Steven R. Smith, JD

Continuing Education Information

The 2005 Term of the Supreme Court that began on October 3, 2005, and ended June 29, 2006, was a time of change. A new Chief Justice, John Roberts, was confirmed shortly before the Term began, and a new Associate Justice, Samuel Alito, Jr., was nominated and confirmed at the end of January.

Justice Alito replaced Justice O’Connor, who continued to hear cases until Justice Alito began his service. This created some level of complexity because a justice is included in a decision only if he or she both participates in the argument and is on the Court when the decision is announced. The vote of Justice O’Connor, therefore, was not included in those cases that she heard, but that were announced by the Court after February 1, 2006. Justice Alito’s vote was counted only in those cases he heard after that date.

These changes were the first in the Court in 11 years. The familiar patterns of the Court were, therefore, disrupted to a degree. There were a number of important cases decided during this Term.

The Court:

Held that a state may constitutionally provide for a narrow insanity defense and limit mental expert testimony regarding the ability to form the intent required for the crime.[1]

Determined that parents who prevail under the Individuals with Disabilities Education Act (IDEA) are not entitled to a reimbursement of fees for mental health and education experts used in the case.[2] It also held that parents generally have the burden of proof in IDEA cases.[3]

Considered the mechanism by which defendants may reopen their cases after sentencing, based on later-discovered DNA and similar evidence, in order to prove their actual innocence.[4]

Reviewed the applicability of the Americans with Disabilities Act to prisoners.[5]

Decided several cases involving searches and seizures, including a broad right to search parolees without specific cause.[6]

This article will first discuss these and related cases. It will then turn to several other important decisions, including those involving health insurance reimbursement, abortion, employment liability, immigration, military recruitment on university campuses and military detainees. The article will conclude by analyzing the 2005 Term and considering the direction and future of the Court.

The Insanity Defense, Criminal Responsibility and Mental Health Experts 

The insanity defense and related issues regarding the criminal responsibility of defendants with mental disorders have been matters of controversy for centuries. In Clark v. Arizona the Supreme Court clarified what states are constitutionally permitted to do in criminal trials involving defendants with significant mental impairment.[7]

Rules regarding the insanity defense and criminal responsibility are generally set by state law for state criminal offenses. Federal rules apply only to the trial of federal crimes in federal courts. The Due Process Clause of the Constitution, however, provides some federal limits on what states may do in criminal trials. The U.S. Supreme Court has decided very few cases involving the insanity defense so the Clark case was important, not only for its specific holding but because of the considerable latitude it suggested states have in defining criminal responsibility.
Eric Clark shot and killed a Flagstaff police officer, and was convicted of first-degree murder for “intentionally or knowingly killing a law enforcement officer in the line of duty.”[8] Clark was initially found incompetent to stand trial. Two years later, however, the trial court found that he had been restored to competency, and he was tried.

Both incompetency and insanity are based on impairment resulting from mental illness or incapacity, but they address different mental competencies at different times. Unlike insanity and criminal responsibility, competency to stand trial focuses on whether at the time of trial the defendants are able to understand the charges against them and participate in their own defense. Insanity and criminal responsibility, on the other hand, raise the question of whether at the time the crime was committed the defendants were able to understand what they were doing was wrong or were unable to conform their conduct to the requirements of the law.[9]

Defendants found to be incompetent to stand trial may be tried later after competency is restored. That was the case with Clark. At his murder trial mental health experts agreed that he suffered from paranoid schizophrenia at the time of the crime. The defense expert testified that as a result of the paranoid schizophrenia Clark was incapable of understanding right from wrong and was insane at the time of the crime. The prosecution mental health professional testified that in his opinion the paranoid schizophrenia did not keep Clark from appreciating the wrongfulness of his conduct.[10]

Clark presented two defenses, both based on his mental illness. First, he raised the insanity defense. Second, he claimed that his mental illness prevented him from being able to form the specific intent required by the Arizona criminal law. (The crime required that he “knowingly and intentionally” killed a law enforcement officer.) Clark was convicted and sentenced to life imprisonment without the possibility of release for 25 years.[11]

On appeal Clark raised two bases on which his conviction should be overturned. First, he said, Arizona had adopted a narrow form of the insanity defense that was in violation of the Due Process Clause of the U.S. Constitution. Second, he claimed that the judge’s decision to exclude certain mental health expert testimony was in error. Clark had offered that testimony to demonstrate that it would have been impossible for him to have the “knowing and intentional” state of mind required for the conviction of first-degree murder. In a six to three decision, the Supreme Court upheld Clark’s conviction.[12]

The Supreme Court began its consideration of the insanity defense with a 19th-century case. It defined the test for insanity as being whether the defendant, as a result of mental illness, was unable to know what he was doing or was unable to determine right from wrong.[13] These are sometimes described as “cognitive” and “moral” tests for insanity. Over the years many jurisdictions have also adopted various forms of “volitional” tests for insanity that essentially ask whether the defendant, because of mental illness, was able to conform his conduct to the requirements of the law. Jurisdictions infrequently have adopted an insanity defense that excuses criminal conduct if it was “the product” of a mental illness.

In Clark the Court described four approaches to the insanity defense[14], and noted the current approach of the various states to insanity. [15] These are set out in the endnotes of this article.[16] The Arizona insanity defense permits a criminal to be found not guilty by reason of his mental illness only if he was unable to determine, because of the mental illness, that his conduct was wrong.[17] Clark argued that Arizona’s elimination of the other cognitive basis for insanity, specifically that he was unable to determine what he was doing because of his mental illness, was a violation of the Constitution. The Court disagreed. It held that states have considerable latitude in defining the insanity defense.[18] The Court noted that the very wide range of insanity defenses used by various states was an indication that no single formulation of the insanity defense is a fundamental principle of American law.[19]

The Court also suggested that as a practical matter eliminating the “did not know what he was doing” test was probably not of great significance. A criminal defendant who is so impaired that he does not know what he is doing would almost certainly meet the “could not understand the wrongfulness of his act” test of insanity.

Clark’s second claim was that the Court should have permitted him to present expert mental health testimony regarding his inability to form the specific intent, or mens rea, required by the criminal code. The Court rejected this claim in a portion of the opinion that was somewhat convoluted.[20] The Court essentially held that Arizona, by establishing the affirmative defense of insanity, was legitimately channeling all of the expert evidence regarding mental illness into the insanity defense. The state could, thereby, constitutionally prevent the defendant from presenting mental health evidence to rebut the state’s evidence that the defendant acted knowingly and intentionally.

Two principles are fundamental to due process. First, to obtain a criminal conviction a state must prove each of the elements of a crime beyond a reasonable doubt. One of the elements of a crime is the mental state, or mens rea, required for the crime. Second, a defendant is permitted to present relevant testimony that would tend to demonstrate that he is not guilty. The question in Clark, therefore, was whether Arizona, by prohibiting the use of mental health expert testimony to establish the absence of the required mens rea, violated due process.[21]

The Court found that there are three kinds of evidence related to mens rea. First, is observational evidence, e.g. information about what Clark heard and said. “This category would also include testimony that an expert witness might give about Clark’s tendency to think in a certain way and his behavioral characteristics.”[22] The second kind of evidence is mental-disease evidence in the form of opinion testimony that Clark suffered from a mental disease with features described by the mental health expert witness. The third kind of evidence the Court described as “capacity evidence about a defendant’s capacity for cognition and moral judgment (and ultimately also his capacity to form mens rea).”[23] Arizona law permitted the first of these kinds of evidence, but precluded the second and third from being presented by the defense. The Court held that a state could exclude this testimony, or at least restrict it to be considered as part of an insanity defense, because of the confusing nature of some of the evidence or because a jury might not understand that labels applied by mental health professionals had treatment, but not legal, significance.[24] For these reasons, the Court concluded, it is constitutionally permissible for a state to require that evidence of the second and third type be presented exclusively for insanity defense rather than +to demonstrate the absence of a mens rea.

Justice Breyer concurred with the majority decision. He accepted the three categories of expert testimony defined by the Court. He felt, however, that where an expert’s testimony will fall in a given case may be unclear and uncertain. He would, therefore, have returned the case to Arizona for clarification of its rules in light of the three categories of evidence the Court announced.[25] Three justices dissented. Justice Kennedy was joined by Justices Stevens and Ginsburg.[26] The dissent dealt only with the question of whether a criminal defendant could present mental health testimony to demonstrate the absence of mens rea and did not reach the issue of whether the Arizona definition of insanity was constitutionally permissible.[27] The dissenters felt that the three categories of evidence adopted by the majority were unworkable because any particular kind of evidence could fall in two or more categories.[28] They pointed out that the majority’s opinion permitted the state to convert its obligation to prove beyond a reasonable doubt each element of a criminal defense and instead to shift the burden to the defendant to present an affirmative defense of insanity.

The dissenters noted that “criminal responsibility involves an inquiry into whether the defendant knew right from wrong, not whether he had the mens rea elements of the offense. While there may be overlap between the two issues, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime.”[29]

The real consequence of the Arizona rule, the dissenters suggested, was to deprive the jury[30] of important mental health evidence that would explain to the jury what was going on with the defendant at the time the crime was committed. “The rule forces the jury to decide guilt in a fictional world with undefined and unexplained behaviors but without mental illness” testimony that would help the jury understand the defendant’s actions.[31]

In fact, the majority opinion did have the impact of eliminating relevant information that would assist a jury in understanding whether the mens rea element of an offense was present. In Clark, for example, both the defense and prosecution mental health experts agreed that Clark suffered from paranoid schizophrenia. That diagnosis, along with a description of the common characteristics of that condition, would help a jury understand the facts in the case and to come to a sensible decision regarding the mens rea element of the crime.

The Court’s decision deals only with the question of whether a state is constitutionally permitted to have a rule limiting mental health evidence. It does not require that states have such rules nor does it establish such a rule for federal courts hearing federal crimes. The majority of states do not have such a limitation on the presentation of evidence regarding mens rea, but this case may encourage more states to adopt such rules. Mental health professionals should always discuss the relevant rules of evidence and decision when testifying in important cases.

A somewhat surprising element of the Clark case involved several statements by the Court regarding mental health expert testimony. Collectively these suggested a suspicion of, perhaps even a hostility to, mental health expert testimony. The Court first noted that presenting a mental health diagnosis to a jury “may mask vigorous debate within the … profession about the very contours of the mental disease itself.”[32] The majority quoted with approval a 1968 opinion that said “it is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear … to doctors.”[33] The Court concluded that “though we certainly do not condemn mental-disease evidence wholesale, the consequence of this professional ferment is a general caution in treating psychological classifications as predicates for excusing otherwise criminal conduct.”[34]

The majority of the Court also objected to the presentation of mental health evidence because “there is the potential of mental disease evidence to mislead jurors … through the power of this kind of evidence to suggest that a defendant suffering from a recognized mental disease lacks cognitive, moral, volitional, or other capacity when that may not be a sound conclusion at all.”[35] Stressing the point, the Court again indicated “evidence of mental disease, then, can easily mislead” because it is easy for a jury to slide from a recognized mental disease diagnosis into a conclusion that the defendant does not have capacity to commit a crime.[36] For this reason, the Court found, it is appropriate for a state to limit the kind of mental health testimony that is permitted to go to a jury regarding mens rea.

The Court also found a risk in allowing mental health experts to testify about the capacity of a criminal defendant to determine right from wrong or to form a specific kind of intent.[37] In part this is because legal categories do not comport with mental health categories. In part it is because the Court viewed the health experts as having no particular expertise in determining the legal consequences of cognitive disabilities. “In some, these empirical and conceptual problems add up to a real risk that an expert’s judgment in giving capacity evidence will come with an apparent authority that psychologists and psychiatrists do not claim to have.”[38] The Court again emphasized that a state is not required to so limit mental health testimony, only that the Constitution permits it to do so.[39]

In the middle of this extensive discussion of the inadequacies of mental health testimony the Court included a puzzling footnote. “Our observation about the impact of mental-disease evidence on understandings of capacity in no way undermines the assertion by [the American Psychological Association and others] in this case that ‘expert evidence of mental disorders … is … relevant to the mental state issues raised by mens rea requirements.’”[40] In fact, the Court’s decision seemed quite inconsistent with the thrust of an APA brief in the case about the importance of mental health evidence in making just the kinds of judgment the Court was rejecting.

The dissenting justices rejected the majority’s harsh statements that mental illness evidence “can easily mislead ... and may ‘tell us little or nothing about the ability of the defendant to form mensrea.’”[41] Writing for the dissenters, Justice Kennedy pointed out that the Court’s decision “ignores the risk of misjudging an innocent man guilty and refusing to consider this highly relevant [mental health] evidence at all.” The dissenters also found, contrary to the majority’s claim, that the very fact that the state and defense expert witnesses drew different conclusions about the defendant’s mental state did not make the evidence irrelevant or misleading. It noted that courts are capable of evaluating competing conclusions from experts, and in fact do so all of the time. “The potential to mislead will be far greater under the Court’s new evidentiary system, where jurors will receive observation evidence without the necessary explanation from experts.”[42]

Both the majority and dissenting opinions made several references to an amicus brief jointly filed by the American Psychiatric Association, the American Psychological Association and the American Academy of Psychiatry and the Law. The amicus brief did an excellent job of highlighting the legal issues the court was confronting. In two or three places it especially focused on the particular insights that mental health professionals can provide juries in making insanity and mens rea competency decisions.[43] This brief also gave the Court background on the insanity defense, the nature of paranoid schizophrenia and approaches taken by various states to the insanity defense.

The Clark decision will influence the insanity defense, expert witness testimony regarding mens rea and the use of mental health experts generally. The degree of the impact is, of course, speculative at this point. Arthur Miller once suggested that “focusing on insanity is like worrying whether the violin was out of tune in the band playing on the deck of the Titanic.”[44] The impact of the Clarkcase on the number of insanity acquittals is likely to be very limited. There are very few acquittals by reason of insanity. Juries do not like the insanity defense and, where there is disputed expert testimony concerning insanity, it is extremely unlikely that there will be an acquittal. Furthermore, changes in the legal definition of insanity, particularly subtle changes, seem to have very little impact on how juries decide these cases.

The impact on mens rea defenses may be somewhat larger. Only a minority of states limit mental health expert testimony regarding mens rea as Arizona does. The Court’s approval, as a constitutional matter, for this approach, may lead other states to limit mental health testimony regarding mens rea elements.

The most significant practical consequences of the decision may arise from the Court’s discussion of mental health expert testimony. Six justices joined in the fairly strong negative comments about the tentativeness and uncertainty of mental health classifications and the potential for misleading juries that rely on such testimony. Other courts may see this as a signal to be more cautious in allowing mental health testimony in a variety of cases. While the Court’s language was directed to issues of criminal responsibility and competency, it may be taken more broadly by others. Mental health experts can expect to see quotations from the majority opinion used in other cases as an effort to limit the introduction of testimony by mental health experts.
At the same time, it is important not to over-interpret this case.

It reflects the Court’s willingness to leave to states the determination of how they will treat mental health evidence. The Court has also permitted states to allow the admission of very controversial evidence. For example, in the case of Barefoot v. Estelle the Court permitted the introduction of a mental health expert witness concerning dangerousness in a capital case.[45] There the Court allowed the testimony because mental health predictions of dangerousness are not always wrong.
The Clarkcase does not represent general rejection by the Court of mental health testimony. It is, at a minimum, a call to the mental health professions to make greater efforts to ensure that courts understand the degree to which mental health expert testimony is reliable, valid and helpful to juries. It would also be useful for the major professions to continue to develop mechanisms to help ensure that evidence presented to courts is of a kind that is scientifically acceptable to the profession. Neither of these is an easy or quick process. Both, however, are of considerable importance.

In contrast with Clark, it was particularly interesting that in another case this Term the Court struck down as unconstitutional a state rule of evidence that prohibited a criminal defendant from introducing evidence that a third party, not the defendant, was the person guilty of the crime.[46] The Court was unanimous in this decision. The Court found that while the state has substantial latitude in fashioning rules of evidence, it cannot use such rules to exclude the defendant’s exculpatory evidence in a fashion that is disproportionate to the interest of the state in excluding misleading evidence.[47] The Court quoted a number of instances in which it had struck down as unconstitutional limits on criminal defendants to present evidence of their innocence. This decision appears to make the Clarkopinion even more significant in its rejection of the legitimacy of mental health evidence.

Expert Witness Fees and the Individuals with Disabilities Education Act (IDEA)

Mental health experts play critical roles in many cases in court and before administrative bodies. The question of how to pay for the work of these experts has been a difficult one. Most judicial and legislative proceedings in the United States, start from the assumption that parties will pay their own attorneys and experts. Where “costs” are awarded by courts, these costs commonly do not include attorneys’ fees or professional fees for experts.

A few statutes now provide for the award of attorneys’ fees to the “prevailing party.” An important question is whether this award of fees can include the professional fees for expert witnesses who were necessary to bring the claim successfully. This was the issue presented to the Supreme Court in Arlington Central School District Board of Education v. Murphy.[48]

The Arlingtoncase involved awarding fees under the Individuals with Disabilities Education Act (IDEA).[49] The IDEA statute was adopted to ensure that disabled children are granted a “free appropriate public education.” It requires school districts to create an “individualized education program” for each disabled child. It is structured to involve the full participation of parents in establishing the proper placement and educational program for the child. Parents dissatisfied with the resulting plan for the child are entitled to an impartial due process hearing. The decision of the hearing officer is implemented unless either the parents or school board successfully appeals that decision in federal court.[50]

The IDEA provides for the award of reasonable attorneys’ fees as part of the costs of litigation. Only the parents, not the school district, may receive attorneys’ fees.[51]

The parents of Joseph Murphy sued the Arlington Central School District Board of Education under the IDEA to pay for their son’s private school tuition because an appropriate public education was not provided by the school district. They received compensation for this private school tuition for certain years and were thus a prevailing party under IDEA.[52] As a prevailing party they were awarded costs and attorneys’ fees. The lower court also awarded reimbursement for the cost of providing educational experts concerning the appropriateness of the plan and placement given Joseph’s disability.

The Supreme Court ruled that expert witness fees should not be included as part of the costs of attorneys’ fees allowed by the statute. Rather, the parents would be responsible for paying the cost of the experts throughout the administrative hearing and court proceedings.

The Court noted that the obligation to provide the individualized education arose from the fact that the school district had accepted federal funds for the schools. This is referred to as “Spending Clause authority” because Congress has used its spending authority under the Constitution to impose the obligation on the school district. In a sense the school district voluntarily agreed to accept potential liability to parents when it took the federal money. Under these circumstances, the Court held, the conditions of accepting the funding must be unambiguous and clear.[53] For the five justices in the majority, it was not clear to states that they would be required to pay for expert witnesses when they took federal funds. Therefore, the justices felt it was improper to require that the parents be reimbursed for expert witness fees. They did not interpret the reference to “costs” as including expert witness fees.[54]

Justice Ginsburg, who was a sixth member of the majority, would have required less clear notice to states about their obligations, but nonetheless reached the conclusion that Congress had not provided for expert witness fees in this legislation.[55] Three members of the Court dissented. It was their view that the legislative history of the statute clearly suggested that Congress intended to include the cost of experts in the grant of attorneys’ fees.[56]

The implications of this case are significant for experts who testify in cases where there is the potential for the award of attorneys’ fees. The Court has signaled that it is not inclined to award expert witness’ fees where there is ambiguity in federal legislation as to whether they are included as “costs.” This is, however, a statutory matter. Congress may, therefore, include the fees of experts if it wishes to do so. Professional associations may wish to include in their legislative agendas some attention to including necessary fees for expert witnesses in statutes that provide for the award of attorneys’ fees.

State statutes also provide for the award of attorneys’ fees in some limited cases. It would be left to the courts of the state to resolve any ambiguity concerning whether the fees of expert witnesses would be included under state statutes. The Arlingtoncase would not be controlling in such state cases, but some states might see it as persuasive. Again, attention to state legislation regarding such fees may be warranted by professional organizations.

Another case this Term dealt with a different IDEA issue. In Schaffer v. Weast the issue was whether school boards or parentshave the burden of proof in establishing that an individualizededucation program is appropriate for a child.[57] In a six-to-two decisionthe Court held that the traditional rules regarding persuasionshould hold in IDEA cases. That is, the burden should be onthe party seeking relief.[58] This burden will ordinarily fall on theparents, who are challenging the school’s decision. In some circumstances,however, it would be the school board challengingthe hearing officer’s decision in court.

Congress has changed the IDEA statute frequently over the years. Because these were cases of statutory interpretation, not constitutional decisions, if Congress wishes to change either of these decisions it may do so by amending the statute.

Capital Punishment and Actual Innocence

Each term the Supreme Court faces cases involving capital punishment. Two of these cases this Term focused on the risk that a defendant who is actually innocent will be executed. The Court also looked at the conduct of the sentencing phase of capital cases and at a case concerning the means of execution.

In House v. Bell the Court faced for the first time the question of how to handle cases in which DNA evidence suggests strongly that the earlier conviction was mistaken. Courts are very reluctant to allow the reopening of criminal cases after appeals have been exhausted.[59] A number of procedural barriers are placed in the way of reopening decided criminal cases. At the same time, permitting someone to remain in prison or to be executed when there is strong evidence of the person’s actual innocence would be a manifest injustice.

In House the Court was called upon to apply and clarify rules regarding later-discovered evidence that makes a strong showing of the factual innocence of the defendant. The Court held that such a claim to reopen the criminal case requires, first, that there be reliable new evidence that was not presented at trial. Second, the Court noted that level of proof is “demanding” and permits reopening cases only under extraordinary circumstances. The burden is to demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find [the defendant] guilty beyond a reasonable doubt - or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.”[60]

The Court carefully reviewed the new evidence that involved DNA, the new evidence regarding bloodstains, and other evidence. Five of the eight justices deciding the case (Justice Alito did not participate in the case) concluded that “this is the rare case where — had the jury heard all the conflicting testimony — it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.”[61]

The three dissenting justices looked at the same evidence and found that it raised less of a doubt concerning House’s guilt than the majority had found. In part this had to do with the view of the dissenters that a somewhat higher practical standard of proof was required and in part it had to do with the way they regarded the evidence.[62]

In another case a significant debate erupted among members of the Court regarding the question of whether innocent defendants have been executed.[63] Kansas v. Marsh involved the very narrow question of whether a jury can impose, under the Constitution, a capital sentence when mitigating and aggravating factors are in “equipoise,” or of equal weight. In a five-to-four decision the Court held that the Eighth Amendment of the Constitution is not violated when the jury imposes a death sentence under such circumstances.[64]

The more interesting aspect of the case arose from a brief section of Justice Souter’s dissent that indicated that innocent people are being sentenced to death in some numbers and may, in fact, have been executed.[65] He wrote that, “a few numbers from a growing literature will give a sense of the reality that must be addressed.”[66] He then cited the moratorium on executions in Illinois, one study that indicated between 1989 and 2003, 74 American prisoners on death row were exonerated, and another study claiming that more than 100 death row prisoners had been released since 1973.[67] He concluded that in the face of this evidence of capital sentencing mistakes, at a minimum death sentences should not be pronounced where mitigating and aggravating factors were equal.[68]

In his concurring opinion, Justice Scalia took issue with these claims in the dissent. “I must say a few words (indeed, more than a few) in response to Justice Souter’s claim that a large number of innocents are condemned.”[69] Over the course of more than fourteen pages Justine Scalia dissected the various studies and claims made in the dissent. His essential point was that “the dissent does not discuss a single case - not one - in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.[70]

The sharpness of this discussion in a case where it was of marginal relevance suggests that some members of the Court may be increasingly concerned about the possibility of wrongful conviction. It is doubtful that such a concern represents the majority of the Court, but it would not be surprising to see this debate reignited in other cases.

The Court decided two other capital sentencing cases. In Oregon v. Guzek the Court was asked to decide whether a state could preventa defendant at the sentencing phase of a capital trial frompresenting alibi evidence to create a residual doubt about hisguilt.[71] The Court held that a state could preclude a defendant fromre-presenting alibi evidence during the sentencing phase of thetrial. (At the sentencing phase of the trial the jury is determiningwhether to sentence the defendant who has been found guilty ofa crime to life imprisonment or to death.) The Court noted that thedefendant would have presented such evidence at the guilt or innocencephase of the trial so it was not necessary for the stateto permit the defendant to present it again during the sentencingphase.[72]

Brown v. Sanders involved somewhat complicated circumstances involving a sentence of death where the jury was given improper instructions about aggravating factors that would justify the death penalty. The question was whether the death sentence must automatically be overturned or whether courts can carefully look to the nature of the instructions to determine that the instruction may have been “harmless error” and that the jury in fact was able to make a determination that justified death.[73] In a five-to-four decision the majority of the court upheld the death sentence. This case is a reminder of how technical some of the constitutional issues regarding sentencing instructions to juries have become.

In another death penalty case, the strange question presented had to do with whether the standard protocol for lethal injection constitutes cruel and unusual punishment.[74] The first of three chemicals used is designed to cause unconsciousness, but there is some evidence that it may not always do so, thereby resulting in paralysis from a second drug and excruciating pain from the third lethal drug. The question in the Hill case was essentially a procedural one of whether the prisoner could present this case as a civil rights case rather than a habeas corpus case. The Supreme Court agreed unanimously that he could proceed to present the case as a civil rights claim.[75] This does not mean, of course, that the claim will be successful, only that the lower courts can hear it.

Prison Conditions and Liability

Mental health professionals who work in or consult with prisons and other correctional facilities will be particularly interested in three decisions involving prison conditions.

United States v. Georgia involved the question of whether prisoners may file claims for money damages against prisons under the Americans with Disabilities Act (ADA).[76] The question presented was whether the ADA abrogates the sovereign immunity that states have under the Eleventh Amendment. Over the last several years the Supreme Court has heard a number of cases in which the Court held that states were not subject to liability under federal regulatory schemes because the Eleventh Amendment limits suits against states.

The ADA requires public entities, including prisons, to ensure that “no qualified individual with a disability [because of such disability may] be excluded from participation in or be denied the benefits of the services, programs, or activities … or be subjected to discrimination by any such entity.”[77] It was clear that Congress intended to make states subject to liability for violating this provision, but the question has remained open as to whether that is constitutional.

Tony Goodman filed a lawsuit against the Georgia Department of Corrections regarding the conditions of his prison confinement. Among other things he claimed that because of his quadriplegia he was confined for all but one hour per day in a 12 foot by 3 foot cell in which he could not turn his wheelchair, that he was unable to use the toilet and shower without assistance which was frequently denied, and that he had been injured on several occasions trying to get to a toilet or shower.[78] He claimed that he had been denied access to almost all prison programs and services and had been denied physical therapy and medical treatment.[79] Such claims would clearly support a legal cause of action under the ADA against a private individual.

The Supreme Court unanimously agreed that Goodman had a claim against the prison system, if his allegations were proved true. Because the claims of mistreatment were so grievous the Court was able to focus on the treatment and injuries being a violation of the Fourteenth Amendment rather than a narrow consideration of the ADA.[80] The Court noted that it is permissible under the Fourteenth Amendment for Congress to abrogate sovereign immunity for states. The Fourteenth Amendment “enforcement power includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the states. Thus, in so far as [the Americans with Disabilities Act] creates a private cause of action for damages against the states for conduct thatactually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”[81]

In deciding the case this way, the Court avoided determining whether the broad sweep of the ADA could apply to the states beyond the misconduct that would also violate the Fourteenth Amendment.[82] The ADA has a broader reach than the Fourteenth Amendment and this case left undecided the question of whether the additional reach of the ADA is permitted under the Eleventh Amendment.

Two concurring justices suggested that the ADA could appropriately be applied to states and would constitutionally abrogate state sovereign immunity. Whether a majority would reach such a conclusion or not, was not clear, however.[83]

A number of mental health organizations, including the American Psychological Association, filed an amicus brief in this case. It was a very broad ranging brief that urged the Court to hold that the ADA applies to states and abrogates their sovereign immunity.[84] The brief noted a number of factors that result in the incarceration of people with mental disabilities and the fact that jails and prisons have often become the default disposition for those who might in other times have received treatment or rehabilitation in clinical settings.[85] The brief argued in some detail that failure to treat mental illness or developmental disabilities in prison can result in serious harm to prisoners. It concluded that “some states continue to confine prisoners with serious mental illness in unconstitutional conditions that can only exacerbate their condition.”[86] The brief made the interesting point that the failure to allow prisoners with mental illness to bring damage cases under the ADA would result in an increase in the number of constitutional claims for inappropriate prison conditions because it would be the only reasonable avenue for such claims to be heard.[87]

The Court decided two other prison confinement and prison liability cases. Woodford v. Ngo was a procedural case,88 involving an inmate’s federal claim against the California prison system. The federal Prison Litigation Reform Act requires that prisoners have exhausted all state administrative procedures before bringing a federal lawsuit challenging the conditions of incarceration. In this case the inmate had missed an administrative filing date for his claim to be heard within the state prison system. The Court ruled that as a result he had failed to exhaust the prison administrative process and was therefore precluded from filing this federal claim.

A different type of question was presented by Beard v. Banks where an inmate in a very high security Long Term SegregationUnit was subjected to the most severe restrictions in the prisonsystem. He objected to the prison policy that denied all accessto newspapers, magazines and photographs.[89] The Court hasheld that imprisonment does not automatically terminate all ofthe constitutional rights of prisoners, but the Constitution does permitprison regulations that infringe upon constitutional rights ifthe regulations are “reasonably related to legitimate penologicalinterests.”[90] In determining whether there is a legitimate purposeto the regulation, the Courts give considerable deference to theopinion of prison officials.[91]

The Court was badly split in Beard v. Bank. Four members of the Court voted to uphold the prison regulations as having a legitimate purpose, that of creating conditions in which prisoners would seek to behave in such a way that they would receive upgraded privileges. Prison officials testified they had very limited “benefits” that could be granted to these prisoners because they have already been denied or deprived of almost all privileges. Therefore, the availability of reading materials was an incentive they wished to have available to encourage better conduct.[92] Two justices would have had a more restrictive standard. They would have found a violation of the Constitution only if the Eighth Amendment’s probation on cruel and unusual punishment were violated.[93]

Two justices dissented essentially on the basis that there was not a sufficiently strong interest in depriving prisoners of an important First Amendment right to read.[94] (Justice Alito did not participate in this case.)

These cases did not significantly change the jurisprudence related to prisoners and prisoners’ rights. The majority of the Court recognizes that prisoners have limited constitutional rights as well as the rights specified by Congress or the legislature. At the same time, these rights are narrow and, with the exception of brutal treatment or unnecessary regulations, enormous deference will be paid to the decision of those who run prisons.

Search and Seizures: Parolees and Others

The rights of prisoners who are paroled to complete their sentences while in society is raised by Samson v. California.[95] As a condition of parole, California required prisoners to agree in writing to be subject to search by a parole officer or other police officer “with or without a search warrant with or without cause.”[96] In Samson the question was whether searches conducted pursuant to this agreement where there was no specific suspicion that a parolee had committed a crime were consistent with the Constitution. The Fourth Amendment prohibits unreasonable searches and seizures. This ordinarily requires the issuance of a search warrant by a judicial officer before a search is conducted. Exceptions exist, however, where there is consent to the search; where there is an emergency situation; or where the search is necessary to protect a police officer or the public.

In a six-to-three decision the Supreme Court upheld California’s policy of allowing the search of parolees even without specific suspicion that they had committed a crime that justified the search. The majority felt that parolees essentially completing their sentences outside of a prison, like those in prison, should have limited civil rights. It was reasonable under the Fourth Amendment, and therefore lawful, to conduct this search.[97] The dissent claimed this permission to search without suspicion “is the very evil the Fourth Amendment was intended to stamp out.”[98] Two cases dealt with the ability to search without a warrant. In Georgia v. Randolph the question was whether a search without a warrant is legal where one resident of a house consents to it but the other objects to it.[99] The Court held that where an occupant who shares authority over the property objects to the search, the search is invalid as it relates to him. As a result, any evidence found in the search could not be used against him. Where an occupant who shares property is not present, however, and the other co-tenant agrees to the search, the resulting search is valid as to both co-tenants.[100]

In Birmingham City v. Stewart, on the other hand, the Court unanimously held that the police may properly enter a home without a warrant when they have reason to believe that an occupant is seriously injured or imminently threatened by such injury.[101] This emergency exception is based on the common sense view that it is perfectly reasonable to intervene to prevent serious injury from occurring.

The war on child pornography raised a question of “anticipatory searches.” To apprehend those who order child pornography, police would like to obtain search warrants to search a house as soon as the pornography has been received, accepted and opened. Based on electronic surveillance or tips, federal authorities may know that child pornography is about to be delivered. In a five-to-three decision (Justice Alito did not participate in the case) the Court upheld the anticipatory warrant so long as there is probable cause to believe that the contraband will be at the place described in the warrant when the warrant is executed.[102] The majority noted that probable cause may well exist even where material has not yet been delivered to a person and that having anticipatory warrants is an important and reasonable tool to have available.

One other search and seizure case that received some notoriety in the press as the “your home is no longer your castle” story may, in fact, be more important than is recognized. In Hudson v.Michigan the Court held that the exclusionary rule would not prevent the use of evidence obtained in a search where the authorities illegally failed to “knock and announce” their presence.[103] The exclusionary rule has been a centerpiece for protecting individual rights that are violated by official misconduct. It essentially provides that when police obtain evidence illegally they may not use it to obtain a conviction. A coerced confession, for example, may not be introduced as evidence. In Hudson v. Michigan, a five-to-four decision, the majority of the Court seemed to be backing away somewhat from the exclusionary rule.[104] Thus, the Court held that searches conducted in violation of the “knock and announce” rule may still produce evidence that can be produced in court. While the press reports that the Court had struck down “knock and announce” were not true, it is true that it will be more difficult to enforce “knock and announce” because it is not clear what the consequences will be to officers who violate this law.

Additional Significant Decisions

The Supreme Court also decided a number of important cases of general interest. These are discussed briefly in this section.

Health Insurance Reimbursement: A common provision of health insurance plans is the obligation of the policyholder to reimburse a health insurance carrier for the cost of medical care when a third party later pays the policyholder for the cost of the care. Medicaid has a similar requirement. This most commonly occurs when a person is injured in an accident and the health insurance company pays for the medical care associated with those injuries. If the injured person then sues the party who caused the injury (for example the driver of the other car in an auto accident) and successfully recovers damages the health insurance carrier will commonly seek to take some or all of the proceeds of the lawsuit to cover the expenses of the health care.

This practice raises a number of complicated legal issues. For example, in one instance a health insurance carrier who also provided health care services made claims for reimbursement at the full “list price” while paying the costs of care at a greatly discounted negotiated price.[105] This Term the Supreme Court decided two cases involving this practice.

Sereboff v. Mid-Atlantic Medical Services involved the question of whether the Employee Retirement Income Security Act (ERISA) permits a health insurance company to file a lawsuit seeking a part of the proceeds of a tort settlement. The health insurance policy permitted such reimbursement through asserting a lien on the proceeds of the settlement.[106] The Sereboffs were seriously injured in an automobile accident. They filed a tort suit that was eventually settled for $750,000. The health insurance company made a claim of approximately $75,000 of this amount to cover the cost of accident-related health care it had paid for.[107] This case was decided on a very narrow legal question of whether the insurance company was seeking an “equitable” remedy as permitted by the ERISA. A unanimous Court upheld the insurance company’s right to obtain repayment for the medical services.[108]

The second insurance reimbursement case involved a similar provision under Medicaid. Medicaid is the cooperative federal-state program that covers health care for the indigent and disabled. The federal Medicaid statute requires that states obtain reimbursement from Medicaid recipients when third-party payments are made for Medicaid covered health care. As with the previous case,Arkansas Department of Health and Human Services v. Ahlborn involved a tort suit that followed a traffic accident. This case was settled for $550,000 and state Medicaid service was seeking reimbursement of approximately $216,000.[109]

In their tort case, the plaintiff recovered only about 1/6 of what the total damages probably were. The question before the Court was whether Medicaid was due the entire amount of money it had spent on medical care or an amount that was proportionate to the percentage of actual costs recovered (1/6 in this case). The Supreme Court held unanimously that the proportionate rule should be followed so Medicaid was due approximately 1/6 of the cost of the health care it had provided.

Disputes about these insurance reimbursement issues are likely to continue. They can be a considerable hardship on injured parties. Health care providers and attorneys alike need to be aware of the problems this can cause for injured parties by reducing the tort awards the injured may receive.

Abortions: The Court decided two abortion cases during this Term. Both were, remarkably, unanimous decisions.

IAyotte v. Planned Parenthood of Northern New England the Court considered a New Hampshire statute that required parental notification before an abortion was performed on a minor.[110] The statute did not provide an exception to the notice requirement where the health of a minor created a medical emergency that required an abortion.
The opinion, written by Justice O’Connor, determined that three propositions had been established. First, “states have the right to require parental involvement when a minor considers terminating her pregnancy.”[111] The second proposition is that “a state may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.”[112] The third proposition is that “in some very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health.”[113] The failure of the New Hampshire statute to provide for these few cases meant that that provision of the law was unconstitutional.

The question facing the Court was whether federal courts should declare the entire parental notification statute unconstitutional or, instead, should declare only the absence of an exception for the health of the mother to be unconstitutional. The Supreme Court remanded the case to the lower courts with the instruction that it may not be necessary to declare the entire statute unconstitutional beyond New Hampshire’s failure to provide an exception for the health of the minor.[114]

The second abortion decision involved the continuing litigation over a series of civil and criminal charges filed by the National Organization for Women and other organizations against various abortion protesters for engaging in a nationwide conspiracy to shut down abortion clinics and engage in violent protests against the clinics. These cases have been moving around the federal courts and this Term the Supreme Court was called upon to determine whether the Hobbs Act could be applied to abortion protests.[115] The Hobbs Act makes it a federal crime to “obstruct, delay, or affect commerce by robbery or extortion” or to engage in threatening physical violence in furtherance of a plan to do these things.[116] The Court unanimously[117] held that the Hobbs Act forbids only those acts of physical violence that disrupt commerce that involve “robbery or extortion.” Since the abortion protesters did not appear to be engaged in acts or threats of violence related to robbery or extortion, the Hobbs Act could not be used as the basis for penalizing the abortion protesters.[118] This case does not mean, of course, that there are no criminal or civil penalties against violent protests and conspiracies. Both state and federal laws provide other means for penalizing this criminal conduct.

Assisted Suicide: The Oregon Death with Dignity Act permits Oregon physicians to prescribe or dispense a lethal dose of drugs upon the request of a terminally ill patient.[119] In 2001, in response to the Oregon statute, Attorney General Ashcroft issued an Interpretive Rule that said that federally controlled substances could not be used to assist suicide because it is not a legitimate medical practice to dispense or prescribe drugs for such a purpose under the Controlled Substances Act.[120] In Gonzales v. Oregon the question before the Supreme Court was whether the Attorney General is authorized to make such interpretation of that act.[121] A six-to-three majority of the Court held that the Attorney General is not authorized to make such an interpretation of the law. Oregon physicians, therefore, are free to use controlled substances in implementing the Oregon Death with Dignity Act.[122] The dissenters, however, felt that the Attorney General was within the normal bounds of regulatory authority and that his interpretation of the statute should be afforded deference by the courts.[123]

It is clear that Congress can properly regulate the use of controlled substances. This case was based on the authority of the Attorney General under these statutes. The Court did not address constitutional issues of whether state or federal governments are required to allow terminally ill patients access to medicines for the purpose of committing suicide.

Employment Liability: The Court decided two cases involving liability in the employment setting. One case was from the private sector, the other from the public sector.

Civil rights legislation bars discrimination based on such characteristics as race and gender and also prohibits discrimination against anyone who has made a charge, testified, assisted, or participated in the investigation of discrimination. In Burlington and Santa Fe Railway v. White the Court interpreted the anti-retaliation provision of the 1964 Civil Rights Act.[124] In a unanimous decision the Court held that to recover damages for retaliation a plaintiff-worker must show only that the retaliation includes “materially adverse discriminatory actions that well might dissuade reasonable workers from making or supporting discrimination charges.”[125] In this case, for example, a worker had been the subject of retaliation that included being changed from a desirable job to an undesirable job within the same type classification and receiving a suspension without pay followed by reinstatement and award of back pay for the period of suspension. These circumstances, the Court suggested, could be enough to support an award of damages for retaliation under the civil rights laws.[126]

This case will make it somewhat easier for employees who bring retaliation charges to succeed with their cases. There is some fear in the business community that it has made such claims a little too easy to bring. It is reasonable to expect that the major consequence is that it will be much harder for employers to have claims of retaliation dismissed, resulting in more of these cases going to the jury.

In Garcetti v. Ceballos the issue was the rights public employees have, under the First Amendment, to speak out about matters of public interest.[127] Ceballos had filed suit after he was disciplined for publicly reporting what he believed to be misconduct in the district attorney’s office where he was an employee. In a five-to-four decision the Court held that when “public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[128]

There is concern that this decision will make it more difficult for whistleblowers within the government to report official misconduct. Congress could, of course, offer additional protection to government whistleblowers, but this case stands for the proposition that public employees who make statements as part of their official duties are not protected by the Constitution.

Foreign Visitors in Trouble: Under the Vienna Convention the United States is obligated, at the request of a foreigner detained by authorities, to inform the consulate of that person’s country that he or she is being detained. Oregon authorities detained a Mexican citizen after a shootout and attempted murder. Despite the request of the suspect, Oregon authorities did not contact the Mexican Consulate to report the detention.[129] The detainee then confessed to the crime. The Court was faced with the question of whether the confession and other evidence obtained under the circumstances should be excluded from the criminal trial of the person.

The Court assumed that the detention without notice was probably impermissible under the Vienna Convention. It held, however, in a five-to-three decision[130], that Oregon was not required to exclude this evidence in the criminal trial. It held that the exclusionary rule is not the appropriate remedy for the failure to notify the consulate. This decision reinforces the opinions suggested earlier in this article that the Court may be backing away somewhat from strong adherence to the exclusionary rule as a way of discouraging police misconduct. If that is occurring, it would be a major change in American law.

In Fernandez- Vargas v. Gonzales [131] the Court was drawn into the debate over the rights of undocumented workers. It was called upon to interpret the Illegal Immigration Reform and Immigration Responsibility Act of 1996. That law provides that an order for removing an alien who is present in the United States unlawfully may be renewed if the alien leaves and then again unlawfully enters the U.S.

Mr. Fernandez-Vargas came to the United States in the 1970s and was deported for immigration violations. He re-entered illegally several times but lived in the United States continuously since 1982. In 2002 he came to the attention of federal authorities and in 2003 the government began proceedings to reinstate the 1981 deportation order against him. In an eight to one decision the Court determined that the 1996 immigration act could be applied to him even though it had been passed well after the time of the 1982 re-entry into the country.[132] This case is not of enormous moment for the technical matter decided but it does hint that the Court is unlikely to be sympathetic to efforts designed to stretch the law to allow undocumented workers to stay in the country.

Universities and Military Recruiting: In Rumsfeld v. Forum for Academic and Institutional Rights the Court considered the constitutionalityof a federal law that requires educational institutionsreceiving federal funds to permit the military to recruit in the facilitiesof the academic units of the institution.[133] A number of institutions,primarily law schools, challenged this law, known as theSolomon Amendment. The law schools objected to having the militaryrecruit at the law schools because those recruiters refusedto sign the standard pledge agreeing not to discriminate on anumber of grounds, including sexual orientation. Because of themilitary’s “don’t ask don’t tell” policy military recruiters could notsign the non-discrimination pledge. Law schools took the positionthat any employer failing to sign the pledge would be deniedservices and that federal funds should not be cut off as a resultof this policy.[134]

The Court held that the Solomon Amendment did not violate the rights of higher education by tying federal funding to providing full services to military recruiters. Neither the First Amendment’s freedom of speech or association clauses was violated by this rule.[135] Indeed, the Court suggested that Congress could simply order universities to make their facilities available to military recruiters without tying it to federal funding.[136]

Police Interrogation and the Right to Confront Accusers: The Court clarified when statements made outside of the criminal court may be introduced as evidence in a criminal trial. The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted by the witnesses against him.” The Court has held that this provision prevents the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant was afforded a prior opportunity for cross examination.[137] This Term the Court tried to clarify what is testimonial evidence that can be introduced only under these limited circumstances.

The Court also considered whether a 911 call is “testimonial.”[138] It held that these calls are ordinarily done in an emergency to seek police assistance. These calls are not undertaken to produce testimony that could be used at a trial.[139] A person making a phone call is, therefore, not acting as a witness or testifying, but rather seeking assistance in an ongoing emergency. These calls are not testimonial and could be introduced at trial.

The Court contrasted this with a second case in which officers went to the scene of a domestic disturbance.[140] They interviewed the parties in separate rooms in the house. In this case, the Court held, police were seeking evidence that was testimonial in nature. They were not seeking to prevent an immediate ongoing emergency, but were in fact more engaged in an investigation of an emergency that had passed.[141] The 911 call, having been classified as non-testimonial, could be introduced without the right to cross examine the person making the call. On the other hand, the statement made to the police during the investigation was “testimonial,” and therefore could ordinarily not be admitted without cross examination.

While there are occasions where mental health professionals are acting in an emergency and receiving information for the purpose of resolving an immediate problem, more often the work of forensic psychologists will be considered testimonial and subject to cross examination.

Detainees and Prisoners of War: The most discussed case of the Term was Hamdan v. Rumsfeld.[142] Hamdan is a detainee in Guantanamo Bay. He was captured in hostilities with the Taliban and turned over to U.S. military forces. The President found him eligible for trial by military commission and in the case the Court heard he was challenging his confinement and the plans for the military commission to try him.[143] In a complex set of decisions running 185 pages the Court was badly split.[144] It found several aspects of the plans for military tribunals to be illegal or unconstitutional. The Court determined that the process of these military tribunals had not specifically been established and approved by Congress.[145] Without express authority from Congress the Court would be unwilling to accept the legitimacy of the commissions regardless of the procedural protections they might employ.

The Court also found that the proposed procedures for the military tribunal violated the Uniform Code of Military Justice and several provisions of the Geneva Conventions of 1949.[146] The Court noted that among other things civilian council may be excluded from the tribunal process; the accused may not have access to all of the evidence presented against him and even his military attorney may not be able to tell him all the evidence that is being introduced against him; commissions may permit the use of any evidence even if it is highly unreliable; and the accused and his attorneys may be precluded from seeing information that would be important in mounting a defense.[147]

The absence of specific congressional authorization for the military tribunals may be fairly easy to address. Much more difficult, however, will be finding ways of dealing with the decision of the Court that found that the structure and process for the military tribunals may violate the Geneva Conventions.

Other Cases of Interest

The Court also decided a number of interesting cases that deserve a note:
In a procedurally oriented decision the Court made it somewhat more difficult for appeals courts to overturn a lower court’s finding that a jury selection process was improper because of racial “strikes” from the jury.[148]

The Court found a violation of the Speedy Trial Act where a defendant was tried five years after indictment, even though the defendant had consented to a delay.[149]

A sentence that is “enhanced” by improper aggravating factors that were found by a judge instead of a jury violates the constitutional guarantee of trial by jury. Nonetheless, such a sentence is subject to “harmless error” review to determine whether the violation of the defendant’s rights actually caused him any harm.[150]

The Court limited the application of the Federal Tort Claims Act, which waives federal sovereign immunity and allows tort claims against the U.S. It held that the statute does not permit liability involving “unique governmental functions.”[151]

Federal law favors arbitration and enforces arbitration clauses in contracts. The Court held that the federal statute requires that challenges to the validity of contracts that contain arbitration clauses must be heard by an arbitrator, not a court.[152]

The Court considered two challenges to election expenditures and contributions. In one case it directed a lower court to more carefully develop the factual basis on which a federal campaign law intended to control independent advertising was challenged. This effectively delayed a decision in the case.[153] In another case it struck down on First Amendment grounds a state statute that imposed severe limits on election-cycle contributions and expenditures for state offices.[154] In a very complex decision, the Court upheld the redistricting of Texas congressional districts, except for one district that might violate the Voting Rights Act. This essentially accepted the controversial redistricting that was done to increase the Republican members of the House.[155] The constitutional right of a criminal defendant to select his own counsel is violated, the Court held, where the trial court prevents the defendant from selecting (and paying) the attorney of his choice. This is true even where the replacement counsel provided adequate representation.[156] Defendants who are found not guilty may bring a civil rights case for damages only if they can prove that there was “no probable cause” to support the criminal charge.[157]

Federal agencies may collect student loan debt by taking a portion of a debtor’s Social Security benefits, even for student loans that are more than 10 years overdue.[158]

The Court held that the Religious Freedom Restoration Act permits a small church to import hallucinogenic tea for sacramental use because it is an essential element for the church and would not serious compromise the federal government’s regulation of controlled substances.[159]

Analysis and Conclusions

Three themes characterize this Term: it was a Term of Transition, it was a Term of Limited and Narrow Decisions, and it marked the emergence of Justice Kennedy as the Defining Center of the Court.

By definition this Term was one of transition. Following the last Term, Justice O’Connor announced that she would step down upon the confirmation of her successor. That ended a period of almost unparalleled stability on the Court—there had not been a new Justice in 11 years. Furthermore, Justice O’Connor represented the center of the Court, frequently deciding the close cases. She was the first woman to serve on the Court.

The early fall brought even greater change with the death of William Rehnquist in September, shortly before the new Term began. He had served as Chief Justice since 1986, and on the Court since 1972. His death was not only the loss of the stability he had brought to the Court but, of course, a personal loss to the other justices. By all accounts he brought an important level of civility and efficiency to the operation of the Court. Following Chief Justice Rehnquist’s death, President Bush changed the nomination of John Roberts from Associate Justice to Chief Justice. (John Roberts had initially been nominated to replace Justice O’Connor.)

Justice O’Connor continued to serve on the Court until the end of January 2006, during Samuel Alito’s nomination and confirmation. She heard and decided 20 cases during that time. Justice Alito then began his service, but he decided only those cases that were heard after he joined the Court. As a result, a number of cases were decided by only eight justices.

Determining from their first terms on the Court how justices will decide cases is a treacherous exercise, especially when the conclusions comport with the conventional wisdom. This is true because “conservative” and “liberal” labels are too simplistic to capture the range of decisions the Court considers and because Justices often shift after the first year and they have a chance to consider the role and place of the Court. Given this caveat, the conventional wisdom indicates that Justice Alito will be more conservative than Justice O’Connor, and that Chief Justice Roberts will be at least as conservative as Chief Justice Rehnquist. That is, in fact, probably a fair statement of their votes this Term, but whether that will last remains to be seen. That would mean that the Court would move a bit toward the conservative side.

In non-unanimous cases, Justices Roberts and Alito were together 91% of the time, while Justices Alito and Stevens (considered the most liberal) were together only 23% of the time. Chief Justice Roberts was in the majority 92% of the time, and Justices Kennedy and Scalia were with the majority 88% of the time. Justice Stevens had the most dissents, with 19. Justice Breyer had 16 dissents. By comparison, Justice Kennedy had only nine dissents and Chief Justice Roberts only seven.

There are almost as many statistics now being calculated for the Supreme Court as there are for baseball. The New York Times announced that the “Funniest Justice” in the previous Term was Justice Scalia, with 77 “laugh episodes” during oral arguments that Term; this was 19 times more laughs than Justice Ginsburg got.[160]

The Court took 82 cases this year, slightly lower than in recent years and well below the average before Chief Justice Rehnquist worked to reduce the number of decided cases. The Court produced 69 signed decisions. The other cases were not decided (or dismissed as “certiorari improvidently granted”) or there were unsigned opinions on behalf of the Court, per curiam decisions.

The counters say that 46 of the 82 cases, or 37 of the 69 signed cases, were decided unanimously, or at least without dissent.161 This is a larger percentage of agreement than the Court has experienced in recent years. On the other side, there were only 16 five-justice majority (generally five-to-four) decisions.

The level of agreement in the cases, as characterized by the unanimous decisions involving abortion-related issues, in part reflected the fact that the court reached some narrow decisions. There were, of course, notable exceptions including the detainee decision involving presidential power and international law. More generally, however, rather than expressing broad, bold statements of individual rights or governmental authority, the decisions tended toward limited holdings. In part this may reflect the desire of Chief Justice Roberts to seek common ground (which is often narrow ground) to achieve large majorities and Justice Kennedy’s desire to find a narrow basis for many decisions. It may also, at least in part, reflect the disrupted nature of this Term.

Justice Kennedy repeatedly became the center, deciding factor within the Court this Term. His vote decided 11 of the 16 five-to-four or five-to-three decisions. Many commentators called this the “Kennedy Court” for this reason. Justice Kennedy has served on the Court since 1988 and has proved to be a thoughtful and principled but pragmatic justice. He is generally considered somewhat more conservative than Justice O’Connor. He generally has held a strong view of free speech cases, but less so with freedom of religion. He has generally favored allowing the states the right to regulate access to abortion within the Roe v. Wade framework. He is somewhat libertarian, which may be a reason many conservatives considered him a traitor because he decided two cases dealing with gay rights.

Justice Kennedy has great respect for the legal profession, the rule of law and the place of the law in society. He has been involved in legal education and professional organizations. He is active in international and comparative law and has cited foreign law in some of his opinions, which is another bone of contention with conservatives. His professionalism may be reflected in this respect for other professions as well.

Mental health professionals have found Justice Kennedy to be open to mental health testimony and evidence. He has cited APA briefs and he has been more inclined than some other justices to rely on social science data and information. He did so, for example, in cases dealing with the execution of juveniles and persons with mental retardation.

The speculation about the central place of Justice Kennedy is based in part on the assumption that the personnel of the Court will not change. It does not appear that any of the justices will be stepping down this year. The age of the justices suggests that the Court will have some changes in the next several years. Justice Stevens is 86, Justice Ginsburg 73, Justice Breyer 67, and Justices Kennedy and Scalia are 70. Chief Justice Roberts and Justices Thomas and Alito are in their 50s. For the next Term, however, the current membership of the Court will probably not change.
This Term was not notable for the enormity of the cases decided either generally or in terms of cases of mental health interest. The next Term, which convened in October 2006, promises to be one of significant cases. It has already accepted cases concerning partial birth abortion, global warming, limitations on punitive damages and racial preferences/affirmative action in public schools. In addition, whether the negative comments in the Clark case regarding mental health experts represents a fluke or is a significant development will be worth watching.


U.S. Supreme Court decisions are readily available (and free) on the Court’s web site. It is Any of the cases discussed in this article are available from that source and interested readers are urged to look at that web site to review the cases. This article gives the direct link to cases decided this Term. See the link at the end of the citation in these notes. By clicking on that link, you should go 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.)

A number of other sites also publish the Opinions of the Court, and, of course, hard copies are available eventually in the official U.S. Reports and from commercial publishers. Because of the convenience of the web site, citation to other sources has not been included in these footnotes.
The citations in this article are to the Slip Opinions of the Court as published on the web site. Readers should note that in Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case the majority opinion begins on page one, a concurring opinion will again begin on page one and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other volumes, however, pagination is continuous.

The author wishes to thank Mike Belknap, Larry Benner, Eric Drogin, Shevree Galati, Nathalie Gilfoyle, Bob Meyer, Lera Smith and Debbie Wilson for their valuable comments on this article. The remaining errors are solely the result of not taking their advice.


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


U.S. Supreme Court decisions are readily available (and free) on the Court’s web site. It is Any of the cases discussed in this article are available from that source and interested readers are urged to look at that web site to review the cases. This article gives the direct link to cases decided this Term. See the link at the end of the citation in these notes. By clicking on that link, you should go 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.)
A number of other sites also publish the Opinions of the Court, and, of course, hard copies are available eventually in the official U.S. Reports and from commercial publishers. Because of the convenience of the web site, citation to other sources has not been included in these footnotes.
The citations in this article are to the Slip Opinions of the Court as published on the web site. Readers should note that in Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case the majority opinion begins on page one, a concurring opinion will again begin on page one and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other volumes, however, pagination is continuous.

Notes 7 to 47 and accompanying text, infra.

Notes 48 to 56 and accompanying text, infra.

Notes 57 to 58 and accompanying text, infra.

Notes 59 to 70 and accompanying text, infra.

Notes 76 to 87 and accompanying text, infra.

Notes 95 to 104 and accompanying text, infra.

Clark v. Arizona, No. 05-5966 (June 29, 2006). The decision was 6 to 3. The decision is available from the Supreme Court by clicking on the following link: Clark v. Arizona

Id., at 2.

Steven R. Smith and Robert G. Meyer, Law, Behavior and Mental Health: Policy and Practice ** (1987).

Clark, at 4.

Id., at 5.


Id. At 5, citing M’Naghten, 5 Eng. Rep. 718 (1843)

Id., at 8-9

Id., at 9-11

The Court described the state’s approaches to the insanity defense as follows (the Court’s footnotes are included in brackets). Id., at 36. Seventeen States and the Federal Government have adopted a recognizable version of the M'Naghten test with both its cognitive incapacity and moral incapacity components. [See 18 U.S.C. § 17; Ala. Code § 13A-3-1 (1994); Cal. Penal Code Ann. § 25 (West 1999); Colo. Rev. Stat. § 16-8-101.5 (2005); Fla. Stat. § 775.027 (2003); Iowa Code § 701.4 (2005); Minn. Stat. § 611.026 (2004); Stevens v. State, 806 So. 2d 1031, 1050-1051 (Miss. 2001); Mo. Rev. Stat. § 562.086 (2000); State v. Harms, 263 Neb. 814, 836-837, 643 N.W.2d 359, 378-379 (2002); Nev. Rev. Stat. § 194.010 (2003); Finger v. State, 117 Nev. 548, 553-577, 27 P. 3d 66, 70-85 (2001); N. J. Stat. Ann. § 2C:4-1 (West 2005); N. Y. Penal Law Ann. § 40.15 (West 2004); State v. Thompson, 328 N. C. 477, 485-486, 402 S. E. 2d 386, 390 (1991); Burrows v. State, 1982 OK CR 6, 640 P.2d 533, 540-541 (Okla. Crim. App. 1982) (interpreting statutory language excusing from criminal responsibility mentally ill defendants when "at the time of committing the act charged against them they were incapable of knowing its wrongfulness," Okla. Stat., Tit. 21, § 152(4) (West 2001), to mean the two-part M'Naghten test); 18 Pa. Cons. Stat. § 315 (2002); Tenn. Code Ann. § 39-11-501 (2002); Wash. Rev. Code § 9A.12.010 (2004). North Dakota has a unique test, which appears to be a modified version of M'Naghten, asking whether a defendant "lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual's capacity to recognize reality," N. D. Cent. Code Ann. § 12.1-04.1-01(1)(a) (Lexis 1997), when "it is an essential element of the crime charged that the individual act willfully," § 12.1-04.1-01(1)(b).] One State has adopted only M'Naghten's cognitive incapacity test [Alaska Stat. § 12.47.010 (2004)].
Ten states(including Arizona) have adopted the moral incapacity test alone. [Ariz. Rev. Stat. Ann. § 13-502 (West 2001); Del. Code Ann., Tit. 11, § 401 (1995); Ind. Code § 35-41-3-6 (West 2004); Ill. Comp. Stat., ch. 720, § 5/6-2 (West 2004); La. Stat. Ann. § 14:14 (West 1997); Me. Rev. Stat. Ann., Tit. 17-A, § 39 (2006); Ohio Rev. Code Ann. § 2901.01(A)(14) (Lexis 2006); S. C. Code Ann. § 17-24-10 (2003); S. D. Codified Laws § 22-1-2(20) (2005 Supp. Pamphlet); Tex. Penal Code Ann. § 8.01 (West 2003).] Fourteen jurisdictions, inspired by the Model Penal Code, … have in place an amalgam of the volitional incapacity test and some variant of the moral incapacity test, satisfaction of either (generally by showing a defendant's substantial lack of capacity) being enough to excuse. [Ark. Code Ann. § 5-2-312 (2006); Conn. Gen. Stat. § 53a-13 (2005); Malede v. United States, 767 A.2d 267, 269 (D. C. 2001); Ga. Code Ann. §§ 16-3-2, 16-3-3 (2003); Haw. Rev. Stat. § 704-400 (1993); Ky. Rev. Stat. Ann. § 504.020 (West 2003); Md. Crim. Proc. Code Ann. § 3-109 (Lexis 2001); Commonwealth v. McLaughlin, 431 Mass. 506, 508, 729 N.E.2d 252, 255 (2000); Ore. Rev. Stat. § 161.295 (2005); State v. Martinez, 651 A.2d 1189, 1193 (R. I. 1994); Vt. Stat. Ann., Tit. 13, § 4801 (1998); State v. Lockhart, 208 W. Va. 622, 630, 542 S. E. 2d 443, 451 (2000); Wis. Stat. § 971.15 (2003-2004); Wyo. Stat. Ann. § 7-11-304 (2005).] Three States combine a full M'Naghten test with a volitional incapacity formula. [Mich. Comp. Laws Ann. § 768.21a (West 2000); State v. Hartley, 90 N. M. 488, 490-491, 565 P.2d 658, 660-661 (1977); Bennett v. Commonwealth, 29 Va. App. 261, 277, 511 S. E. 2d 439, 446-447 (1999).] And New Hampshire alone stands by the product-of-mental-illness test. [State v. Plante, 134 N. H. 456, 461, 594 A.2d 1279, 1283 (1991).] The alternatives are multiplied further by variations in the prescribed insanity verdict: a significant number of these jurisdictions supplement the traditional "not guilty by reason of insanity" verdict with an alternative of "guilty but mentally ill." [See, e.g., Alaska Stat. §§ 12.47.020(c), 12.47.030 (2004); Del. Code Ann., Tit. 11, § 401 (1995); Ga. Code Ann. § 17-7-131 (2004); Ill. Comp. Stat., ch. 720, § 5/6-2 (West 2004); Ind. Code §§ 35-35-2-1, 35-36-1-1, 35-36-2-3 (West 2004); Ky. Rev. Stat. Ann. § 504.130 (West 2003); Mich. Comp. Laws Ann. § 768.36 (West Supp. 2006); N. M. Stat. Ann. § 31-9-3 (2000); 18 Pa. Cons. Stat. § 314 (2002); S. C. Code Ann. § 17-24-20 (2003); S. D. Codified Laws § 23A-26-14 (2004). Usually, a defendant found "guilty but mentally ill" will receive mental health treatment until his mental health has rebounded, at which point he must serve the remainder of his imposed sentence. See, e.g., Alaska Stat. § 12.47.050 (2004).] Finally, four States have no affirmative insanity defense [Idaho Code § 18-207 (Lexis 2004); Kan. Stat. Ann. § 22-3220 (1995); Mont. Code Ann. §§ 46-14-102, 46-14-311 (2005); Utah Code Ann. § 76-2-305 (Lexis 2003). We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require. This case does not call upon us to decide the matter.] though one provides for a "guilty and mentally ill" verdict. [§§ 77-16a-101, 77-16a-103, 77-16a-104 (Lexis 2003).] These four, like a number of others that recognize an affirmative insanity defense, allow consideration of evidence of mental illness directly on the element of mens rea defining the offense.

Id., at 7.

Id., at 12-15.


Id., at 15-38.

Id., at 16-18.

Id., at 16.

Id., at 16-17.

Id., at 30-36.

Breyer, concurring.

Kennedy, dissenting.

They felt that the state had erred in not permitting the defendant to present mental health testimony to negate the presence of mens rea and therefore would have overturned the conviction. For that reason it was unnecessary to decide the second question presented. Id., at 1.

Id., at 2.

Id., at 17.

The term "jury" is used here to describe the trier of fact. In Clark the case was heard by the judge, not a jury.

Id., at 21.

Id., at 34.

Id., at 34, quoting Powell v. Texas, 392 U.S. 514, 537 (1968).

Id., at 34-35.

Id., at 35.


Id., at 36-38.

Id., at 38.


Id., at 43.

Kennedy, dissenting at 15, quoting the majority.

Id., at 17.

The amicus curia brief is available at Briefs 2005 U.S. 5966 (2006).

Arthur Miller quoted in 70 A.B.A. Journal 44 (1984).

463 U.S. 880 (1983).

Holmes v. South Carolina, No. 04-1327 (May 1, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Holmes v. South Carolina.

Id., at 4.

Arlington Central School District Board of Education v. Murphy, No. 05-18 (June 26, 2006). The decision was 6 to 3. The decision is available from the Supreme Court by clicking on the following link: Arlington Central School Dist. Bd. of Ed. v. Murphy.

20 U.S.C. 1415 (i) (3) (B).



Murphy, at 2.

Id., at 3.


Ginsburg, concurring.

Breyer, dissenting.

Schaffer v. Weast, No. 04-698 (November 14, 2005). The decision was 6 to 2. (Chief Justice Roberts did not participate.) The decision is available from the Supreme Court by clicking on the following link: Schaffer v. Weast

Id., at 12.

House v. Bell, No. 04-8990 (June 12, 2006). The decision was 5 to 3. (Justice Alito did not participate.)
The decision is available from the Supreme Court by clicking on the following link: House v. Bell.

Id., at 18.


Chief Justice Roberts, concurring in part and dissenting in part.

Kansas v. Marsh, No. 04-1170 (June 26, 2006). The decision was 5 to 4. The decision is available from the Supreme Court by clicking on the following link: Kansas v. Marsh


Id. Souter, dissenting at 6-8.

Id., at 6.

Id., at 7-8.

Id., at 9.

Scalia, concurring, at 5.

Id. at 7-8.

Oregon v. Guzek, No. 04-927 (February 22, 2006). The decision was unanimous, with two of the justices concurring. (Justice Alito did not participate.) The decision is available from the Supreme Court by clicking on the following link: Oregon v. Guzek


Brown v. Sanders, No. 04-980 (January 11, 2006). The decision was 5 to 4. The decision is available from the Supreme Court by clicking on the following link: Brown v. Sanders

Hill v. McDonough, No. 05-8794 (June 12, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Hill v. McDonough


United States v. Georgia, Nos. 04-1203 & 04-1236 (January 10, 2006). The decision was unanimous with the justices concurring. The decision is available from the Supreme Court by clicking on the following link: United States v. Georgia

42 U.S.C. 12132 (2000 ed.).

Id. at 3.


Id., at 3-5.

Id., at 7 (emphasis in original).

The Court did not consider, for procedural reasons, the question of whether the conduct of the state violated the Eighth Amendment prohibition on cruel and unusual punishment. Id., at 5.

Stevens, concurring.

Amicus Brief of the American Association on Mental Retardation, et al. including the American Psychological Association, 2004 U.S. Briefs 1203 (2005).

Id. at 10.

Id., at 39.

Id., at 47.

Woodford v. Ngo, No. 05-416 (June 22, 2006). The decision was 6 to 3. The decision is available from the Supreme Court by clicking on the following link: Woodford v. Ngo

Beard v. Banks, No. 04-1739 (June 28, 2006). The decision was 6 to 2. (Justice Alito did not participate.) The decision is available from the Supreme Court by clicking on the following link: Beard v. Banks

Overton v. Bazzetta, 539 U.S. 126 (2003).

Beard, at 1-2.

Id., at 8.

Thomas, concurring.

Stevens, dissenting.

Samson v. California, No. 04-9728 (June 19, 2006). The decision was 6 to 3. The decision is available from the Supreme Court by clicking on the following link: Samson v. California

Cal. Penal Code Ann. 3067 (a) (West 2000).

Samson at 5-12.

Stevens, dissenting at 2.

Georgia v. Randolph, No. 04-1067 (March 22, 2006). The decision was 5 to 3. (Justice Alito did not participate.)
The decision is available from the Supreme Court by clicking on the following link: Georgia v. Randolph

Illinois v. Rodriguez, 497 U.S. 177 (1990).

Brigham City, Utah v. Stuart, No. 05-502 (May 22, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Brigham City v. Stuart

United States v. Grubbs, No. 04-1414 (March 21, 2006). The decision was 5 to 3 in the major question in the case. (Justice Alito did not participate in this case.) The decision is available from the Supreme Court by clicking on the following link: United States v. Grubbs

Hudson v. Michigan, No. 04-1360 (June 15, 2006). The decision was essentially 5 to 4. The decision is available from the Supreme Court by clicking on the following link: Hudson v. Michigan


Humana v. Forsyth, 525 U.S. 299 (1999).

Sereboff v. Mid Atlantic Medical Services, No. 04-260 (May 15, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Sereboff v. Mid Atlantic Medical Services, Inc.

Id., at 2-3.


Arkansas Dep’t of Health and Human Services v. Ahlborn, No. 04-1506 (May 1, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Arkansas Dept. of Health and Human Servs. v. Ahlborn

Ayotte v. Planned Parenthood of Northern New England, No. 04-1144 (January 18, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Ayotte v. Planned Parenthood of Northern New Eng.

Id., at 5.

Id., at 6, omitting citations.


Id., at 10.

Scheidler v. National Organization for Women No. 04-1244 & 04-1352 (February 28, 2006). The decision was unanimous. (Justice Alito did not participate.) The decision is available from the Supreme Court by clicking on the following link: Scheidler v. National Organization for Women, Inc.

18 U.S.C. 1951 (a).

Justice Alito did not participate in the case.

Id., at 11.

Oregon Rev. Stat. 127.800 (2003).

Gonzales v. Oregon, No. 04-623 (January 17, 2006), 1-4. The decision was 6 to 3. The decision is available from the Supreme Court by clicking on the following link: Gonzales v. Oregon



Scalia, concurring.

Burlington & Santa Fe Railway v. White, No. 05-259 (June 22, 2006). The decision was unanimous with Justice Alito concurring in the judgment. The decision is available from the Supreme Court by clicking on the following link: Burlington, N. & S. F. R. Co. v. White

Id., at 14-15.


Garcetti v. Ceballos, No. 04-473 (May 30, 2006). The decision was 5 to 4. The decision is available from the Supreme Court by clicking on the following link: Garcetti v. Ceballos

Id., at 5-14.

Sanchez-Llamas v. Oregon, No. 04-10566 (June 28, 2006). The decision was 5 to 3 with Justice Ginsburg filing an opinion concurring in the judgment. The decision is available from the Supreme Court by clicking on the following link: Sanchez-Llamas v. Oregon

Justice Ginsburg concurring in the judgment.

Fernandez-Vargas v. Gonzales, No. 04-1376 (June 22, 2006). The decision was 8 to 1. The decision is available from the Supreme Court by clicking on the following link: Fernandez-Vargas v. Gonzales


The author is a member of the faculty and administration of one of the law schools represented by the Forum for Academic and Institutional Rights. Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152 (March 6, 2006). The decision was unanimous. (Justice Alito did not participate in the decision.) The decision is available from the Supreme Court by clicking on the following link: Rumsfeld v. Forum for Academic and Institutional Rights, Inc.



Id., at 9-10.

Crawford v. Washington, 541 U.S. 36 (2004).

Davis v. Washington, No. 05-5224 (June 19, 2006). The decision was 8 to 1. The decision is available from the Supreme Court by clicking on the following link: Davis v. Washington

Id., at 11-14.


Id.,at 14-17.

Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006). The Court was badly split (see next note) but the core of the decision was 5 to 3 with Chief Justice Roberts not participating. The decision is available from the Supreme Court by clicking on the following link: Hamdan v. Rumsfeld

Id., at 1.

This is the official description of the opinion of the Court, “STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II-C-1, and III-B-2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C. J., took no part in the consideration or decision of the case.”

Id., at 25-30.

Id., at 49-72.

Id., at 52-53.

Rice v. Collins, No. 04-52 (January 18, 2006). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Rice v. Collins

Zedner v. United States, No. 05-5992 (June 5, 2006). The decision was essentially unanimous, although Justice Scalia joined in only part of the decision. The decision is available from the Supreme Court by clicking on the following link: Zedner v. United States

Washington v. Recuenco, No. 05-83 (June 26, 2006). The decision was 7 to 2. The decision is available from the Supreme Court by clicking on the following link: Washington v. Recuenco

United States v. Olson, No. 04-759 (November 8, 2005). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: United States v. Olson

Buckeye Check Cashing Inc. v. Cardegna, No. 04-1264 (February 21, 2006). The decision was 7 to 1 (Justice Alito did not participate.) The decision is available from the Supreme Court by clicking on the following link: Buckeye Check Cashing, Inc. v. Cardegna

Wisconsin Right to Life Inc. v. Federal Election Commission, No. 04-1581 (January 23, 2006). The decision was Per Curiam. The decision is available from the Supreme Court by clicking on the following link: Wisconsin Right to Life, Inc. v. Federal Election Comm'n

Randall v. Sorrell, Nos. 04-1528, 04-1530 & 04-1697 (June 26, 2006). The Court was badly split, but this was essentially a 6 to 3 decision. The decision is available from the Supreme Court by clicking on the following link: Randall v. Sorrell

League of United Latin American Citizens v. Perry, Nos. 05-204, 05-254, 05-276 & 05-439 (June 28, 2006). The Court was badly split on the following; “KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II-A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C. J., and ALITO, J., joined, an opinion with respect to Parts II-B and II-C, and an opinion with respect to Part II-D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C. J., and ALITO, J., joined as to Part III.” The decision is available from the Supreme Court by clicking on the following link: League of United Latin American Citizens v. Perry

United States v. Gonzalez-Lopez, No. 05-352 (June 26, 2006). The decision was 5 to 4. The decision is available from the Supreme Court by clicking on the following link: United States v. Gonzalez-Lopez

Hartman v. Moore, No. 04-1495 (April 26, 2006). The decision was 5 to 2. Chief Justice Roberts and Justice Alito did not participate. The decision is available from the Supreme Court by clicking on the following link: Hartman v. Moore

Lockhart v. United States, No. 04-881 (December 7, 2005). The decision was unanimous. The decision is available from the Supreme Court by clicking on the following link: Lockhart v. United States

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, No. 04-1084 (February 21, 2006). The decision was unanimous except Justice Alito who did not participate. The decision is available from the Supreme Court by clicking on the following link: Gonzales v. O Centro Espírita Beneficente União do Vegetal

The Times article summarizes in a report published by Professor Jay D. Wexler, in The Green Bag. Adam Liptak, So, Guy Walks Into The Bar, And Scalia Says…, New York Times, December 31, 2005. The Article is available at:

The difference between without dissent and unanimously being that some of the cases in which there was no dissent, there were concurring opinions that took a different legal position than rest of the Court.