Steven R. Smith, JD

Continuing Education Information

The October 2008 Term of the United States Supreme Court began on October 6,2008.  By the time the Term adjourned on June 29, 2009, the Court had changed or clarified the law in several important areas.  (As we shall see, technically there was another argument in September 2009 as part of this Term.)  The Court also seemed to foreshadow larger changes ahead, and saw Justice David Souter announce at the end of April that he would be stepping down from the Court.

This article will review the major decisions of the Court during the Term.  It will also analyze the Term and consider the future of the Court with Justice Sonia Sotomayor replacing Justice Souter.

During this Term the Court:

  • Held that in criminal cases expert forensic reports may not simply be submitted to the trial court.  Rather, the experts responsible for the forensic analysis must appear in person to be confronted by the defendant.[1]
  • Determined that states may impose liability on pharmaceutical companies when prescription drugs are not accompanied by adequate warnings.  Compliance with federal food and drug laws and FDA-approved packaging does not necessarily preempt this state liability.[2]
  • Held that in a capital case it is a violation of due process for the prosecution to withhold from the defense evidence of acute amphetamine psychosis, or similar mitigating evidence that might persuade jurors to sentence a defendant to life imprisonment instead of imposing the death penalty.[3]
  • Weakened the exclusionary rule through several decisions permitting increased use of illegally obtained evidence in criminal cases.[4]
  • Decided several cases involving schools and students: precluding the strip searching of students except when a school has strong reasons for such searches; expanding the rights of parents under the Individuals with Disabilities Education Act (IDEA); expanding the kinds of lawsuits that students complaining of gender discrimination might bring; and potentially limiting the remedies available to English language learner students.[5]
  • Decided several important employment discrimination cases, notably limiting the ability of municipalities and states to discard legitimate tests because minorities had not done well on the test, increasing retaliation protections for employees who speak out against discrimination, and making it more difficult for plaintiffs to prove and maintain age discrimination cases.[6]
  • Decided cases involving the Voting Rights Act, actual innocence and DNA testing, environmental law, automobile searches, fleeting expletives, cigarette liability and government speech.

Confrontation of Expert Witnesses

A sense of urgency is developing that the legal system, and particularly the criminal justice system, must address the errors resulting from the contributions of expert witnesses.  Two major recent reports have increased the criminal justice system’s concern about the degree to which the testimony or reports of expert witnesses are leading to wrongful convictions.  A study conducted for the National Academy of Sciences has been especially critical of forensic evidence and the potential for biased or incorrect results.[7] Another study—involving cases in which innocence projects successfully overturned prior guilty verdicts—concluded that invalid expert testimony contributed to wrongful conviction in fully 60% of the cases studied.[8]

Various proposals for dealing with the problem, including national commissions, are being made.  Against this backdrop, the Supreme Court recently considered a case in which the question was whether a forensic laboratory test could be submitted in a criminal case as an affidavit or whether the forensic expert was required to appear in court to present the evidence.[9]  Melendez-Diaz v. Massachusetts dealt with the question of expert witnesses and the confrontation clause of the Sixth Amendment, which provides that in criminal cases "the accused shall enjoy the right ... to be confronted with the witnesses against him."

Luis Melendez-Diaz was arrested for trafficking in cocaine.  At his trial the prosecution placed in evidence bags of powder that police had seized.  It also introduced certificates stating that forensic experts had determined that the bags contained cocaine.  The defense objected to admission of the certificates unaccompanied by in-court testimony by the experts because this deprived Melendez-Diaz of the right to confront the witnesses against him.  The defendant could not, after all, cross-examine the certificates.[10]

The trial court admitted the certificates and Melendez-Diaz was convicted.  Ultimately the Supreme Court was called upon to determine whether the admission of the certificates without the presence of the examining expert was a violation of the Sixth Amendment's right of confrontation.  The prosecution claimed that the certificates were not testimonial and that the defendant could have called the laboratory experts to question the legitimacy of the forensic testing of the cocaine.  The defense claimed, however, that it was the prosecution’s obligation to present the experts who prepared the forensic report.

The Supreme Court had previously decided in Crawford v. Washington that the Sixth Amendment means that "a witness’s testimony against a defendant is ... inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination."[11]  Melendez-Diaz essentially applied the Crawford rule to forensic testing, reports and evidence.

In the 5-4 Melendez-Diaz decision, the Supreme Court held that the Sixth Amendment means that such certificates were evidence that had to be presented by a witness who could be confronted—that is, cross-examined—in court.  In a particularly unusual split, Justice Scalia wrote for a majority including Justices Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy, Chief Justice Roberts, Justice Breyer and Justice Alito dissented.

The Court rejected the claim that affidavits presenting test results were not accusatory or testimonial in nature, and therefore not covered by the Sixth Amendment.  The Court found that the scientific analysis was testimony against the defendant and therefore covered by the Sixth Amendment.  The Court also rejected the claim that this is not typical testimony from a witness, but a scientific report.[12]

The Court dealt at some length with the increasingly alarming studies indicating that forensic evidence and expert witnesses are not only unreliable in some cases but are also a significant contributor to wrongful convictions.[13]  It concluded that, "The Sixth Amendment does not permit the prosecution to prove its case via ex parte affidavits."[14]

It was particularly interesting that Justice Scalia, writing for the Court, relied on social science data.[15]  Justice Scalia has for many years been suspicious, even critical, of social science and similar studies.  He cited two studies, with approval, for the proposition that expert witnesses cause significant problems in terms of accuracy of outcome and wrongful convictions.

The four dissenting justices stated that the Constitution permits a distinction between typical witnesses and the presentation of scientific evidence.  The dissenters noted the practical difficulties of requiring in-court presentation of evidence in all criminal cases, observing that many people may contribute to a single test.  The dissent also argued that the majority ignored historical precedents for treating scientific tests as being outside the scope of the Sixth Amendment.[16]  In summary, the dissent stated that, "Today the Court ... transforms the Confrontation Clause from a sensible procedural protection into a distortion of the criminal justice system."[17]

The implications of the Melendez-Diaz case are significant for medical and behavioral  health professionals alike.  In both federal and state criminal cases it is unlikely that behavioral  health professionals can continue to submit forensic reports without appearing more often in court and being subjected more frequently to cross-examination.  Some sentencing reports and the like may not be subject to this requirement, but evidence presented at trial clearly will be.  Furthermore,   health care professionals who supervise the work of those writing reports or affidavits submitted to criminal courts are more likely to be compelled to testify in person.

This decision of the Supreme Court is limited to criminal cases.  The Sixth Amendment does not apply to civil cases directly.  The in-court appearance requirements of the case, therefore, may not apply to child custody, liability, disability and other non-criminal proceedings.  The extent to which the practice of requiring in-court testimony is expanded to these areas remains to be seen.

Melendez-Diaz may add momentum to the current concern about the adequacy and accuracy of forensic testimony in general.  For some time the question of junk science has commanded the attention of courts.  The Supreme Court has tried to clarify rules regarding the use of experts in federal courts.[18]  The recent studies regarding the number of wrongful convictions and inaccurate results coming from forensics experts is a matter that will excite additional attention at national and state levels alike.

Liability for Pharmaceuticals

For many years states have imposed civil liability for injuries resulting from pharmaceuticals that do not carry proper warnings.  The law recognizes a learned intermediary rule in which information regarding prescription drugs flows from pharmaceutical companies to physicians to patients. Thus, pharmaceutical companies are not obligated to inform patients directly of risks associated with these products, but rather are obligated to provide adequate warnings and instructions to physicians.  This possibility of state liability based on a failure to warn is complicated by the federal regulation of pharmaceuticals.  Drugs cannot be transported in interstate commerce without the approval or license of the Food and Drug Administration (FDA).

The FDA has a complex system for regulating the labeling and marketing of prescription drugs.  These drugs can be approved only after substantial testing and the demonstration, by the drug company, that the pharmaceutical is safe and effective for its intended purpose.  (Safe in this context is, of course, relative to the benefits of the drug.)  As part of the labeling process the FDA reviews and accepts statements of warnings, as well as intended purposes and the like.  The label in pharmaceutical law includes the package insert and similar literature.

When a state imposes liability on a pharmaceutical company for failure to warn, it is permitting liability despite the fact that FDA approved labels and warnings were shipped with the drug.  In most states liability for the failure to warn is based on the fact that a manufacturer knew of a significant risk and did not convey that risk on the label, or that it had not acted properly in discovering the risk.

In Wyeth v. Levine the Supreme Court considered this possible conflict between FDA approval and state liability.  In particular, the Court had to determine whether the federal law preempts or precludes state-imposed liability for failure to warn regarding FDA-approved pharmaceuticals.[19]

The preemption doctrine reflects the Constitution’s explicit instruction that federal law is the supreme law of the land.  This Supremacy Clause means that federal law can preempt (i.e., invalidate) state law.  Congress may expressly determine that state law is preempted by federal law.  Even where there is not an express preemption, however, courts sometimes find that federal law has an implied preemption of state law.  This may happen where it is impossible for someone to comply both with federal law and state law (conflict preemption), or where federal law has so completely covered an area, or the federal interest is so dominant, that there is no room for state regulation (field preemption).  Courts are generally reluctant to find implied preemption—in part out of respect for state authority, and in part because if Congress had intended for there to be preemption, presumably it would have said so expressly.

In Wyeth, Diana Levine received Phenergan for nausea using the IV-push method of injection.  Because the Phenergan came in contact with Levine’s arteries, serious injury occurred, resulting in the amputation of her arm.  She sued Wyeth for failure to adequately warn doctors to avoid administering Phenergan via the IV-push method because of the risk of just the sort of injuries she suffered.  Wyeth had in fact warned of this risk, but Levine’s claim was that the risk was not adequately highlighted, resulting in the injury.  The state jury found in her favor.[20]  In a 6-3 decision the Court determined that the federal drug laws do not preempt state liability in pharmaceutical failure to warn cases.

The FDA had over a number of years approved the labeling of Phenergan, and Wyeth claimed that such label approvals preclude liability because the company could not comply both with the warnings that would have been required to avoid tort liability in the state—in this case, Vermont—and also comply with the FDA approved packaging.  The Supreme Court disagreed with that position, noting that Wyeth could have changed the label under the changes being effected provisions of the FDA rules.  The Court also noted that the FDA has "long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulations."[21] Thus, state liability may help rather than hinder the enforcement of the federal drug laws.

Three justices dissented.  They were concerned that state liability could interfere with federal enforcement of the drug laws by allowing shifting, inconsistent state-by-state liability standards.  The dissenters also noted that "by their very nature, juries are ill equipped to perform the FDA's cost-benefit-balance function."[22]

The Wyeth decision does not mean that every case claiming a failure to warn will avoid preemption.  The Court suggested that where the FDA has specifically considered and rejected a warning as being ill advised or harmful, a state may not be able to impose liability based on the failure to warn.

This decision does not significantly change the law that has been applied for many years.  As a practical matter it reduces the possibility of additional congressional action concerning pharmaceutical liability.  The Court was likely aware that, had it preempted liability, Congress would almost certainly have acted to reverse the decision by changing the federal statutes.  With the change in administrations, it is likely that the pressure to preempt state liability in pharmaceutical cases will be reduced.

Capital Punishment and Behavioral  Health Professionals

Health care professionals continue to play important roles in capital cases.  They are involved in determining whether a defendant is competent to be tried, is guilty or should be excused from criminal liability, should receive the death penalty instead of life imprisonment, and is competent to be executed.  The role of behavioral health care professionals in each of these determinations, and the ethics of such participation, is a matter of considerable debate.  At the same time, courts have struggled with a wide variety of health issues concerning the trial, conviction and execution of capital defendants.

In Cone v. Bell the defendant claimed that he had suffered from acute amphetamine psychosis.[23] In his trial for murder, the jury rejected an insanity defense based on this condition and decided that the death penalty should be imposed.  (Even though jurors determined that the defendant was criminally responsible, they nevertheless could have determined that his psychosis was a mitigating factor that merited life imprisonment instead of execution.)

The Supreme Court has determined that the prosecution is obligated to turn over to the defense information that would tend to exonerate or reduce the sentence of a criminal defendant.  The failure to provide that information is a violation of the due process rights of the defendant.[24]

Over a very long series of appeals through state and federal courts, the defendant in Cone v. Bellultimately claimed that the prosecution failed to turn over several pieces of evidence that would have bolstered a claim of acute amphetamine psychosis.  The Supreme Court held that Cone’s insanity claim was so flimsy that the prosecution’s withholding of the evidence could not have harmed the defendant's insanity claim.[25]  On the other hand, the evidence might have been important in avoiding the death penalty.  Because the evidence tended to help establish the existence of a mental illness, some jurors might have found it as the basis for mitigation of the death sentence and voted for life imprisonment rather than the death penalty.  For that reason, the Supreme Court directed that the lower courts determine whether the improper conduct of the prosecution in not presenting the evidence to the defense should result in overturning the death sentence (but not the conviction) of defendant Cone.

Bobby v. Bies involved the conviction and death sentence of a mentally retarded defendant.[26]  In Atkins v. Virginia the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded defendants.[27]  (Atkins did not prohibit the conviction of mentally retarded defendants, just the imposition of capital punishment.)  Prior to Atkins, mental retardation was only a mitigating factor in many states.  After Atkins, however, imposition of capital punishment on defendants with severe mental retardation was recognized as unconstitutional.

Atkins was admittedly vague about the definition of mental retardation; the Court left to the states some latitude in determining local mechanisms and standards for considering mental retardation in capital cases.  Considerable uncertainty remains about the definition of mental retardation for this purpose, and that definition varies somewhat from one state to another.

In Bobby v. Bies the Court unanimously held that mentally retarded defendants sentenced to death before Atkins could be considered for resentencing without violating double jeopardy—trying the defendant twice for the same crime.[28]

In Knowles v. Mirzayance, another case involving an insanity claim, the Court held that it was not ineffective assistance of counsel for a criminal defense lawyer to advise a criminal defendant to withdraw an insanity defense plea where the jury had already rejected the defense’s medical evidence on incapacity.[29]  For several reasons the attorney concluded that there was very little possibility that the insanity defense had any chance of succeeding.  The defendant was convicted of first-degree murder.  The defendant claimed that the attorney gave bad advice because there was nothing to lose by presenting the insanity defense.  The Supreme Court rejected this argument saying that proceeding with that defense would have been no more than a futile gesture.

An interesting footnote to the capital sentencing jurisprudence of the Court was the denial of the writ of certiorari in the case of Thompson v. McNeil.[30]  It is certainly not unusual for the Supreme Court to deny certiorari; it does so in more than 99% of writs presented to it.  What was interesting aboutThompson was that two justices took the unusual step of penning a dissent from the denial of certiorari.  Justice Stevens noted that he had previously determined that the "time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."[31]  Adding to the growing doubts in many quarters about the death penalty, Stevens wrote that, "our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel."[32]  Justice Breyer also dissented, claiming that this case presented the question of whether "the Constitution permits ... execution after a delay of 32 years—a delay for which the state was in significant part responsible."[33]  Indicating that the Court remains divided on the death penalty, however, Justice Thomas concurred in the denial of certiorari, concluding, "it is the crime—and not the punishment imposed by the jury or the delay in petitioner's execution—that was ‘unacceptably cruel.’"[34]

The Exclusionary Rule

A recurring problem in the law is finding effective ways of enforcing rights.  It is a legal maxim that there is "no right without a remedy."[35] Finding a remedy for the violation of the rights of criminal defendants has been especially difficult.  Suing civilly for money damages for illegal search or interrogation could not be very effective.  (Among other things, the criminal plaintiff would be singularly unappealing to a jury.)

To remove the incentive for police to violate the rights of suspects in order to obtain evidence, courts have developed the exclusionary rule.  This rule provides that evidence obtained in violation of constitutional rights may not be used against the defendant.  For example, if a confession is obtained involuntarily, (e.g., through trickery or undue pressure) that confession may not be used against the defendant.  The evidence is excluded from the trial.  The exclusionary rule has come to be the primary mechanism for enforcing constitutional rights regarding confessions, searches and seizures, and access to counsel.

The exclusionary rule is a judicial rule.  That is, it was constructed by courts as a mechanism to enforce constitutional rights.  It is not specifically contained in the Constitution, but is used as a means of protecting constitutional rights.  The intent is to discourage the police and prosecution from unconstitutional searches, confessions and denying counsel.  If the results of illegal searches may not be used against the criminal defendant, the police have no incentive to engage in such searches.  The downside of the exclusionary rule is that without the excluded evidence, clearly guilty defendants may go free.  For example, an improper search that results in the discovery of a large amount of narcotics may be the only significant evidence, and if that evidence is excluded a conviction will be impossible.  As Justice Cardozo said, the rule allows "a criminal ... to go free because the constable has blundered."[36]

During this Term the Court decided three cases that collectively tend to weaken the exclusionary rule. Herring v. United States dealt with a search that is incident to arrest.[37] When a defendant is properly arrested, police may search the person arrested.  For a search to be proper, the arrest must have been pursuant to a legitimate warrant or under other special circumstances.  In Herring a police clerk failed to update a computer record so an officer negligently believed that there was a warrant for Bennie Herring.  They arrested him and searched him, finding methamphetamines and a pistol.[38] In a 5-4 decision, the Court held that the fact that a search or arrest was unreasonable does not necessarily mean that the evidence should be excluded.  The Court held that for the exclusionary rule to be applied, "the benefits of deterrence must outweigh the costs."[39] Thus, the Court ruled that because the error was the result of "isolated negligence attenuated from the arrest" that evidence would not be excluded.  A strong dissent by four justices indicated that "the exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search."[40]

In Kansas v. Ventris the police planted an informant in the cell with the defendant in order to elicit a confession.[41]  This was a violation of the Sixth Amendment right to counsel because, in effect, the state was questioning the defendant without his attorney being present.  The Court held, however, that this improperly obtained confession could be used against the defendant for impeachment purposes.[42]  That is, it could be used to contradict the testimony the defendant gave at trial that someone else had committed the crime.  The Court left some ambiguity about the extent of its holding when it noted that "whether otherwise excluded evidence can be admitted for the purpose of impeachment depends upon the nature of the constitutional guarantee that is violated."[43] Two dissenting justices noted that constitutional rights are violated just as much when the inappropriately obtained evidence is used for impeachment as it is when the evidence is used in the prosecutor’s case in chief.[44]

In Montejo v. Louisiana the defendant was convicted and sentenced to death based in part on a confession Montejo gave after counsel was appointed for him but before the attorney had an opportunity to meet with him.[45] Ordinarily, any questioning of a defendant after the defendant has counsel is improper.  In a 5-4 decision, the Supreme Court overruled an earlier decision that would have excluded that confession.[46] The Court held that the standards of the earlier case were unworkable and perhaps unnecessary.  The dissenting justices countered that overruling the prior case was indefensible and weakened the protection of the Sixth Amendment right to counsel.[47]

The exclusionary rule continues to be an important part of criminal law.  The three cases this Term, however, demonstrate a clear trend toward weakening it.  The degree to which that weakening will invite police misconduct remains to be seen.  At the same time, alternative legal doctrines have not been developed to enforce constitutional rights of criminal defendants.

Schools and Students

The Supreme Court decided a number of cases involving the relationships between schools and students.  Three important examples of that follow.

In Safford Unified School District #1 v. Redding the Court held unconstitutional the strip search of a 13-year-old female student at school.[48]  In an 8-1 decision the Court held that this search for non-dangerous drugs was unreasonable and therefore unconstitutional.  This decision certainly does not stand for the proposition that schools may not search students nor even for the proposition that strip searches in school are inherently unconstitutional.  Rather, the balancing of the intrusiveness of the search and the invasion of privacy of the student, against the relatively limited interest in finding non-dangerous drugs, made this search unconstitutional where the police had only a reasonable suspicion that the student had contraband on her person.  In a portion of the decision (this part decided by 7-2), the Court also noted that school officials might be liable monetarily for conducting the search.[49]  In dissent, Justice Thomas asserted that the Court was second-guessing school officials in an inappropriate way.[50]

In Forest Grove School District v. T. A. the Court considered an important aspect of the Individuals with Disabilities Education Act (IDEA).[51]  Under the IDEA, children with disabilities are guaranteed a free "appropriate public education ... designed to meet [the] unique needs" of children with disabilities.[52]  Schools and parents are authorized to develop individual education programs (IEP) for each student.  Where an acceptable plan is not reached, and parents are convinced that the school is not meeting its obligations, IDEA provides a process for parents to seek private special-education services and then to seek reimbursement from the school system for that private education.  In Forest Grove School Districtthe Court determined that parents could seek reimbursement for private special education services even if the child previously had not received special-education services in the public school.[53] IDEA determinations remain tricky and often involve the expertise of mental health professionals.  This decision seems to open up somewhat the possibility for private reimbursement where parents feel obligated to move a special education student to a private school.

The third case, Horne v. Flores, involved a long-standing Arizona case in which a number of English language learner students claimed that the state was failing to provide adequate instruction for non-English speaking students.  The challengers claimed that the state programs were inadequate to overcome language barriers that impede equal participation by the students.[54] A lower federal court ordered the schools to spend more on non-English speaking students.  The Supreme Court reversed this lower court and returned the case for reconsideration.  It indicated that spending levels alone do not prove that Arizona is out of compliance with federal law.  It also directed the lower courts to consider a variety of other factors in determining whether the injunction should issue.  This caseis seen by many commentators as directing federal judges to avoid substituting their judgment for school and state administrators.  As one commentator noted, "Beneath the surface of the two lengthy and intense opinions ... an old battle is being waged here over the appropriate role of the federal courts in directing state and local governments on how to conduct their traditional functions of running schools, prisons, etc."[55]

In Fitzgerald v. Barnstable School Committee the Court considered whether a student experiencing gender discrimination in school may bring a lawsuit only under Title IX of the 1972 Education Amendments or may also use Civil Rights §1983 liability.[56]  The choice is significant because the two statutes have different procedural and substantive requirements for there to be liability.  Section 901 of Title IX provides that "no person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."[57]  Section 1983 creates liability to anyone who "under color of any statute, ordinance, regulation, custom, or usage of any state ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."[58] In a unanimous ruling the Court determined that students subject to gender discrimination may seek redress under either Title IX or §1983.

Employment Discrimination

The Court decided several important employment discrimination cases this Term.  The one that received the most attention was the New Haven Firefighters case.[59]  New Haven, Connecticut, developed a test for the promotion of firefighters.  White candidates substantially outperformed minority candidates.  Fearing that minority candidates would sue for disparate impact of the test, the city threw out the results and white firefighters filed suit against the city.  In a 5-4 decision the Court determined that the city’s discarding the exam violated Title VII of the Civil Rights Act of 1964.[60]  The Court interpreted Title VII as requiring that, before an employer can engage in "intentional discrimination to avoid unintentional, disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate-impact litigation if it fails to take the race-conscious, discriminatory action."[61]  The Court found that there was no evidence (other than the outcome of the test) that it was deficient.

In a gender discrimination case the Court determined that the Civil Rights Act of 1964 implicitly prohibits retaliation against an employee who speaks out against discrimination.[62]  This protection against retaliation occurs whether the employee steps forward on his/ her own initiative, or provides information in answering questions during an employer's internal investigation.  The Court was unanimous in this decision.

The Court also decided two age discrimination cases.  In one case the Court made it more difficult to prove an age discrimination claim.  Under the Age Discrimination in Employment Act of 1967 (ADEA) it is illegal for an employer to take an adverse action against an employee "because of such individual’s age."[63]  The Court determined, in a 5-4 decision, that an ADEA disparate-treatment claim must prove that age was the "but-for" clause of the adverse employment decision.[64]  That is, the employee must demonstrate not just that there was discrimination based on age, but that the adverse employment decision would not have happened but for the age discrimination.  This creates a higher burden of proving age discrimination than other forms of discrimination (e.g., gender discrimination).  The four dissenting justices claimed that the Court broke with precedent in coming to this conclusion.[65]  Because this case, like several others in this article, is one of statutory interpretation, Congress can change the outcome by rewriting statutory language.  Indeed, legislative efforts are already underway to liberalize ADEA liability standards.

In another case the Court ruled that a collective bargaining agreement that requires union members to arbitrate ADEA claims is enforceable.[66]  The four-justice dissent believed that the Court was ignoring precedents in order to reach its conclusion.[67]

Additional Significant Decisions

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

Voting Rights Act.  The Court decided two cases involving the Voting Rights Act, which prohibits disenfranchisement that is based upon "race or color."[68]  In Northwest Austin Municipal Utility District v. Holder the Court avoided a constitutional question of whether portions of the Voting Rights Act are constitutional.  It determined as a statutory matter that the local utility district had a right to seek exemption from a challenged part of the Voting Rights Act.  As a result, it put off for another time the constitutional question.[69]  Comments in several of the opinions hint that this case may presage striking down portions of the Act in a later case.

The Court also narrowed somewhat an interpretation of the Voting Rights Act that instructs states to draw election districts in a way to provide minority voters the opportunity to elect minority representatives.[70]  This case involves a fairly complex issue of minority voters, but the general thrust dilutes the effort to establish districts where minority voters, with the assistance of some other voters, can elect minority officeholders.

Innocence and DNA Testing.  Innocence Projects throughout the country have been successful in exonerating a number of defendants, often based on DNA testing of previously obtained physical evidence.  This Term the Court was asked to determine whether there is a right for convicted criminals to have access to forensic DNA samples to prove their actual innocence.  The Court determined that there was not a general due process right to have access to such evidence.  Rather, states may establish standards and procedures for allowing convicted criminals to have such access.[71]  This case is somewhat puzzling because the state interest in preventing access to the DNA seems quite small compared with a very substantial interest in avoiding a miscarriage of justice should the DNA prove a wrong person was convicted.  The majority of justices seemed to believe that Alaska’s restrictive procedures for access to such evidence were constitutionally adequate.

Environmental Cases.  The Court decided five environmental cases this Term.  Environmentalists lost all of them.  The Court rejected an injunction that limited the Navy’s use of sonar in its training exercises.[72] Environmentalists claimed that such sonar could injure or kill whales and other marine mammals.  The Court sided with the Navy in a 5-4 decision.  The Navy discounted the likelihood of harm and indicated that the use of such sonar in training was essential to prepare for military combat.

In another case the Court allowed the Corps of Engineers, rather than the EPA, to determine the regulation of gold mine slurry discharges in Alaska.[73] It also limited liability for toxic spills.[74]  It limited the standing of environmental groups to contest Forest Service regulations.[75]  Finally, it allowed the Environmental Protection Agency to conduct cost-benefit analysis when creating regulations pursuant to the Clean Water Act.[76] That Act requires that water intake structures "reflect the best technology available for minimizing adverse environmental impact."[77]

Several environmentalists complained that this was the worst term ever for environmental cases.  However, when the details of these losses—many of them 5-4 decisions—are examined in greater detail, they appear more to reflect the specific cases before the Court than any significant shift in philosophy regarding environmental law.

Automobile Searches.  The Court decided two cases related to the search of automobiles.  The Court unanimously determined that an officer may ask questions after stopping an automobile even though the questions are unrelated to the reason for stopping.  Such questioning may not significantly extend the length of time of a stop, however.  In addition, the officer may frisk for weapons any occupant of a vehicle, whether the occupant is the driver or a passenger, if the officer reasonably believes that person is armed and dangerous.[78] In another case the Court narrowed the authority for the search incident to the arrest of someone in an automobile.  The police may search the passenger compartment of a car as incident to a lawful arrest only if the arrestee is unsecured and within reaching distance of the car, or the police have reason to believe that evidence of the crime for which the arrest is made might be in the car.[79]

Other Cases of Interest

The Court also decided a number of interesting cases that deserve a brief note:

  • The FCC may discipline television stations for allowing fleeting expletives to be broadcast.[80]  In this instance Fox television stations were disciplined for broadcasting, during the Golden Globe Awards, what the Court referred to as the "F— and S—" words.[81]
  • It may be a violation of due process for judges to fail to recuse themselves where a party to the proceedings has made overwhelming contributions to the judge’s campaign.  In this case one of the parties who appeared before a justice on the West Virginia Supreme Court had spent millions of dollars to promote that justice’s election.  The Supreme Court said that the state court justice’s failure to be recused from the case violated the due process rights of litigants on the other side of the case.[82]
  • It is not necessarily a violation of due process for a state court judge to improperly eliminate a peremptory strike for the defense of a juror.[83]
  • It is not a violation of the First Amendment for a state to prohibit all payroll deductions for political activities, including those for public employee unions.[84]
  • States may prosecute cigarette manufacturers for fraudulently advertising light cigarettes as containing less tar and nicotine. Such state enforcement actions are not preempted by the Federal Cigarette Labeling Act.[85]
  • The Court reinforced and expanded the concept of government speech, under which it permits the government to select messages to support without having to give equal opportunity to the presentation of all competing messages.[86]  In this case the city was permitted to display prior privately donated religious symbols, including the Ten Commandments as one of 11 monuments, without also having to accept and display a monument containing the Seven Aphorisms of Summum (the central tenets of a non-mainstream religious order).
  • The Court limited the ability of the federal government to accept additional Native American lands into trust, thereby increasing the size of the tribe’s land.[87]  Among the reasons for wanting to add lands is to place casinos in desirable locations.
  • The Court narrowed the definition of violent felony that may be the basis for a 15-year mandatory prison term under the Armed Career Criminal Act.[88]
  • State courts must hear federal civil rights cases brought pursuant to the Civil Rights Act of 1871, also known as "Section 1983 liability."[89] States may not remove from their state courts the ability to hear such cases.[90]
  • An appointed defense counsel who delays the start of trial several times does not create a violation of the Constitution’s speedy trial guarantee.[91]  Even though it appointed the defense counsel, the state is not responsible for delays that that counsel causes.
  • The Court loosened somewhat the criteria for allowing a stay of an order for an alien to be removed from the country.[92]  Courts must weigh the immediate harm to the alien against a strong public interest in implementing removal orders.
  • Federal district courts are entitled "to reject and vary categorically from the crack-cocaine guidelines based on a policy disagreement with those guidelines."[93]  This case strengthened an earlier decision.  It means that lower courts may vary from the Federal Sentencing Guidelines based on the sentencing judge’s disagreement with the Guidelines’ harsher treatment of crack, as compared with cocaine, offenses.
  • Potentially the most important case of this Term was virtually ignored by Court watchers.  The Court, in a technical case dealing with pleadings in civil lawsuits, made it more difficult for plaintiffs to bring a lawsuit where the plaintiff has few of the facts available.  The Court did this by requiring more precise legal complaints when lawsuits are filed.  It emphasized that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to maintain a lawsuit."[94]

Analysis of the Term

This was not a Term filled with many large, blockbuster cases.  It was, however, a Term that may foreshadow substantial changes in the law.  The Court suggested, for example, that sections of the Voting Rights Act may be unconstitutional, that the Exclusionary Rule may be increasingly limited, and that additional limitations on campaign finance laws may be in the offing.

The Court decided 75 cases after argument, with 74 signed opinions and one issued generally in the name of the Court.  Four other cases were either dismissed or were argued but not decided.  Various experts count decisions in different ways, but of the 79 cases decided (after argument or in a few cases decided on the briefs without oral argument), 26 were unanimous, four were 8-1, 13 were 7-2, 13 were 6-3, and 23 were 5-4.  That 45% of the decided cases were determined by 5-4 or 6-3 margins demonstrates a substantial split within the Court this Term.  The Court affirmed only 20% of the lower court decisions, while reversing in whole or in part nearly 80% of the time.

Justice Kennedy was again the deciding vote in many of the cases.  He was in the majority in all but five of the 5-4 decisions -- nearly 92% of the cases.  (Justice Stevens, on the other hand, was in the majority approximately 65% of the time.)  Justice Kennedy thus continued to earn the nickname bestowed by some: the "Kennedy Center" (because he occupies the center of the Court and that makes him the deciding vote so often).

Traditional conservative and liberal labels are somewhat problematic when referring to the Court or its individual justices, in part because issues often do not fall into neat ideological categories.  Despite these problems, commentators commonly refer to the Roberts, Scalia, Thomas and Alito group as the conservative wing of the court.  The Stevens, Ginsburg, Breyer and Souter group of justices is seen as the liberal wing.  When divided this way, Justice Kennedy sided with the conservative wing almost two-to-one in the 5-4 decisions.

Commentators generally saw the Term as tipping toward the right, but without making any dramatic moves in that direction.  This view is borne out by the fact that those on the conservative side were in the majority substantially more often than those on the liberal side.  The conservative tilt is also demonstrated by the number of dissenting votes.  Justice Stevens was in the minority most frequently (28 times).  Justice Scalia was in the minority 13 times.  Justice Kennedy was in the minority only six times.[95]

The resignation of Justice Souter and the nomination and confirmation of Judge (now Justice) Sonia Sotomayor will inevitably change the Court.  In a small group of nine, personnel changes impact the collegial relationships.  During the 19 years he served on the Court Justice Souter was generally seen as a moderate-liberal on most constitutional issues.  Justice Sotomayor is likely to offer a somewhat similar approach, at least initially.  Such predictions are, of course, highly unreliable.  First, as noted earlier, the labels are imprecise at best.  Second, justices frequently change after their first years of service on the Court.  Third, individual justice shifts occur against a backdrop of shifts by the Court as a whole.  Still, it is widely expected that Justice Sotomayor will bring a different perspective than did Justice Souter.

The Court scheduled an unusual September oral argument for a case dealing with campaign finance law; interestingly, the Court ordered reargument to address broader constitutional grounds.  It was technically part of the October 2008 Term.  During the October 2009 Term the Court also will hear arguments raising questions of whether:

  • the Constitution permits life sentences without parole for juveniles convicted of non-homicide crimes;
  • opponents of state and local gun-control laws can assert an individual constitutional right to bear arms ;
  • the extent to which traditional religious symbols on federal property can be challenged as a violation of the separation of church and state;
  • Congress has the power to enact a sexually dangerous persons law;
  • the antitrust laws apply to NFL merchandise sold by the NFL teams;
  • patent law regarding business processes should be changed; and
  • the distribution of certain videos of dogfights can be made illegal.

Of course the Court has yet to accept many of the cases that ultimately will be argued during the Term.  In addition, rumors are circulating that at least one other justice (Justice Stevens and Justice Ginsburg being the most likely) will step down during the course of the next Term.  Such rumors are not uncommon and are often wrong.  In any event, it will be a Term well worth watching.


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.

* Dean and Professor of Law, California Western School of Law, 225 Cedar Street, San Diego, CA 92101.  © Steven R. Smith, 2009.

The author wishes to thank Larry Benner, Andrew Boucher, Eric Drogin, Shevree Galati, Glenn Smith, Lera Smith and Debbie Wilson for their valuable comments on this article.  Despite their best efforts, any remaining errors are solely those of the author.


1 For discussion of this material, see notes 7 to 18, and accompanying text.
2 For discussion of this material, see notes 19 to 27, and accompanying text.
3 For discussion of this material, see notes 23 to 34, and accompanying text.
4 For discussion of this material, see notes 35 to 47, and accompanying text.
5 For discussion of this material, see notes 48 to 58, and accompanying text.
6 For discussion of this material, see notes 59 to 67, and accompanying text.
7 National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward(2009).
8 Garrett and Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. Rev. 1, 14 (2009).
Melendez-Diaz v. Massachusetts, No. 07-591, June 25, 2009.
10 Id.
11 Crawford v. Washington, 541 U. S. 36, 54 (2004).
12 Melendez-Diaz, at 9-11.
13 Id., 12-15.
14 Id., at 23.
15 Id, at 12-14.
16 Kennedy, dissenting.
17 Id., at 10.
18 See Daubert v. Merrell Dow, 509 U.S. 579 (1993).
19 Wyeth v. Levine, No. 06-1249, March 4, 2009.
20 Id., at 1.
21 Id., at 23.
22 Alito, dissenting, at 23.
23 Cone v. Bell, No. 07-1114, April 28, 2009.
24 Brady v. Maryland, 373 U.S. 83 (1963).
25 Cone v. Bell, at 23-27.
26 Bobby v. Bies, No. 08-598, June 1, 2009.
27 536 U.S. 304 (2002).
28 Id., at 8-11.
29 Knowles v. Mirzayance , No. 07-1315, March 24, 2009.
30 Thompson v. McNeil, 129 S. Ct. 1299, 129 S. Ct. 1580, No. 08-7369, March 9, 2009.
31 Baze v. Rees, 553 U.S. (2008), Steven, concurring.
32 Thompson, Stevens, dissenting, at 2.
33 Breyer, dissenting, at 5.
34 Thomas, concurring, at 4.
35 "Ubi jus ibi remedium."  See Marbury v. Madison, 5 U.S. 137, 166 (1803).
36 People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
37 Herring v. United States, No. 07-513, January 14, 2009.
38 Id.
39 Id., at 6.
40 Id., Ginsburg dissenting at 1.
41 Kansas v. Ventris, No. 07-1356, April 29, 2009.
42 Id., at 6-7.
43 Id., at 3.
44 Id., Stevens, dissenting at 1, quoting Miranda v. Arizona.
45 Montejo v. Louisiana, No. 07-1529, May 26, 2009.
46 The earlier case was Michigan v. Jackson, 475 U.S. 625 (1986).
47 Montejo, Stevens, dissenting at 1.
48 Safford Unified School Dist. #1 v. Redding , No. 08-479, June 25, 2009.  The Court was badly divided, as the official report indicates, "SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, BREYER, and ALITO, J.J., joined, and in which STEVENS and GINSBURG, J.J., joined as to Parts I-III.  STEVENS, J., filed an opinion [***8] concurring in part and dissenting in part, in which GINSBURG, J., joined.  GINSBURG, J., filed an opinion concurring in part and dissenting in part.  THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part."
49 Id.
50 Id., Thomas, dissenting, at 12-18.
51 Forest Grove School Dist. v. T. A., No. 08-305, June 22, 2009.  (The IDEA is at 20 U.S.C. §1400.)
52 Id., at 8.
53 Id., at 6-17.
54 Horne v. Flores, Nos. 08-289 and 08-294, June 25, 2009.
55 See The Supreme Court Breakfast Table, Slate Magazine website, June 22, 2009.
56 Fitzgerald v. Barnstable School Comm., No. 07-1125, January 21, 2009.
57 20 U.S.C. §1681 (A).
58 42 U.S.C. §1983.
59 Ricci v. DeStefano, Nos. 07-1428 and 08-328, June 29, 2009.
60 Id., at 7.
61 Id., at 19-20.
62 Crawford v. Metropolitan Government of Nashville and Davidson Cty., No. 06-1595, January 26, 2009.
63 29 U.S.C. §623 (A).
64 Gross v. FBL Financial Services, Inc., No. 08-441, June 18, 2009.
65 Id., Stevens, dissenting at 1.
66 14 Penn Plaza LLC v. Pyett , 07-581, April 1, 2009.
67 Id., Souter, dissenting.
68 42 U.S.C. §1973.
69 Northwest Austin Municipal Util. Dist. No. One v. Holder , No. 08-322, June 22, 2009.
70 Bartlett v. Strickland, No. 07-689, March 9, 2009.
71 District Attorney's Office for Third Judicial Dist. v. Osborne, No. 08-6, June 18, 2009.
72 Winter v. Natural Resources Defense Council, Inc., No. 07-1239, 77 U.S.L.W. 4001, November 12, 2008.
73 Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Nos. 07-984 and 07-990, June 22, 2009.
74 Burlington N. & S. F. R. Co. v. United States, Nos., 07-1601 and 07-1607, May 4, 2009.
75 Summers v. Earth Island Institute, No. 07-463, March 3, 2009.
76 Entergy Corp. v. Riverkeeper, Inc., No. 07-588, April 1, 2009.
77 33 U.S.C. §1326.
78 Arizona v. Johnson, No. 07-1122, January 26, 2009.
79 Arizona v. Gant, No. 07-542, April 21, 2009.
80 FCC v. Fox Television Stations, Inc., No. 07-582, April 28, 2009.
81 Id., at 4.
82 Caperton v. A. T. Massey Coal Co., No. 08-22, June 8, 2009.
83 Rivera v. Illinois, No. 07-9995, March 31, 2009.
84 Ysursa v. Pocatello Ed. Assn., No. 07-869, February 24, 2009.
85 Altria Group, Inc. v. Good, No. 07-562, December 15, 2008.
86 Pleasant Grove City v. Summum, No. 07-665, February 25, 2009.
87 Carcieri v. Salazar, No. 07-526, February 24, 2009.
88 Chambers v. United States, No. 06-11206, January 13, 2009.
89 42 U.S.C. §1983
90 Haywood v. Drown, No. 07-10374, May 26, 2009.
91 Vermont v. Brillon, No. 08-88, March 9, 2009.
92 Nken v. Holder, No. 08-681, April 22, 2009.
93 Spears v. United States, No. 08-5721, January 21, 2009.
94 Ashcroft v. Iqbal, No. 07-1015, May 18, 2009, citing, Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
95 SCOTUSblog is the source for many of the data in this section.  It may be found .