Steven R. Smith, JD

Continuing Education Information

On October 1, 2007, the Supreme Court's Marshall Pamela Talkin[1] called the traditional "Oyez! Oyez! Oyez!  All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting."  It opened a Term that will be of interest to health care and mental health experts.  It was a Term of surprises and some remarkable decisions.
During this Term the Court held that:

  • The mental competency required for defendants to choose to represent themselves without the assistance of an attorney is higher than the competency required to stand trial with an attorney.[2]
  • A health or disability plan administrator who both reviews and pays benefits has a conflict of interest and may be subject to more rigorous judicial review under ERISA.[3]
  • Federal law preempts state products liability claims against the manufacturers of medical devices approved by the FDA.[4]
  • Capital punishment may not be imposed for the rape of a child.[5]
  • The standard protocol of lethal injection for the death penalty is not unconstitutional.[6]
  • Retaliation for filing employment discrimination complaints is illegal.[7]
  • Employment discrimination claims based on age for "class of one" theories are limited.[8]
  • The Second Amendment precludes federal gun laws that essentially prohibit private citizens from owning handguns.[9]
  • Federal judges have substantial discretion in making sentencing decisions but may not, on their own motion, change or challenge the decision of trial court.[10]
  • Federal courts may take into account the Sentencing Guidelines disparities between crack and powdered cocaine when making sentencing decisions.[11]

The Court also decided cases dealing with peremptory challenges, the Confrontation Clause, habeas corpus rights of detainees, the Federal False Claims Act, punitive damages, and arbitration.

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

Competency in Criminal Trials

Ahmad Edwards tried to steal shoes from a department store.  In the process he fired a gun at a store security officer and wounded another person.  He was charged with several offenses, including attempted murder.[12]  He was found incompetent to stand trial, based on the testimony of both a psychiatrist and a neuropsychologist, but after hospitalization, he was then found competent to stand trial.  Before his trial could occur, however, he was again found incompetent and again hospitalized.  Ultimately his competency was restored sufficiently for him to stand trial.  Shortly before the trial he requested that the Court allow him to represent himself.  The Court denied this request, saying that Edwards was not competent to represent himself at trial.  The first trial proceeded and, while he was found guilty on some of the charges, the jury did not reach a verdict on the attempted murder charge.  The state retried Edwards and he again requested permission to represent himself.  The Court again denied this request, based on the fact that it did not believe that Edwards was competent to represent himself.  In the second trial he was convicted of the attempted murder charges.

Edwards appealed his conviction on the basis that the trial court had improperly found him competent to stand trial but incompetent to represent himself.  In Indiana v. Edwards, a 7-2 decision, the Supreme Court upheld his conviction.

The Supreme Court essentially held that there are various types of competency.  The level of mental competency required to stand trial is lower than would be the competency required for someone to represent himself or herself without the assistance of an attorney.

The Supreme Court has long held that competency to stand trial requires a defendant have "a rational as well as factual understanding of the proceedings against him" and also "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.[13]  The Court had not, however, considered before Indiana v. Edwards whether the level of competency required to represent oneself is higher than the level of competency required to stand trial with the assistance of counsel.

The majority of the Court determined that it would be inappropriate to develop a single mental competency standard for deciding both competency to stand trial and competency to represent oneself.  It noted that "mental illness itself is not a unitary concept.  It varies in degree.  It can vary over time.  It interferes with an individual's functioning at different times in different ways."  The Court then quoted the brief of the American Psychiatric Association noting that common symptoms of "severe mental illness can impair the defendant's ability to play the significantly expanded role required for self representation even if he can play the lesser role of represented defendant."[14]

The majority noted that proceedings must not only be fair, but must also appear to be fair and expressed concern that the spectacle of an incompetent person representing himself decreased the appearance of fairness.[15]  The Court ultimately concluded that the Constitution permits states “to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”[16]

Indiana suggested that the standard of competency for self-representation should be whether "the defendant can communicate coherently with the court or jury."17 The Supreme Court rejected this standard without adopting or suggesting an alternative approach to guide lower courts.  The Court will one day face the question of establishing a particular standard to guide courts in this decision, but it declined to do so in the Edwards case.

Justices Scalia and Thomas dissented.  In their view -  "the Constitution does not permit a state to substitute its own perception of fairness for the defendant's right to make his own case before the jury--a specific right long understood as essential to a fair trial."[18]  They noted that Edwards had complained in detail that the attorneys representing him had not spent sufficient time to prepare for trial.  He also had a specific technical objection to the defense they were going to present.  Edwards wanted to present a self-defense case, while his attorney instead was focusing on a lack of intent defense.[19]  Quoting an earlier case, the dissenters noted that in the history of British jurisprudence only one tribunal had ever adopted a practice of forcing counsel upon an unwilling defendant.  "The tribunal was the Star Chamber."[20] The dissenters also noticed that the Court had provided no standards for determining competency for self representation.  This, they said, "makes a bad holding worse."[21]

Mental health professionals frequently participate in competency to stand trial decisions.  These increasingly are not unitary determinations.  There are any number of functions that may arise in separate competency questions.  The basic competency to stand trial is clearly different from the competency for self representation, or to plead guilty, confess or be executed.  Such determinations are, of course, also substantially different from such other mental concepts as the insanity defense or competency to manage one's own affairs.  It is essential that mental health professionals participating in the criminal system understand the specific legal test or principle that will be applied in the specific area of competency concerning which they are testifying.  Some of these standards remain murky, and several of them are subject to change within a state from time to time.  It is, therefore, important that the mental health professional consult with the trial court, and attorneys where appropriate, before undertaking an assignment for determining and testifying concerning competency.  Such an understanding permits the professional to target the examination on the specific functions and questions that the court will be facing.

Health Insurance and Disability Administration 

The “sleeper” case of the Term may have been Metropolitan Life Insurance v. Glenn. [22]  It may appear to be a technical insurance case, but it has the potential for substantially altering employer-provided health and disability insurance.  The MetLife case was an interpretation of the Employee Retirement Income Security Act (ERISA).  That law provides a number of obligations regarding fringe benefit plans, including health and disability plans.  The administrators of benefits are like trustees and are required to operate in the best interest of the beneficiaries (employees or former employees).

The Supreme Court has previously held that when a plan administrator was sued under ERISA for denying benefits to someone, federal courts should presume that the administrator was exercising discretion appropriately.[23]  This meant that it was difficult for beneficiaries to challenge the denial of benefits of the plan administrator.  If, for example, the health plan administrator determined that an employee’s health plan did not cover a certain illness, the courts deferred to the decision of the administrator.  Courts assume that the determination of the administration was correct unless the employee demonstrated that the decision was not proper and that the administrator had abused its discretion.

In MetLife the question before the Court was whether that deference to a plan administrator should exist where the administrator is both determining the claim and paying it.  In this case, MetLife determined that Wanda Glenn was not eligible for disability benefits.  MetLife was also the insurer of the plan; that is, it received a flat rate premium from the employer (Sears) to pay all of the benefits that were legitimate.[24]

The Court held that “this dual role creates a conflict of interest” between its obligation to act in the best interest of the plan and the beneficiaries, and its interest in retaining for itself as much of the premium as it could.  The Court also held that courts should consider this conflict of interest “as a factor in determining whether the plan administrator has abused its discretion in denying benefits.”[25]  Federal courts should, therefore, look at the all of the circumstances in determining whether the denial of benefits was proper, considering the conflict of interest that exists.  The Court did not specify a weight to be given to this conflict.[26]

This decision has substantial implications for many employer-provided health and disability plans because it will make it easier to challenge the denial of benefits.  In addition, the “totality of the factors” approach will leave the outcome of many such lawsuits in doubt.  It is likely, therefore, that employers and health insurance providers will be considering ways of separating decisions regarding claims from the insurance or financial function.  This separation will seek to remove the legal conflict of interest the Court identified.

One way to achieve such separation is to have one company make coverage decisions and another company provide the insurance coverage (actually pay the claims).  This separation might result in some inefficiencies for employers, especially smaller ones.

This decision applies only to ERISA-covered plans.  Individual plans, government plans and the like are not included.  So, there is some thought that another possible way to avoid the conflict would be for employers to provide such consumer-driving health plans as “health reimbursement accounts” or “health savings accounts.”   It may be an additional incentive to move toward “defined contribution” plans.  The degree to which some of these would avoid ERISA conflict of interest problems would depend on the details of a plan.

Whether moving toward separating plan administrators and insurers or providing more consumer-driven plans, this decision will result in many employers reconsidering how they provide health insurance.  It will also cause reconsideration by those health care and insurance companies that both assess the legitimacy of claims and pay them.  Those companies will, at a minimum, want to establish clear separation between claim processing and the insurance function so that there is no incentive to deny claims.

Medical Devices and Pharmaceuticals

Another case with great potential impact is Riegel v. Medtronic. [27]  This case technically had to do with whether federal law preempts state products liability laws for medical devices.  Its implications and consequences, however, may extend well beyond that apparently narrow question.

Charles Riegel was injured when a cardiac catheter manufactured by Medtronic ruptured during surgery.  Although not a significant element in the Supreme Court's decision, the physician using the cardiac balloon misused the device in significant ways.  Riegel filed suit against Medtronic based on strict liability; breach of implied warranty; and negligence in the design, testing, inspection, marketing and sale of a catheter.[28]

The medical device had been approved by the Food and Drug Administration.  Medtronic claimed that the approval by the FDA precluded Riegel from bringing the suit because federal law "preempted" state law, including state products liability law.  In an 8-1 opinion, the Supreme Court agreed.

“Preemption” occurs when Congress expressly says that federal law is intended to preclude the application of state law.[29]  The federal Medical Device Amendments of 1976 have an express preemption clause that precludes states from instituting any requirement "which is different from, or in addition to," the federal regulatory requirements for medical devices.[30]  The Court determined that this preemption clause was broad enough to preclude state liability claims that occur when someone is injured by an approved medical device.

Justice Scalia, writing for the majority, found that state liability is a form of regulation that Congress intended to preempt.  He noted that medical devices, such as the cardiac catheter involved in this case, are subject to substantial pre-approval review by the FDA, and that Congress intended that process to be the way by which the safety and efficacy of devices are assured.

Justice Ginsburg dissented.  In her view, Congress had not clearly preempted state liability.[31]  Furthermore, she felt state liability actually would help promote the interests Congress sought to protect in adopting laws regulating medical devices.  The primary purpose was to promote patient safety.  She noted that a perverse effect of granting this preemption immunity is to remove the implicit regulation of liability from an industry that Congress determined needed greater regulation.[32]  It should be noted that this decision was based on an interpretation of federal law, not a constitutional principle, so Congress may change it if it wishes to do so.

This case is important on its own, but it becomes even more important when considered in the context of a similar issue related to pharmaceuticals.  In Warner-Lambert v. Kent the Court was evenly divided, 4-4 (Chief Justice Roberts did not participate) over the question of whether federal law preempts state products liability for prescription pharmaceuticals.[33]  The Court is scheduled to hear a similar case during its next Term, and it seems likely that the Chief Justice will then join the four justices who would have found preemption.  If that occurs, it will signal a substantial change in American law and may lead to rather dramatic shifts in pharmaceutical policy in the United States.[34]

The direct effects of such a decision regarding both devices and pharmaceuticals would be to eliminate much of the products liability law that has been a backstop to the FDA approval and post-marketing review of drugs and devices.  These lawsuits have often been the source for uncovering weaknesses in the FDA process and occasional misconduct in the pharmaceutical companies’ research and marketing.  For pharmaceutical companies, it may increase the incentive to try to slide information by the FDA; having done so, pharmaceutical companies would not then face significant liability as is now the case.

The indirect consequences of such a state of affairs, however, are more complex.  The atmosphere in which these changes are occurring is already one of increasing congressional and public dissatisfaction with the level of safety of drugs and devices approved by the FDA.  Congress may, therefore, change the preemption by statutory amendment and reinstate potential liability.  In doing so, it is possible that Congress would make the law even less palatable to the pharmaceutical industry than the current liabilities rules are.

The absence of pharmaceutical company liability may put physicians and others with prescribing authority at greater risk of liability.  That is because if the pharmaceutical and device manufacturers are out of these products liability suits, the physicians who prescribed or used the devices may end up being defendants in the case, without the deep pockets of the pharmaceutical companies helping to defend and pay for the damages.

In addition, these decisions may put greater pressure on the FDA to enhance its oversight of the device and pharmaceutical companies.  That may have the perverse effect of slowing the process of approval of drugs and devices.  Indeed, there is some evidence that this has already started to happen.  In addition, the FDA may be under much greater pressure to pull the approval, or modify the conditions of approval, for drugs and devices.  Should that occur, the loss to the pharmaceutical and device manufacturing companies could be substantial, with the disadvantageous consequence, as the approval process is slowed, of it being more difficult to bring these drugs and devices to people who need them. For these reasons the Medtronic decision and related pharmaceutical questions are of considerable importance to the medical and mental health care professions and their patients.

Capital Punishment: Child Rape, Lethal Injection and International Law

Child Rape

During this Term the Court decided several important cases involving a broad sweep of capital punishment issues.  The participation of medical and mental health professionals in capital cases and the ethical questions involved for the profession make these cases of special interest.
The Supreme Court has held that the Eighth Amendment's prohibition of "cruel and unusual punishment" substantially limits the crimes for which capital punishment may be imposed.  In assessing what constitutes cruel and unusual punishment, the Court has applied an "evolving standards of decency" test, with the stated understanding that this test’s "applicability must change as the basic mores of society change."[35] As such, the Court has held that only the most heinous crimes may be subject to capital punishment.  The question in these Eighth Amendment cases is not whether a state is required to impose capital punishment, but for what offenses a state may choose to impose capital punishment.

The Court earlier had decided that a state may not impose capital punishment for the aggravated rape of an adult woman, when the victim is not ultimately killed.[36]  This Term, in Kennedy v. Louisiana, the Court was asked to decide whether a state may impose capital punishment for rape of a child.  In this case the defendant was convicted of the horrendous rape of a girl then eight years old.  The Court noted that the crime "cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror" of the crime.[37]  In a 5-4 decision the Court held that the state could not impose capital punishment for this crime.  For crimes against individual persons only those crimes that result in death may constitutionally result in the death penalty.  The Court specifically did not address "crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the state."[38]

The essential difference between the five majority justices and the four in dissent was a determination of whether "evolving standards of decency" in the U.S. permit a state to execute someone for rape of a child.  The Court concluded that there is a "national consensus" against capital punishment for the crime of child rape.[39]  The majority calculated that only seven states would permit such executions and that in fact no one had been executed for child rape in many years.  It also said that its own "judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."[40]  The majority concluded that death is a “grossly disproportionate” penalty for defendants who do not kill their victims.

The four dissenting justices found sufficient support for capital punishment for child rape to conclude that there was not a national consensus against it.  Justice Alito's dissent pointed out a number of weaknesses in the majority opinion and maintained that executions for some forms of child rape are permitted by the Constitution.41

On September 8, 2008, this case took a strange twist when the Supreme Court invited the parties to re-brief the case with the possibility of rehearing it in the next Term.[42]  The issue is whether the Court should reopen the case because the original decision did not take account of the fact that the military justice system, and therefore federal law, authorizes the death penalty for child rape.  That could change the Eighth Amendment calculation on whether there is a national consensus against the death penalty for aggravated rape of a child.

Lethal Injection

The issue facing the Court in Baze v. Rees was whether the process of lethal injection, as carried out by the state of Kentucky and many other states, was a violation of the Eighth Amendment because it inflicts unnecessary pain and suffering, or is at risk of doing so.[43]  The Court had previously been called upon three times to decide whether a method of execution is cruel and unusual punishment.  One case involved firing squads and two involved electrocutions.[44]  Seven justices upheld lethal injection protocol used by the state of Kentucky.  These seven justices were split into four opinions with three justices signing one opinion, two justices signing another opinion and two justices writing individual opinions.  Two justices were in dissent.

The question in the case arose because the methodology used by Kentucky involved first injecting a drug to cause unconsciousness, then one to cause paralysis and then one to stop the heart.  If the first drug were not given properly or in sufficient quantity, the other two drugs would produce a great deal of pain and suffering for the inmate being executed.  The majority felt that the Kentucky methodology of execution carried a relatively small risk of agony and therefore did not qualify as cruel and unusual punishment as defined by the Eighth Amendment.  Justices Thomas and Scalia, who joined with the majority, felt, however, that the Eighth Amendment clearly does not apply to methods of execution unless they are "deliberately designed to inflict pain."[45]

Justices Ginsburg and Souter dissented and would have sent the case back to the lower court for additional findings of fact.  They thought that more information was necessary about the possibility of an error in the protocol that would cause great pain, and also the possibility that there are other methods of execution that would avoid this risk.

Ironically, this case arises in part, as do the problems underlying it, because of the reluctance of the healing professions to be involved in executions.  Some of the mistakes that can occur arise because those carrying out the executions are not optimally trained to administer these drugs or to monitor their application.  At a minimum this case will undoubtedly cause states to re-examine their administration of these drugs in an effort to avoid the mistakes the Court was informed could occur.  At the same time, a 7-2 decision by the Court makes it unlikely that challenges to current methods of lethal injection will be successful anytime soon.

International Law

The U.S. is one of the few developed countries that uses capital punishment.  As a result, many other countries seek to protect their citizens from American capital punishment.  For example, countries with which the U.S. has extradition treaties often will not extradite a defendant unless the U.S. guarantees that it will not impose capital punishment.  The U.S. is also a signatory to a number of treaties that provide rights to citizens of one country if they are arrested in another country.
One of the rights that foreigners have in the United States is to be informed that they may contact their embassy for assistance; however, some states do not routinely provide this information.  Mexico sued the U.S. in the International Court of Justice for failing to inform its citizens of their right to contact the Mexican Consulate.  The U.S. lost the case.  As a result, the President requested that Texas void the convictions of those defendants who had been convicted without being informed of the right to contact the consulate.  Texas (the President’s home state) refused.  Medellin was convicted of murder and sentenced to death.  He was one of the defendants whose complaint had led to the Mexican claim against the United States.  The question facing the Supreme Court in Medellin v. Texas was whether the conviction should be overturned as a matter of federal law because of the treaties to which the U.S. is a party.[46]

While the Medellin case appears to have a broad sweep regarding the applicability of international law to state criminal proceedings, in fact it turned on a narrow point of law.  That narrow point of law was whether the relevant treaties are "self executing," or require additional action by Congress before the terms are applicable to the states.  In a 6-3 opinion, the Court determined that the treaties were not self-executing and that Congress had not passed the laws necessary to give the President authority to require states to enforce the provisions of the treaty.  The Court recognized that the U.S. might be in violation of its international obligations, but held that the Constitution does not permit the President to enforce non-self-executing treaties without congressional action.
Congress could, of course, provide the President with the authority to require states to abide by the treaty obligations of the U.S. as relates to these criminal defendants.  It has not yet done so.

Employment Discrimination Cases

The Court decided five cases this Term concerning employment discrimination.  Although there were mixed results in the cases, the outcomes tended to favor employees.

Two of the cases involved important questions regarding "retaliation."  Retaliation occurs when an employee has been disadvantaged in some way because he or she filed a complaint of discrimination or participated in the investigation of a discrimination complaint.

In Gomez-Perez v. Potter the Court held that the Age Discrimination in Employment Act of 1967 implicitly permits retaliation claims based on age.[47]  This means that where an age discrimination case has been filed, any action by an employer that disadvantages an employee because of the claim may give rise to a separate cause of action for age discrimination.

In CBOCS West v. Humphries, the Court also found that the Civil Rights Act of 1866 contains a similar implicit right to sue for retaliation.[48]  This case was based on racial discrimination.

Both of these cases were interpretations of federal statutes prohibiting discrimination.  In both cases there were dissents based on the fact that neither of these statutes specifically provide for retaliation lawsuits in age and racial discrimination cases.  The dissenting justices, therefore, felt that the Court was misinterpreting the intent of Congress.

Employees who are plaintiffs in age discrimination lawsuits also received a boost from the decision in Meacham v. Knolls Atomic Power Laboratory.[49]  Discrimination cases are of two types.  “Disparate Treatment” cases are those in which a defendant claims that the employer or defendant specifically treated him or her differently from others because of race, gender, age or other prohibited characteristic.  In "Disparate Impact" cases, the plaintiff claims that policies or practices of the employer had a disproportionate effect or impact on one of the protected groups.
When a plaintiff raises the question of disparate impact and produces statistical or similar evidence to demonstrate that such impact exists, the defendant may show that the disparity arose from the use of reasonable non-discriminatory factors.  In the Meacham case, the Court held that the defendant has the burden of proof in disparate impact cases—specifically, to prove by a preponderance of the evidence, when age discrimination has been alleged, that the non-age factors that produced disparate impact were legitimate.[50]  In this case the employer had laid off workers using factors that resulted in the very substantial reduction of older workers compared with younger workers.  Therefore, the employer had to prove that the use of these factors was reasonable under the circumstances.

Kentucky Retirement Systems v. Equal Employment Opportunity Commission was a complicated case involving the interplay between retirement systems and disability benefits.[51]  In this case the Court held that the Kentucky system was not motivated by age and therefore did not violate the Age Discrimination in Employment Act.  The Court also reiterated its view that "age and pension status remain analytically distinct concepts."[52] It emphasized that when an employer adopts a pension plan "that includes age as a factor, and ... then treats employees differently based on pension status," someone claiming age discrimination can prevail in an age discrimination lawsuit only if that person proves that the "differential treatment was actually motivated by age, not pension status."[53]

An interesting theory in discrimination cases is that an employee can be "in a class of one."  The "class of one" theory is that a single person was "arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee's membership in any particular class."  The class of one theory essentially, therefore, converts a claim of discrimination based on prohibited factors to a generalized "treated unfairly and different from others" claim.[54]

In Engquist v. Oregon Department of Agriculture the Court held that the “class of one” theory does not apply in equal protection cases in the context of public employment by a state or other government entity.[55]  The Court has permitted some class of one theory cases in regulatory areas, but it noted in Engquist that employment cases were different and that it had never accepted the “class of one” theory for public employment.  Chief Justice Roberts, writing for the majority, said that "if class of one claims were recognized in the employment context, any personnel action in which a wronged employee can conjure up a claim of differential treatment would suddenly become the basis for a federal constitutional claim."[56]

Relevant to the special contributions of mental health and other scientific experts who commonly participate in such matters, the cases decided by the Supreme Court this Term implicitly recognized the importance of statistical analysis of employment decisions.  In addition, employment testing often plays a role in determining whether employment decisions were justified on bases other than prohibited classifications such as gender or race.  These cases will continue to rely heavily on expert consultants and witnesses.

Gun Control Laws

Health professionals and other experts have for some years noted that gun violence in the United States is an epidemic threatening public health.57  It was, therefore, with some interest that professionals followed the case of District of Columbia v. Heller.58  This case gave the Supreme Court the opportunity to interpret the Second Amendment of the Constitution as it reviewed a strict gun-control law of the District of Columbia.

The Second Amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."  Every word and every phrase of the Second Amendment was dissected in the 154 pages of opinions in this case.
Writing for a 5-4 majority, Justice Scalia reviewed a very broad range of linguistic interpretation and historical evidence regarding the use of language in the Second Amendment, as well as the colonial history that informed its adoption.  In dissent, Justices Stevens and Breyer looked at the same questions but came to very different conclusions.[59]

Much of the disagreement centered on the opening phrase of the amendment, "a well regulated militia, being necessary to the security of a free state."  The essential question is whether that phrase limits the application of the Second Amendment so that it applies not to individuals in a private capacity, but rather applies only to the use and availability of weapons to formal, organized state militias.

The majority struck down the D.C. gun law and held that the Second Amendment applies to private ownership of guns.[60]  The majority found that the initial phrase of the amendment "announces a purpose, but does not limit or expand the scope" of the rest of the Second Amendment.[61]  The majority acknowledged that the Second Amendment was not unlimited and that there could be some regulation of guns.  At the same time, it held that the Second Amendment did not apply only to weapons that existed at the time the Bill of Rights was adopted.  The Second Amendment protects the possession of guns, the Court held, "typically possessed by law-abiding citizens for lawful purposes."[62]  This includes usual weapons for self-defense but would not include dangerous and unusual weapons.[63]

The majority also emphasized that the Second Amendment is not absolute.  The Court noted that its decision does not cast doubt "on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."[64]

The dissenting opinions took strong issue with the interpretation given to the words and the history of the Second Amendment.  In particular, the dissenting justices felt that the opening clause proved that the amendment was intended to apply only to militias.  They also would have subjected the D.C. law to a lower “standard of scrutiny” under which the D.C. law would have passed muster.

The impact of this decision on gun control laws is unknown.  Although the ruling only applies at present to federal and D.C. gun control laws, some read the majority as willing to consider applying the Second Amendment to state and local gun control laws.  If so, the Heller case may be significant because this is a constitutional decision.  Congress cannot, therefore, change this ruling by statute, and a constitutional amendment to do so appears out of the question in the foreseeable future.

Criminal Sentencing

The Supreme Court decided a number of cases related to sentencing during this Term.  Two trends have contributed to the Court's load of sentencing cases.  First, the federal sentencing guidelines have created a number of important legal issues.  Second, a number of statutes use prior convictions to enhance sentences, and there are complicated issues of when a prior conviction serves as the basis for an extended sentence.

Federal Sentencing Guidelines

Congress established mandatory sentencing guidelines as a way of reducing the variance of sentences handed down by federal judges.  It created a commission to establish sentencing guidelines.  In United States v. Booker,[65] the Supreme Court struck down the sentencing guidelines, insofar as they were mandatory.  In other words, the Court determined that the guidelines should truly be used as “guidance” to federal courts, but are not binding on them. Booker restored a significant measure of discretion to federal courts in sentencing.  That discretion is limited, however, by the fact that sentences can be appealed by either the defendant or federal prosecutors in federal cases.  This Term the Court decided two cases that are significant in the way federal courts will conduct sentencing decisions.

Gall v. United States66 expanded the right of trial courts to go outside the range of sentences described in the sentencing guidelines.  In doing so, it limited the ability of federal appellate courts to change the decisions that trial courts had made to deviate from the guidelines.  The Court held that trial judges must correctly calculate the recommended sentence from the guidelines, and must then "make an individualized assessment based on the facts presented" by the prosecution and the defense.  If there is good reason to do so, the judge should deviate from the guidelines’ recommendation.[67]

When reviewing the sentencing decision of trial courts, appellate courts must defer to the judgment of the trial court.  If the trial court has acted reasonably and explained the reason for the deviation from the guidelines recommendation, the sentencing decision of the trial court should be upheld and the appellate court should not substitute its judgment for that of the trial court.

The discretion of trial courts was increased further by the Court’s decision this Term in Kimbrough v. United States.[68]  In this case a federal judge reduced the sentence for possession and distribution of crack cocaine.  The sentencing guidelines have a much greater penalty for crack cocaine than powdered cocaine, which the trial court felt was unfair, so it reduced the sentence the guidelines would have provided for Kimbrough’s crack conviction.  The Court specifically held that in sentencing it was appropriate for the federal district court to consider the disparity in the length of terms the guidelines have for crack, compared with powdered, cocaine.  This disparity has been criticized on a number of grounds.  In a more general sense, however, this case suggested the very broad discretion that trial courts will have in considering factors related to the length of sentences.

In two other cases the Court reinforced the reliance on the actions of trial courts still further.  InGreenlaw v. United States the Court struck down an increase in the sentence given by a trial court.  In Greenlaw the federal government had not appealed the trial court's decision, only the defendant had.  The Supreme Court ruled, therefore, that the appellate court had no authority to increase the sentence imposed by the trial court.[69]

In Irizarry v. United States, the Court considered whether a trial court must specifically give notice of the intention to impose a sentence not within the guidelines of the sentencing commission.  The Court held that because the guidelines are not mandatory but only suggestive of the sentence, it is always possible for the judge to deviate from the guidelines.[70]  Therefore, the parties are on notice that the judge may deviate from the sentencing guidelines.

Another series of cases dealt with how to calculate the enhancement of federal sentences as a result of the defendant’s prior convictions.  The Armed Career Criminal Act and Controlled Substances Act notably provide for such enhancements.  These cases often involve parsing the words of state statutes, because such laws can be used to trigger enhanced or longer sentences.  The Court determined, for example, that in defining how seriously the state took a state conviction, the federal courts should look at the length of sentence the defendant could have received for the crime rather than the label put on the crime by the state as a felony or misdemeanor.[71]  Similarly, the Court determined that the maximum term a state could apply to a state crime was defined by the total number of years for which the defendant could have been sentenced, including any state enhancements.[72]  This is important because under the Armed Career Criminal Act some of the federal enhancements are dependent upon the maximum number of years to which a defendant may be sentenced.

Yet another facet of the Armed Career Criminal Act is its mitigation of some federal enhancements if, following conviction, state criminals have had their "rights restored."  Not all states restore rights, and some states do so only for felons.  The Court held that, nevertheless, if a convict’s rights were not restored for any reason, the enhancements of the federal sentencing would occur.[73]

One of the "enhancement" cases went the other way.  The Court determined that a felony conviction for driving under the influence of alcohol is not a "violent felony" that would justify an enhancement of the sentence.[74]

Mental health professionals frequently are involved in providing information that is used in sentencing decisions.  The increased flexibility available to federal judges will very probably result in greater calls on this expertise for individual cases in federal court.

Other Significant Cases

The Supreme Court also decided a number of other cases of significance that will be of interest to professionals.

Trial Cases

ISnyder v. Louisiana the Court considered how trial courts should review peremptory (discretionary) strikes used by prosecutors in criminal trials.[75]  The Court previously had held inBatson v. Kentucky that the use by a prosecutor of peremptory challenges based on race is a violation of the Constitution.[76]  Under Batson, there is a three-step process when the possibility of a racial peremptory challenge is raised.  First, the defendant must show that peremptory challenges may have been based on race.  Second, the prosecution may then offer a race-neutral basis for the strikes.  Third, the trial court must determine whether the defendant has established "purposeful discrimination" or whether, instead, the strikes were proper.[77]

In Snyder the Court held that the discretion of trial courts is broad, but not unlimited, in considering claims of improper use of peremptory privileges.[78]  In that case the prosecutor eliminated all five of the African Americans who had been called as jurors.  The defense challenged the elimination of some of these jurors, but the trial court upheld the strikes.  The Supreme Court held that the trial court had improperly permitted the peremptory strikes by the prosecution.  It noted that the reasons given by the prosecution were inconsistent with the other strikes exercised and were, in effect, pretextual.  In fact, the Court found, the strikes were probably based on racial considerations.

This case places more pressure on trial judges and appellate courts to review the legitimacy of jury strikes. It may encourage prosecutors and others to engage psychological consultants for the purpose of identifying, documenting, and explaining legitimate bases for the decision to strike some jurors.   It may encourage prosecutors and others to consult psychologists to help construct convincing reasons for having struck some jurors.

In another case that will be of interest to forensic psychologists and psychiatrists, the Court considered the circumstances in which evidence may be presented from a witness who is not present for the trial.  This is often "hearsay evidence."  The Sixth Amendment of the Constitution provides that "the accused shall enjoy the right... to be confronted with the witnesses against him."  This "Confrontation Clause" is generally understood to mean that a defendant should have the right to see and cross-examine adverse witnesses.  An exception to this right has been recognized when the defendant himself has prevented the witness from testifying in court.  In such case, the defendant is said to have forfeited his or her confrontation rights.

In Giles v. California the Court had to decide whether a charge of murder is in itself sufficient to claim that the defendant has forfeited the confrontation rights.[79]  The Court held that only forfeitures that were recognized at the time the Bill of Rights was adopted are exceptions to the Confrontation Clause.  Being charged with murder is not sufficient.  Rather, to forfeit rights under the Confrontation Clause, a defendant must have acted specifically to have prevented a witness from testifying.[80]  That is, a murder for the purpose of keeping a defendant from testifying would result in forfeiture, but a murder for other reasons would not.

A number of statutes specifically provide that a prevailing party may obtain attorneys’ fees and other costs of litigation.  This is in distinction to the common American rule that each party pays its own attorneys and other fees.  In Richlin Security Service Co. v. Chertoff the Court was asked to determine what the reimbursement rate is for other expenses, in this case paralegal fees.  The Court held that the fees for paralegal services should be charged at the "market rate" or "prevailing rate" and not at the rate billed by the law firm.[81]

To the extent that health and forensic experts are eligible for reimbursement under some statutes that allow for prevailing parties to recover fees, this case probably suggests that they should be reimbursed at the prevailing market rate, not the rate that they ordinarily bill a specific law firm.

Detainees and the Rules of War

The most-watched case of the Term may have been Boumediene v. Bush.[82]  This case involved the question of whether enemy combatants held at "GITMO" (the U.S. base at Guantanamo Bay, Cuba) may apply for the writ of habeas corpus in U.S. courts.  In a 5-4 decision, the Court held that the detainees could seek review of their status through habeas corpus.  The majority held that the U.S. exercised sufficient control over the Guantanamo territory that federal jurisdiction ran to that territory.  They also held that the fact that they have been designated as enemy combatants did not remove their right to seek habeas corpus relief.  The Court ruled that the effort by Congress to remove habeas corpus rights from these detainees was unconstitutional.[83]  The Constitution provides that Congress can suspend the writ of habeas corpus only during times of insurrection or invasion.

Strong dissents by four justices, written by Chief Justice Roberts and Justice Scalia, claimed that "today, for the first time in our nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."[84]  The dissenters also argued that the procedures established by Congress were adequate to substitute for traditional habeas corpus and that the Court was substituting its judgment in military matters for that of the Congress and President.[85]  Justice Scalia vividly asserted that this decision "will almost certainly cause more Americans to be killed."[86]

Receiving much less notice, however, was another important case, involving wartime detainees.  InMunaf v. Geren, the Court unanimously held that U.S. authorities are permitted to turn over to a foreign country U.S. citizens who are captured in a war zone and who are sought by that country.[87]  In this case, U.S. citizens who went to Iraq, perhaps to assist enemy forces, were captured by U.S. military forces.  They were detained in Iraq and the U.S. was planning to transfer them to Iraqi authorities.  The defendants feared torture and other mistreatment if transferred.
The Court held that because they were captured in Iraq, and because Iraqi authorities wanted them in connections with crimes in Iraq, it is constitutional for the U.S. to transfer them to Iraq.  It is notable that this case involved U.S. citizens and that the Court was permitting the transfer even of U.S. citizens.

False Claims Act Liability

The False Claims Act has increasingly been used against health institutions and providers for wrongful billing, sloppy care and inadequate treatment.  This Term the Supreme Court made it somewhat more difficult to bring successful claims of wrongdoing and liability based on the False Claims Act.[88]  Allison Engine Company v. U.S. involved a fairly technical statutory interpretation of the Act, related to subcontractors who make false statements to seek payment from the primary contractor rather than the government.  The Court unanimously held that a False Claim Act liability does not exist unless the subcontractor intended for the government to rely on the statement as a condition of payment.[89]  Nonetheless, if the subcontractor provides this false statement for the purpose of getting a fraudulent claim paid or approved by the government, for example by submitting a false statement to the prime contractor, intending that the contractor use the statement to get the government to pay the claim, the Act is violated.[90]

Although technical in nature, this decision will make it somewhat more difficult for whistleblowers and the government to file False Claim Act suits against healthcare entities.  At the same time, this is a statutory interpretation and Congress is free to change it if it wishes to do so.  Some in Congress are seeking to make that change.

Punitive Damages

Over the last several years the Supreme Court has expressed concern about excessive punitive damages.  In a series of cases the Court has made it more difficult for plaintiffs to recover punitive damages, and has reduced the maximum punitive damages juries can award.  This Term, in Exxon Shipping Co. v. Baker, the Court considered the punitive damages awarded against Exxon for the Alaska oil spill.[91]  The jury had awarded punitive damages against Exxon of $5 billion, which the trial court reduced to $2.5 billion.  The Court held that under maritime common law this was excessive.  The Court held that in these maritime cases, punitive damages should not exceed, in the ordinary case, 100% of the compensatory damages.  Thus, the Court further reduced punitive damages to approximately $500 million.

This case was particularly interesting for its use of social science data.  Looking at a series of studies the Court determined that the median ratio of punitive to compensatory awards in similar cases was one to one.  That is, in the median (as opposed to the statistically mean or “average”) case, punitive damages were approximately equal to compensatory damages.92  It then held that this one-to-one ratio should be the "clear upper limit in such" maritime punitive damage cases.[93]  Using the median as the upper limit, of course, suggests that a substantial portion of the claims, (about half) are too high.  It is important to understand that this limit on punitive damages applies in maritime cases (the Court’s purview due to technical and historical reasons) and that it therefore does not become a general constitutional principle.


Federal law expresses support for arbitration and in recent years the Supreme Court has aggressively promoted arbitration and upheld arbitration awards.  In two cases this Term it did so again.

In Preston v. Ferrer the Court held that when parties "agree to arbitrate all questions arising under a contract, the Federal Arbitration Act supersedes state laws lodging primary jurisdiction in another form, whether judicial or administrative."[94]  In this case the parties had agreed to arbitrate matters related to a personal service contract.  Notwithstanding that agreement, a state regulatory body held that part of the contract violated state law.  The Court held that the arbitration agreement nevertheless superseded the state regulation and that the arbitrator, not the state regulatory agency, should decide the matter.

In a second case the parties in an arbitration agreement specifically agreed in the arbitration contract that a court could review whether the arbitrator had applied the correct law in reaching a decision.[95]  Notwithstanding this agreement, the Supreme Court held that the arbitrator, not the federal judge, had to decide what law to apply.  The Court ruled that the parties could not change by contract the provisions of the Federal Arbitration Act that permit vacating an arbitration award only if it was procured by corruption, fraud, misconduct, abuse of power, or the like.[96]

This Term the Court strengthened the U.S. legal system’s commitment to arbitration.  This is important in the health area because there are many contracts that have arbitration clauses among health care providers and between them and patients.  These cases suggest again that such contracts should be entered into with care because courts will seldom overturn or modify them.  The Court also held that it may be difficult for the parties themselves to modify by contract the arbitration procedures or principles enumerated in the federal statute.  The ironic effect of the second case may be to reduce the attractiveness of arbitration for the parties who would like to provide for the protection of some form of judicial review following arbitration.

Child Pornography

For nearly 25 years Congress has been seeking more effective ways of prosecuting child pornography.  Such efforts are often thwarted by poorly crafted or overly broad laws that violate the Free Speech guarantee of the First Amendment.  This Term the Court upheld, by a vote of 7-2, a fairly broad recent statute that provides severe criminal penalties for any person who knowingly presents, distributes or solicits material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material contains a depiction of a minor engaging in sexually explicit conduct."[97]  The Court held that this language was not impermissibly vague and also held the statute is constitutional because the defendant must "have believed" that the material included obscene depictions of the sexual conduct of minors.[98]

This statute permits the prosecution for child pornography of those who seek or distribute material that they believe contains depictions of minors engaged in sexual conduct.  Thus, the fact that an actor was actually not a minor would not be a defense to the charge if those buying or selling it believed that the actors were minors.  This decision has ratified a fairly significant tool that federal authorities have used to prosecute child pornography exchanged on the Internet and through the mails.

Other Cases of Interest

The Court decided several other cases of general importance during the Term.  Briefly stated these include the following:

  • The Court upheld an Indiana law that required each voter to present a photo ID at the time of voting.[99]  The Court determined that this practice did not violate the Constitution and promoted an important state interest in honest elections.
  • The Court struck down a portion of the Bipartisan Campaign Reform Act that permitted larger campaign contributions when a candidate was facing very large expenditures financed by an opposing candidate.  The self-financing candidate was not permitted to accept these larger contributions, however.  The Court held that this law violated the First Amendment.[100]
  • The Court somewhat expanded the reach of civil suits under RICO, the Racketeer Influenced and Corrupt Organizations Act.  RICO suits based on mail fraud will be easier to prove following this decision.[101]  RICO has been used against health organizations.  This is particularly significant because RICO awards “treble damages” (three times the actual damages) to successful plaintiffs.
  • The Court limited the use by prisoners of the Federal Tort Claims Act when they claim their property was lost.  Federal law does not allow such suits, the Court held.[102]
  • The Court held that in deportation cases aliens may withdraw an agreement for voluntary departure from the country any time before the deadline for departure.[103]  This will allow aliens subject to deportation to reconsider their voluntary agreement to leave the country.
  • The Court upheld a state's right to exempt from taxation its own state and municipal bonds while still taxing the income from the state and municipal bonds from other states.[104]  This case could be very significant to public institutions and private institutions that use state tax-exempt bonds to build hospitals, educational buildings or the like.  Had this case gone the other way, states would likely have been inclined to reduce the use of tax-exempt bonds.

Analysis of the Term

The Court heard 71 cases during the Term that began October 1, 2007, and ended June 26, 2008.  Of these cases, there were four summary reversals or affirmances and only 67 "merits opinions."  This is the lowest number of opinions since 1953-1954.  The Court does not generally affirm lower courts: 66% of the cases resulted in reversals of lower courts, with 34% affirming lower courts.  There are a variety of ways of calculating the outcome of cases because of tie votes and the like, but the following are taken from SCOTUSblog.[105]  In 30% of the cases there was a unanimous decision, while in 20% of the cases there was a 5-4 (or 4-4) decision.  The number of 5-4 decisions was substantially lower than in the prior Term, but there were also fewer unanimous decisions.  With some notable exceptions, the tone in the opinions was generally more respectful than it has been in several recent Terms.

This Term defies clear labeling.  Some commentators saw it as a conservative Term, others as a more balanced term, and still others as a breakdown of traditional ideological stands.  The reason for the difficulty in characterizing this Term is that many of the decisions were relatively narrow, an approach that Chief Justice Roberts has promoted.  It was Roberts' third term as Chief Justice.  Any apparent change in the direction of the Court more likely resulted from the mix of cases the Court heard than from shifts among the justices.

Last Term, Justice Kennedy decided all of the 24 cases that were 5-4 decisions.  He did not have that record this Term, being in the majority only eight of the 11 or 12 decisions that were 5-4.[106]  Chief Justice Roberts was in the majority 90% of the time, with Justice Kennedy in the majority 86% of the time.  Justices Souter, Stevens, Ginsburg and Thomas were in the majority between 75% and 77% of the time.

Another reason that the Term seems muddled or inconsistent to some commentators is that the Court does not break neatly into the conservative-liberal split that remains such a popular notion with the press.  In addition to political ideology, there are a number of other phenomena that affect a justice's decision in any individual case.  There is, for example, a disagreement within the Court between minimalists and activists, pragmatists and those more doctrinaire, and various methods of statutory interpretation.  In any given case these factors provide a mix of elements that make many cases unpredictable.

On the whole, however, this Court appears to be more conservative than is Congress and many state legislatures.  This said, it also proved to be more liberal than Congress in such areas as habeas corpus for detainees.  The tradition of four justices who are fairly conservative and four justices who are relatively liberal, with Justice Kennedy in the middle deciding the outcome, holds true in many of the big, visible cases—for example, the detainee and the gun law cases.

No justice announced plans to retire, and it seems highly unlikely that any will voluntarily do so in the near future.  Justices Stevens (who is 88 years old), Ginsburg (who is 75), and Souter (who is 68) are all rumored to have some inclination to retire, but are said to be awaiting the outcome of the current Presidential election before making a decision.  Such rumors, of course, are notoriously inaccurate.  Among the other justices, Justice Scalia is 72, Justice Kennedy is 71, Justice Breyer is 69, Justice Thomas is 60, Justice Alito is 58, and Chief Justice Roberts is 53.  Purely on the basis of age, the justices with the more liberal record would appear to be more likely to retire than the more conservative justices.

One retirement was announced.  That was of Linda Greenhouse, the long-time reporter for the New York Times who covered the Supreme Court with extraordinary clarity and insight.  Because much of the public is only vaguely aware of the workings of the Court, her reporting was of considerable importance.  It will be missed.

The Supreme Court returns for its next Term on the “first Monday in October”:  October 6, 2008. The Court has accepted a number of important cases including those addressing pharmaceutical liability, maternity leave and retirement benefits, environmental issues (protecting the whales), and obscenity on television.  It promises to be an exciting Term.

Beyond the Term itself, as hinted above, the Presidential election may be of enormous importance.  The candidates have, from time to time, raised the issue of Supreme Court appointments, and with good cause.  The next President may well appoint two or three justices during a single four-year term.  The precarious balance that many see in the Court now may be affected, therefore, by the outcome of the election. One cliché is accurate: elections have consequences.


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, Ed Dauer, Eric Drogin, Judy Hall, Shevree Galati, Bob Meyer, Glenn Smith, Lera Smith and Debbie Wilson for their valuable comments on this article.  The remaining errors are solely the result of not taking their advice.


U.S. Supreme Court decisions are readily available (and free) on the Court’s web site.  It  The web site for the opinions for this Term is  Any of the cases discussed in this article are available from that source and interested readers are urged to look at that 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.)

Anyone who is interested can also sign up for free same-day, digested notification of the decisions of the Supreme Court.  The website is:
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.

1 Ms.  Talkin is the 10th Marshall and the first woman to serve in that position.
2 For a discussion of this holding, see notes 12 to 21and accompanying text.
3 For a discussion of this holding, see notes 22 to 26 and accompanying text.
4 For a discussion of this holding, see notes 27 to 34 and accompanying text.
5 For a discussion of this holding, see notes 35 to 42 and accompanying text.
6 For a discussion of this holding, see notes 43 to 45 and accompanying text.
7 For a discussion of this holding, see notes 47 to 48 and accompanying text.
8 For a discussion of this holding, see notes 54 to 56 and accompanying text.
9 For a discussion of this holding, see notes 57 to 64 and accompanying text.
10 For a discussion of this holding, see notes 65 to 67 and 69 to74, and accompanying text.
11 For a discussion of this holding, see notes 68 and accompanying text.
12 Indiana v. Edwards, No. 07-208, June 19, 2008 (this was a 7-2 decision: Justice Breyer wrote the opinion).
13 Dusky v. United States, 362 U.S. 402 (1960)
14 Indiana v. Edwards, at 10-11, quoting brief for APA et al. as Amici Curiae at 26
15 Id. at 11 - 12
16 Id. at 12
17 Id., quoting the brief for Indiana.
18 Scalia, dissenting at 1
19 Id. at 10
20 Id. at 4 quoting Faretta case
21 Id. at 11
22 Metropolitan Life Ins. Co. v. Glenn, No. 06-923, June 19, 2008 (6 justices joined in  decision on the framework for the decision, although Justice Kennedy would have sent the case back and wrote a separate opinion; Chief Justice Roberts concurred and Justice Scalia and Thomas dissented.
23 Firestone Tire and Rubber v. Bruch, 489 U.S. 101 (1989).
24 Metropolitan Life Insurance v. Glenn, supra.
25 Id. at 10-11.
26 Six of the justices adopted this framework for considering denials of benefits.   Justice Kennedy would have returned the case to the lower courts, however, to allow MetLife to present evidence that it acted reasonably.  Chief Justice Roberts would have required plaintiffs to show that denial of coverage was motivated by a conflict of interest; Justices Scalia and Thomas dissented.
27 Riegel v. Medtronic, Inc., No. 06-179, February 20, 2008 (this was an 8-1 decision; Justice Scalia wrote the opinion).
28 Id. at 7
29 The preemption at issue in this case is “expressed preemption because Congress expressly says that federal law is intended to preclude the application of state law.  There are also two kinds of “implied” preemption.  In “field” preemption, federal law has so thoroughly occupied an area of the law that there is no room for additional state regulation.  “Conflict” preemption occurs when the applications or objectives of federal and state laws create a conflict and, therefore, an implication of preemption.
30 21. U.S.C. Sect. 360k(a) (2007)
31 Ginsburg, dissenting
32 Id. at 7
33 Warner-Lambert Co. v. Kent, No. 06-1498, March 3, 2008 (this was a 4-4 decision, Justice Roberts was recused).
34 The case in which the Court will consider the pharmaceutical question in the next term is Levine v. Wyeth, No., cert. granted, 552 U.S. ___ (2008.).
35 Furman v. Georgia, 408 U.S. 238, 382 (1972)
36 Coker v. Georgia, 433 U.S. 584 (1977)
37 Kennedy v. Louisiana at 2, No. 343, June 25, 2008 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
38 Id. at 26
39 Id. at 23
40 Id. at 24
41 Justice Alito, dissenting
42 The Court issued the following order:
“Petitioner Patrick Kennedy is invited to file a supplemental brief, not to exceed 4,500 words, addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing. The brief should be filed with the Clerk and served upon opposing counsel by 2:00 p.m. Wednesday, September 17, 2008. The Solicitor General is invited to file at the same time a brief, not to exceed 2,500 words, expressing the views of the United States. Respondent Louisiana is invited to file a supplemental brief, not to exceed 4,500 words, also addressing the merits of the issue raised in the petition for rehearing. The brief should be filed with the Clerk and served upon opposing counsel by 2:00 p.m. Wednesday, September 24, 2008.”  Order of the Court, available at:
43 Baze v. Rees, No. 07-5439, April 16, 2008 (this was a 7–2 decision; Justice Roberts wrote the opinion).
44 Id. at 16-24
45 Concurring opinion by Justice Thomas, at 2-6
46 Medellín v. Texas, No. 06-984, March 25, 2008 (this was a 6–3 decision; Justice Roberts wrote the opinion).
47 Gomez-Perez v. Potter, No. 06-1321, May 27, 2008 (this was a 6–3 decision; Justice Alito wrote the opinion).
48 CBOCS West, Inc. v. Humphries, No. 06-1431, May 27, 2008 (this was a 7-2 decision; Justice Breyer wrote the opinion).
49 Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, June 19, 2008 (Most of the decision was by a seven justice majority.  Justice Thomas dissented in part and Justice Breyer was recused; Justice Souter wrote the opinion).
50 Id.
51 Kentucky Retirement Systems v. EEOC, No. 06-1037, June 19, 2008 (this was a 5-4 decision; Justice Breyer wrote the opinion).
52 Id. at 7
53 Id. at 6-11
54 Kentucky Retirement Systems v. EEOC, No. 06-1037, June 19, 2008 at 5-6 (this was a 5-4 decision; Justice Breyer wrote the opinion).
55 Id..
56 Id. at 15-16
57 See, e.g., the website of the National Educational Association’s “Health Information Network” at, and the Violence Prevention Institute’s website at
58 District of Columbia v. Heller, No. 07-290, June 26, 2008 (this was a 5-4 decision; Justice Scalia wrote the opinion).
59 Stevens, dissenting; Breyer, dissenting
60 Majority opinion, 56 - 64
61 Id. at 25
62 Id. at 53
63 Id. at 55
64 Id. at 54-55
65 543 U.S. 220 (2005)
66 Gall v. United States , No. 06-7949, December 10, 2007 (this was a 7-2 decision; Justice Stevens wrote the opinion).
67 Id. at 12
68 Kimbrough v. United States , No. 06-6330, December 10, 2007 (this was a 7-2 decision; Justice Ginsburg wrote the opinion).
69 Greenlaw v. United States, No. 07-330, June 23, 2008 (this was a 7-2 decision; Justice Ginsburg wrote the opinion).
70 Irizarry v. United States, No. 06-7517, June 12, 2008 (this was a 5-4 decision; Justice Stevens wrote the opinion).
71 Burgess v. United States, No. 06-11429, April 16, 2008 (this was a unanimous decision; Justice Ginsburg wrote the opinion).
72 United States v. Rodriquez, No. 06-1646, May 19, 2008 (this was a 6-3 decision; Justice Alito wrote the opinion).
73 Logan v. United States, No. 06-6911, December 4, 2007 (this was a unanimous decision; Justice Ginsburg wrote the opinion).
74 Begay v. United States, No. 06-11543, April 16, 2008 (this was a 6-3 decision; Justice Breyer wrote the opinion).
75   Snyder v. Louisiana, No. 06-10119, March 19, 2008 (this was a 7-2 decision; Justice Alito wrote the opinion).
76 Batson v. Kentucky, 476 U.S 79 (1986)
77 Snyder v. Louisiana, supra, note 68.
78 Id.
79 Giles v. California, No. 07-6053, June 25, 2008 (this was a 6-3 decision; Justice Scalia wrote the opinion).
80 Id. at 12-13
81 Richlin Security Service Co. v. Chertoff, No. 06-1717, June 2, 2008 (this decision was unanimous, although two justices joined only part of the decision; Justice Alito wrote the opinion).
82 Boumediene v. Bush, No. 06-1195, June 12, 2008 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
83 Id. at 22-42
84 Justice Scalia, dissenting at one
85 Chief Justice Roberts, dissenting
86 Scalia, dissenting, "Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq.  Last week, 13 of our countrymen in arms were killed…..The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us.  It will almost certainly cause more Americans to be killed.  That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.  But it is this Court’s blatant abandonment of such a principle that produces the decision today." 2
87 Munaf v. Geren, No. 06-1666, June 12, 2008 (this was a unanimous decision; Justice Roberts wrote the opinion).
88 Allison Engine Co. v. United States ex rel. Sanders, No. 07-214, June 9, 2008 (this was a unanimous decision; Justice Alito wrote the opinion).
89 Id. at 8-9
90 Id. at 7-8
91 Exxon Shipping Co. v. Baker, No. 07-219, June 25, 2008 (Eight justices agreed on the outcome of the case, although three of these joined only part of the decision.  Justice Alito was recused.  Justice Souter wrote the opinion).
92 Id. at 24-27
93 Id. at 40-42
94 Preston v. Ferrer, No. 06-1463, February 20, 2008 (this was an 8-2 decision; Justice Ginsburg wrote the opinion) at 1
95 Hall Street Associates, L. L. C. v. Mattel, Inc., No. 06-989, March 25, 2008 (this was a 6-3 decision; Justice Souter wrote the opinion).
96 Id. at 4-6
97 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 117 sta. 650.
98 United States v. Williams, No. 06-694, May 19, 2008 (this was a 7-2 decision; Justice Scalia wrote the opinion).
99 Crawford v. Marion County Election Bd., No. 07-21, April 28, 2008 (this was a 6-3 decision; Justice Stevens wrote the opinion).
100 Davis v. Federal Election Comm’n, No. 07-320, June 26, 2008 (The Court was split, although five justices agreed on the opinion of the Court; Justice Alito wrote the opinion).
101 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210, June 9, 2008 (this was a unanimous decision; Justice Thomas wrote the opinion).
102 Ali v. Federal Bureau of Prisons, No. 06-9130, January 22, 2008 (this was a 5-4 decision; Justice Thomas wrote the opinion).
103 Dada v. Mukasey, No. 06-1181, June 16, 2008 (this was a 5-4 decision; Justice Kennedy wrote the opinion).
104 Department of Revenue of Ky. v. Davis, No. 06-666, May 19, 2008 (this was a 7-2 decision; Justice Souter wrote the opinion).
105 SCOTUSblog, funded by the law firm of Akin, Gump, Strauss, Hauer & Feld, LLP, is found at
106 SCOTUSBLOG accounts for the difference as follows:
“Eleven cases were clearly 5-4. A twelfth (Stoneridge) was 5-3, with the left of the Court in dissent and Justice Breyer recused, suggesting that it would have been 5-4 if he had participated. Two others (Tom F. and Warner-Lambert) were 4-4, almost by definition meaning that the case would have been 5-4 absent a recusal.  So between 15% and 20% of the docket was 5-4. We ultimately believe that the fairest count treats Stoneridge and ignores the 4-4 cases in which no opinion was ultimately issued – in other words, 12 cases, or 17% of opinions.” at 2.