Steven R. Smith, JD

Continuing Education Information

The 2010 Term began on October 4, 2010, (the traditional First Monday in October) with the Marshal’s cry of, “The Honorable Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!” Court watchers wondered whether this would be a new Supreme Court, with a new Justice and, for the first time, three women on the Court. The Term ended on June 27, 2011, when the Court announced several major opinions. (Some would say it really ended on July 7, when the Court in a 5-4 decision allowed Texas to proceed with the execution of a Mexican national who had not been informed of his right to have the assistance of the Mexican consulate.)[1] Nevertheless, mental health and other medical cases played an important role in the 2010-2011 Term of the Supreme Court of the United States.

This was not generally considered a blockbuster Term by commentators, but it did include a number of important cases. During the Term, the Court:

  • Held that the state of California was required to reduce its prison population substantially in order to protect the constitutional rights of prisoners to mental health and medical care.[2] The American Psychological Association, the American Psychiatric Association and other organizations jointly filed an amicus brief in this case.
  • Decided a number of cases regarding pharmaceuticals. These decisions reviewed the patent rights of universities for research resulting in profitable discoveries,[3] limited the liability for some pharmaceuticals[4] and limited states’ efforts to prohibit prescription data mining.[5]
  • Held that in criminal cases the forensic expert who conducted a test or examination must be present to testify. It is not enough that someone merely familiar with the testing and analysis be there.[6]
  • Struck down, as violating the First Amendment, a law prohibiting the sale or rental of violent video games to minors.[7]
  • Determined that medical residents and other students who work 40 hours or more a week are required to pay Social Security and related taxes.[8]

The Court also heard cases dealing with the federal False Claims Act, employment discrimination, criminal sentencing, Section 1983 civil rights liability, campaign finance reform, the Speedy Trial Act, appeals from denial of VA benefits, global warming and holding potential terrorists who may be material witnesses.

This article first looks at the cases of special interest to the mental health and medical professions. It then looks more briefly at other cases of general interest. Finally, it analyzes the significance of the Term and anticipates some of the cases the Court will decide in the next Term.


Prisoner Services

IBrown v. Plata the Court provided substantial protection for the basic mental health and medical needs of prisoners.[9] It found that California had failed to provide basic mental health and medical services for prisoners and that this failure resulted in a violation of the constitutional rights of prisoners. This was a violation of the Eighth Amendment prohibition on cruel and unusual punishment.

The Court held that the proper remedy for this constitutional violation was to order California to reduce its prison population significantly—requiring the release of some inmates before their terms are completed. The estimate of the lower federal court was that California will be required to release 46,000 prisoners to comply with the order. Because of the potential threat to public safety and the operation of the state prison system, this is an extraordinary remedy.
The Eighth Amendment does not require the best care possible for prisoners. It does require, however, that prisons provide basic, humane mental health and medical services. The Court described in some detail that much of the treatment in California prisons was grossly inadequate and a serious departure from acceptable standards of mental health and medical care. “Prisoners [in California] with serious mental illness do not receive minimal, adequate care.”[10] A psychiatric expert noted that, because of a shortage of treatment beds, suicidal inmates were held in telephone-cages without toilets.[11] Waiting periods for mental health services were as long as a year, and the California prison suicide rate was 80% higher than the national average.[12] Nearly three-fourths of the suicides in the California prisons were found to relate to inadequate treatment or intervention and were preventable.[13]

Similarly, physical illnesses were badly diagnosed and poorly treated. The prison had less than half of the clinical space needed to treat the existing population, and up to 56 inmates were held together at a time in a 12’ x 20’ cage awaiting treatment.[14] The Court included, in an appendix to the majority opinion, pictures of some of these conditions.[15]

The Court found that the reason for the inadequate provision of mental health and medical services was severe overcrowding within the California prison system. There were inmate populations that were twice what the prisons were built for. As a result there were also severe and systematic staffing shortages in the mental health and medical areas. For example, there was a 20% vacancy rate for surgeons and a 54% vacancy rate for psychiatrists.[16]

Over the years the federal courts had ordered the state of California to remedy these circumstances, but the state had failed to do so. Simple federal court orders requiring the services had proved ineffective. For that reason, the Court determined that it was constitutionally appropriate to order California to reduce its prison population substantially.

This was a 5-4 decision. Justice Kennedy wrote for the majority. Joining him were Justices Ginsburg, Breyer, Sotomayor and Kagan, generally considered to be the liberal wing of the Court. Four justices dissented, with Justices Scalia and Thomas writing that “today the Court affirms what is perhaps the most radical injunction issued by a court in our nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.… The proceedings that led to this result were a judicial travesty.”[17] Justice Scalia found that very few of the prisoners actually released had been subject to any unconstitutional treatment.[18] He also expressed concern that prior structural injunctions controlling mental hospitals and prisons had been singularly unsuccessful.[19] Justice Alito and Chief Justice Roberts dissented primarily on the grounds that the order of the lower court in the case violated the federal Prison Litigation Reform Act of 1995 because of the limitations Congress, in that act, placed on litigation brought by prisoners.[20]

The American Psychological Association and the American Psychiatric Association, along with others, filed an amicus brief with the Supreme Court. The essential point of their brief was that the lower court findings that prison crowding was creating untenable and unacceptable levels of medical and mental health care were “consistent with the clinical experience of professionals with expertise in correctional mental health care and the scientific literature.” [21]

Much of this amicus brief emphasized points made by the lower court regarding the history of overcrowding in correctional settings. This underscored points made quite strongly in the briefs of the attorneys representing the prisoners. Predictably, the amicus brief was most helpful where it summarized mental health literature. For example, it noted: “Expert testimony that overcrowding can exacerbate inmates’ existing mental illness or induce mental illness in vulnerable inmates is consistent with the literature related to the psychological and behavioral effects of overcrowding.”[22] Another example: “The psychiatric literature supports Dr. Stewart’s opinions regarding the impact of stressful and chaotic conditions of confinement.”[23]

It is regrettable that the brief of these national organizations was not directed even more than it was to summarizing and citing the professional literature relevant to the case. The Supreme Court is most likely to benefit from an amicus brief from professionals when their professional expertise is used to inform the Court about the professional literature. The opinion of the Court did not cite the amicus brief, although its opinion was consistent with the material in that brief. On the other hand, the dissent did not attack the brief either.

This case could have a significant impact on the provision of medical and mental health treatment in prisons and other state institutions. It essentially provides a green light to federal district courts to order the release of inmates, and presumably those held in civil confinement, if states do not take reasonable action to provide medical and mental health services to incarcerated persons. In addition, because the Court focused on the serious understaffing of physicians and mental health professionals, states will be under increasing pressure to make the services available to those who are incarcerated. Implicit in the decision was that pay and working conditions for these professionals would have to be improved in order to attract and retain adequate staff.

Brown v. Plata may set up a series of problems for courts. Inevitably, with the release of so many prisoners, some will commit violent offenses following their release. It will be easy to politically exploit the fact that the person was on the streets because the court ordered a reduction in prison populations.

This decision comes at a time where there is enormous pressure on state budgets. The prospect of building new prisons under these economic circumstances seems limited, so it is likely that states will respond by releasing some prisoners. At the same time, it is reasonable to expect that states with budget problems will find it difficult to increase staffing levels for medical and mental health services.

Services to Other Institutionalized Persons

In another case this Term the Court, in Virginia Office for Protection and Advocacy v. Stewart, dealt with protecting the mentally ill and developmentally disabled individuals in institutions.[24] The Developmental Disabilities Assistance and Bill Of Rights Act of 2000 and the Protection and Advocacy for Individuals with Mental Illness Act of 1986 require states accepting federal money to have independent state agencies to protect and advocate for the rights of the mentally ill and developmentally disabled. In this case, the Court expanded the power of the state agencies by upholding their authority to require the disclosure of relevant documents from other state and local agencies. This will make it easier for these agencies to find and deal with abuse or inadequate support for persons with mental illness and mental disabilities.[25]


The Supreme Court decided a number of cases involving pharmaceutical companies, patents and liability. Commentators by and large have suggested that the pharmaceutical industry did well this Term.

Patent Rights for University Research

A case that will be of particular interest to universities as well as pharmaceutical companies isStanford v. Roche Molecular Systems.[26] A researcher at Stanford signed an agreement that he would assign to the university his interest in any inventions resulting from his employment there. In the course of Stanford’s later collaboration with Roche, the same researcher signed another agreement, in which he hereby assigns his interest in such inventions to the pharmaceutical company. When during this collaboration the researcher helped develop HIV quantification methods that were patented and commercially successful. The question inevitably rose whether it was Stanford or Roche that had obtained a financial interest in those patents. In a 7-2 decision the Court held that the pharmaceutical company, not Stanford, owned those rights.[27]

The Bayh-Dole Act gives federal contractors, notably universities, special patent rights for research conducted with federal funds. The Court noted, however, that this act does not automatically vest title to federally funded inventions in universities. Rather, it permits them to obtain the patents if they take the proper legal steps to protect the intellectual property (patents). In this case, it turned out that Stanford had failed adequately to protect intellectual property. Stanford had the researcher sign a document saying that he would assign the rights to the university, while Roche had him sign an agreement that he did assign the rights to the pharmaceutical company. Thus, Roche had a better claim to the patent rights through assignment.

Although the Court said that it understood that most universities had a more effective assignment mechanism than Stanford,[28] it is not clear that the Court was informed correctly about typical university patent assignment policies. Several university experts have told me that the Stanford approach is not uncommon. In any event, it will be important for universities and other federal contractors to review their patents policies carefully to ensure that they have maximized their ownership rights under federal law. Faculty members may expect that institutional attorneys will be on alert to make these changes in university documents.

The decision may also set up an increasing number of disputes between universities and the pharmaceutical companies with whom they are collaborating. Such agreements ordinarily deal with the intellectual property rights of both parties, but the Stanford case ups the ante for failure to do this correctly.

Pharmaceutical Liability

The Supreme Court has in recent years decided cases that determine whether federal law supersedes or preempts state tort liability. The Court has held that brand-name pharmaceuticals may incur liability where warnings about the risks of the drugs are inadequate, even though the FDA has approved the package insert warnings.[29] On the other hand, the Court has also held that ordinarily failure to warn cases may not be brought under state law against device manufacturers when the device and the warnings associated with the device have been approved by the FDA.[30]

In PLIVA, Inc. v. Mensing the question was whether a generic (as opposed to a brand-name) drug manufacturer could be held liable under state law for failure to warn.[31] Nearly 75% of prescriptions are filled with generic equivalents, so this is an important question. In a 5-4 decision, the Court held that federal law preempts state liability for generic drugs’ failure to warn properly. The ruling means that there may be liability on the part of the brand name drug company that failed to change the warnings on the label, but not for the manufacturer of the generic equivalent drug. In achieving this split result, the Court noted that under federal law generic drug companies are required to use the same label (the same warnings, instructions, indications and the like) used by the brand-name drug. As a result, drug companies are not permitted to change the label, including the warnings, when the generic company discovers additional risks associated with the drug.[32] Thus, the majority of the Court held the drug company could not fully comply with federal law (requiring it to use the brand name equivalent label) and with state law (imposing liability on generic drug companies for failure to provide all reasonable warnings even if they used the FDA approved language for the brand-name drug).

The four dissenters disagreed that it was impossible for a generic company to meet obligations under both federal and state law. They suggested, for example, that a generic drug company could inform the FDA of the inadequacy of the warnings and request that the FDA take action to change that warning.[33]

Four Other Pharmaceutical Cases 

In Bruesewitz v. Wyeth the Court held, in a 6-2 decision (Justice Kagan did not participate in the case), that the National Childhood Vaccine Injury Act of 1986 eliminates manufacturer liability for a vaccine’s “unavoidable, adverse side effects.”[34] The federal act creates a no-fault compensation system under which an injured vaccine recipient may file a request for compensation in the Court of Federal Claims, and may (1) accept that court’s judgment, or (2) reject it and seek some form of tort relief from the manufacturer of the vaccine.[35] In Bruesewitz, injured parties bypassed the compensation process, making a “design defect” claim against the vaccine’s manufacturer.[36] The Court held in this case that the Vaccine Injury Act preempts such a design defect claim.

It is important to note that this decision does not eliminate compensation for injuries related to vaccinations. Rather, even where a design defect is claimed, and there is preemption, an injured person may still seek recovery using the no-fault compensation system under the federal act.
A second case stemmed from a provision in the Public Health Services Act (as amended), under which some health care facilities can benefit from price ceilings on prescription pharmaceuticals. In a unanimous decision this Term (Justice Kagan again did not participate) the Court held that hospitals that were overcharged for pharmaceuticals by drug companies cannot bring a private lawsuit to recover those funds. Only the federal government may bring such a suit to recover for such overcharges.[37]

In a third case, the Court struck down a Vermont statute that prohibited pharmacies from providing, to pharmaceutical companies, detailers (drug company sales representatives) and others, data mining information on the prescribing practices and habits of physicians.[38] Vermont had sought to reduce overprescribing of some drugs because of the information supplied to detailers (pharmaceutical salespersons) that let them tailor marketing messages to physicians. The Court held that this violates the First Amendment right to Freedom of Speech.

Finally, in an unusual case the Court was asked to decide whether a pharmaceutical company could be liable for failure to provide to investors information that a drug already on the market was associated with previously unknown side effects. The company claimed that the reports were not of statistical significance; therefore, said the company, the information was not material information that must be disclosed to investors.[39] In this case the claim was that the pharmaceutical company had violated the Securities and Exchange Act of 1934 by failing to disclose a possible link between its leading product, Zicam Cold Remedy, and a loss of smell in some patients.[40] The Court unanimously held that the company could be liable for failure to make this disclosure to investors. This was true even though the company claimed not to have statistically significant information about this side effect at the time it failed to make the disclosure. The Court noted that this information would have significantly altered the total mix of information investors had about the company and its future prospects.


IBullcoming v. New Mexico, the Supreme Court again emphasized that expert witnesses in criminal cases must be present in court to testify and not just submit written reports.[41] The Court had previously held that the Sixth Amendment Confrontation Clause (which, in criminal cases, gives the defendant the right to be confronted with the witnesses against him) almost always requires that testimonial evidence against the defendant be presented in person.[42] Exceptions are permitted if the defendant agrees to the admission of the testimony, or where the witness is unavailable and the defendant has had another opportunity to cross-examine the witness.[43] This means that forensic reports may not be submitted without the presentation of the expert who prepared the report along with an opportunity to cross-examine the witness.[44]

Bullcoming extended this experts-must-testify principle. The Court held that it was even inadequate for the prosecution to present the testimony of a supervisor or an analyst other than the one who had actually done the testing. That is, the expert who actually conducted the test that resulted in incriminating evidence had to be present in court. In this case the state lab had conducted gas chromatography, but the expert who did the testing had left the employment of the state lab. The prosecution presented a fellow analyst who was aware of the normal procedures for doing the test, but had not conducted the test himself.[45] At trial the alcohol content allegedly revealed by this test was introduced as evidence, but the difficulty arose when it was introduced without the technician who conducted the test being available.

In a 5-4 decision the Court concluded that the Confrontation Clause requires that the analysts “[who write] reports introduced as evidence must be made available for confrontation even if they have the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”[46]

The four dissenting Justices would have permitted a knowledgeable representative of the laboratory to be present to explain the lab’s processes and the details of the report. The dissenters would not have required that a specific analyst be present to present the report in court.[47]

This case means that mental health and medical witnesses in criminal cases may not simply send a report to court for presentation as evidence. Unless the defendant agrees, the report must be presented by the person who conducted or oversaw the specific testing and whose professional judgment was involved in reaching any conclusions. The exact application of this case to forensic mental health evidence remains to be seen. For example, the degree to which the scoring and interpretation of tests is implicated was not discussed by the Court and remains as an issue for future cases. It is reasonable to expect that defendants will now routinely insist that experts be present to testify and be cross examined.

It is important to remember that this opinion applies only to criminal cases. The Confrontation Clause of the Sixth Amendment does not apply in civil litigation.

This case, and its predecessors, cannot be divorced from a broad and increasing concern about the accuracy of expert testimony b and the degree to which such testimony may be leading to incorrect results in criminal trials. A report of the National Academies of Sciences has raised great concern about the claims of experts in criminal trials.[48] Among other things, that study concluded that in the vast majority of reported opinions in criminal cases “trial judges rarely exclude or restrict expert testimony offered by prosecutors [and] that appellate courts routinely deny appeals contesting trial court decisions admitting forensic evidence against criminal defendants.”[49] Ironically, the study—as well as the experience of many litigators—indicates that courts are less likely in criminal trials than in civil trials to limit the claims of expert witnesses. The continued concern of the Supreme Court about the presentation of the reports of expert witnesses without the expert being present may signal an effort to rein in so-called junk science in criminal cases.


Children And Violent Videogames 

In 2005 California passed an act that prohibits the sale and rental of violent video games to minors. The act covered games that include “killing, maiming, dismembering, or sexually assaulting an image of a human being.”[50] The statute applies only if the game appeals to a “deviant or morbid interest of minors and is offensive [to] community standards of what is suitable for minors” and lacks serious literary or scientific value.[51]

In Brown v. Entertainment Merchants Association, the Supreme Court was called upon to decide whether this act is constitutional.[52] By a 7-2 margin the Court held that it is not.[53] Two of the seven justices in the majority would have held that the act was void because key provisions were so vague. The other five in the majority found that the act violates the First Amendment guarantee of Freedom of Expression. Past First Amendment cases have at times diluted, in the name of protecting children from sexually explicit materials, the strong protections provided when such materials are available to adults. But the Brown majority was unwilling to extend this diluting tendency to violent materials.[54]

Having determined that violent video games are protected by the First Amendment, the law could be upheld only if California demonstrated that the limitation on freedom of expression was justified by a compelling interest and that the statute was narrowly drawn to achieve this purpose.[55] The majority of the Court recognized that there are psychological studies “purporting to show a connection between exposure to violent video games and harmful effects on children,” but that those studies do not “prove that such exposure causes minors to act aggressively.”[56] The majority also found the law not narrowly drawn because, among other things, it ignored voluntary limits already adopted by video-game manufacturers, and it seemed to unnecessarily interfere with parental discretion.

Justices Thomas and Breyer dissented. Justice Thomas was of the opinion that the First Amendment simply does not apply to video games.

Justice Breyer felt that it was appropriate for the state to prohibit the sale of violent games to children under 18 who have more limited constitutional rights than adults. Justice Breyer spent a considerable portion of his opinion looking at the psychological evidence that violent video games may harm the children who are exposed to them. Although the American Psychological Association and American Psychiatric Association did not file amicus briefs in this case, studies published by these organizations, and official policy statements, played a major role in the dissenting opinion of Justice Breyer.[57] These studies and policy positions, Justice Breyer felt, were adequate to allow the state of California to conclude it should restrict a minor’s access to these games.

While the California law did not survive this constitutional challenge, there was a hint that laws requiring parental involvement in purchasing or having access to certain videogames might be more likely to survive constitutional challenge.

Other Cases Involving Minors

The police went to a school and in a private room questioned a 13-year-old seventh- grade student.[58] This juvenile ultimately confessed to a crime and was charged with breaking and entering and larceny. He was found guilty (adjudicated a delinquent) in juvenile court. The juvenile’s attorney challenged the confession, claiming that the juvenile had not been given Miranda warnings and his confession was involuntary.[59]

The essential issue in J. D. B. v. North Carolina was whether the juvenile was in custody at the point he was taken to a separate room in the school and questioned. Once someone, including a juvenile, is in custody, Miranda warnings must be given. In a 5-4 decision the Court held that determining the question of whether the juvenile is in custody depends on the circumstances as viewed from the perspective of a child of that age, not from an adult perspective.[60] The dissenting justices essentially felt it was inappropriate to create a separate definition of custody for minors.[61] In a much different case the Court took up the question of child support. When a noncustodial parent does not provide child support as required by court order, that parent may be found in civil contempt of the child support order and potentially incarcerated. In Turner v. Rogers the question was whether there is a right to have appointed counsel in such civil contempt proceedings.[62] Typically such civil contempt findings must be based on the fact that there is a valid child-support order, and that the noncustodial parent was able to comply with it, but failed to do so.

In a 5-4 decision the Court held that the state is not necessarily obligated to provide counsel for indigent parents facing incarceration for civil contempt related to the failure to pay child support. At a minimum, however, states must have in place procedures to ensure “a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”[63]


IMayo v. United States, the Court was asked to decide whether medical residents, and others in internship positions, are required to pay Social Security and similar taxes.[64] The Social Security law requires that taxes be paid on wages, which includes “all remuneration for employment.”[65] There is, however, an exclusion that prevents taxation on any “service performed in the employ of… a school, college or university… if such service is performed by a student who is enrolled and regularly attending classes at [the school].”[66] The Treasury Department had concluded that working more than 40 hours a week precludes someone from being a student. In particular its rule indicates that a medical resident who normally is scheduled to work 40 hours or more is not a student for the purposes of Social Security and similar taxes.

The question has been whether interns, medical residents and the like are really students and therefore exempt from taxes. In recent years, however, the Treasury Department has taken the position that these people are employees, not students, and therefore Social Security and similar taxes must be paid. In a unanimous decision (Justice Kagan did not participate) the Supreme Court sided with the Treasury Department. The Court held that this regulation is a reasonable interpretation of the statute and therefore should be upheld. The Court noted that the Treasury Department should be given deference in interpreting the statute.

Following this decision medical residents, and other interns who work 40 hours or more, can expect to pay Social Security and similar taxes. This case is not limited to medical residents and may have implications for practicum students working 40 hours a week or more. This ruling, of course, does not limit the number of hours that can be worked. The only question in the case was whether the compensation received would be subject to these federal taxes.


False Claims Act

The federal False Claims Act has been an important instrument for reducing fraud and abuse in the health care field.[67] It has been the bane of many healthcare institutions, however. It provides civil—and, in rare cases, criminal—penalties for presenting false claims for fraudulent or low-quality services paid for by the federal government. It uses financial incentives to encourage whistleblowers. False Claims Act actions have been applied to a wide range of activities including presentation of Medicare bills for services that were never rendered and off-label promotion of pharmaceuticals by drug companies.

Over the last 20 years there has been a series of cases interpreting the False Claims Act. Courts have tended to narrow the application of the Act, but Congress often responds by amending the Act in ways that expand its scope.

In Schindler Elevator v. United States, a whistleblower used the Freedom of Information Act to obtain the necessary information to present a False Claims Act lawsuit.[68] The Act specifically precludes the use of official hearings, government accounting office reports or audits, or the like by a whistleblower as the basis for a false claim. In this case the Supreme Court determined that the use of the Freedom of Information Act to obtain information for false claims recovery is also prohibited by the terms of the False Claims Act. This would ordinarily reduce the risk of false claims for medical entities. Even before this case was decided, however, Congress had amended the statute in the Patient Protection and Affordable Care Act to expand its applicability in medical settings.

Medical and mental health institutions and practitioners can expect the False Claims Act to continue to be a significant source of government authority to investigate and punish potential medical and mental health abuse. They can also expectwhistleblowers, who are often disgruntled employees, to continue to press False Claims Act complaints.

Employment Discrimination

The Court considered a number of cases related to employment. In NASA v. Nelson the Court determined that NASA and other federal agencies do not violate the Constitution or federal law when they require prospective employees to answer questions about whether they had ever used or possessed illegal drugs. Applicants also were required to provide information about treatment or counseling and sign authorizations to release all personal information from schools, employers and others.[69] The Court held that, even assuming there is a constitutional personal right of privacy, these questions and the access to these personal records did not violate that right of privacy. The justices noted that the law prohibits public disclosure of this information. This was a unanimous decision (with Justice Kagan recused).

In a much-watched case the Court held that female employees could not bring a nationwide class action challenging Wal-Mart personnel practices. More than 1.5 million women would have been in the class challenging specific employment practices.[70] Wal-Mart company-wide policies prohibited the discrimination. The difficulty with this class, the Court held, was that the members of the class did not raise a common set of questions of law or fact. The majority saw this class as essentially complaining about individual actions of the store or regional managers who were not following the rules of the national corporation. The dissent saw sufficient similarities among the claims to meet the requirements of the Rules of Civil Procedure.

This case interpreted the Federal Rules of Civil Procedure, which specify when class actions are permitted. Although the potential plaintiffs could file a storewide or, in some cases, even a region-wide class action, as a practical matter that could significantly complicate their ability to prevail.
In three cases the Court dealt with questions of when retaliation claims may be filed. These claims arise when employers take actions against employees because the employees have filed claims of discrimination. Even if a claim of discrimination is proved to be false, retaliation claims may be filed if the employer took adverse action against the employee because of the filing of a claim.
In Kasten v. Saint-Gobain Performance Plastics the Court held that a complaint about labor practices does not have to be in writing to constitute a complaint protected against retaliation.[71] That is, if an employee makes an oral complaint and the employer retaliates, a retaliation claim may be filed.

In Thompson v. North American Stainless the Court held that retaliation need not be against the complainant himself or herself.[72] Even if the employer retaliates against a very close friend of the complainant (in this case, a fiancée), there can be a legitimate claim of illegal retaliation.

In a third case, the Court held that when a public employee complains about an employment practice there may be a constitutional claim based on the fact that the employer was punishing the employee for exercising the First Amendment right to petition the government for redress of grievances. This Term the Supreme Court held that, for claims that employer retaliation interfered with the constitutional right to petition government to be well founded, they must relate to matters of public concern, not matters of general employment disagreement.[73] If the public employee’s petition to a government official is a matter of purely private employment concerns, there is no First Amendment retaliation claim.

Criminal Sentencing

The Court decided a number of cases this Term involving the sentencing of criminal defendants. Two of these cases were related to rehabilitation. Rehabilitation has not been a favored basis for punishment in recent years, and that disfavor has been embedded in federal law. Federal statutes provide, for example, that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”[74] In Tapia v. United States the trial court was seeking to lengthen the defendant’s sentence to promote a rehabilitation program. The Supreme Court unanimously held that this statute precludes extending the length of prison terms for defendants so they can complete a rehabilitation ward drug abuse prevention program.[75]

In the second rehabilitation case, Pepper v. United States, the Court held that it was appropriate for lower courts to consider successful rehabilitation where a prisoner’s original sentence was set aside and the prisoner must be resentenced.[76] Between the time of his initial sentence and his resentencing, the defendant had demonstrated he was no longer a drug addict, completed a very extensive drug treatment program in prison, enrolled in community college and achieved good grades, and was working part-time. There were also very positive reports from family members and a probation officer.

Enhanced sentences—those in which the prison term is lengthened because of the special seriousness of the crime, possession of a firearm, or the number of prior offenses—also continue to raise many questions of interpretation for the courts, including the Supreme Court. This Term the Court determined that fleeing in a car after being ordered to stop could be considered a violent felony for the purposes of enhanced sentencing under the Armed Career Criminal Act.[77] The Court also held that federal law mandating consecutive sentences for using a firearm in connection with a crime of violence or drug trafficking can be avoided only in limited circumstances.[78] It also determined that, under the federal Armed Career Criminal Act, a prior state drug conviction that carried a maximum term of 10 years or more at the time of conviction would be used to enhance a subsequent federal sentence.[79]

Plea bargains are an essential part of the criminal process. Most criminal sentences are determined as part of agreeing to plead guilty (or no contest). In federal cases, the Federal Sentencing Guidelines play an important role in guiding plea bargains. In Freeman v. United States, the Court held that when a plea bargain is expressly based on the Federal Sentencing Guidelines and the drafters of the Guidelines later reduce the sentence for that crime, the new, lower guideline can be taken into account in reducing the original sentence.[80] In this case there was a plea agreement based on the Guidelines for the intent to distribute cocaine. Subsequently the Guidelines reduced the length of the sentence for that crime and the defendant had his sentence lowered in light of those Guidelines changes. The Court held that this was proper.

A related issue had to do with the definition of cocaine base. This is important because there can be higher penalties for cocaine base than for other forms of cocaine, with a mandatory ten-year minimum sentence for certain quantities of materials containing cocaine base. This Term, inDePierre v. United States, the Court held that the federal statute that penalizes possession or sale of cocaine base includes not just crack cocaine but cocaine in its chemically basic form.[81]

Section 1983 Litigation

Section 1983 litigation continues to be a source of many cases in the federal system, a few of which make their way to the Supreme Court. One of these Section 1983 cases had particularly shocking facts.

Section 1983 is a civil rights law, technically 42 United States Code Section 1983. It imposes liability on someone “acting under color of state law” who causes “any citizen of the United States… [to be deprived] of any rights, privileges, or immunities secured by the Constitution and laws.” A city or other local government is liable under Section 1983 if the local governmental body itself subjects a person to the deprivation of law. The person who tries to impose liability on a city under Section 1983, however, must prove that the official policy or indifference of the city or its high-ranking officials caused the injury.

In Connick v. Thompson, John Thompson had been convicted of murder and sentenced to death.[82] After Thompson’s 14 years on death row, and one month before his scheduled execution, a private investigator discovered evidence that would have helped Thompson establish his innocence but which prosecutors had withheld from him and defense counsel during the trial.[83] Such conduct by prosecutors is clearly unethical and illegal. Had the execution been carried out, it could have resulted in homicide charges against the offending prosecutors. Thompson was ultimately released from prison and filed a Section 1983 case against the prosecutors’ office. The suit claimed, among other things, that the failure to provide the exculpatory information was a violation of his constitutional rights and was a result of Los Angeles District Attorney Connick’s deliberate indifference to the need to train prosecutors in the office appropriately.

In a 5-4 decision the Supreme Court determined that this was not a Section 1983 violation because it was not a policy of the prosecutor’s office to fail to train its attorneys properly. Therefore, the conduct of the office did not amount to “deliberate indifference to the rights of persons with whom the prosecutors came into contact.”[84] Although Thompson had demonstrated other times in which innocence-indicating evidence had been withheld from defendants, the majority of the Court held that this did not rise to the level of a pattern of constitutional violations.

In short, the conduct by the prosecutors was unethical, outrageous, and possibly illegal, but the prosecutor’s office was not subject to Section 1983 liability.

In a similar vein, in Los Angeles v. Humphreys, the Court ruled that in any Section 1983 claim against the city or county the plaintiff must show that there was a municipal policy or custom that led to the constitutional violation of rights.[85] That is true whether the person is seeking monetary damages or some form of declaratory relief.

In a more technical case the Court held that in a Section 1983 claim a prisoner may seek DNA testing of the crime scene evidence for the purpose of a 1983 action, even though that would not necessarily be required in a habeas corpus action.[86]

Finally, In Ortiz v. Jordan, a state prisoner in Ohio was repeatedly raped by a prison guard. The prison took inadequate steps to protect her and she ultimately filed a Section 1983 action. The trial court was prepared to dismiss the claims based on the immunity claim by the defendant. Fortunately for the former prisoner, the state and guards failed to make an appropriate and timely immunity claim on appeal so the former prisoner prevailed in this case.[87]

Other Cases of General Interest

The Supreme Court decided a number of other cases of general interest during the past Term. These include the following:

  • The Court struck down, as violating the First Amendment, an Arizona campaign reform law. To help candidates receiving public campaign financing compete with better-funded privately-financed opponents, the state gave publicly-funded candidates additional money to match the direct expenditures of the privately-financed candidates and the expenditures of independent groups them.[88]
  • The First Amendment prevents the bringing of state court actions for damages against picketers (in this case, religious picketers) who carry obnoxious (“Thank God for Dead Soldiers; America is Doomed”) signs near a Marine’s funeral.[89]
  • The Court upheld an Arizona law that suspended or revoked the business license for those who knowingly hire undocumented aliens. The state law also required employers to use E-Verify.[90]
  • The Speedy Trial Act requires criminal trials within 70 days of arraignment, but pretrial motions by the defendant temporarily stop the running of that 70-day clock.[91]
  • Evidence resulting from an unconstitutional search (one that violates the Fourth Amendment) may be admissible if the search was conducted in good faith reliance on a law that was subsequently overturned.[92]
  • A denial of VA benefits may be appealed, and the 120-day deadline for filing the appeal may be waived by the court for good cause.[93]
  • In civil rights cases in which attorney fees can be awarded to a prevailing plaintiff, those fees should not include costs related to “frivolous claims.”[94]
  • Federal law does not permit federal “common law nuisance” suits by states, land trusts and others who are claiming harm to public lands and health due to global warming.[95]
  • An alleged terrorist who was held under a federal material-witness statute did not have a legal claim against then Attorney General Ashcroft.[96]


This Term was the first time in the history of the Supreme Court that three women served on the Court together (Justices Ginsburg, Sotomayor and Kagan). Justice Kagan was not reticent in her first year on the bench—she was an active in oral arguments. She also authored seven majority opinions and three dissenting opinions. Lawyers and scholars have generally praised the clarity of the opinions she wrote.

After an 11-year period without changes in the make-up of the Court, since 2005 four new justices have been appointed (Chief Justice Roberts, and Justices Alito, Sotomayor and Kagan). The change in the justices, however, has not significantly altered the jurisprudential makeup of the Court (what some call the conservative-liberal split).

Where there is a 5-4 split, it is not uncommon for Chief Justice Roberts, and Justices Alito, Scalia and Thomas to be on one side; Justices Breyer, Ginsburg, Kagan and Sotomayor are typically on the other. Justice Kennedy is most often the deciding vote. In 88% of the 5-4 cases he was on the prevailing side. He was in the majority in 94% of all of the cases decided this Term.

The October 2010 Term produced 82 total opinions (called Merits Opinions). This included 75 signed opinions after oral arguments, with five summary reversals and two cases affirmed on a 4-4 vote. The Term was characterized by a consensus in many of the cases. Nearly half (46%) of the cases were decided unanimously, and in nearly three-quarters (73%) there was a clear majority of at least seven justices. Only 20% of the cases were 5-4 decisions. (There are minor differences in the data from the Term because of the way some cases are counted by various scholars.)

One interesting aspect of the Term was that Justice Kagan had to recuse herself on nearly a third of the cases because she served as Solicitor General before becoming a Justice. She did not participate, therefore, in cases on which the Solicitor General’s Office had taken a position.
Some commentators called the October 2010 Term of the Court the “Roberts Court,” others the “Kennedy Court,” and still others the “Kagan Court.” Roberts because he is the Chief Justice and some believe that he is having an impact in keeping the rulings narrow and avoiding fractious and split opinions. Kennedy because he was the deciding vote in most important decisions. Kagan because this was her first Term and she immediately became an active figure on the Court.

After the Court adjourned until October 2011, commentators pointed to two general headlines for this Term. The first trend was that the Court made it more difficult for plaintiffs to sue in federal court—particularly to file class actions. The second trend was that the Court was very protective of the Freedom of Speech as guaranteed by the First Amendment.

Some commentators, noting the lack of blockbuster cases this Term, suggested that it was the calm before the storm. The coming Term, which begins October 3, 2011, may well have some of the most significant and emotional cases in a generation. The constitutionality of the health reform act, the Arizona law dealing with undocumented immigrants, affirmative action and same sex marriage issues may be considered by the Court in its coming Term. The Court has already taken a number of cases for the coming Term, including those dealing with pharmaceutical patents, the FCC’s rules regarding broadcast indecency and fleeting expletives, and the collection of union dues for political campaign purposes. It may well be a stormy Term ahead.

Notes on Endnotes

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It 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.

*Dean and Professor of Law, California Western School of Law, 225 Cedar Street, San Diego, CA 92101. © Steven R. Smith, 2011.

The author wishes to thank, Mike Belknap, Andrew Boucher, Steven Ciceron, Eric Drogin, Judy Hall, Marilyn Jordan, 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.


smith2011Steven 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.


1 Leal Garcia v. Texas, decided Per Curium, July 7, 2011.
2 Brown v. Plata, decided May 23, 2011.
3 Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., decided June 6, 2011.
4 PLIVA, Inc. v. Mensing, decided June 23, 2011; Bruesewitz v. Wyeth LLC, decided February 22, 2011.
5 Sorrell v. IMS Health Inc., decided June 23, 2011.
6 Bullcoming v. New Mexico , decided June 23, 2011.
7 Brown v. Entertainment Merchants Assn., decided June 27, 2011.
8 Mayo Foundation for Medical Ed. and Research v. United States, decided January 11, 2011.
9 Brown v. Plata, decided May 23, 2011.
10 Id. at 5.
11 Id.
12 Id. at 6.
13 Id.
13 Id.
14 Id. at 51-52.
15 Id. at 19-24.
16 Scalia, dissenting, at 1.
17 Id. at 3.
18 Id. at 6-12.
19 Alito, dissenting, at 1.
20 Amicus Brief of the American Psychological Association, American Psychiatric Association and others,
filed November 1, 2010. This brief is available at:
pdfs_09_10_09_1233_AppelleeAmCu9MentalHealthGrps.authcheckdam.pdf 21 Id. at 6.
22 Id. at 42.
23 Virginia Office for Protection and Advocacy v. Stewart, decided April 19, 2011.
24 Id.
25 Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., decided June 6, 2011.
26 Id. at 1.
27 Id. at 15.
28 Wyeth v. Levine, 555 U.S. 555 (2009).
29 Riegel v. Medtronic, 552 U.S. 312 (2008).
30 PLIVA, Inc. v. Mensing, decided June 23, 2011.
3 Id. at 17-20.
32 Sotomayor, dissenting.
33 Bruesewitz v. Wyeth LLC, decided February 22, 2011.
34 42 U.S.C. Section 300aa-22(b)(1) (2010).
35 Id. at 7-8, 19.
36 Astra USA, Inc. v. Santa Clara County, decided March 29, 2011.
37 Sorrell v. IMS Health Inc., decided June 23, 2011.
38 Matrixx Initiatives, Inc. v. Siracusano , decided March 22, 2011.
39 Id. at 1-2.
40 Bullcoming v. New Mexico , decided June 23, 2011.
4 Crawford v. Washington, 541 U.S. 36 (2004).
42 Id.
43 Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009).
44 Bullcoming, at 1-6.
45 Id. at 11, quoting Melendez-Diaz at note 6.
46 Kennedy, dissenting.
47 National Research Council of The National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009).
48 Id. at 11.
49 California Civil Code sections 1746-1746.5(2010).
50 Id.
51 Brown v. Entertainment Merchants Assn., decided June 27, 2011.
52 Id.
53 Id. at 2-11.
54 Id. at 11-12.
55 Id. at 12-13.
56 Breyer, dissenting, at 12-17.
57 J.D.B. v. North Carolina, decided June 16, 2011.
58 Id.
59 Id. at 15-18.
60 Alito, dissenting.
61 Turner v. Rogers , decided June 20, 2011.
62 Id. at1.
63 Mayo Foundation for Medical Ed. and Research v. United States, decided January 11, 2011.
64 26 U.S.C. Section 3101(a) and section 3121(a).
65 Section 3121(b)(10).
66 31 U.S.C. 3729-3733 (2010).
67 Schindler Elevator Corp. v. United States ex rel. Kirk, decided May 16, 2011.
68 NASA v. Nelson, decided January 19, 2011.
69 Wal-Mart Stores, Inc. v. Dukes, decided June 20, 2011.
70 Kasten v. Saint-Gobain Performance Plastics Corp., decided March 22, 2011.
71 Thompson v. North American Stainless, LP, decided January 24, 2011.
72 Borough of Duryea v. Guarnieri, decided June 20, 2011.
73 18 U.S.C. Section 3582(a) (2010).
74 Tapia v. United States, decided June 16, 2011.
75 Pepper v. United States , decided March 2, 2011.
76 Sykes v. United States, decided June 9, 2011.
77 Abbott v. United States , decided November 15, 2010.
78 McNeill v. United States, decided June 6, 2011.
79 Freeman v. United States , decided June 23, 2011.
80 DePierre v. United States, decided June 9, 2011.
81 Connick v. Thompson, decided March 29, 2011.
82 Id. at 1-2.
83 Id. at 6-9.
84 Los Angeles County v. Humphries, decided November 30, 2010.
85 Skinner v. Switzer, decided March 7, 2011.
86 Ortiz v. Jordan, decided January 24, 2011.
87 Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, decided June 27, 2011.
88 Snyder v. Phelps, decided March 2, 2011.
89 Chamber of Commerce of United States of America v. Whiting, decided May 26, 2011.
90 United States v. Tinklenberg, decided May 26, 2011.
91 Davis v. United States, decided June 16, 2011.
92 Henderson v. Shinseki, decided March 1, 2011.
93 Fox v. Vice, decided June 6, 2011.
94 American Elec. Power Co. v Connecticut, decided June 20, 2011.
95 Ashcroft v. al-Kidd, decided May 31, 2011.