordinarily consider is copyright (psychological tests, published articles, and the like). Patent law, however, is increasingly influential in some aspects of mental health practice, including clinical apps and even some elements of psychological testing.[143]

Trademarks and Copyrights

One of the most anticipated decisions of the Terms involved a band, but it was not their music that was controversial.[144] It was their name. Simon Tam applied for a trademark for his group, “The Slants,” in part to “reclaim” a racial slur aimed at Asians. The Patent and Trademark Office (PTO) declined to register it because the Lanham Act prohibits the registration of trademarks that may “disparage . . . or bring . . . into contempt or disrepute” any “persons, living or dead.”[145] The Court held that the failure of the PTO to register the trademark was a First Amendment violation. One reason that this case was watched was the effort of the PTO to de-register the trademark of the Washington Redskins.[146]

Other Interesting Decisions

The Court issued a number of other interesting and important decisions during the Term. Among them are the following:

  • Transgender Rights: The most talked-about case before the Term essentially disappeared. The “transgender bathroom case”[147] changed significantly following the presidential election because the Department of Education rescinded the earlier guidance on which the case was based. The Court returned the case to the Fourth Circuit for reconsideration.
  • Same-Sex Couples—Birth Certificates: The Court held that same-sex couples are entitled to have birth certificates listing both parents, if the state ordinarily lists the names of both husband and wife on such certificates.[148] The Court held that this is part of the “constellations of benefits” linked to marriage that the Constitution affords same-sex couples.[149]
  • Pharmaceutical Liability: Bristol-Myers Squibb (BMS) was sued in California courts regarding injuries caused by Plavix, a blood thinner.[150] Most of the 900 plaintiffs filing the suit were not from California. The Court held that the state court could not hear the case regarding the non-Californians, but that the injured parties could sue in their own states, states where BMS is “home,” or possibly in federal court).[151]
  • Housing Discrimination: The Court gave cities authority under the Fair Housing Act to file suit against banks for discriminatory lending that harms the city in demonstrable ways. However, it set a fairly high “proximate cause” standard by which the city must connect the bank’s discrimination to harm to the city.[152]
  • Sentencing: The Federal Sentencing Guidelines continue to require the Court’s attention. This Term the Court rejected a claim that these guidelines are too vague [153] and held that they allow trial court judges some discretion in considering sentences for multiple-count convictions.[154]
  • Exonerations and Penalties: Colorado kept some fees and costs of criminal defendants who were ultimately acquitted (exonerated), and it required that they prove their innocence by clear and convincing evidence in order to recover their money. Not surprisingly, the Court found this unconstitutional.[155]
  • State Officials’ Liability: Under a federal law (commonly called “Section 1983”) state officials may be liable for violating federal rights.[156] In two cases the Court continued to emphasize that state officials have qualified immunity under §1983. [157] There is liability only if the “official’s conduct violates clearly established statutory or constitutional rights.” In another case of obvious official misconduct, the Court returned the case to the lower courts to answer a question of whether the suit was properly filed within the statute of limitations.[158]
  • Redistricting: In two decisions, the Court continued a very
    muddy jurisprudence on the use of race in election redistricting. Some refer to it as the Goldilocks principle—states cannot use too little consideration of race or too much. But what is “just right” is not very clear. It struck down redistricting in North Carolina (again)[159] and sent Virginia redistricting back to the lower courts for another review.[160]
  • Church and State: In an important decision, the Court held that it was a violation of the Free Exercise Clause to deny a church-related school access to generally available state grant funds solely because of its religious status.[161] In this case the program funded playground surfacing grants.[162] The most interesting aspect of this case may have been a footnote and the reaction to that footnote—perhaps part of a battle over school vouchers (set out in the notes to this article).[163]

Analysis of the Term

The October Term 2016 began on October 3, 2016, and ended on June 26, 2017. During the Term the Court issued 69 opinions—62 of those were “signed opinions” after oral arguments, and seven were summary reversals (generally with per curiam opinions).[164] Three cases were dismissed before oral argument (including the transgender bathroom case), and two were held over to next Term for re-argument (the two immigration-related cases).

The level of agreement was remarkable. Of the 69 decided cases, 41 (69%) were unanimous. In 59 (85%) cases there was a strong consensus, with no more than two justices dissenting.[165] Only seven decisions (10%) were 5-4. This unusual level of agreement may reflect the fact that the Court (1) did not accept highly controversial cases; (2) delayed oral arguments in some cases to allow for the confirmation of a new justice; (3) tried hard for narrow, consensus decisions; or (4) held-over two controversial cases to next Term. Somewhat surprisingly, there were no 4-4 splits in the cases this Term (partly due to holding over the two immigration cases).

Justice Kennedy was, as usual, the deciding vote in most of the close cases—and was therefore, in the majority in 97% of the decisions—in only two cases was he not in the majority.[166] Chief Justice Roberts and Justice Kagan were in the majority 93%. On the other side of frequency in the majority, Justices Thomas and Gorsuch were at 82%, and Justice Ginsburg at 85%.

Each justice authored seven or eight majority opinions. The number of dissenting and concurring opinions varied considerably. Justice Thomas was by far the most prolific with a total of 31 opinions (7 majority, 15 concurring, and 9 dissenting). Justice Kagan wrote 8 opinions (7 majority and 1 dissenting).

It is a fool’s errand to predict, based on a few weeks on the Court, what a justice will be like–so I will rush right in. Based on his very limited voting record and the few decisions in which he participated, Justice Gorsuch seems like a true successor to Justice Scalia (but perhaps a gentler questioner at oral argument). If that is so, then the Court is aligned much as it was two years ago. Only time will tell, of course.

Perhaps the big news at the end of the Term was what did not happen. Justice Kennedy was widely rumored to be planning to retire from the Court. He did not. Justice Ginsburg, the subject of such rumors for years, did not show any signs of slowing down. At 84 she is about to be the subject of a workout book.[167]

The new Term begins on October 2, 2017—the First Monday in October. The Court has already accepted a number of important cases for the Term. It has the two immigration cases held over that we noted were apparently an even split this Term. It also has cases dealing with the privacy of information held by mobile phone companies; a constitutional challenge to political gerrymandering; arbitration agreements (again) involving work-related class actions; bakeries and gay-marriage ceremonies; whistleblowers and Dodd-Frank regulations; sports gambling and the NCAA; and much more to come.

Here is a safe bet: there will be some surprises.

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

Endnotes and Materials

The Endnotes include links to all of the cited cases as well as additional information about the cases and the statutes cited by the cases. It also provides information about locating materials about the Supreme Court.

The author thanks Larry Benner, Stephanie Brasfield, Eric Drogin, Morgan Sammons, Glenn Smith, and Lera Smith for their reviews and helpful insights. The errors that remain must be the result of not having taken their advice.

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 bound sources, however, pagination is continuous.

[1] In American history, it was not exceptional for the Senate to fail to confirm a Supreme Court nominee in the last year of a president’s final term (particularly when the Senate and President were in the hands of different parties).  Of the approximately 155 nominations to the Court, 30 have not been confirmed (starting with George Washington in 1795).  By my count, the Senate has “postponed” or failed to act on nine nominees, and another seven nominees have withdrawn.  The Senate has rejected 12 nominees.  Nearly half of the failed nominations have occurred in the President’s last year in office.

In the last 100 years, only one nominee was rejected in the 50 years between 1917 and 1967, only one nominee was rejected (John Parker, nominated by President Hoover in 1930).  That easy sailing changed in the most recent 50 years.  From 1967 to the present, seven nominees have been rejected (Abe Fortas, nominated by President Johnson from Associate Justice to Chief Justice; Clement Haynsworth and Harrold Carswell, nominated by President Nixon; Robert Bork and Douglas Ginsburg, nominated by President Reagan; Harriet Miers, nominated by President Bush;  and Merrick Garland, nominated by President Obama.  Arguably there was an eight, Homer Thornberry, who was slated to take the position of Abe Fortas, but the Fortas position was not vacated.)

[2] Senate filibusters had been precluded on all other federal judges since 2013—which was the first Nuclear Option.  In 2013, the Senate majority (Democratic at the time) changed the Senate rules to preclude the filibuster for judicial nominees except Supreme Court nominees (there were no Supreme Court nominees at the time).  They did so in frustration for fact that many judicial nominees were being blocked by the Republicans, then in the minority.  Changing the Senate Rules so dramatically was commonly described as the “Nuclear Option” both when done in 2013 and in 2017.  Paul Kane, Reid, Democrats Trigger “Nuclear” Option; Eliminate Most Filibusters on Nominees, Washington Post (November 21, 2013), available at, archived at

[3] Because the first oral argument that included Justice Gorsuch was on April 17.  He participated in approximately 16 cases that were heard after he joined the Court.

[4] Some high courts intentionally operate with even numbers of justices.  The purpose of that is to encourage the court to reach consensus, look for common ground, and provide for narrow holdings.  The Supreme Court of Ireland is an example of this arrangement.

[5] The Court selects its cases through “Writs of Certiorari.”  It commonly accepts about one percent of the cases appealed to it.

[6] Kindred Nursing Centers, L. P. v. Clark, decided May 15, 2017.  In a 7-1 decision, Justice Kagan wrote for the Court.  Justice Thomas dissented.  (Justice Gorsuch did not participate in the case.  Unless noted otherwise, in cases with only eight justices participating, it means that Justice Gorsuch did not participate.)

[7] Endrew F. v. Douglas County School Dist. RE–1, decided March 22, 2017.  This was a unanimous decision.  Chief Justice Roberts wrote for the Court.

[8] Fry v. Napoleon Community Schools, decided February 22, 2017.  It was a unanimous decision, although Justices Alito and Thomas wrote a concurring opinion to express concern about one part of the Court’s decision.

[9] McWilliams v. Dunn, was decided June 19, 2017.  Justice Breyer wrote for the majority.  Justice Kennedy was considered the deciding vote, with Justices Alito writing a dissent in which Chief Justice Roberts, and justices Thomas and Gorsuch joined.  Buck v. Davis, decided February 22, 2017 (involving the extraordinarily inappropriate testimony of a defense psychologist).  Chief Justice Roberts wrote for the six-justice majority; Justices Thomas and Alito were in dissent.

[10] Moore v. Texas, decided March 28, 2017 (involving the appointment of mental health experts in capital cases).  Justice Ginsburg wrote for the five-justice majority.  Chief Justice Roberts wrote a dissent, joined by Justices Thomas and Alito.

[11] Packingham v. North Carolina, decided June 19, 2017.  Justice Kennedy wrote for a unanimous Court (concurrences were filed by Justice Alito, joined by Chief Justice Roberts and Justice Thomas).

[12] Pena-Rodriguez v. Colorado, decided March 6, 2017.  This was a 5-3 decision, with Justice Kennedy writing for the majority.  Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justice Thomas.

[13] The facts are more thoroughly explained in the Kentucky Supreme Court opinion, Extendicare Homes v. Whisman, 478 S. W. 3d 306 (Ky. 2015) available at, archived at .

[14] These arbitration agreements were imbedded in lengthy “alternative dispute resolution” documents described in detail in the Kentucky opinion cited above.  The admitting paperwork for the care homes indicated that signing the mandatory arbitration agreement was not necessary in order to be admitted to the home.

[15] Kindred Nursing Centers, L. P. v. Clark was decided on 15, 2017.  It was a 7-1 decision, with Justice Kagan writing for the Court.  Justice Thomas dissented.

[16]  The FAA is codified at 9 U.S.C §2.  It provides in part that, “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”  Id.

[17] The center was essentially urging the Court to overturn the Kentucky law limiting the ability of agents to waive litigation rights The Kentucky Supreme Court had held that under the Kentucky Constitution, the agents could not waive the right to litigation by signing the arbitration agreement.

[18] Kindred, supra.

[19] The argument that the agent could not enter into arbitration contracts for their principals was rejected by the Court.  However, in the case of Wellner, there was a special circumstance.  As a general matter of law, an agent cannot usually exceed the authority granted by the power of attorney.  It was not clear that the power of attorney in the Wellner case was broad enough to authorize the agent to agree to a pre-dispute arbitration agreement.  For that reason, the Court returned Wellner to the lower court to determine whether the agent did have the authority to enter into an arbitration agreement.

[20] Id. at 5.

[21] An example of bias is where one of the parties (a company or hospital, for example) selects arbitrators frequently, but the other party (an individual) may select an arbitrator from a panel only once.  Arbitrators would know that and even if well intentioned, there is a risk that needing to please one side would affect the judgment.  In labor arbitration where both the union and the company are both repeatedly using a pool of arbitrators, that bias not as likely to appear because both sides have to be satisfied with an arbitrator.

[22] This can be important where an institution harms a lot of people a little bit, as when a hospital tacks on a $75 “dismissal fee” to those leaving the hospital.  In those cases, no single person is going to spend the money to pursue restitution.  That leaves the injured without an effective judicial remedy.  In some instances, of course, they may be able to file complaints with regulatory agencies.

[23] Kindred, Justice Thomas, dissenting.

[24] They were fortunate to be able to opt out by simply rejecting the arbitration agreement.  It is usually not so easy.  In many negotiated agreements, one party can simply negotiate out of that provision, perhaps by suggesting that the parties should, post-dispute, endeavor in good faith to resolve the differences, perhaps using mediation or arbitration.  The more one party can impose a contract without negotiation, the more difficult it is to be able to change arbitration clauses.  In contracts of adhesion, such as “click through” terms of service, it is impossible to change those terms.

[25] Among other things, requiring an arbitration agreement to obtain care may be seen as a contract of adhesion that is unconscionable, or may be seen as inconsistent with the strong obligation of professionals to treat clients and patients with good faith.

[26] 20 U.S.C. §1400 et seq.  Those working with disabled and challenged students generally feel that the IDEA is the critical law for providing educational opportunities and support for those students.

[27] Justice Kagan correctly noted the acronym-rich of IDEA and related laws.  “To avoid confusion—and acronym overload— we refer throughout this opinion only to the IDEA.”  Fry at 2.  “Welcome to—and apologies for—the acronymic world of federal legislation.”  Id.

[28] There are detailed federal regulations about the process for putting together the IEPs, and about the content of the plans.  20 U. S. C. §1400, in particular §1414(d)(1)(B).

[29] 20 U.S.C. §1401(9).

[30] 20 U.S.C. §§1414(d)(1)(A)(i)(I)–(III).

[31] Endrew F. v. Douglas County School Dist. RE–1, decided March 22, 2017.  Chief Justice Roberts wrote the opinion for a unanimous Court (8-0).

[32] Id. at 14-15.

[33] This had been announced by the Court in an earlier decision.  Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 203-204 (1982).

[34] In reaching this conclusion, the Court rejected two alternative approaches: that (1) only slightly “more than de minimis” is enough, and (2) that achievement “substantially equal to that afforded to children without disabilities” is appropriate—the first of those being not enough, and the second more than IDEA requires.  Endrew F. at 14-15.

[35] “By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”  Id. at 16.

[36] The “in light of his circumstances” is a critically important part of the legal test.  The severity of a disability, for example, influences what the reasonable expectations are for progress in the coming year.

[37] Fry v. Napoleon Community Schools , decided February 22, 2017.  This was a unanimous, 8-0, decision.  Justice Kagan wrote the opinion for the Court.

[38] The relevant section of the statute provides, “Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including §504], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].”  20 U.S.C. §1415(l).  Ironically, this language resulted from Congress trying to correct ambiguous language from the original statute.  See Smith v. Robinson, 468 U. S. 992, 1010 (1984).

[39] Fry at 6.

[40] The Frys complained to the Department of Education’s Office of Civil Rights, that the exclusion of E.F.’s “service animal violated her rights under Title II of the ADA and §504 of the Rehabilitation Act. Following an investigation, OCR agreed.”  The school, in response to this finding, then agreed to allow Wonder to join E.F. in the school.  The parents were concerned that the school administration would “resent’ E.F. and make her return to school difficult. 7.

[41] Id. at 14-18.

[42] Id. at 15-17.

[43] 17-18.  Justices Alito and Thomas issued a concurring opinion to emphasize their view that these questions were not as informative as the majority thought.  Fry, Justice Alito, concurring at 1.

[44] Ake v. Oklahoma, 470 U. S. 68 (1985).

[45] Ake at 83. (Emphasis added to note that the state is required to provide the assistance for the indigent defendant.)

[46] The amicus brief offered to the Court by the American Psychological Association and American Psychiatric Association and others noted, “The Court in Ake referred specifically to a psychiatrist because that was what Ake’s counsel requested before trial. Ake is universally understood, however, to encompass qualified psychologists and other mental health experts.  APA Brief at 5, note 2.

[47] McWilliams v. Dunn, was a 5-4 decision, with Justice Breyer writing for the majority and Justice Kennedy considered the deciding vote.  Chief Justice Roberts and Justices Alito, Thomas, and Gorsuch dissented.

[48] The third member of the Lunacy Commission did not testify and was not identified by the Court.

[49] Dr. Norman Poythress is a distinguished psychologist, not a psychiatrist.  The Court indicated that he testified at trial. “Dr. Poythress testified that one of the tests that McWilliams took was ‘clinically invalid’ because the test’s ‘validity scales’ indicated that McWilliams had exaggerated or faked his symptoms.”  McWilliams, majority opinion at 4.

[50] Id. at 7.

[51] The details of the trial are set out on pages 4-9 of the opinion at .

[52] Id. at 2.

[53] 13.

[54] Justice Alito, joined by Chief Justice Roberts, and Justices Thomas and Gorsuch, dissenting.  The Court accepts cases through a Writ of Certiorariprocess.  The Court denies the vast majority of cases it is asked to review.  When it does accept a case, it defines precisely what questions are or can be addressed.

[55] Given the rules and traditions of the Court, that seemed quite implausible.  The Court’s rules specify that the Court will consider only the question on which review is granted and “subsidiary questions.”  Rules 14 and 24 of the Court.  It rarely considers questions not presented.  The dissent noted that the Court enforces these rules.  Justice Alito, dissenting, at 12.

However, a review of the petition for certiorari and the granting of the petition do, indeed, confirm the claim.  “The questions presented are: (1) When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the ‘evaluation, preparation, and presentation of the defense,’ did it clearly establish that the expert should be independent of the prosecution? (2) Did the Alabama courts unreasonably apply Akein finding that McWilliams’s rights were satisfied when the only mental health expert he was provided distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records?” McWilliams v. Dunn, Petition for Writ Certiorari (July 15, 2016) at i, available at .  On January 13, 2017, the petition for a writ of certiorari granted, “limited to Question 1 presented by the petition.” at  The majority responded to the dissent’s claim in a rather weak way.  McWilliams, majority opinion at 14.  The majority did not make it clear, for example, why it rejected the question it was going to answer.  The briefs requesting and opposing certiorari made the facts of the case sufficiently clear that the Court must have known what the real issues were.

[56] The technical problem involves the Antiterrorism and Effective Death Penalty Act of 1996 in which Congress substantially limited the use of habeas corpus petitions (which this was).  There was concern in the 1970s-1990s that the federal courts were using the habeas corpus process to interfere too much in state court criminal process.  The Supreme Court had been using that process to announce entirely new constitutional principles to which the state courts would be subject.  The statute prohibits the federal courts from granting habeas relief unless the state action “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).  In short, this requires that there already be a clearly enunciated specific federal right that was clearly violated.  The problem for the majority was that the legal question on which the Court granted certiorari (essentially, was the expert provided required to be a member of the defense team) did not have a clearly enunciated federal decision, so under the statute, the Court could not announce the new principle in this habeas case.

The reason the Court rejected the other question, the one it actually decided (essentially, did the trial court engage in general misconduct regarding reports of the experts and the request for assistance) is probably that it is of the type that requires a detailed factual analysis, which the Court is not particularly well-positioned to do.

[57] It may also have been that having accepted the question of the mental health professional as a member of the defense “team” it came down to the fact that there were not five votes for that proposition and the majority simply fell back to answer a different question as a way of avoiding letting the death penalty stand.

[58] Amicus Curiae Brief of the American Psychiatric Association, American Academy of Psychiatry and the Law, and American Psychological Association, in the case of McWilliams v. Dunn, available at

[59]  “Defense counsel indicated that he could not fairly represent the defendant without the assistance of an expert. Had such assistance been provided, the trial judge might have concluded that, whether or not the defendant was malingering, his mental illness was a mitigating factor. Malingering is not inconsistent with serious mental illness; it is not clear that the trial court was aware of this fact. See Mary Alice Conroy & Phylissa P. Kwartner, Malingering, 2 Applied Psychol. Crim. Just. 29, 30-31 (2006)12 (‘Malingering and mental illness are not mutually exclusive phenomena.’).”  Amicus brief at 20.

[60] “If McWilliams had the assistance of an expert to explain that ‘[m]alingering is not inconsistent with serious mental illness,’” Brief for American Psychiatric Association et al. as Amici Curiae 20, he might have been able to alter the judge’s perception of the case.”  McWilliams, majority opinion at 16.

[61] Buck v. Davis, was a 6-2 decision.  Chief Justice Roberts wrote for the Court.  Justices Thomas and Alito dissented.

[62] To be sentenced to death in Texas at the time, the jury had to find, unanimously and beyond a reasonable doubt, that it was probable “that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”  Id. at 3.

[63] Dr. Patrick Lawrence prepared a report and testified that Buck’s crime had been one of “passion” related to a romantic relationship.  He concluded that Buck was unlikely to be a danger if he were sentenced to life in prison.  Dr. Lawrence’s testimony was not part of the legal issues faced by the Supreme Court.  Id. at 3-4.

[64] Id. at 4, quoting the trial transcript.

[65] The Court recognized this problem with some emphasis.  It noted that his testimony “was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as ‘violence prone.’... Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race. This effect was heightened due to the source of the testimony. Dr. Quijano took the stand as a medical expert bearing the court’s imprimatur. The jury learned at the outset of his testimony that he held a doctorate in clinical psychology, had conducted evaluations in some 70 capital murder cases, and had been appointed by the trial judge (at public expense) to evaluate Buck.… Reasonable jurors might well have valued his opinion concerning the central question before them.”  Id. at 19 (internal citations not included).

[66] He had testified in at least six trials in similar race-related testimony.  The Supreme Court had agreed to hear one of those cases, when it became apparent that the lower courts should never have permitted the testimony of this psychologist.  The state “confessed error” and the state court decisions were vacated.  Saldano v. Texas, 530 U.S. 1212 (2000).  Five of those cases were reopened by the Texas Attorney General.  This was the sixth of the cases.  Buck v. Davis at 6-7.

[67] There were a number of technical legal problems in this case that had to do with the ability of courts to consider the claims of error.  This was because of the failure of attorneys to raise issues in the lower courts in a timely fashion.  The majority of the Court found that the deficient performance of Buck’s defense counsel was coupled with a likelihood that Dr. Quijano’s testimony had an effect on the jury’s verdict.  There were, in addition, a variety of other special circumstances that justified reopening the case on appeal.  Id. at 20-26.  The two dissenting justices said that this result was hard to square with the Court’s own precedents.  “Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it. But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here. The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.” Justices Thomas and Alito, dissenting at 1.

[68] It is also worth noting that Buck v. Davis was technically about the incompetence of the attorney.  They attorney should have noted the problems with the report and sought to ensure that the jury did not receive the inflammatory report.

[69] Atkins v. Virginia, 536 U. S. 304 (2002).

[70] Moore v. Texas, was a 5-3 decision (with Justice Gorsuch not participating).  Justice Ginsburg wrote for the majority.  Chief Justice Roberts wrote a dissent, joined by Justices Thomas and Alito.

[71] Hall v. Florida, 572 U. S. ___ (2014) available at .

[72] Moore at 4.

[73] Presumably, it is the time of the appeal that defines “current understanding”—the crime was committed in 1980.  In 2015 Texas was using the definition of, and standards for assessing, intellectual disability “contained in the 1992 (ninth) edition of the American Association on Mental Retardation (AAMR) manual, predecessor to the current AAIDD–11 manual. See 135 S. W. 3d, at 7 (citing AAMR, Mental Retardation: Definition, Classification, and Systems of Supports (9th ed. 1992).”  Reliance on these standards caused the state to take into account a number of inappropriate factors.  Id. at 5-6.

[74] Id. at 10-11.

[75] Id. at 12-16.

[76] These were referred to seven “Briseno” factors which the Court described in its decision.  Id. at 5, note 6.  In its amicus brief, discussed below, the APA brief called these, “non-clinical factors created out of whole cloth by the Texas Court of Criminal Appeals.” APA amicus brief at 14.  Later in the brief it very effectively demonstrated the difficulties with these factors.  Id. at 16-25.

[77] Moore at 17.

[78] Chief Justice Roberts, dissenting, joined by Justices Alito and Thomas.

[79] Chief Justice Roberts went on to say that “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles, and I respectfully dissent.”  Roberts, dissenting, at 2.

[80] Amicus Curiae Brief of the, American Psychological Association, American Psychiatric Association, American Academy of Psychiatry and the Law, National Association Of Social Workers, and National Association of Social Workers Texas Chapter in the case of Moore v. Texas available at .

[81] Moore, majority opinion at 14, citing the APA brief at 19.

[82] This was notably the case in assessing the Texas factors in determining intellectual disability.  APA amicus brief at 16-25.

[83] Id. at 26.

[84] Rippo v. Baker, decided March 6, 2017.  This was a per curiam opinion (by the Court, without an authoring justice named).  It was a unanimous decision.

[85] Bosse v. Oklahoma, decided October 11, 2016.  This was a per curiamopinion.  The decision was unanimous, although two justices (Thomas and Alito) wrote a concurring opinion to emphasize the limited nature of the holding.

[86] Id. at 1.

[87] Although the families testified, it was the prosecutor and judge who made the mistake.  They allowed them to testify.  Id.

[88] Ineffective assistance of counsel is a violation of the Sixth Amendment.  That amendment provides (in part), “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”  The Court held many years ago that it has to be meaningful assistance, but it is a fairly low standard.

[89] Jenkins v. Hutton, decided June 19, 2016.  This was a per curiam opinion.

[90] Davila v. Davis, decided June 26, 2017.  Justice Thomas wrote for the Court, joined by Chief Justice Roberts, and justices Kennedy, Alito, and Gorsuch.  Justice Breyer filed a dissent, joined by justices Ginsburg, Sotomayor, and Kagan.  The Court suggested that the Constitution does not protect against ineffective assistance of counsel on appeal the way it does at the trial level.  

[91] Death Penalty Information Center, Fact Sheet (2017) available at .

[92] Kent Scheidegger, Supreme Court Marks Time for a Term on Capital Punishment, Death Penalty Symposium (June 29, 2017) available at .

[93] Stephen McAllister, A Court Increasingly Uncomfortable with the Death Penalty, Death Penalty Symposium (June 29, 2017) available at .

[94] In Glossip v. Gross Justice Breyer (joined by Justice Ginsburg), in 2015, issued a long (43 page) “dissent” that was essentially unrelated to specifics of the Glossip case.  It was a brief against the constitutionality of the death penalty.  As the length suggests, it was a very full consideration of the arguments (with social science evidence cited) for doing away with the death penalty.  The case is here: Glossip v. Gross .

[95] N. C. Gen. Stat. Ann. §§14–202.5.

[96] Packingham v. North Carolina, was essentially a unanimous decision, although three justices concurred in the result, but took some exceptions to some statements in the majority opinion.

[97] 5, internal quotation marks omitted.

[98] Id. at 6, internal quotation marks omitted.

[99] Id.  A state may generally limit constitutionally protected free speech only where it is protecting a “compelling state interest” and where the restriction on speech is “narrowly tailored.”  That is, it cannot limit free speech any more than is necessary to accomplish the state’s purpose.  The Court assumed that protecting children from sexual predators is a compelling state interest, so the question came down to whether the North Carolina statute was “narrowly tailored.”  The majority of the Court did not face the question of “compelling” state interests because it found the statute unconstitutional even under the “intermediate scrutiny” standard.

[100] Id. at 8, 10.

[101] Id. at 7.

[102] Packingham, Justice Alito, concurring opinion, joined by Chief Justice Roberts and Justice Thomas at 1-2.

[103] E.g., Louise Matsakis, Supreme Court Hints That Trump Can’t Legally Block You on Twitter, Motherboard (June 20, 2017) available at ; Harold Feld, Packingham and the Public Forum Doctrine: Implications for Copyright, PublicKnowledge (June 22, 2017) available at ; S.M., Twitter Users Sue Donald Trump for Excluding Them: A Group of Former Followers Say Barring Them Violates the First Amendment, Economist (July 12, 2017) available at .

[104] Pena-Rodriguez v. Colorado, was a 5-3 decision.  Justice Kennedy wrote for the majority.  The Court provided an excellent summary of the history of decision seeking to avoid racial bias in jury selection and function: “Beginning in 1880, the Court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. Strauder v. West Virginia, 100 U. S. 303, 305–309 (1880). The Court has repeatedly struck down laws and practices that systematically exclude racial minorities from juries. See, e.g., Neal v. Delaware, 103 U. S. 370 (1881); Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam); Avery v. Georgia, 345 U. S. 559 (1953); Hernandez v. Texas, 347 U. S. 475 (1954); Castaneda v. Partida, 430 U. S. 482 (1977). To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992). In an effort to ensure that individuals who sit on juries are free of racial bias, the Court has held that the Constitution at times demands that defendants be permitted to ask questions about racial bias during voir dire. Ham v. South Carolina, 409 U. S. 524 (1973); Rosales-Lopez, 451 U. S. 182; Turner v. Murray, 476 U. S. 28 (1986).”  Id. at 14.

[105] The rule is incorporated into Rule 606(b) of the Federal Rules of Evidence as follows: “During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.”  Exceptions are very limited, as Rule 606 suggests: “Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.”

[106] “According to the two jurors, H. C. [a juror] told the other jurors that he ‘believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.’ The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, ‘I think he did it because he’s Mexican and Mexican men take whatever they want.’ According to the jurors, H. C. further explained that, in his experience, ‘nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.’ Finally, the jurors recounted that Juror H. C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was ‘an illegal.’”  Pena-Rodriguez at 3-4.

[107] Id. at 17.

[108] Justice Thomas dissented on the basis that when the Sixth Amendment was adopted, it would have carried with it an assumption of a no-impeachment rule.  Justice Alito, joined by Chief Justice Roberts, dissented based on their view that the benefits of a no-impeachment rules outweigh the occasional harm that comes from it.

[109] The Court emphasized that, “To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.”   Pena-Rodriguez, majority opinion at 17.

[110] The charge was violating 18 U. S. C. §1425(a) by knowingly procuring naturalization “contrary to law.”  The “contrary to law” was violating 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding.  A violation of 18 U. S. C. §1425 results in the automatic revocation of citizenship under 8 U. S. C. §1451(e).

[111] Maslenjak v. United States, decided June 22, 2017.  Justice Kagan wrote for the majority.  It was a 9-0 decision, although only six justices joined the majority opinion.  Three justices felt that the majority decision went beyond what was required to resolve the case.

[112] Sessions v. Morales-Santana, decided June 12, 2017, with Justice Ginsburg writing for the majority (six justices joined the majority opinion, two concurred).

[113] There are distinctions between married and unmarried parents, new provisions that applied to children born after 1986, and times of residence in the US calculated between birth and 14, and after 14.  Time in the US includes time in “outlying possessions” and time in the military.  The Court explains some of these complexities.  Id. at 2-4.

[114] Morales-Santana was convicted for several offenses and on the basis of that the government began removal proceedings.  He claimed citizenship based on his father’s citizenship.  His father had not been in the US five years after he was 14 years old.   It was close, his father was only a few days short of meeting the five-year requirement.  Id. at 5-6.

[115] The ten years refers to the total amount of time spent in the US, while the five years refers to the number of years spent in the US after age 14.

[116] The Court tried to determine whether Congress would prefer the longer or shorter time when having to decide on a single time for both.  It anticipated that Congress would have selected the longer time.  Id. at 23-28.

[117] 8 U. S. C. §1227(a)(2)(A)(iii).

[118] Esquivel-Quintana v. Sessions, decided May 30, 2017.  Justice Thomas wrote for a unanimous Court.

[119] It based its opinion on what Congress would have meant, in light of the categories of removable offense, and the common definition of statutory rape (which is a form of sexual abuse of a minor under 16 years old) in other states.  Id. 

[120] Jae Lee v. United States, decided June 23, 2017, with Chief Justice Roberts writing for the Court.  Justices Thomas and Alito dissented.

[121] 8 U. S. C. §1101(a)(43)(B), §1227(a)(2)(A)(iii).

[122] The evidence of his guilt was very strong, but the Court recognized that the possibility of acquittal was greater at trial than by pleading guilty.   Jae Lee majority opinion.

[123] The Court’s decision is likely to result in Lee being able to withdraw his guilty plea and go to trial on the charge.  Of course, if he is convicted of the offense at trial, he will still be deported as a result of that conviction.

[124] Sessions v. Dimaya, No. 15-1498 [Arg: 1.17.2017 Trans./Aud.].  These links are to the coverage of the case, including the briefs and an audio recording of the hearing.

[125] Their argument is essentially that although deportation is not a “criminal punishment,” given its practical consequences, it should have the same protections as criminal punishment.  That is an unsettled area of constitutional law.  There are obviously a number of significant implications to applying criminal protections to removal cases.

[126] Jennings v. Rodriguez, No. 15-1204 [Arg: 11.30.2016 Trans./Aud.]. provides considerable information about the case, through the links.

[127] Hernandez v. Mesa, decided June 26, 2017.  This was a per curiam opinion.  Justices Breyer and Ginsburg dissented and would have been more inclined to permit damages.  Justice Thomas technically dissented, but would simply have decided that there was no case, rather than returning it to the lower courts.  Justice Gorsuch did not participate in the case.

[128] Ziglar v. Abbasi, decided June 19, 2017.  Justice Kennedy wrote for the Court.  There were only six justices deciding this case.  Justices Sotomayor, Kagan, and Gorsuch took no part in the decision.  It was a 4-2 opinion.  Justices Breyer and Ginsburg dissented.

[129] Although federal statutes provide for liability for state officials (Section 1983 liability), it does not apply equally to federal officials, and Congress has not provided any equivalent statute providing for federal government officials’ liability.  There is a federal statute that allows damages for “conspiracies” by federal officers to deprive someone of equal protection (42 U. S. C. §1985)—but that is very limited.  In 1971 the Court adopted an “implied cause of action” in Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971).  That has been applied by the Court in two cases other than Bivens itself, and is not proved to be a broad source of governmental liability.  In addition, even where there is the possibility of liability, there are qualified immunities for officials that further limit liability.  The dissenters, on the other hand, suggested that not imposing liability on federal officials would allow them to engage in constitutional violations without the deterrent of possible liability.

[130] Trump. v. International Refugee Assistance Project, decided June 26, 2017.  This was a per curiam decision.  Justices Thomas, Alito, and Gorsuch dissented in part.  They would have dissolved all of the injunctions.

[131] Id. at 11-12.

[132] Id. at 12.  The Court cautioned about making up close relationships.  It permitted legitimate existing relationships that required someone’s presence in the country.  But, added, “Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”  Id. 

[133] TC Heartland LLC v. Kraft Foods Group Brands LLC, decided May 22, 2017.  This was a unanimous decision.  Justice Thomas wrote the opinion for the Court.

[134] Technically they are “non-practicing entities” because they buy or hold patents without using them.  Not all such entities are trolls; universities are often NPEs.

[135] The court there also has developed some expertise in patent matters, and has a very fast docket to decide cases.  Defenders of the district court there suggest that there is about an even split of plaintiff-defendant verdicts.  Of course, the fairness of that can be assessed only on the basis of the strength of the underlying claims filed there, and what comparable rates are from other districts.

[136] Presently, they are not of great importance in neuropharmacology.  Biologics produce large molecules, and they ordinarily do not pass the blood-brain barrier.  Given the importance and promise of biologics, however, there are efforts to find ways to deliver the benefits of the medications across the barrier.  One approach suggested is based on the Trojan Horse Principle.  Per-Ola Freskgård, Jens Niewoehner and Eduard Urich, Time to Open the Blood–Brain Barrier Gate for Biologics?, 9 Future Neurology 243 (2014) available at , archived at .

[137] The following is the list of the projected sales (global total in parentheses) of the top 10 pharmaceuticals for 2016.  All are biologics, except the two that are underlined:

  1. Humira (Rheumatoid arthritis, plaque psoriasis, Crohn's disease, ulcerative colitis, ankylosing spondylitis) - $15.7B
  2. Harvoni (Hepatitis C) - $11.6B [not a biologic]
  3. Rituxan (Non-Hodgkins lymphoma, chronic lymphocytic leukemia, rheumatoid arthritis) - $7.3B
  4. Avastin (Breast, colorectal, kidney, non-small-cell lung, glioblastoma, ovarian cancers) - $7.0B
  5. Lantus (Diabetes) - $6.9B
  6. Herceptin (Breast cancer) - $6.8B
  7. Revlimid (Multiple myeloma, myelodysplastic syndromes) - $6.7B [not a biologic]
  8. Prevnar 13 (Pneumonia vaccine) - $6.1B
  9. Remicade (Rheumatoid arthritis, Crohn's disease, ankylosing spondylitis, psoriatic arthritis, plaque psoriasis, ulcerative colitis) - $5.8B
  10. Advair (Asthma and chronic obstructive pulmonary disease) - $5B

Source: Looking Ahead: Pharma Projections for 2016 - & Beyond Medically, (March 30, 2017) available at , archived at .

[138] Sandoz Inc. v. Amgen Inc., decided June 12, 2017, in a unanimous opinion.  Justice Thomas wrote for the Court.  Amgen developed filgrastim, marketed by Amgen as Neupogen.  It is used to simulate the production of white blood cells.  Sandoz sought to sell a filgrastim product under the brand name Zarxio, with Neupogen as the reference product.  Id. at 7-9.

[139] The Court allowed Sandoz to give a special 180-day notice to Amgen while the FDA is considering an application for the biosimilar.  Amgen wanted the notice given only after the FDA approval. Id.  The Court did not decide another issue regarding unfair competition under state law.

[140] Samsung Electronics Co. v. Apple Inc., decided December 6, 2016.  This was a unanimous decision.  The opinion of the Court was written by Justice Sotomayor.  The damages Apple would receive for Samsung’s infringement of a cell phone’s design was not the profits from the whole phone, just from those elements that were infringements.

A similar “component” philosophy was apparent where the Court held that liability does not arise from supplying a single component of an infringing multiple-component product sold abroad.   Life Technologies Corp. v. Promega Corp., decided February 22, 2107.  This was a unanimous decision, although Chief Justice Roberts and Justice Gorsuch did not participate in it.  Justice Sotomayor wrote the opinion for the Court.

[141] SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, decided March 21, 2017.  This was a 7-1 decision, with Justice Alito writing for the majority.  They may delay even though that may run up the damages that occur.

[142] Impression Products, Inc. v. Lexmark Int’l, Inc., decided May 30, 2017.  Chief Justice Roberts wrote for the seven-member majority.  Justice Ginsburg dissented in part.  In this case Lexmark sold toner cartridges.  They were using the patent law to go after resellers who refilled the cartridges and sold them.  The Court held that the patent law was not available for this purpose because the sale of the cartridge exhausted its patent rights and it could not prevent consumers from doing what they wanted with the cartridges.  They could not, of course, copy the cartridge and sell them.

[143] For psychological tests, copyrights are still the primary protection of intellectual property.  They are much easier to obtain, and a traditional psychological test is unlikely to meet some of the technical requirements to be patentable.  However, a number of testing mechanisms and processes have applied for patents.

[144] Matal v. Tam, decided June 22, 2017.  The outcome of the case was unanimous, but the Court was badly split on the reasoning.  Here is how the Reporter of Decisions described it: “ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.”

[145] 15 U. S. C. §1052(a).

[146] Cheerleading got into the act too.  Clothing is generally not subject to copyright, but the Court held that in some instances the lines, chevrons, and colorful shapes of cheerleading uniforms might be copyrightable.  (Star Athletica, L. L. C. v. Varsity Brands, Inc., decided March 22, 2017.  This was a 6-2 decision with Justice Thomas writing for the majority.  One of the six justices in the majority (Justice Ginsburg) did not join the majority opinion.  Dissenting were Justices Breyer and Kennedy.  Logos may be subject to trademark, but that is another issue.  Here the question was whether the design could be copyrighted.   To obtain a copyright the designs have to be works of art “separate from the useful article” that would “qualify as a protectable pictorial, graphic, or sculptural work.”  (Id. at 12-17.)  This was almost certainly a win for copyright attorneys—many manufacturers are likely to try to squeeze in under the terms of this opinion.

[147] Gloucester County School Board v. G.G..  This is the discussion of the case.

[148] Pavan v. Smith, decided June 26, 2017.  This was a per curiam opinion.  Justices Gorsuch, Thomas, and Alito dissented.

[149]  Obergefell v. Hodges, 576 U. S. ___ (2015) available at

[150] Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., decided June 19, 2017.  This was an 8-1 decision.  Justice Alito wrote for the Court, and Justice Sotomayor dissented.  Bristol-Myers Squibb is incorporated in Delaware, headquartered in New York, and has substantial operations in New York and New Jersey.  It did not develop, manufacture, label, package, or obtain FDA approval for Plavix from California.  It does, however sell and promote Plavix in the state.  The non-residents of California had no connection to California and Plavix there.  They had not bought it or used it there.

[151] The Court found that there was not specific jurisdiction for California courts to hear the case.  “In order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.’”  Id. at 7-9.

[152] Bank of America Corp. v. Miami, decided May 1, 2017.  Justice Breyer wrote for the five-justice majority, which included Chief Justice Roberts.  Justices Thomas, Kennedy, and Alito concurred in part and dissented in part.

[153] Beckles v. United States, decided March 6, 2017.  Justice Thomas delivered the opinion of the Court.  Justices Ginsburg and Sotomayor concurred.  Justices Kagan and Gorsuch did not participate in the case.

[154] Dean v. United States, decided April 3, 2017.  This was a unanimous decision.  The opinion of the Court was written by Chief Justice Roberts.

[155] Nelson v. Colorado, decided April 19. Justice Ginsburg wrote for the Court.  Justice Alito concurred.  Justice Thomas filed a dissenting opinion.

[156] 42 U. S. C. §1983.  That section provides, in part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….”

[157] In County of Los Angeles v. Mendez (decided May 30, 2017, in a unanimous decision, with Justice Alito writing for the Court) the Ninth Circuit had expanded liability under the Fourth Amendment.  The Court unanimously rejected this expansion of liability.  In White v. Pauly (decided January 9, 2017, in a per curiam opinion, without dissent) the Court sent a strong reminder to federal courts that they need to take the immunity seriously.  “In the last five year, this Court has issued a number of opinions reversing federal courts in qualified immunity cases….The Court has found this necessary both because qualified immunity is important to society as a whole, and because as an immunity from suit, qualified immunity is effectively lost if a case is erroneously permitted to go to trial,” (internal quotations marks eliminated).  Id. at 6.

[158] Manuel v. Joliet, decided March 21, 2017.  Justice Kagan wrote for the Court in a six to two decision.

[159] Cooper v. Harris, decided May 22, 2017.  This was a 5-3 decision.  Justice Kagan wrote for the majority.

[160] Bethune-Hill v. Virginia State Bd. of Elections, decided March 1, 2017.  Justice Kennedy wrote for the Court.

[161] Trinity Lutheran Church of Columbia, Inc. v. Comer, decided June 26, 2017. This was a 7-2 decision.  Chief Justice Roberts wrote for the majority.  Justices Sotomayor and Ginsburg dissented.  Interestingly, two of the justices specifically did not join “footnote 3.”  Footnote 3 says, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”  Id. at 14, note 3.

[162] In this case the plurality of the Court appeared to rely on a murky distinction between discrimination based on the status of a religious institution and the use the institution wished to make of pubic funds.  Id. 

[163] The now famous footnote 3 was the cause of a rather remarkable tussle.  Justices Thomas and Gorsuch expressly did not join footnote 3 in Chief Justice Roberts’ opinion for the Court.  Footnote 3 says, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Id.  In his concurring opinion, Justice Gorsuch said (in part) “Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only [it applies to cases associated with children’s safety or the like]…. Such a reading would be unreasonable for our cases are ‘governed by general principles, rather than ad hoc improvisations.’ …. And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”  Trinity Lutheran Church, Justice Gorsuch, concurring.  Some observers speculate that this is referencing vouchers for religious schools.

[164] An excellent source of information and data about the Term and the Court is  Many of the data in this section come from that source.

[165] In those cases in which Justice Gorsuch did not participate, the count is usually based on the assumption that he should be counted with the majority—although 5-3 decisions were individually considered by SCOTUSblog to determine what his vote would likely have been.

[166] Those two cases were the Star Athletica case involving cheerleader uniforms and Cooper v. Harris, the North Carolina redistricting case in which Justice Kennedy dissented “in part.”

[167] Claire Fallon, New Fitness Book Wants You To Get Ripped With Ruth Bader Ginsburg: Your New Fitness Inspo Is an 84-Year-Old Supreme Court justice, HuffPost (June 5, 2017) available at . It is apparently a real challenge. Ben Schreckinger, I Did Ruth Bader Ginsburg's Workout. It Nearly Broke Me:

Pumping Iron With RBG's Personal Trainer Is No Joke, Politico (February 27, 2017) available at .