Steven R. Smith, JD

Continuing Education Information

The most recent Term of the U.S. Supreme Court was one of transition - the Court welcomed new Justice Sotomayor and, at the end of the Term, said farewell to Justice Stevens who had served 35 years on the Court. Any time the Supreme Court is deciding cases, the law is in transition, and this Term was no exception.

Between the first “Oyez” calling the Court to order and the final gavel, the Court decided many cases that will be of interest to psychologists, physicians and other professionals.

The Court:

  • Held that it is unconstitutional to sentence those under 18 to life without the possibility of parole in non-homicide cases;
  • Upheld a federal law that provides for the federal civil commitment of sexually dangerous prisoners (following completion of the criminal sentence);
  • Decided several cases involving ineffective assistance of legal counsel in capital cases involving mental disabilities;
  • Ratified an earlier holding indicating that expert witnesses in criminal cases must appear in court to be cross-examined, not just submit written reports;
  • Held that federal law precludes any damages for personal injury caused by Public Health Service officers and employees;
  • Limited application of Miranda rights in several cases.

The Court also reviewed the underrepresentation of racial minorities on juries, narrowed federal prosecution for violations of the “Honest Services” law, upheld “allcomers” policies for university student organizations, permitted the patentability of business processes (but precluded patents for “abstract ideas”), applied the Second Amendment to state and city gun control laws, and—in the Term’s most bizarre case—faced legal questions of what to do when, during a capital case, a jury sends to the bailiff and the judge chocolates fashioned as breasts and a penis.

In other cases of importance the Court took up cases ranging from child custody under international law, to calculating prison “good time,” to NFL jerseys, to campaign contributions.

This article first considers the cases of special importance to the psychological and medical professions, and then more briefly considers a number of other important cases. It concludes with an analysis of the Term and a look at the next Term, when another new justice, Elena Kagan, joins the Court.


IGraham v. Florida the Supreme Court determined that it is a violation of the Eighth Amendment to sentence a juvenile to life without parole for a non-homicide offense.[1] It had previously held that the Eighth Amendment (“cruel and unusual punishment [shall not] be inflicted”) precludes the execution of defendants who were under the age of 18 when committing a homicide.[2]

The amendment prohibits punishments that offend acceptable standards of decency. It prohibits certain categories of punishment, such as torture. The Court applies this categorical prohibition, for example, to preclude the execution of persons with mental retardation.[3] The Eighth Amendment also precludes punishments that are “grossly disproportionate” to the crime. For example, prison sentences that are extreme given the crime may violate the Eighth Amendment.

Terrance Jamar Graham, while on probation for other serious crimes, was convicted of a home invasion robbery. He committed this crime about a month before his 18th birthday. Graham had also committed additional crimes while on probation, so the judge sentenced him to imprisonment without the possibility of parole, unless he was granted clemency by the governor.

Justice Kennedy, writing for the five-justice majority, held that the Eighth Amendment does not permit life without parole in non-homicide cases for those who were younger than 18 when the crime was committed.

The Supreme Court has determined that the prohibition of cruel and unusual punishment depends on “evolving standards of decency that mark the progress of a maturing society.”[4] In considering these evolving standards of decency the Court attempts to determine whether there is a national consensus about the legitimacy of a punishment. It first seeks to examine the laws enacted by state legislatures and the Congress and then how the laws are applied in practice. The Court noted that the legislature in the clear majority of states permits juveniles to receive sentences of life without parole, but that nonetheless few of them use it. It concluded that 12 states in fact impose life without parole on juvenile non-homicide offenders while 26 states and the District of Columbia authorize such sentences but do not impose them.[5]

The Court also determined that no penological theory justifies life without parole for non-homicide offenses committed by juveniles. It focused on medical and social science research suggesting that juveniles have less culpability than adults because parts of the brain involved in behavior control “continued to mature through late adolescence.”[6] It also found that juveniles are more capable of eventual change than are adults, and that “life without parole is an especially harsh punishment for a juvenile” because a juvenile offender will on average serve more years in prison subject to a life sentence than will an adult offender.[7] The Court concluded that “none of the goals of penal sanctions that have been recognized as legitimate - retribution, deterrence, incapacitation, and rehabilitation...provides an adequate justification” for life without parole for juvenile non-homicide offenders.[8]

The Court established the age of 18 at the time of offense as the point at which it is constitutionally inappropriate to impose life without the possibility of parole for non-homicide offenses. It noted that this is the point at which society draws the line “for many purposes between childhood and adulthood.”[9]

In what will undoubtedly be a controversial part of the opinion, Justice Kennedy noted that internationally the U.S. is almost alone in permitting life without parole for non-homicide offenses for juveniles. The Court recognized that such approaches by other countries cannot determine what U.S. law should be, but may suggest that there is a consensus of opinion. The Court cited a treaty (to which the U.S. has not subscribed) for this proposition as well. There is considerable difference of opinion regarding whether foreign law should play a role in determining the constitutional law of the United States.

Chief Justice Roberts concurred in the judgment but did not join the majority opinion. He agreed that Graham should not have received life without the possibility of parole but rejected the absolute or categorical rule for all juveniles, preferring instead an individualized approach that would allow a no-parole sentence for some.[10]

Justice Thomas wrote for the three dissenting justices (with Scalia and Alito).[11] The dissenters determined that there is no national consensus against life without parole for juveniles and found no basis for prohibiting such sentences under the Eighth Amendment. It found that the reality is that “37 out of 50 states (a super majority of 74%) permit the practice of [such sentences].” [12] The dissenters also argued that the Court was substituting its judgment for state legislatures and Congress in determining what criminal sentences should be. They also questioned the legitimacy of social science data used in the constitutional analysis and asserted that the majority had misstated the constitutional data on which it was relying.[13]

The American Psychological Association - along with the American Psychiatric Association, the National Association of Social Workers, and Mental Health America – filed an amicus brief in this case.[14] The brief argued that “juveniles - including older adolescents - are less able to restrain their impulses and exercise self-control; less capable than adults of considering alternative courses of action and maturely weighing risks and rewards; and less oriented to the future and thus capable of apprehending the consequences of their often-impulsive actions....
Juveniles are less capable than adults of mature judgment, and more likely to engage in risky, even criminal, behavior as a result of that immaturity.”[15]

The brief presented social science evidence for these propositions, including emerging research “that the brain is still developing during adolescence in ways consistent with adolescence-demonstrated psychological immaturity.”[16] The brief strongly argued that social science information should lead the Court to determine that the Eighth Amendment did not permit life without parole possibility for juvenile offenders.

Both the majority opinion and the dissent took account of the evidence presented by the American Psychological Association brief. The strongest element of the brief was the presentation of social science and neuroscience studies. Its strong advocacy on behalf of a legal position may, however, have distracted from this strength. An interesting side note in the brief was footnote 23 in which the APA answered allegations that it had taken inconsistent positions regarding adolescent maturity in cases concerning the juvenile sentencing and juveniles’ access to abortion without parental notification.[17] The APA explained that one of these briefs dealt with cognitive maturity while the other dealt with adolescent culpability.

Many questions remain unanswered by the opinions in Graham v. Florida. One is the definition of a “non-homicide offense.” One meaning is, of course, a crime in which someone is not killed. In some places, however, the majority opinion referred to adolescents “who do not kill, intend to kill, or foresee that life will be taken.”[18] Such a definition might allow for a sentence of life without possibility of parole where there is an attempted homicide that is not completed— that is, where no one is killed. On the other hand, it might exclude sentences without possibility of parole where an accomplice actually did the killing. These issues remained undefined by the opinion.

The decision does not mean that someone who was a juvenile at the time a non-homicide offense was committed cannot be imprisoned for life. “The Eighth Amendment does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life.”[19] Rather, a state must give defendants who were juveniles when they committed a crime “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”[20] The Court noted that states are left to find mechanisms for complying with this requirement. It is unclear, however, what mechanisms might be constitutionally adequate to meet this obligation.

The standards for allowing release based upon what the Court generally referred to as “demonstrated maturity and rehabilitation” also are unclear. The number of years to which a juvenile may be sentenced without the possibility of parole is also unclear. Suppose a state court sentences a juvenile to a 70, or 30, or 20-year term without the possibility of parole? Whether any of these violates the Eighth Amendment is undetermined. The retroactivity of this decision is also unclear—that is, for those who were sentenced to life without the possibility of parole before theGraham decision, must their sentences now be altered to allow for the possibility of parole?

It is reasonable to expect substantial litigation concerning all of these questions. Mental health professionals will be called upon to assist courts in determining whether juveniles meet the appropriate standards for release despite having committed terrible crimes prior to adulthood.


The Supreme Court previously upheld state laws that provide for the civil commitment of sexually dangerous prisoners.[21] These laws typically provide that someone who may continue to commit sexual offenses at the end of a prison term following conviction for a sex crime, and who is mentally ill (broadly defined), may be civilly committed following the end of the prison term.

Congress adopted a similar statute for federal civil commitment of sexually dangerous federal prisoners. The question in United States v. Comstock was whether that federal law is authorized by the Constitution.[22] While states have broad constitutional authority unless an act is prohibited by the Constitution, federal authority is limited and Congress must have a constitutional provision authorizing it to take action. The federal statute, 18 U.S.C. §4248, allows the civil commitment of a federal prisoner who is reaching the end of his term if he has previously engaged in sexually violent conduct or child molestation, currently “suffers from a serious mental illness, abnormality, or disorder,” and as a result of the mental condition is “sexually dangerous to others” because “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”[23] The government must prove by clear and convincing evidence that each of these elements is true. The person may then be civilly committed to a federal facility. This is not a sentence, of course, but rather confinement based on mental illness and sexual dangerousness. The person has the right to counsel as well as the opportunity to testify, to present evidence, and to cross-examine witnesses the government presents. The federal government is also obligated to determine if a state will take responsibility for the prisoner in its mental health facilities and if so, to transfer the former prisoner to the state.

The main question in Comstock was whether there is authority in the Constitution for the federal government—as opposed to a state government—to enact such a statute for the commitment of sexually dangerous persons. Five justices were willing to allow it under a broad reading to the “Necessary and Proper” Clause of the Constitution.[24] That clause provides that Congress has authority to enact laws “necessary and proper for carrying into execution” the powers granted to Congress. Five members of the Court gave the Necessary and Proper Clause this broad reading, while two others (Justices Kennedy and Alito) gave it a more limited reading, but still said the clause was broad enough to permit this civil commitment statute. It was interesting that Chief Justice Roberts was included among the five justices who gave a very broad reading to the Necessary and Proper Clause. It seemed to be somewhat a broader and more liberal reading of the Constitution than the Chief Justice usually follows.

Justices Scalia and Thomas dissented. They found that the Necessary and Proper Clause is much more limited than the reading given to it by the majority.

Mental health professionals who are involved with federal prisons can expect to see this law applied to sexual offenders as sentences draw to a close. Furthermore, mental health professionals in state systems may receive inquiries about the possibility that the state would assume responsibility for the federal prisoner as he is about to be released. The Court assumed that many states would be reluctant to do so because of the additional financial burden and risks associated with voluntarily taking control of violent sexual predators.

Federal law also requires that those convicted under state sexual offender laws register when they move to a new state.[25] Someone who is required to register travels between states and knowingly fails to register or update a sexual registration may be guilty of a federal crime. In Carr v. United States the Court determined that this federal registration statute applies to sexual offenders who were initially convicted before the passage of the statute. It does not apply, however, to a sexual offender whose travel was completed before the federal statute was enacted.[26] The Court, in a 6 to 3 decision, based its decision on an interpretation of the language of the federal statute.

In addition to criminal convictions, civil commitment-like incarceration and registration, states are free to impose additional burdens on those convicted of sexual offenses. For example, a licensing board may inquire about such convictions (and increasingly will do so), and deny licenses to professionals who pose a risk to the public because of this misconduct. In addition, a license may be removed from those proven to engage in serious sexual misconduct.


Mental health experts play many important roles in death penalty cases. They are called upon to determine whether a defendant is competent to stand trial, was “insane” at the time the crime was committed, or is competent to be executed. Another common and important role occurs during the sentencing phase of the trial, when evidence is presented that a competent defendant either should or should not receive capital punishment.

The Supreme Court has determined that the defendants have the right to present any relevant mitigating evidence that would argue that they should be imprisoned for life rather than sentenced to death. Presenting evidence about mental disability at sentencing is, however, not as simple or straightforward as it might seem. Proving mental disability can be difficult for the defense. This may require substantial investigation and the use of several experts, and raise complicated evidentiary questions. In addition, the prosecution will have the opportunity to cross examine mitigating witnesses and to present evidence of aggravating factors. To complicate matters further, there is substantial reason to believe that many capital jurors do not consider the presence of a mental disability to be a mitigating factor. When such a disability suggests dangerousness or a severe lack of control, this supposedly “mitigating” evidence may actually harm rather than help the defendant at sentencing.

This Term the Supreme Court decided several cases related to the question of the competency of attorneys who failed to present evidence of mental disability during capital sentencing hearings. In these cases the defendants were seeking to have their death sentences overturned based on the claim that they did not receive the effective assistance of counsel. “Ineffective assistance of counsel” claims are based on the Constitutional provision that “in all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” Courts have determined that when the quality of representation falls “below an objective standard of reasonableness in light of prevailing professional norms,” the criminal defendant has been denied this Sixth Amendment right to assistance of counsel.[27] The defendant in Bobby v. Van Hookclaimed ineffective assistance of counsel based on the failure of his attorney to investigate possible mitigating mental health evidence and failed to obtain independent mental health experts to testify at the penalty phase.[28] The defendant, and lower courts, had relied on the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases as defining what effective assistance of counsel meant.[29] The Supreme Court rejected this claim. The ABA, of course, does not have authority to adopt standards for the federal courts. The ABA Guidelines, however, identify what are essentially “best practices” rather than federally mandated “minimum requirements” for the effective assistance of counsel.

The ABA Guidelines have been of great importance in providing guidance in capital cases, and nothing in the Court’s decision changes the importance of the Guidelines. This decision does mean, however, that courts cannot enforce these Guidelines by using them to define what is ineffective assistance of counsel in capital cases.

In Jefferson v. Upton the defendant was sentenced to death.[30] In this case the defendant claimed that his attorney had failed to investigate thoroughly a serious traumatic head injury that the defendant had suffered as a child. (Permanent brain damage probably caused diminished impulse control and outbursts of rage.) Prior to his trial a psychological expert suggested a neuropsychological evaluation to rule out brain damage.[31] The attorneys representing Jefferson did not pursue the examination and did not present evidence in mitigation of the neurological impairment.

The Supreme Court held that this conduct may have represented ineffective assistance of counsel. Although the case was decided on a technical matter of federal court review, the Court essentially held that additional hearings were necessary to determine whether the conduct of the attorneys was ineffective assistance of counsel.

Wood v. Allen illustrates the bind that defense counsel may face in deciding whether to present evidence of a mental disability in capital cases.[32] Wood, the defendant, claimed that his attorney should have presented evidence of his mental retardation to the trial court. The attorney had a mental evaluation conducted of Wood, but, following that examination, the attorney decided to not pursue evidence of the defendant’s mental retardation. In reviewing this decision, the courts determined that it was a strategic decision. That is, the attorneys believed that it would be seen by the jury as a mitigating factor and might actually harm the defendant’s case.[33] If this were a reasonable judgment, then even if it was a mistake, it was not ineffective assistance of counsel.

An additional hurdle awaits the capital defendant who claims ineffective assistance of counsel. Such defendants must also prove that they were harmed by the attorney’s mistakes—that is, there must be a reasonable probability that the case would have turned out differently were it not for the ineffective assistance. In Smith v. Spisak, for example, the defense attorney called the defendant to the stand where he admitted committing three murders.[34] Mental health experts called at the penalty phase testified that the defendant had some degree of mental illness. Defense counsel also gave what was viewed as a very weak closing argument. The Supreme Court unanimously found that these circumstances did not support “a reasonable probability” that the closing argument could have led to a different result than the death penalty.

A different result was obtained in Sears v. Upton.[35] There the defense attorney, perhaps to avoid antagonizing the jury, presented the defendant as having a stable childhood in a loving home. Apparently the strategy was to “portray the adverse impact of Sears’ execution [would have] on his family and loved ones.” As the Supreme Court noted, “the strategy backfired.”[36] In fact Sears performed in the bottom percentile in several measures of cognitive functioning, apparently because of significant frontal brain damage as a child and substance abuse in his teens.[37] Sears was sentenced to death. In a 5-to-4 decision,the Court suggested that this could be ineffective assistance of counsel and that the lower courts could legitimately find that the outcome of the case would have been different but for the ineffective assistance.[38]

These cases demonstrate the difficulty in ensuring that capital defendants have thoroughgoing, competent and fully prepared legal counsel. They also demonstrate the extraordinarily complex process juries are expected to conduct when considering mitigating and aggravating factors in capital cases. The efforts of the federal courts to ensure that capital punishment is applied in a fair and equal manner under the Eighth Amendment is made an even more elusive goal by such complexities. Mental health experts continue to have critically important roles in assessing criminal defendants and presenting evidence to juries in criminal cases.

There were two other ineffective assistance of counsel cases decided this Term. In the first case, a criminal defendant’s attorney was grossly negligent in missing the time limit for filing a habeas corpus appeal. The Court held that the period for filing the appeal could be extended as a matter of equity.[39] The Court also decided that it can be ineffective assistance of counsel for an attorney to fail to advise an immigrant defendant that a guilty plea carries the risk of deportation.[40]


Last Term the Supreme Court decided that expert witnesses, including physicians and psychologists, may not simply submit forensic reports in criminal cases. Instead those responsible for the forensic analysis must appear in person to be confronted by the criminal defendant.[41] This decision has the potential for a major change in the way forensic evidence is presented in criminal trials. This Term the Supreme Court, without argument or comment, remanded a similar case to the Virginia state courts for consideration in light of the Melendez-Diaz (the decision last Term).[42] The Court did not reconsider Melendez-Diaz, as some experts thought it might.

In another case, McDaniel v. Brown, the Court was faced with the question of whether presentation of faulty evidence by an expert witness in a criminal case should result in the reversal of the conviction.[43] In this case a DNA expert seriously mischaracterized the probability of a match between the defendant and DNA evidence at the crime scene. The Court held that this need not necessarily result in the reversal of the conviction of the defendant. There was, the Court found, enough other evidence presented at trial to support the guilty verdict despite the inaccuracies in the expert‘s DNA evidence.

The place of expert witnesses in jury trials, particularly criminal trials, is likely to remain an important issue for the courts. There has been a substantial increase in the use of expert witnesses in trials. At the same time, the reliability of such expert witness testimony has come under increasing scrutiny. Errors related to expert witnesses continue to be a significant concern, particularly in the criminal area. There is considerable recent evidence, including a study conducted for the National Academy of Sciences, that there are real problems with much forensic evidence, creating the potential for incorrect results in criminal cases.[44]


Francisco Castaneda repeatedly sought medical attention when he was detained by immigration authorities. U.S. Public Health Services physician’s assistants, and others, repeatedly recommended biopsy and treatment of a lesion. A Public Health Services physician repeatedly denied the request. Upon Castaneda’s release it was confirmed that he had metastatic cancer. He filed suit under the Federal Tort Claims Act and civil rights statutes (§1983).[45]

The Supreme Court unanimously held that federal statutes preclude any damages for “personal injury, including death, resulting from the performance of medical...or related any “Public Health Service commissioned officer or employee.”[46] The Court held that this precludes both Federal Tort Claim liability and civil rights liability.

This holding is a narrow one. It applies only to U.S. Public Health Service officers and employees. It does not apply to federal employees generally, state employees or others. Because it is a statutory interpretation, Congress can change the statute to eliminate this immunity from liability.


The “Miranda warnings” have become household words, yet they continue to present issues for the Supreme Court. This Term the Court decided three cases limiting the scope of Miranda.

In addition to highlighting the right to remain silent, the Miranda warnings also preclude the questioning of an accused who wishes to see an attorney. Thus, the warnings protect not only the right to remain silent of the Fifth Amendment, but the right to counsel in the Sixth Amendment. InBerghuis v. Thompkins the Court held that if an accused receives the Miranda warnings but does not unambiguously invoke the right to remain silent, he waives the right to silence if he subsequently makes uncoerced statements to police.[47] In this case police interrogated Thompkins after giving the Miranda warnings. Thompkins never said that he did not want to talk to police or that he wanted an attorney, nor that he wanted to invoke his right to remain silent. He answered few questions during the three hours of interrogation, but ultimately admitted to the shooting. In a 5-to-4 decision, the Court held that this questioning did not violate the Fifth Amendment because he had not expressly invoked his right to silence or to have an attorney present.

Once someone who is in custody has invoked the right to remain silent or to have an attorney, the authorities may not continue the interrogation. In Maryland v. Shatzer the Court held that 14 days after invoking Miranda rights, when there had been a break in custody, the police may again approach a suspect and question him. (The 14 day period is not set in stone—it was the length of time of the “break” in custody in this case.) The suspect may, of course, again invoke Miranda rights. If he fails to do so, however, a confession obtained during the second questioning does not violate the Constitution.[48]

The Miranda decision held that a suspect must be “clearly informed” prior to questioning that he has “the right to consult with a lawyer and to have the lawyer with him during interrogation.”[49] Arresting officers need not use the precise words of the Miranda decision to be effective. In Florida v. Powell the question was whether similar words were constitutionally adequate.[50] There the suspect was told he had “the right to talk to a lawyer before answering any of [officers’] questions” and that he could invoke the right “at any time... during the interview.”[51] The Court, in a 7 to 2 decision, held that this language was sufficient to convey to the defendant the right to have an attorney present during questioning.



In two cases the Supreme Court considered issues regarding the underrepresentation of racial minorities on juries. The Supreme Court earlier decided that a prosecution cannot use peremptory challenges (challenges that strike jurors because one party does not wish them to serve) for the purpose of removing racial minorities from the jury.[52] When it appears the prosecution is using peremptory challenges for this purpose, the trial court requires that the prosecution give racially neutral explanations for the peremptory strikes. In Thaler v. Haynes the prosecutor explained to the trial court that he had struck a racial minority from the jury because he felt that the juror’s body language suggested she would not impose the death penalty in a neutral fashion.[53] The trial judge found that these stated reasons for the strike were “raceneutral” and allowed the trial to continue.

The Supreme Court held unanimously that where demeanor evidence is the explanation for the peremptory strike of a racial minority, the trial judge should take into account “among other things, any observations of the juror that the judge was able to make.” At the same time, however, the cases do not require that “a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror’s demeanor.”[54]

A violation of the Sixth Amendment guarantee to trial by an impartial jury drawn from a fair cross-section of the community may also occur where the jury pool as a whole is not representative of the community for improper reasons. The Supreme Court has not adopted a specific methodology for determining where the racial composition of a jury pool is inappropriate. This Term the Court recognized that three methods are employed to identify underrepresentation: absolute disparity, comparative disparity, and standard deviation.[55] The Court granted broad discretion to the states to prescribe relevant qualifications for jurors. It also said that to prevail in a challenge to the jury pool the defendant must show that the underrepresentation was due to “systematic exclusion.”[56]

Psychologists and other social scientists are, of course, commonly called upon to assist in determining whether jury pools are reasonably representative of the community, and to consider statistical data regarding possible underrepresentation of minorities. Cases this Term suggest that state courts have fairly broad discretion in making individual judgments about the fairness and appropriateness of jury pools, and social scientists will undoubtedly continue to be used to examine in individual cases the fairness of jury pools.

The Supreme Court also determined this Term that the public trial clause of the Sixth Amendment (“the accused shall enjoy the right to a speedy and public trial”) includes the jury selection process. Trial courts cannot close the jury selection process unless they have considered all reasonable alternatives to such closure in order to assure an orderly trial.[57]

“Honest Services” Prosecutions

Federal prosecutors have increasingly used a federal law commonly known as “Honest Services” to prosecute business executives and others who engage in undisclosed selfdealing.[58] Generally this means that private employees owe a duty to act only in the best interest of their employers. It does not specifically require proof of the loss of money or property, only that the employee sought to “deprive another of the intangible right of honest services.”[59] Of course, under such a broad definition, honest services violations can easily arise in the healthcare setting where someone appointed to a hospital review board operates not in the best interest of the hospital but of a third party instead.[60]

In Skilling v. United States the Supreme Court held that the honest services statute does not cover undisclosed self-dealing. It extends only to specific instances of bribery and kickbacks.[61] This decision will make it much more difficult to use the honest services statutes to prosecute self-dealing that did not include kickbacks.

University Student Organizations and Discrimination

Many universities seek to prohibit recognized student organizations from discriminating on the basis of race, gender, sexual orientation, or other factors. The Hastings College of the Law had such a policy. When the Student Christian Organization was denied recognition because it excluded those who engage in “unrepentant homosexual conduct,” Hastings refused to recognize the group. The group claimed that this was a violation of its First Amendment freedom of association and religious rights and filed suit against the school.[62] Hastings responded that its policy was that student organizations must accept as members “all comers.” That is, they must accept any student to participate, become a member or seek leadership positions.[63] In a 5-to-4 decision the Supreme Court held that an all-comers policy, if equally applied to all student organizations, would not violate the First Amendment.

The factual basis for this case was complicated considerably by a very confusing factual record at the trial level. The parties entered into inconsistent and confusing factual stipulations—and the case may not be over. The dissent noted that the all-comers policy was not evenly applied and that would create its own constitutional violation if it can be raised at retrial.[64]

The majority opinion noted that the Court was considering “only whether conditioning access to a student organization forum on compliance with an all-comers policy violates the Constitution.”[65] Thus, the holding of this case is, as a practical matter, fairly limited. Few institutions have true all-comers policies for their student organizations. In addition, this case was raising questions about formal institutional recognition of organizations in public universities. Much of the commentary regarding this case seemed to misconstrue the case as permitting public universities to apply nondiscrimination policies to student organizations that seek recognition. That is not the holding of this case, which dealt with all-comers policies and not specifically with nondiscrimination policies.

Patents and Business Methods

In a major patent case the Court held that certain business methods may be patentable under some circumstances.[66] While the Court rejected a complete ban on business methods from patentability, it was clear that abstract ideas are not patentable. In the case before it the method of hedging risk and applying that concept to energy markets was viewed by the Court as an abstract concept or idea rather than a business method that could be patented. The Court’s decision left many unanswered questions about how far a method that is not a “machine or transformation” may go. The Constitution gives Congress the authority to establish patent law, so it is possible that legislation will clarify many of the unanswered questions left by the Court.

Gun Control

This Term the Court faced the question of whether states and local governments may constitutionally pass gun-control measures.[67] The Court had previously decided that the Second Amendment precludes some federal prohibitions on the ownership of basicfirearms.[68] This Term the question waswhether state laws are similarly prohibited.In a 5-to-4 opinion, the Court held that theSecond Amendment also applies to thestates. The constitutional question was notwhether guns could be prohibited, butwhether the Second Amendment was “incorporated”by the Fourteenth Amendmentto apply to the states.

Incorporation of the first eight amendments is important because, as originally written, those guarantees of the Bill of Rights apply to the federal government, not the states. The Court has found that the Fourteenth Amendment “incorporated” most, but not all, of the Bill of Rights. Therefore, these rights apply to the states through the Fourteenth Amendment. Until this Term, it had never determined whether the Second Amendment was “incorporated” to apply to the states. In a 5-to-4 decision the Court held that the Second Amendment is incorporated through the Fourteenth Amendment to apply to the states. Therefore, states are limited in what gun-control laws they may adopt. (“states” means not only state government but municipal governments as well.) Therefore, the Chicago laws effectively banning handgun possession could violate the Second Amendment.

Most Bizarre Case of the Term

The Supreme Court sometimes faces bizarre cases. Wellons v. Hall was such a case this Term. Wellons was convicted of capital murder and sentenced to death. During the sentencing part of the trial, the jury sent the bailiff chocolates shaped as breasts, and sent the judge a chocolate penis.[69] The reasons for this strange behavior remained unclear, but the defense was not informed of it and therein lies the case. The defense claimed that this ex parte contact between the judge and jurors raised questions of due process in a capital case. In a 5-to-4 decision the Supreme Court ruled that the lower courts had not done an adequate job of determining what had happened between the judge and jury and whether the defendant’s claims had any merit. As a result, the Court sent the case back to the lower courts for further proceedings.

Additional Cases of Interest

During the October 2009 Term the Supreme Court decided a number of other important cases of general interest. These include the following.

  • U.S. courts should strictly enforce a treaty (the Hague Convention on the Civil Aspects of International Child Abduction) so that custody arrangements in other countries can be enforced in U.S. courts.[70] An exception will be allowed when the child would suffer psychological harm or be placed in an intolerable situation by the home country’s custody arrangement.[71]
  • The Court somewhat narrowed the number of crimes for which an alien can be automatically deported as having been convicted of “aggravated felony.”[72]
  • The Court clarified and expanded somewhat potential attorney’s fees in civil rights and retirement benefits cases.[73] These decisions may encourage more attorneys to undertake representation of potential plaintiffs in such cases.[74]
  • The method of calculating credit in federal prisons for “good behavior” was interpreted in a manner that will somewhat reduce the time served for many federal prisoners.[75]
  • Someone who knowingly provides material support or resources in the form of training or expert assistance to a foreign terrorist organization may be convicted of a federal crime even though the person does not have the intent to further the terrorist activities.[76]
  • A federal act prohibiting the sale or possession of video or audio recordings of conduct in which a living animal is mistreated is unconstitutional. Although reprehensible, the Court said, such a recording is protected by the First Amendment and is not the equivalent of pornography.[77]
  • Transferring to the federal government property with a cross memorializing soldiers killed in World War I did not violate the First Amendment (Establishment of Religion Clause).[78]
  • New sentencing guidelines that reduced the penalty for crack cocaine were applied retroactively.[79]
  • Portions of the new accounting rules required by the Sarbanes-Oxley Act were found unconstitutional because the members of the accounting board were not subject to appropriate removal from office.[80]
  • The ability of “whistleblowers” under the Federal False Claims Act to use state reports in pursuing false claims against federal contractors was limited (a statute already changed by Congress).[81]
  • The definition of “violent felony” under the Armed Career Criminal Act, which is a statute that substantially increases criminal penalties, was narrowed somewhat.[82]
  • The search of text messages can be “reasonable” under some circumstances. The Court avoided deciding whether police officers or other employees have a reasonable expectation of privacy to text messages sent and received on employer-issued pagers.[83]
  • The National Football League’s process of licensing trademarks for use on caps, jerseys and the like may be a violation of the federal antitrust laws.[84]
  • The time during which someone may file a federal discriminatory employment practices lawsuit was extended.[85] Specifically, the Court said that the continued use, for example, of a discriminatory test is a new violation each time the test is used and may extend the time that the discriminatory test is subject to legal challenge.
  • Portions of the major federal campaign contributions law are unconstitutional.[86] The Act limited expenditures by corporations and unions related to campaigns. The Court determined that unions and corporations are legal “persons” and therefore subject to First Amendment protection.


This was Justice Sotomayor’s first Term and Justice Stevens’ last. This has been a period of change in the Court. After more than a decade of stable membership, four justices have changed during the past five years. Justice Sotomayor replaced Justice Souter. Although their styles are quite different, this replacement did not change the ideological makeup of the Court: Justice Sotomayor voted with Justices Ginsburg and Breyer 90% of the time.

Chief Justice Roberts completed his fifth year as Chief Justice and many commentators suggested that it had finally become “the Roberts Court.” Chief Justice Roberts and Justice Kennedy were in the majority more than 90% of the time this Term. In the important cases Justice Kennedy continues to be the deciding vote most often. He disdains the title of “King of Swing.” He does not so much change or “swing” as much as he remains at the critical center of the Court.

There were 77 argued cases. (There is some disagreement about the numbers because the count is a matter of interpretation. Most of the numbers in this section are from There were a total of 86 merits opinions, with 72 signed opinions (that is, in which a justice was listed as offering the majority opinion). There were, thus, between 11 and 14 unsigned or per curiamopinions (that is, written on behalf of the Court but not authored or signed by a particular justice.)

The Court was more harmonious than in recent years, with 56% of the cases decided unanimously or on an 8 to 1 vote. This is compared with 40% of such cases last Term. Justices Stevens, Breyer and Ginsburg were least often in the majority.

(Stevens, 64%; Breyer, 78%; Ginsburg 80%). Roberts and Kennedy (at 91 or 92%), Scalia (87%) and Alito (87%) were most often in the majority.

One set of social scientists claimed that statistically this was the most conservative Supreme Court that had existed.[87] Others disagree with that characterization or note that such calculations are almost meaningless. Nevertheless, the Court tends to side with business and government, and against criminal defendants.

At the end of the Term Justice Stevens completed nearly 35 years on the Court. He won the respect of nearly everyone associated with the Court. His kindness and good humor will be missed not only by the other justices but by those who argue before the Court. During the summer Elena Kagan was confirmed by the Senate and will replace Justice Stevens on the Court when it convenes on Monday, October 4, 2010.

The Court has already accepted many cases for the coming Term. It will, for example, determine whether emotional distress lawsuits can be brought against picketers at military funerals who carry “thank God for dead soldiers” placards. It will also determine whether it was appropriate for the government to expand background checks at government research facilities. It has also accepted cases involving excessively violent video games for children, the National Childhood Vaccine Injury Act and the tax exemption of medical residents (and other students) from Social Security taxes. It promises to be an interesting and important Term ahead.


Steven R. Smith, JD, is Dean of the California Western School of Law in San Diego, CA. He received his JD from the University of Iowa College of Law. Smith served as a public member on the APA Ethics Committee, ABPP Board of Trustees, and National Register Board of Directors. The author wishes to thank Larry Benner, Andrew Boucher, Steven Ciceron, Eric Drogin, Judy Hall, Marilyn Jordan, 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.

Notes on Notes

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It is The website for the opinions for this Term is Any of the cases discussed in this article are available from that source and interested readers are urged to look at that website to review the cases. This article gives the direct link to cases decided this Term. 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 website, 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.


Graham v. Florida, decided May 17, 2010.
2 Roper v. Simmons, 543 U.S. 551 (2005).
3 Atkins v. Virginia, 536 U.S. 304 (2002).
4 Estelle v. Gamble, 4298 U. S. 97 (1976).
5 Graham at 13.
Id. at 17.
Id. at 19.
Id. at 20.
Id. at 24.
10 Roberts, concurring.
11 Thomas, dissenting.
12 Thomas, dissenting, at 12.
13 Id. at 22.
14 Brief, Amicus Curiae, American Psychological Association, American Psychiatric Association, Mental Health America, Graham v. Florida, 2008 U.S. Briefs, July 23, 2009. For a copy of the APA amicus brief, see
15 APA brief at 3-4.
16 Id. at 23-28.
17 Id. at 14.
18 Majority opinion at 18.
19 Id. at 24.
20 Id.
21 Kansas v. Hendricks, 521 U. S. 346 (1997).
22 United States v. Comstock , decided May 17, 2010.
23§4247 (a) (5)-(6).
24 Article 1, §8, clause 18.
25 Sex Offender Registration and Notification Act of 2006.
26 Carr v. United States, decided June 1, 2010.
27 Strickland v. Washington, 466 U. S. 668,686 (1984).
28 Bobby v. Van Hook, decided November 9, 2009.
29 For the current version of the Guidelines, see American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003). The Guidelines are available at: .
30 Jefferson v. Upton, decided May 24, 2010.
31 Id at 2.
32 Wood v. Allen, decided January 20, 2010.
33 Id. at 2-4.
34 Smith v. Spisak, decided January 12, 2010.
35 Sears v. Upton, decided June 29, 2010.
36 Id. at 2-3.
37 Id. at 1.
38 Id. at 10-12.
39 Holland v. Florida, decided June 14, 2010.
40 Padilla v. Kentucky, decided March 31, 2010.
41 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
42 Briscoe v. Virginia, decided January 25, 2010.
43 McDaniel v. Brown, decided January 11, 2010.
44 National Research Council of the National Academies, Strengthening the Forensic Science in the United States: A Path Forward (2009).
45 Hui v. Castaneda, decided May 3, 2010.
46 28 U.S.C. §1346 (b) and §2672.
47 Berghuis v. Thompkins, decided June 1, 2010.
48 Maryland v. Shatzer, decided February 24, 2010.
49 Miranda v. Arizona, 384 U.S. 436,471 (1966).
50 Florida v. Powell, decided February 23, 2010.
51  [Id. at 1.] 52 Batson v. Kentucky, 476 U. S. 79 (1986).
53 Thaler v. Haynes, decided February 22, 2010.
54 Id. at 5.
55 Berghuis v. Smith, March 30, 2010.
56 Id.
57 Presley v. Georgia, decided January 19, 2010.
58 18 U.S.C. §1346.
59 Id.
60 See the prosecution of former HealthSouth CEO Richard Scrushy.
61 Skilling v. United States, decided June 24, 2010.
62 Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, decided June 28, 2010.
63 Id. at 1-2.
64 Id., Alito dissenting, at 7.
65 Id. at 12.
66 Bilski v. Kappos, decided June 28, 2010.
67 McDonald v. Chicago, decided June 28, 2010.
68 District of Columbia v. Heller, 128 S.Ct. 2783 (2008).
69 Wellons v. Hall, decided January 19, 2010.
70 Abbott v. Abbott, decided May 17, 2010.
71 Id. at 18-19.
72 Carachuri-Rosendo v. Holder, decided June 14, 2010.
73 Perdue v. Kenny A., decided April 21, 2010.
74 Hardt v. Reliance Standard Life Ins. Co., decided May 24, 2010.
75 Barber v. Thomas, decided June 7, 2010.
76 Holder v. Humanitarian Law Project, decided June 21, 2010.
77 United States v. Stevens, decided April 20, 2010.
78 Salazar v. Buono, decided April 28, 2010.
79 Dillon v. United States, decided June 17, 2010.
80 Free Enterprise Fund v. Public Company Accounting Oversight Bd., decided June 28, 2010.
81 Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, decided March 30, 2010.
82 Johnson v. United States, decided March 2, 2010.
83 Ontario v. Quon, decided June 17, 2010.
84 American Needle, Inc. v. National Football League, decided May 24, 2010.
85 Lewis v. Chicago, May 24, 2010.
86 Citizens United v. Federal Election Comm'n, decided January 21, 2010.
87 For a review of the database created by Harold J. Spaeth nearly twenty years ago, and its application to the current Court, see Adam Liptak, Court Under Roberts Is Most Conservative in Decades, New York Times, July 24, 2010, available at