Steven R. Smith, JD

Continuing Education Information

The 2006-2007 Term of the U.S. Supreme Court is described by most Court watchers as evidencing a shift to the right. While there is truth in this conventional wisdom, it would be simplistic and somewhat early to diagnose this as a long-term trend.

In many ways, this was a Term that focused on Justice Anthony Kennedy. In a Term with an unusual proportion of 5-4 decisions, Justice Kennedy was on the prevailing side in each one of the 54 cases. He also wrote many of the most important opinions. John Roberts may be the Chief Justice, but Anthony Kennedy was the Deciding Justice.

During the Term the Court decided several cases of interest to psychologists. The Court:

  • Limited the execution of the mentally ill by expanding hearings to determine competency to be executed and by broadening the definition of incompetency in this context.
  • Narrowed the permissible use of race-based school assignments by public schools.
  • Exempted home health care workers from federal wage and hour laws, even when these persons are hired by agencies rather than directly by families.
  • Decided several cases involving the makeup of capital juries and instructions to juries in capital cases.
  • Further limited punitive damages in civil cases.
  • Decided other important cases involving the federal False Claims Act, civil rights and disabilities claims, immigrants’ rights, the Clean Air Act, free speech rights of students and campaign finance reform.

After reviewing these and other cases of the Term, this article will turn to an analysis of the Term and its meaning for psychologists.


In 1986 the Court determined that the Eighth Amendment to the Constitution “prohibits a state from carrying out a death sentence upon a prisoner who is insane.”[1] This Term, in a 5-4 decision, the Court clarified some procedural issues and considered the standard to be used in determining when the persons with mental illness may be executed.[2]

The law uses the term incompetency to mean several different things. It may describe persons who are not legally capable of making business and personal care decisions for themselves (guardianship or conservatorship). It may also refer to someone who does not have sufficient mental capacity to make a valid will. Mental health professionals frequently address incompetency questions raised before the beginning of a trial, where they are called upon to help courts determine whether someone is capable of standing trial. The test for competency to stand trial is whether defendants are capable of understanding the charges against them and mentally able to assist in their own defense. Psychologists may also be called upon to help courts determine whether defendants are competent to waive counsel and represent themselves at trial or whether they were competent to waive certain rights when a confession was given.

These forms of incompetency are frequently confused with the insanity defense. They are, however, quite different in terms of relevant time, standards, consequences and procedures. Insanity concerns the mental state of the defendant at the time the crime was committed; incompetency to stand trial involves the mental state of the defendant at the time of trial. As contrasted with the standard for competency to stand trial (whether the defendant can reasonably assist with and participate in the trial), the standard for insanity is whether the defendant knew at the time of the crime what he or she was doing, and that it was wrong. The consequence of a successful insanity plea is that the defendant is found not guilty; the consequence of being found incompetent to stand trial is that the trial is delayed and the defendant can be tried once competency is restored. In short, incompetency is not a defense to the crime, but insanity is.
Competency to be executed focuses on the mental state of a capital defendant near the time a person is scheduled to be executed. As some have put it: The question is whether the defendant is too crazy to be hanged. A defendant may have been competent to stand trial and make other important trial decisions, but later became crazy, so psychotic or delusional as to preclude his execution. The consequence of being found incompetent to be executed is that the execution must be delayed until the competency of the defendant is restored.

The cruel and unusual punishment prohibition of the Eighth Amendment precludes the execution of someone who, because of mental illness, is unable to comprehend the reasons for the penalty or its implications. Put another way, it “forbids the execution of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”[3] There is a long history of not executing the incompetent. The reasons for precluding the execution of the incompetent include that it “provides no example to others” and therefore is not really a deterrent, that it is “uncharitable to dispatch an offender into another world when he is not of a capacity to fit himself for it,” and that executing the insane “simply offends humanity.”[4] In Panetti v. Quarterman the Court first faced a procedural question of whether the defendant could raise his claim in a federal habeas corpus (a traditional legal challenge to the legality of being held or executed) proceeding under the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The Court narrowly held that he could bring this habeas claim.

Turning to the substance of the case, a majority of the Court held that once a criminal defendant has made a “substantial showing of incompetency” the defendant has a right to a reasonable hearing by a neutral decision maker to determine whether he is competent to be executed.[5] That does not mean that there is a right to a full trial, but it does mean that the defendants are entitled to submit expert mental health evidence and examine evidence that is introduced against them on the question of incompetency.[6] The defendant in Panetti had not received such a hearing. Rather, the judge received a report of two mental health experts but gave the defendant no real opportunity to challenge those witnesses. The Supreme Court held, therefore, that the defendant’s constitutional rights had been violated.

The Court struggled with the proper standard to be applied in judging competency, that is, what the defendant must be capable of understanding to be competent to be executed. Ultimately, it did not establish a precise standard, saying: “We do not attempt to set down a rule governing all competency determinations.”[7] In this case the defendant was very delusional as a result of schizo-affective disorder.[8] He understood that he had killed someone and that the state wanted to execute him, but he believed “in earnest that the stated reason is a ‘sham’ and the state in truth wants to execute him ‘to stop him from preaching’ ”[9] The majority of the Court held that this delusion precluded the defendant from understanding the real reason and basis for his execution and that it would, therefore, be unconstitutional to carry out the death sentence while he was in  this delusional state.

The absence of a clear, specific test for competency to be executed will complicate the job of lower courts and the mental health professionals who participate in such determinations. For the foreseeable future experts will be dealing with a somewhat ambiguous standard that is subject to varying interpretation in individual cases. Whenever severe mental illness precludes defendants from understanding that they have committed a crime, that they are about to be executed and what are the legitimate reasons for the execution, their competency may remain in doubt.
Justice Kennedy wrote for the majority of five justices in the case. Justice Thomas wrote for the four dissenting justices who felt that the defendant had not filed the habeas petition in an appropriate way and that therefore his claim of a constitutional violation should not have been heard by the Court.[10] They also found that the state court trial judge had properly decided not to hold a thorough evidentiary hearing on the question of incompetency and instead could base an opinion on a written report of two mental health specialists who had examined the defendant.
Neither the majority nor the dissent considered the question of whether it is appropriate or ethical for psychologists to participate in a process of examining a defendant when that examination and the resulting report and conclusions of the mental health professionals may lead to the defendant’s execution. Both the majority and dissent did show respect for mental health professionals, in contrast with the open hostility to these professionals that has characterized some other decisions, and especially dissents, in earlier years.

The American Psychological Association (APA) filed an amicus curiae brief in this case. It did so in cooperation with the American Psychiatric Association and the National Alliance on Mental Illness. The brief was of high quality and drew the favorable attention of the Court.The majority specifically cited the brief for the proposition that “expert evidence may clarify the extent to which severe delusions may render a subject’s perception of reality so distorted that he should be deemed incompetent.”[11]

The APA brief was particularly effective in describing the nature of the mental illness from which the defendant was suffering. It forcefully made the point that mental health professionals can reliably identify the nature and extent of an individual’s rational understanding of an impending execution, and that psychologists make similar assessments in many other judicial settings.[12] In short, the brief emphasized the special understanding of mental health professionals and their ability to assist courts in making incompetency decisions. The brief may be viewed at


The only other case this Term in which the American Psychological Association filed an amicus brief was in Parents Involved in Community Schools v. Seattle School District. This case involved school districts’ use of race in deciding which students would be admitted to oversubscribed high schools.[13] The APA’s brief in this case, under the direction of Nathalie Gilfoyle, dealt not with the issues of mental illness. Rather, it considered the application of social science research to the important question of the benefits to children and society of racial integration and, therefore, the benefits of assigning students toward achieving a goal of racial integration.[14]

The Seattle and Louisville school districts had established plans to achieve a level of racial balance in their school systems. The plans included assignment of individual students to a particular school based on race and permitted transfers to desirable schools based on race. Parents and students in the school district challenged these integration plans based on the equal protection clause of the Fourteenth Amendment. A sharply divided Supreme Court held, 5-4, that these plans were unconstitutional. The Fourteenth Amendment of the Constitution prohibits a state from denying any person “the equal protection of the laws.”

Four justices (Chief Justice Roberts and Justices Scalia, Thomas and Alito) held that the Constitution permits government decisions based on race only in truly extraordinary, narrow circumstances that were not present in this case. Chief Justice Roberts summarized their view as, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[15] These four justices emphasized prior precedents holding that government uses of race are pernicious and are subject to the strictest form of constitutional scrutiny.[16] To succeed in using race, a government entity, such as a school, must demonstrate that the use of racial classifications is “narrowly tailored,” that it is essential to achieve a state purpose, and that the state interest is of enormous importance or “compelling.”[17] These justices rejected “racial balancing” as a compelling state interest and said that to accept the constitutionality of the school district’s racial assignment would be to allow states to impose “racial proportionality throughout American society.”[18] They rejected the school systems’ claims they were pursuing a compelling state interest or that the means they had chosen to achieve racial balancing were necessary or narrowly tailored.

Justice Breyer wrote the primary dissent. His lengthy opinion reviewed in detail the plans adopted by Louisville and Seattle.[19] The dissenting justices would allow public schools considerable latitude in using race to address de facto segregation because of the educational and societal benefits. They would have applied a form of strict scrutiny to racial classifications that are benign, but instead the dissenters would use a relaxed strict scrutiny which would permit a broad use of remedial racial classifications. The four dissenting justices (Justices Stevens, Breyer, Souter and Ginsburg) essentially approved of “benign discrimination” when used to advance the interests of integration and of disadvantaged minorities.[20] These four Justices would have permitted government authorities considerable latitude in using race for these benign purposes.
Justice Thomas, one of the four plurality justices in the majority, wrote a long concurring opinion. The opinion forcefully argued with every major point the dissenters had made.[21]

Justice Kennedy, the deciding vote, took a middle position. He accepted the Court’s analysis that discrimination based on race must serve a compelling state interest, be as narrow as possible and targeted directly at the compelling interest, and that there is no alternative in achieving the compelling state interest. He, however, did not go as far as the majority in rejecting the use of ace.[22] On one hand, Justice Kennedy rejected Chief Justice Roberts’ broad statement that racial assignment of schools is virtually always unconstitutional. On the other hand, Justice Kennedy soundly rejected the dissenters’ claim that the broad government use of race to achieve integration is probably permissible. Justice Kennedy found that Louisville and Seattle might well have compelling interests in achieving a racial mix of students in public schools, but that neither school system had adequately demonstrated that racial assignment was essential to achieve these purposes or that they were using the narrowest possible form of racial classification to achieve their purposes.[23]

This split in the Court produced long opinions. The opinions in this case covered 177 pages, including 94 pages of the majority of concurring opinions and 83 pages of dissent. The opinions were particularly aggressive, almost angry. These were generally the most acrimonious opinions of the Term.

Social science data played an interesting role in this case. The dissenting opinion of Justice Breyer and the concurring opinion of Justice Thomas used dueling social science evidence. Justice Breyer cited social science studies for the proposition that integrated schools have a positive educational effect[24] and there are benefits to having an educational environment that “reflects the pluralistic society in which our children will live.”[25] In both instances, however, he recognized that there were contrary studies as well.[26]

In part this battle of the social science data picked up points made in an amicus brief filed by the APA. This brief focused primarily on issues related to racial stereotypes, cross-racial understanding, and the development of understanding in children. Its argument was summarized as follows: extensive psychological research shows that, under certain conditions, interaction among persons of different races can diminish racial stereotypes and promote cross-racial understanding, empathy, and mutual respect. These findings apply with particular force in the context of K-12 education. Adults may find it difficult to abandon racial stereotypes already formed, but children who interact regularly with persons of other races are less likely to fall into patterns of stereotypical thinking about other racial groups. Primary and secondary schools provide an excellent setting for this type of sustained interaction.[27] The brief also acknowledged that the data are not entirely clear or all on one side of the issue.

It is impossible to know what impact the APA amicus brief had. While neither of the two main opinions cited it, its evenhanded review of the literature, coupled with a clear point of view that it expressed, should have helped some of the justices better formulate opinions. For example, Justice Kennedy did not specifically cite the brief, but it is the sort of information that might well have helped him establish a middle ground in which very narrowly tailored programs could be used to achieve some of the benefits of racial integration described in the APA brief.
Some popular commentaries see this decision as somehow repudiating or inconsistent with Grutter v. Bollinger (upholding the use of racial consideration in law school admissions).[28] I disagree. In the companion case to Grutter, Gratz v. Bollinger,[29] the Court struck down an undergraduate admissions system that gave race a numerical place in admissions in contrast to the law school’s careful individualized consideration of applicants. The Louisville and Seattle plans were much more like the Gratz mathematical or mechanistic approach than the holistic, comprehensive evaluation of individuals that characterized the law school in Grutter. For that reason Louisville and Seattle plans seem consistent with Grutter/Gratz, not a repudiation of it. In any event, it is important to note that the Court relied on Grutter as good law.

The 4-1-4 split on the Court will make it challenging for school districts, and psychologists who advise them, to tailor programs in public schools to promote racial integration. Justice Kennedy hinted at some techniques that might be used: strategic site selection of new schools, drawing attendance zones with a general recognition of neighborhood demographics, allocating resources for special programs, recruiting students and faculty in a targeted fashion and tracking performance and enrollments by race.[30] It is clear that school systems making use of any form of racial assignment will need to do so in the narrowest possible way and only after demonstrating that there is no other mechanism for achieving educational goals that are very important.

Psychologists can contribute substantially to these efforts. They must, however, clearly document why race-conscious decisions are made and the research basis for implementing the decisions. Many school systems already have race-conscious policies in effect and those systems will need to quickly revise or refine such policies if they are to continue to make race-conscious enrollment decisions. These programs are likely to face legal challenges and such challenges are likely to be successful against all but the most carefully designed programs.


The federal Fair Labor Standards Act of 1938 and the amendments of 1974 establish minimum wages, maximum hours and overtime rates for many workers. The law specifically exempts people who are “employed in domestic service employment to provide companionship services for individuals unable to care for themselves.”[31] This exemption is important because many of the jobs of home health care workers do not fit neatly into the typical wage and hour regulations.

This Term the Court was called upon to decide whether the exemption for home health care workers applies solely to those workers hired directly by the family, as opposed to those employed by agencies and companies who hire home health care workers and then contract with those needing the services.[32] The Court unanimously held that the exemption applies broadly, thus exempting home health care workers hired by agencies to perform home health care services. This was a case of statutory interpretation and the Court particularly relied on the Department of Labor’s regulations in reaching its decision.[33]

The increasing importance of home health care workers makes this decision of particular note. It permits flexibility in the assignment and scheduling of home health care workers and may also allow employers to avoid paying overtime in some circumstances. At the same time, of course, it leaves some home health care workers subject to potential exploitation. It is important to note that many states also regulate employment relationships that do cover home health care workers, and such state laws are not affected by this federal decision.


Psychologists play important roles in the sentencing phase of many capital cases. This Term the Supreme Court decided a number of cases concerning jurors in capital cases and the evidence that jurors may consider in determining whether to impose the death penalty.
Jurors in capital cases who say that they would be unwilling to impose the death penalty are excused for cause from the jury. Even if the jury is considering both guilt/innocence and the imposition of capital punishment, a jury must be death qualified by excluding potential jurors who would not impose the death penalty. Because the exclusion of such jurors can tilt a jury against the defendant, the defendant has a constitutional right not to have jurors excluded unnecessarily. At the same time, the prosecution seeks broader exclusion of those who oppose the death penalty. This is more than an academic question because death qualified jurors are more likely to convict a defendant and much more likely to impose the death penalty. The Supreme Court and other appellate courts ordinarily defer to the judgment of trial judges in deciding whether the exclusion of a juror for cause was proper. The trial court has the opportunity to assess firsthand the demeanor and attitude of a juror.

This Term in Uttecht v. Brown the Supreme Court considered the question of “for cause” exclusion of jurors.[34] In a 5-4 decision the Court held that it was proper for a trial court to exclude one juror who repeatedly said that he would have to think about whether he could impose the death penalty if he learned that the alternative sentence was life imprisonment with no chance a defendant could be released from prison. This case was based on the specific facts at the trial, but it emphasized that trial courts have considerable discretion to exclude jurors who might be willing to impose the death penalty in some cases but who are quite reluctant to do so.

In another case the Court held that the constitutional right to a fair trial was not violated when family members of a murder victim sat in the front row of the trial wearing buttons displaying the victim’s image.[35] The Court held that it was not clearly established in federal law that the purely private, as opposed to state sponsored, practice of emphasizing the victim throughout the trial was a violation of fair trial rights. Because no clearly established federal right was violated, the federal courts should not have overturned the defendant’s conviction.

An especially important part of a capital case, at the sentencing stage, is the presentation of mitigating evidence. This is the phase at which psychologists are frequently involved. At this juncture the defendant is permitted to present any mitigating evidence (evidence that would argue against imposing the death penalty on this defendant). The prosecution is permitted to present aggravating evidence (evidence that would argue for the imposition of the death penalty). The Supreme Court has held that the Eighth Amendment of the Constitution requires that states permit defendants to present any relevant mitigating evidence to the jury and that the jury be permitted to consider such evidence in deciding whether to impose the death penalty.

The bases for imposing the death sentence vary from state to state. Factors commonly include predictions of future dangerousness, cruelty in the commission of a crime and past criminal conduct. Mitigating evidence commonly may include evidence of abuse as a child, mental impairment and good works of the defendant. Mental health evidence, however, is seen as a double edged sword. While it may explain the defendant’s actions and create sympathy for the defendant, at the same time it may create in the jurors’ minds concern about future dangerousness. For this reason, criminal defense attorneys believe that it is especially important that jurors be told clearly they can take into account any mitigating evidence in deciding not to impose the death penalty.

This Term the Court decided three cases involving mitigation evidence, two from Texas and one from California. In each of these cases the trial courts had given the jury broad instructions regarding mitigation. For example, in the California case the jury was told that it could consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”[36] In the Texas cases, the instruction was even murkier.[37] In 5-4 decisions, the Supreme Court upheld the capital sentences of all three defendants. These cases were complex procedurally because of technical rules regarding factors that federal appellate courts can take into account in deciding habeas corpus cases. Even given the procedural complexity of these cases, the thrust of the decisions concerning mitigating evidence was clearly against the defendants.

The effect of this approach on the presentation of mental health evidence may be significant. It will cause some defense attorneys to make strategic decisions not to present any expert psychological testimony, based on the concern of such evidence being used against the defendant in the absence of a clearer instruction to the jury.[38]

Some defendants, for whatever reason, refuse to allow their attorneys to present mitigating evidence at the time of trial. The risk of doing this, of course, is that it potentially increases the likelihood that a jury will impose the death penalty because the jury will hear aggravating evidence from the prosecution without any offsetting mitigating evidence from the defense. There is sometimes a question of whether the defendant is competent to make a decision not to present mitigating evidence. Inevitably, some defendants change their minds and wish to claim ineffective assistance of counsel after the trial attorney did not present mitigating evidence, even when instructed to do so by the defendant. This Term the Supreme Court decided, in a 5-4 decision, that trial courts maintain the discretion to refuse to hold a formal evidentiary hearing on such claims of ineffective assistance of counsel.[39] Absent a showing of incompetency to make this decision, a defendant’s decision to refuse permission to present mitigating evidence will not form the basis for ineffective assistance of counsel or for reversing a death sentence.

Perhaps the most extraordinary example of decisions disadvantaging defendants was Bowles v. Russell.[40] In that case the defendant filed a habeas corpus in federal court challenging his state murder conviction. The federal judge inexplicably gave Bowles’ attorney 17 days to file an appeal in the case, although federal statutes provide for 14 days. The Court held that Bowles had lost his right to appeal when the appeal was filed in 16 days, even though it was filed within the 17 day period granted by the trial court. The Court held that the lower court lost jurisdiction of the case after 14 days and therefore could not entertain the appeal, despite the fact that the court had misstated to the attorney when the appeal could be filed.

Each of the decisions discussed in this section was decided by the same 5-4 majority of Chief Justice Roberts and Justices Thomas, Scalia, Kennedy and Alito. Justices Stevens, Souter, Ginsburg and Breyer were the dissenters. In addition to the substantive principles discussed in these cases, the split in the Court relates to the Anti-Terrorism and Effective Death Penalty Act of 1996. This federal law is intended to narrow the ability of federal courts to provide habeas corpus relief to state criminal defendants, including those facing the death penalty. It can be a significant barrier to many criminal defendants in raising constitutional claims in the federal courts. The five majority justices apply the act rather strictly, while the four dissenters are more inclined to allow defendants some latitude in meeting its requirements. This Term suggested that the majority of the Court will continue to have a strict application of the act.


The Supreme Court decided several other sentencing cases of general interest. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The Court has held that under the Sixth Amendment any fact that exposes a defendant to a “sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt.”[41] That principle applies both to federal and state criminal cases. It ultimately resulted in eliminating the mandatory application of the federal sentencing guidelines.

This Term the struggle to deal with these issues continued. In Rita v. United States the Court restored some weight to the federal sentencing guidelines when it held a trial court’s sentence generally will be considered reasonable if it rests within the range established in the U.S. Sentencing Guidelines.[42] On the other hand, the Court struck down a state court sentencing scheme in which a judge imposed an especially long sentence upon finding specific facts that were aggravating factors.[43] The Court held that the aggravating fact, in this case a finding of the dangerousness of the defendant to the community and the vulnerability of his victims, had to be established beyond reasonable doubt by a jury, not a judge. The constitutional infirmity was not the enhancement of the sentence, but rather that a judge, as opposed to a jury, made the findings of fact necessary for the enhanced sentence. The Court noted that many states have changed their sentencing policy by calling upon the jury “either at trial or in a separate sentencing procedure, to find any facts necessary [for the] imposition of an elevated sentence.”[44]

A different sentencing issue was raised by James v. United States.[45] It involved the interpretation of one of the many laws that seek to impose enhanced sentences for previous crimes or strikes. In this case the Court was asked to define what a violent felony is under the mandatory minimum sentencing of the Armed Career Criminal Act (ACCA). The Court found that a prior conviction might qualify as a “violent felony,” even if the conduct in question would not necessarily give rise to serious potential risk of bodily injury.[46] Because this case involved an interpretation of the ACCA instead of the Constitution, it could be changed by Congress. If, however, it signals a broad interpretation of prior conviction and sentencing statutes, the length of prison terms under federal law could be enhanced significantly.


The awarding of punitive damages has been the subject of a good deal of attention by the Supreme Court as well as social science researchers. In Philip Morris v. Williams the Supreme Court further limited the ability of states and juries to award substantial punitive damages.[47] In this case the jury found that the plaintiff’s death was caused by smoking and that Philip Morris knowingly and falsely let him believe that smoking was safe. The jury awarded the smoker’s estate $821,000 in compensatory damage and $79.5 million in punitive damages.

In a 5-4 decision, with an unusual split of justices, the Court held that these punitive damages were excessive and therefore violated the Fourteenth Amendment due process clause. More specifically, the Court held that the due process clause forbids a state from using punitive damages to punish a defendant for injuries inflicted on someone who is not a party to the litigation. The Court feared that permitting such damage would add a “near standardless dimension to the punitive damages equation and magnify the fundamental due process concerns.”[48] The Court has previously shown some hostility to punitive damages. Its concerns about runaway juries or essentially punishing a civil defendant multiple times in different states remains a driving force in these decisions.


The federal False Claims Act has played an increasingly important role in health care institutions. That act is intended to impose liability on federal contractors who cheat the federal government in terms of the quality of goods and services sold to the government. Although there are criminal penalties available under the act, more commonly it is possible to obtain damages, often treble damages (three times the actual losses) for losses to the government caused by violations of the False Claims Act.

The act also has a provision for private attorneys general or whistle-blowers, known as qui tam actions. Individuals who know of instances where the government has been cheated may be awarded a percentage of the damages recovered. If the government refuses to proceed with the case these whistleblowers may proceed as private parties and keep an even larger proportion of the recovery.

Because so many health care providers receive federal reimbursement, especially through Medicare and Medicaid, federal False Claims Act actions have become a considerable problem for health care providers. Some have seen it as an invitation to disgruntled employees to take their complaints out by means of filing a false claims complaint.

In Rockwell International Corp. v. United States, this Term the Supreme Court made it somewhat more difficult for private parties to bring a False Claims Act complaint. The Court did so by narrowing the kinds of information that the complaining person must present in order to sustain it.[49] The Court held that lower courts do not have jurisdiction to hear False Claims Act cases where the original complaint, as amended, does not include “direct and independent knowledge of the information on which the allegations (in the false claim) are based.” Most observers believe that this could have a significant impact on the kinds of cases private individuals can bring and how those cases are pursued. At the same time, this was another statutory interpretation case and it is possible that Congress will change the statute to expand the jurisdiction of courts and thereby reinstate some of the kinds of cases that the Court was limiting in its decision.


The Court decided a number of cases involving a variety of civil rights and disability rights statutes. These cases can generally be grouped into two types, those in which liability is sought to be imposed on the government, and those in which the liability is ascribed to individuals.
There were four cases of note directed to governmental liability. The Court determined that it was not a violation of a person’s constitutional rights when during a high-speed chase the police intentionally bumped his car, unintentionally sent the car into a spin that resulted in a crash that seriously injured the person.[50] The Court agreed with the lower court determination that the actions of the police were reasonable under the circumstances. One very interesting aspect of this case was the included link to a website at which readers may see the video tape of the chase and the accident. The Court said: “We are happy to allow the videotape to speak for itself.”[51]

In Jones v. Brock the Court interpreted the Prison Litigation Reform Act. That act requires that prisoners exhaust administrative grievance procedures before seeking to file a lawsuit in federal court against the prison system.[52] The Court held that a prisoner may proceed with a part of the claim that was appropriately presented in the prison system, but may not proceed further with a claim that was not appropriately presented to the prison. The prisoner bears the burden of showing exhaustion of administrative remedies within the prison system.

In Wallace v. Kato the Court held that a civil rights claim for damages must be brought within the designated statute of limitations. For false arrest, that statute of limitations begins to run at the time a person is detained and is bound over for trial, not at the time the charges were later dropped and he was released from custody.[53]

Many civil rights statutes provide that the prevailing party, or at least the plaintiff who prevails, can recover attorneys’ fees. The American rule ordinarily is that each party covers its own attorney’s fees. Because attorney’s fees can be very large in civil rights cases, defining what is a prevailing party is important. This Term the Court excluded from the definition of “a prevailing party” someone who obtains a preliminary injunction that is later dissolved or undone.[54]

The Individuals with Disabilities Education Act (IDEA) provides certain rights for disabled children and their parents. This Term the Supreme Court determined that parents may represent themselves not only at the administrative hearings for IDEA rights, but also at trial and in appellate courts.[55] This, of course, means only that parents have a right to represent hemselves, not that it is desirable or wise for them to do so.

In another case the Court considered the question of when the statute of limitations begins to run in lawsuits alleging a gender pay inequity. It held that where an employer sets a salary for an individual employee based on gender discrimination, the statute begins to the run at the time the salary is set and is not renewed every time a paycheck is delivered.[56] Because the time for filing a complaint is very short, 180 days in this case, it is a particularly difficult standard to meet. It requires that the employee know of the discriminatory practice and take legal action in fairly short order. The four justices in dissent noted this harsh result and seemed to invite Congress to change the statute in the interest of fairness.[57]


The Court looked at four fairly technical issues regarding immigration law. It allowed some latitude in seeking to expel aliens attempting to reenter the country illegally. It held that indictments for such offenses could be somewhat general.[58] The Court narrowed the interpretation of federal law that provides for the exportation of legal immigrants who commit drug-related offenses. State felonies that would have been federal misdemeanors do not qualify, the Court held, as a basis for deporting legal immigrants.[59]

On the other hand, the Court held that under the Immigration and Nationality Act crimes of aiding and abetting theft offenses are themselves considered theft offenses.[60] In a minor matter, by a per curiam opinion, the Court lifted an injunction that was precluding Arizona’s implementation of a voter identification requirement. The Court expressed no opinion on the ultimate constitutionality of the law, but did not sustain a lower court order prohibiting its enforcement.[61]


In a number of cases of general importance decided this Term, briefly stated, the Court:

• Held that the Environmental Protection Agency has the statutory authority to regulate carbon dioxide as an air pollutant under the Clean Air Act and will be required to consider the merits of proposed appropriate regulations.[62]

• Made it somewhat more difficult to obtain a valid patent.[63] A patent is not valid if the discovery or advance on which it is based was obvious. The Court, in a unanimous decision, expanded what obvious means.

• Turned back a First Amendment challenge to President Bush’s “faith based community initiatives.”[64] This case rested not on the substantive constitutional issues, but rather on the fact that the taxpayers who brought the case did not have standing to challenge the Executive Orders establishing the initiative.

• Changed nearly one hundred years of antitrust law related to “minimum retail price maintenance agreements.”[65] Those agreements prohibit retailers from selling goods at a lower price than that set by the manufacturer. The Court held that such agreements will no longer be per se (absolute) violations of the antitrust law, but will be judged under a rule of reason. This change will make it much easier for manufacturers to enforce minimum prices for their goods and services.

• Limited the First Amendment speech rights of school students.[66] The Court upheld the suspension of a student who posted a “Bong Hits 4 Jesus” sign across from the school. This case was strange in several respects. Nobody, not even the student who posted it, knew what the sign actually meant. Based on the claim that the sign appeared to promote illegal drug use, the Court said the school had a strong interest in stopping anything that did so. It is not clear how far this holding, or the concept underpinning it, can be carried in limiting non-disruptive student speech.

• Struck down the application of a major federal campaign finance reform law.[67] The law prohibited non-candidate issue ads paid for by businesses or labor unions within 60 days of an election. The Court held that such a ban is a violation of the First Amendment.

• Held that a passenger in an automobile when it is pulled over is “seized” and is therefore subject to the protections of the Fourth Amendment.[68]


The Term began, by tradition, on the First Monday in October, October 2, 2006. It ended on Thursday, June 28, 2007. During the Term the Court issued 68 signed decisions. This was the lowest number of decisions since 1953. (There were also four other cases with summary disposition for a total of 72 cases.)

It was a particularly fractious year in that fully one third of the cases (24 cases) were decided by a 5-4 majority of the Court. Only 18 (25%) of the decisions were by unanimous vote. By comparison, during the prior Term only 13% of the cases were 5-4; 45% of the cases had been unanimous. When Chief Justice Roberts began his service in 2005, he urged the Court to achieve “a greater degree of consensus” than it had in the past. This Term did not see that consensus develop.

The claim that the Court took a shift to the right was based in part on the alignment of the justices. There is a consensus among commentators that 19 of the 5-4 decisions were decided along ideological lines, with the conservative alignment prevailing in almost twice as many as the liberal alignment. In the 5-4 cases, Justice Alito voted with the prevailing side 17 times, while Justice Stevens (the most liberal justice) did so only seven times. Justice Alito appears to be slightly more conservative than Justice O’Connor, whom he replaced. He was a more reliable vote toward the right than was Justice O’Connor.

If this is a shift to the right, there appears to be a disagreement within the four most conservative justices about the proper way to decide cases that are a change of direction. Chief Justice Roberts would prefer to draw fine distinctions from earlier precedents, utilizing narrow holdings. Justice Scalia, by contrast, would be more dramatic in overturning precedents with which he disagrees. His frustration with the incremental approach is increasingly evident. Justice Thomas frequently agrees with Justice Scalia, but with only a five justice majority in most critical cases, Chief Justice Roberts’ narrow approach seems more likely to prevail.

The most remarkable element in the close cases was that Justice Kennedy was in the majority in every single one of the 24 decisions that were 5-4. Justice Kennedy tended toward the conservative side, but sometimes was more the centrist. For example, in the Louisville and Seattle racial preference in public schools cases, he rejected both of the strong positions taken by other justices (that preferences were permitted, in the alternative, or almost never permitted by the Constitution). Until there is a change in the membership of the Court, it is likely that Justice Kennedy will often cast the deciding vote in close cases. This is probably good news for psychologists because Justice Kennedy has been more respectful of, and open to, psychological and other social science data than have some other justices. This Term, for example, he wrote the decision limiting the execution of the mentally ill. Overall, the trends apparent in this Term may give psychologists both cause for optimism and cause for pause.

This Term members of the Court engaged in little of the social science bashing that there has been in some recent Terms. Indeed, in the school desegregation cases, there was some reasoned debate among concurring and dissenting justices about the meaning of social science data. The place of psychological opinion in competency to be executed did not incite any significant sniping from Justice Scalia and others. In short, psychological and other social science data were noticeably present, but did not create the rancor they had in other Terms. Perhaps, in part, this reflects the careful amicus briefs filed by the APA in two cases. These briefs stated psychological research with caution and clarity and avoided polemics.

Court watchers have identified some significant trends this Term. The prosecution is much more likely to prevail than the defendant in criminal cases. In 14 of the 22 criminal cases, the defendant lost, and that was 14 of the 18 non-Texas cases (Texas cases remain an anomaly because of the very loose rules it employs in capital cases). The Court also is seeking to keep federal courts out of more of the disputes by limiting lawsuits, reducing jurisdiction and further narrowing review of other cases. This trend was sufficiently vivid for Professor Judith Resnik to claim that this was the “year they closed the courts.”[69] The Court has been especially aggressive in demanding strict compliance with procedural rules for bringing and appealing cases in the federal system. Business interests were favored in an unusually large number of cases ranging from antitrust and securities to limits on punitive damages and whistleblowers. Business won both through limiting lawsuits against business, but also in the interpretation of the substantive law.

These short-term trends must be interpreted with some caution. The cases that the Court has selected for a particular Term can easily give the wrong signals about a supposed long-term trend that is, in fact, a temporary blip. There does appear, however, to be the beginning of a shift toward keeping disputes out of court and limiting appeals. The next Term is likely to signal whether this appearance is, in fact, real.

The Court has accepted a number of cases for the Term that begins October 1, 2007. It will have cases that again raise the constitutionality of the Guantanamo detention of enemy combatants and whether penalties for possession and sale of crack can be greater than for other forms of cocaine. There is every reason to think that the same justices will continue into the new Term. No justice has suggested that he or she may be willing to step down in the near future and the fact that a presidential race is underway would make appointing and confirming a new justice very difficult.


U.S. Supreme Court decisions are readily available (free) on the Court’s web site: The web site for the opinionsis 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.


Steven R. Smith, JD, is Dean of the California Western School of Law in San Diego, CA. He received his J.D. 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.

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


  1. Ford v. Wainwright, 477 U.S. 399, 409 (1986).
  2. Panetti v. Quarterman, No. 06-6407, June 28, 2007 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
  3. Id, quoting Justice Powell, at 422.
  4. Panetti v. Quarterman at 26, quoting several other sources
  5. Id. at 15.
  6. Id.
  7. Id. at 28.
  8. Id. at 22.
  9. Id.
  10. Thomas, dissenting, at 2.
  11. Id., majority opinion at 29-30.
  12. APA Brief at 12.
  13. Parents Involved in Community Schools v. Seattle School Dist. No. 1, No. 05-908, June 28, 2007; (Justice Roberts wrote the opinion).
  14. Id.
  15. Id. at 40 - 41.
  16. Id. at 25-26.
  17. Id.
  18. Id. at 25.
  19. Breyer, dissenting.
  20. Breyer, dissenting.
  21. Thomas, concurring.
  22. Kennedy, concurring.
  23. Id.
  24. Breyer, dissenting, at 38.
  25. Id. at 38-39.
  26. Id.
  27. Brief of the American Psychological Association, at 2.
  28. 529 U.S. 306 (2003).
  29. Gratz v. Bollinger, 529 U.S. 422 (2003).
  30. Kennedy, concurring, at 8.
  31. 29 USC §213(a) (15) (2006).
  32. Long Island Care at Home, Ltd. v. Coke, No. 06-593, June 11, 2007 (this was a 9-0 opinion; Justice Breyer wrote the opinion).
  33. 7-9.
  34. Uttecht v. Brown, No. 06-413, June 4, 2007 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
  35. Carey v. Musladin, No. 05-785, December 11, 2006 (this was a 9-0, 6-3 decision; Justice Thomas wrote the opinion).
  36. Carey v. Musladin at 1.
  37. Abdul-Kabir v. Quarterman, No. 05-11284, April 25, 2007 (this was a 5-4 opinion; Justice Stevens wrote the opinion); Brewer v. Quarterman, No. 05-11287, April 25, 2007 (this was a 5-4 decision; Justice Stevens wrote the opinion).
  38. Brewer v. Quarterman, No. 05-11287, April 25, 2007 (This was a 5-4 decision; Justice Stevens wrote the opinion).
  39. Schriro v. Landrigan, No. 05-1575, May 14, 2007 (this was a 5-4 decision; Justice Thomas wrote the opinion).
  40. Bowles v. Russell, No. 06-5306, June 14, 2007 (Justice Thomas wrote the opinion).
  41. Apprendi v. New Jersey, 530 U.S. 466 (2000).
  42. Rita v. United States, No. 06-5754, June 21, 2007 (Justice Breyer wrote the opinion).
  43. Cunningham v. California, No. 05-6551, January 22, 2007 (this was a 6-3 decision; Justice Ginsburg wrote the opinion).
  44. Id. at 21.
  45. James v. United States, No. 05-9264, April 18, 2007 (this was a 5-4 decision; Justice Alito wrote the opinion).
  46. Id. 7.
  47. Philip Morris USA v. Williams, No. 05-1256, February 20, 2007 (this was a 5-4 decision; Justice Breyer wrote the opinion.)
  48. Id. at 5-6.
  49. Rockwell Int'l Corp. v. United States, No. 05-1272, March 27, 2007 (this was a 6-2 decision; Justice Scalia wrote the opinion).
  50. Scott v. Harris VIDEO (Real Player, 93Mb), No. 05-1631, April 30, 2007 (this was an 8-1 decision; Justice Scalia wrote the opinion).
  51. Id. at 5.
  52. Jones v. Bock, No. 05-7058, January 22, 2007 (this was a 9-0 decision; Justice Roberts wrote the opinion).
  53. Wallace v. Kato, No. 05-1240, February 21, 2007 (this was a 7-2 decision; Justice Scalia wrote the opinion).
  54. Sole v. Wyner, No. 06-531, June 4, 2007 (this was a 9-0 decision; Justice Ginsburg wrote the opinion).
  55. Winkelman v. Parma City School Dist., No. 05-983, May 21, 2007 (this was a 9-0 decision; Justice Kennedy wrote the opinion).
  56. Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074, May 29, 2007 (this was a 5-4 decision; Justice Alito wrote the opinion).
  57. Ginsburg, dissenting.
  58. United States v. Resendiz-Ponce, No. 05-998, January 9, 2007 (this was an 8-1 decision; Justice Stevens wrote the opinion).
  59. Lopez v. Gonzales, No. 05-547, December 5, 2006 (this was an 8-1 decision; Justice Souter wrote the opinion).
  60. Gonzales v. Duenas-Alvarez, No. 05-1629, January 17, 2007 (this was a 9-0 decision; Justice Breyer wrote the opinion).
  61. Purcell v. Gonzalez, No. 06A375, October 20, 2006 (this was a 9-0 decision).
  62. Massachusetts v. EPA, No. 05-1120, April 2, 2007 (this was a 5-4 decision; Justice Stevens wrote the opinion).
  63. KSR Int'l Co. v. Teleflex Inc., No. 04-1350, April 30, 2007 (this was a 9-0 decision; Justice Kennedy wrote the opinion).
  64. Hein v. Freedom From Religion Foundation, Inc., No. 06-157, June 25, 2007 (this was a 5-4 decision; Justice Alito wrote the opinion).
  65. Leegin Creative Leather Products, Inc. v. PSKS, Inc., No. 06-480, June 28, 2007 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
  66. Morse v. Frederick, No. 06-278, June 25, 2007 (this was a 5-1-3; decision; Judge Roberts wrote the opinion).
  67. Federal Election Comm’n v. Wisconsin Right to Life, Inc., No. 06-969, June 25, 2007 (this was a 5-4 decision; Justice Roberts wrote the opinion).
  68. Brendlin v. California, No. 06-8120, June 18, 2007 (this was a 9-0 decision; Justice Souter wrote the opinion).
    Judith Resnick quoted in Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right, N.Y. Times, July 1, 2007.