Steven R. Smith, JD

Continuing Education Information

Has the Supreme Court become the Friendliest Place in Town?” Someone looking at the data might well ask. Two-thirds of the cases this Term were unanimous. Opposing counsel were calling each other “Friend”—the word appears more than 130 times in the transcripts of oral arguments this Term.[1] And nobody wanted to leave the Court for retirement.

Happy or not, it was a busy and important Term. We will first look at several cases in some detail, and a few other cases more briefly. Then we will analyze this Term (technically, the “October Term 2013”) and consider just how happy it really was. Finally, we will look ahead to the next Term.

Among the cases of this Term, the Court:

Considered when a person with an intellectual disability may be sentenced to death, and rejected an IQ score above 70 as the absolute cutoff for asserting such disability.[2]

Decided two abortion cases, one permitting some closely held corporations whose owners have strong religious objections to abortion to opt out of part of the ACA,[3] and the other striking down a law that made it a crime to stand within 35 feet of an abortion facility.[4]

Clarified when the prosecution may use evidence from a court-ordered psychological examination.[5]

Upheld a Michigan voter initiative that prohibited considering race in university admissions.[6]

Limited the search of cell phones without a court order.[7]

Also decided cases involving health care unions, child pornography and custody, patents and other intellectual property, the liability of government officials, guns, whistleblowers, and elections and prayer.

(Note that the online version of this article contains the Endnotes, including links to the cases discussed as well as additional material about the cases and some of the statutes mentioned in the text. It is available on the National Register’s website.)

Intellectual Disability and the Death Penalty

Freddie Lee Hall and a friend kidnapped, raped and murdered a pregnant newlywed and then killed a deputy sheriff who tried to arrest them.[8] Hall was found guilty of murder and received the death penalty. He had a significant intellectual disability and was raised “under the most horrible family circumstances imaginable” (described in the online endnotes to this article.)[9] Hall had a number of IQ tests over several years, with scores ranging from 60 to 80—the two that were ultimately deemed admissible were 71 and 80.[10] The essential issue before the Supreme Court was whether Hall could constitutionally receive the death penalty in light of his intellectual disability.[11]

In Atkins v. Virginia the Court determined that the Eighth Amendment of the Constitution (which prohibits cruel and unusual punishment) precludes the death penalty for defendants with significant intellectual disability.[12] The Court found that executing someone with such a condition served no legitimate state purpose (such as rehabilitation, deterrence, or retribution). The Court left it to the states to determine how to apply that rule.

Florida adopted the approach that someone with an IQ score of above 70 “does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited.”[13] For the Court, “that strict IQ test core cutoff of 70 is the issue in this case.”[14]

The Court cited the amicus (friend of the court) brief of the American Psychological Association[15] to explain that intellectual disability requires three things: “significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period.”[16] The Florida law precluded anyone with an IQ over 70 from presenting evidence of deficits in adaptive functioning.

The Court discussed two problems with the Florida approach: (1) it relied on a “purportedly scientific measurement”[17] of an IQ score of 70, and (2) it relied on a specific IQ score as “conclusive evidence” of intellectual capacity. In both instances, the Court found that Florida had disregarded established scientific practice. The Court focused in particular on the first problem, in that Florida had ignored the standard error of measurement (SEM) and thereby ascribed more precision to a specific IQ score than that score deserved. The Court considered a confidence level of 95% to be appropriate. Thus, establishing a firm cut off IQ of 70 meant that (at the 95% confidence level, i.e., + 5 IQ points) the defendant might actually have an IQ of 65 and still run afoul of Florida’s cutoff rule. The Court, therefore, held that “when a defendant’s IQ test score falls within the test’s acknowledged … margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[18]

The Court’s second concern with the Florida law was that utilizing an IQ cutoff that prevented any presentation of “adaptive functioning” evidence was improper. Florida’s argument was that because the definition of intellectual disability requires all three elements (significant subaverage intellectual functioning, deficits in adaptive functioning, and early onset), the absence of any one of these would preclude a finding of disability. That is, if there were not significant subaverage intelligence (the IQ is above 70), there could be no disability and there would be no reason to look at the other factors (adaptive functioning). The Court concluded that experts should rely on more than just an IQ score to assess intellectual capacity, and it further asserted that intellectual and adaptive functioning are related concepts that cannot be considered independently.

The Court concluded that when a defendant’s IQ falls within the SEM, he or she should be able to present evidence beyond the IQ score. It also held that the defendant must be able to present additional evidence of intellectual disability, “including testimony regarding adaptive deficits.”[19]

Four justices dissented,[20] suggesting that the Court struck down the Florida law “based on the evolving standards of professional societies.”[21] The dissent went on to note a number of reasons that the Court should not rely on the opinions of such entities.[22] A central disagreement between the majority and dissent was whether there was a consensus of states about standards of intellectual disability (this is set out in the footnotes).[23]

The APA filed an amicus brief in this case.[24] It was an excellent brief. It was clearly written and focused primarily on the scientific issues—not just making political points or repeating the legal arguments of one of the parties.[25] The most fundamental point of the brief was that “it is improper clinical practice to use only an IQ test score to assess general intellectual functioning or to make a determination that a person does not have an intellectual disability.”[26] It noted the SEM problem as well as the need for a comprehensive assessment.

The majority opinion relied heavily on the APA brief, citing it seven times. The Court accepted the APA’s scientific points.[27]

It is important to note the limited nature of this decision. It means only that Hall (and defendants in other states) have the right to present disability evidence other than the IQ. Such a disability does not go to the issue of guilt as would insanity; nor does it prevent the trial of the defendant as would incompetency to stand trial. It only goes to the issue of eligibility for the death sentence. The fact that this evidence can be presented does not guarantee that juries will be swayed by the evidence.

The practical implications of this decision may be limited. The Court has previously held that the defendant has the right to present any mitigating evidence to avoid the death penalty, including evidence of intellectual disability.[28] That being the case, most of the evidence Hall wanted to present to the jury probably could have come in as mitigating evidence. The case will, however, prevent the prosecution from arguing that a 70 IQ score precludes the jury from finding the disability.

At a more subtle level, this may be a sword with two edges. The concept of the SEM and the IQ as only one factor in determining intellectual disability may provide prosecutors with an opportunity to offer more evidence of adequate intellectual ability.  Many juries are not sympathetic with defendants who have committed heinous crimes; this could turn out badly for some impaired defendants. Of course, the practical consequences are still entirely speculative at this point.

It is almost certain that the Hall case will result in more forensic mental health professionals being called as witnesses to assess the intellectual capacity of defendants in capital cases. In addition to issues related to IQ tests themselves, the detailed analysis of intellectual functioning and adaptive functioning will now be especially important.


The Court decided two abortion cases this Term. The first, Burwell v. Hobby Lobby,[29] may have been the most noticed case of the Term. Despite all of the attention, Hobby Lobby was a fairly narrow decision. It was a statutory interpretation case, not a constitutional decision— Congress can always just change the statute if it wishes.

The owners of Hobby Lobby, a closely held corporation, objected to being required to provide abortion services (or, at least what they considered to be abortion services) to their employees.  Regulations under the Affordable Care Act (ACA) require employers to cover certain preventive services, including 20 contraceptive methods. Hobby Lobby objected to providing four of them on the grounds that these did not prevent fertilization, but rather prevented a fertilized egg from implanting in the uterus—a process Hobby Lobby considered to be an abortion.

The statutes involved in the case were the ACA (requiring contraceptive services), the Religious Freedom Restoration Act of 1993 (RFRA),[30] and the Dictionary Act. RFRA provides that federal or state governments “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[31]  In addition, if a government entity burdens

a person’s exercise of religion, under the RFRA the person is entitled to an exemption unless the government demonstrates that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” [32]

The third statute, the Dictionary Act, is the default definition of terms for federal statutes. It appears at the very beginning of the federal code. It provides, “In determining the meaning of any Act of Congress, unless the context indicates otherwise: … the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”[33] This statute is relevant because the RFRA did not define “person.” Arguably at its core, Hobby Lobby came down to sloppy statutory drafting of the ACA and RFRA.

There were a number of issues in the case, resulting in 95 pages of opinions from the Supreme Court. The case essentially came down, however, to a question of whether the Dictionary Act’s definition applied to the RFRA and whether there was a “less restrictive means” of providing contraceptives (or at least those considered to be abortions) for Hobby Lobby employees.

For the majority, the Dictionary Act’s definition of “person” as including corporations meant that the RFRA included at least some organization entities as well as individuals.[34] For the dissent, the “context” of the RFRA was the “exercise of religion” and non-human entities cannot exercise religion.[35] The majority asserted, however, that in closely held or family corporations, the owners are exercising their religious beliefs through the corporation.

As for the issue of “less restrictive means,” the majority noted that such alternatives were available to deal with the religious objections. In fact, Health and Human Services had created regulations to deal with nonprofits with such religious objections, and the majority felt those could be applied to closely held corporations with similar objections.[36] The dissent, on the other hand, felt that this alternative would not be effective.[37]

The great attention devoted to Hobby Lobby—a YouTube song based on the dissent went viral, for example[38]—may have been overblown, at least to its effect in this case. Still, the Court itself was strongly divided, with very different views of this case’s consequences for the future. Despite some of the popular discussion of the case, Hobby Lobby did not decide whether contraceptive services (including the four types to which there as objection as being an abortion) would be available to women. Those services clearly will be available to the women employed there, and will be available on the same basis as to other women. The practical question was whether Hobby Lobby would be required to pay for those specific medical services or whether HHS would be required to find an alternative means of paying for them.

On the other hand, despite the majority’s effort to say this is a narrow decision, the dissent’s concern that this interpretation of the RFRA could have broad consequences may have a point. No limiting principles were clearly articulated by the majority.

The second abortion case involved a Massachusetts law that established a 35-foot “buffer zone” on the sidewalks and public areas surrounding abortion clinics. McCullen v. Coakley pitted the free speech rights of protestors/counselors with the right to have access to medical abortions.[39] The Court unanimously decided that the Massachusetts law violated the First Amendment, but that unanimity masked substantial disagreement within the Court on the basis for its decision.[40]

The majority opinion found that the buffer zone law was “content neutral” and served a compelling interest of the state,[41] but it also found the 35-foot zone rules were not “narrowly tailored” and limited free speech more than necessary to achieve the state’s interests. The concurring justices, on the other hand, emphasized that the law was not content neutral because it allowed clinic employees to speak in the buffer zone, but not other persons. They also noted that the majority went too far in its opinion because it was unnecessary for the Court to determine the issues of “content neutrality” and “compelling state interest.”[42]

State governments may create narrow buffer zones around abortion clinics[43] and may take other steps to avoid disruption associated with protests or counseling. In fact, the majority opinion laid out some examples of those steps.[44]

Both of these decisions were more limited in scope than some political pundits claim—it sometimes appears that those writers have not actually read the opinions.

Expert Witnesses

Mental health professionals are frequently called upon to examine defendants in criminal matters. Sometimes these examinations are not “voluntary” because they are ordered by the court. In such cases, the defendant may have, in effect, been required to testify against him or herself (via the mental health professional’s evaluation). The question then arises of whether the professional may testify at trial regarding communications from the defendant that were not directly part of the purpose of the evaluation. For example, suppose there is a court-ordered evaluation regarding competency to stand trial and the defendant discusses his guilt with the psychologist.  In that situation, may the psychologist testify about the defendant’s confession of having committed the crime?

The argument against allowing such testimony is that it might constitute a violation of the Fifth Amendment’s guarantee against self-incrimination. The nature of evaluations by psychologists and psychologists is frequently “testimonial” in that defendants are talking about matters relevant to the crime or about issues central to a criminal trial.

In the past, the Court has held that a court-ordered mental health examination of a criminal defendant violates the Fifth Amendment if the defendant had neither initiated the examination nor put his own mental capacity in dispute at the trial.[45] The Court did, however, establish an exception to this rule. The prosecution may introduce the results of a court-ordered mental examination “for the limited purpose of rebutting a mental-status defense.”[46] That is, when a defendant presents a defense (and testimony) that relies on mental impairment, then the prosecution can rebut that claim by presenting evidence from a court-ordered evaluation.

This Term in Kansas v. Cheever, the Court considered how a “mental-status” defense is defined for the purpose of this exception.[47]  The Court held that the exception applies not just when the defense claims a “mental disease or defect” but also when the defense has raised the mental state of the defendant.[48] Cheever, for example, had raised a defense that because of methamphetamine use he was incapable of premeditation for capital murder. The Court determined that it was constitutionally permissible for a psychiatrist who had conducted the court-ordered evaluation to testify to rebut Cheever’s claim of incapacity.[49] The Court noted, “When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him.”[50]

It is important to note that this expert testimony from a court-ordered examination is admissible only for a “limited rebuttal purpose.” That is, it is admitted only to counter something that the defendant has already presented as evidence. For example, by raising an insanity defense, the defendant has not opened the door to presenting evidence (from a court-ordered evaluation) of future dangerousness, but only to evidence regarding the defendant’s mental capacity at the time the offense was committed.

The Cheever case was not a departure from the Supreme Court’s prior decisions. It does illustrate some of the complexity involved when mental health evidence is presented by defendants in criminal cases.  This case, for example, had bounced between the federal and state courts. The psychiatrist here had done an examination for a federal court, but the testimony from that examination was later presented in a state court capital proceeding. It is important that psychologists and psychiatrists understand and discuss (including with the defendants and their counsel) the implications of an examination before undertaking the assignment. This is true whether the examination is undertaken at the request of the defense or prosecution, or is ordered by the trial court.

In another case this Term (Hinton v. Alabama), the Court acknowledged how important competent expert witnesses are in criminal cases—especially capital cases.[51] It focused on the incompetence of an attorney, not the expert.

Anthony Hinton was charged with capital murder. The case largely hinged on whether the bullets from the murder weapon were fired from Hinton’s gun. Hinton’s attorney incorrectly thought he was limited by state law to $1,000 for the expert and could not find a competent expert who would take the case for that amount.[52] The prosecution discredited the inadequate expert and three well-qualified experts later said that they could not determine that the bullets were fired from Hinton’s gun.

The Supreme Court unanimously overturned Hinton’s conviction based on the errors of the attorney in misunderstanding the law—a misunderstanding that resulted in presenting testimony by an inadequate expert. The Court noted one study of wrongful convictions that found that “invalid forensic testimony contributed to the convictions in 60% of the cases.”[53] Hinton continues the Court’s recent expressions of concern about errors related to expert witness.

Affirmative Action and University Admissions

National professional organizations—including the American Psychological Association, the American Medical Association, and the American Bar Association—have been strong proponents of affirmative action to create diversity in professional schools, and by extension in the professions. Most professional schools, and their universities, have undertaken affirmative action to promote such diversity.[54] Such programs are frequently politically unpopular, and in several states referenda have been passed to prohibit universities and other state bodies from giving preference based on gender or ethnicity, which has the effect of precluding many affirmative action programs.

Michigan adopted a state constitutional amendment providing that colleges and other state entities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”[55] Opponents claimed this was a violation of the equal protection guaranteed by the Fourteenth Amendment because it precluded only those interested in affirmative action based on race or gender from pressing for special treatment (as opposed, say, to special treatment based on athletic ability or “legacy” connections). Therefore, they argued, the Michigan law denies equal protection to those interested in race- or gender-based affirmative action.

The Supreme Court, in a 6-2 decision (Justice Kagan did not participate) upheld the Michigan law.[56] The plurality opinion of three justices concluded that neither the Constitution nor the precedents of the Court would support setting aside the decision of the Michigan voters regarding racial preferences in governmental actions. The opinion spent considerable effort distinguishing the Michigan law from precedents in earlier cases. In the end, these three justices concluded that, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”[57] Two concurring justices agreed that the Michigan law was constitutional, but would have gone further by discarding some earlier precedents.[58] Justice Breyer also concurred in the judgment, but noted that a state may constitutionally move decision making from “an unelected administrative body [such as the structures of the University of Michigan] to a politically responsive one,” as Michigan voters had done.[59]

Two justices dissented.[60] They argued that the Michigan law “places unique burdens on racial minorities” because it “establishes a … more burdensome political process for the enactment of admissions plans that consider racial diversity” than exist for other admissions factors.[61]

Although there were only two justices dissenting (and one recused), the multiple opinions in the case make murky the precise principle for which it stands. It does validate the constitutionality of the state ballot initiatives aimed at prohibiting racial preferences in admissions.

Cell Phones and Searches

In contrast with the Michigan affirmative action case, the Court was surprisingly united in a case involving the search of cell phones. This could wind up being the most important decision of the Term.

Riley v. California involved a “search incident to arrest.”[62] That is, a search without a warrant that is conducted as part of a legitimate arrest. The Fourth Amendment prohibits unreasonable searches and seizures and limits searches without a warrant issued by a judge.[63] There is, however, a long line of cases permitting the police to search an arrestee without a warrant as part of an arrest.[64] The purpose is to find any weapons that might put the police and others at risk or help the person escape, and also to avoid the destruction of evidence.

Riley was stopped for a traffic violation and that led to an arrest on weapons charges. During the arrest the police seized a cell phone from Riley. At the arrest the police officer examined the cell phone and later at the police station an officer examined the contents of the phone—all of this without a warrant. The legal question is whether that search was constitutional.

The Court unanimously held that the search of the cell phone as “incident to arrest” was improper. In doing so it noted the special character of cell phones, which are really small computers. “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.”[65]  The Court noted that the data storage of cell phones raises special privacy issues because it collects in one place massive amounts of information about all aspects of a person’s life. In addition, the data in cell phones do not pose a threat to the arresting officers and the data can be protected without immediately going through the phone itself.[66]  It would, therefore, be possible to seek a warrant before conducting the search—and a judicial officer could assess the reasonableness of the request for the search.

The Court noted that the cell phone may have health information about the person (prescription or internet health searches). Though the Court did not specifically mention it, the cell phone of a professional may well have in it private information about clients or patients.

Riley is notable for setting out special consideration for the search of electronic records—and it is particularly powerful because it was unanimous. There are going to be many cases in the future involving electronically stored information. Had the Court treated a cell phone as a paper record such as a pocket calendar or diary it could set the stage for very weak protection of the privacy of electronically-stored information for years to come. Instead, the Court has recognized the unique features of these devices, signaling a future approach that takes account of the special privacy issues inherent in them.

The Court also decided two other important search cases during this Term. In Fernandez v. California, the question was whether the police may search a home when one occupant has consented but when another occupant who objected to the search is no longer present.[67] The Court held that this was a permissible search, even though the objecting party was not present because the police had (for good cause) arrested him.

In the second case, Navarette v. California, the Court, in a 5-4 decision, held that an anonymous phone call to the police can be the basis for a “reasonable suspicion” to pull over another driver.[68] Although an anonymous tip alone seldom presents adequate circumstances for a stop, in some circumstances additional facts known to the police may allow reasonable suspicion of illegal activity.

Other Significant Cases for Healthcare Professionals

The following are cases decided this Term that will be of general importance to healthcare professionals.

Health Care Unions

Unions in health care organizations present a number of interesting questions, including what should happen when an employee does not wish to join or support the union. Such employees frequently must pay an “agency fee” which requires someone who does not join the union to still pay a “fair share” fee to the union.

State law in Illinois provided that homecare assistants could join a labor union. The Court was asked to decide whether an agency fee is constitutional when applied to homecare “personal assistants” under Medicaid.[69] The Court answered, “No.” The majority of the Court found that it would violate the First Amendment (as “compelled speech”) to require non-union members to pay to support an organization with which they disagree.[70]

Much of the case involved an earlier decision in which the Court upheld an agency fee system for state employees.[71] In the case of healthcare personal assistants, however, they were not purely state employees. Rather, they are “mixed” or quasi-employees of the patient working under a state program, and the majority was unwilling to expand the “agency fee” to these employees. The 5-4 split on the Court and the strength of the majority and dissents has led some commentators to speculate that this case was a “half-way point” to overturning the earlier cases that permitted agency fees for state employees—a point of view that is, of course, speculative.

Children: Pornography, Custody, and Immigration

In three cases, the Court considered issues related to children and adolescents. The first, Paroline v. U.S., dealt with the serious emotional injuries that the victims of child pornography may experience.[72] Federal law requires that courts award victim restitution in child-pornography possession cases (among other crimes).[73] Paroline pleaded guilty of possessing child pornography and a victim sought restitution damages for the harm that resulted from the distribution of the pornography featuring her as a child.

The Court (in a 5-4 decision) held that she was entitled to restitution from Paroline but that restitution was limited by the traditional tort concept of “causation,” which provides that a wrongdoer is liable only for the harm that he or she actually caused. The Court recognized that it was very difficult to determine what the harm was that Paroline caused—he had two pictures of the victim in this case—in the context of the pictures circulating around the Internet. The Court gave trial courts considerable discretion for determining the correct amount of damages and noted a number of factors may play a part in the calculation. Trial courts should first determine the total losses or harm the victim has suffered, and then establish damages in consideration of the “factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.” (For more information, see the endnotes[74]) This has the effect of apportioning the victim’s damages based on the degree to which any particular defendant caused the harm.

Three of the dissenting justices argued for no recovery at all, based on the words of the relevant statute.[75] One dissenting justice would have allowed the “full amount” of the victim’s losses to one defendant, even if that defendant had caused a relatively minor proportion of the loss.[76]

The essence of this decision is that victims of child pornography may seek damages in federal court from those who purchase the images, but that those damages will have to have to be calculated relative to the harm caused by—or that can be attributed to—the defendant. That calculation will be complicated and imprecise, leading to uncertainty about the level of recovery.

Another case had to do with child custody and international treaties. The Hague Convention on the Civil Aspects of International Child Abduction applies when a child is abducted and taken to another country. If the parent files a petition within one year of the child’s removal, the court must “order the return of the child forthwith.”[77] If, however, more than a year has passed before a petition is filed (for example, because the child cannot be located), then the court may order a return of the child “unless it is demonstrated that the child is now settled in its new environment.”[78] The Supreme Court unanimously held that the treaty does not provide for exceptions to the “more than a year provision” and that the Court itself could not create an “equitable” exception.

A third case considered the immigration status of children who “age out” (i.e., become 21 while a certain kind of visa application is pending).[79] The Court upheld the Board of Immigration Appeals’ determination that when this “age out” occurs, the person is no longer eligible for a visa under the Child Status Protection Act and must reapply for a visa as an adult. In effect, that means that these persons must get in line a second time for the visa, which may extend the application process considerably.

“The Intellectual Property Term”

This might well be considered “The Intellectual Property Term.” (IP refers primarily to patents and copyrights, but also includes trademarks and unfair competition.) This Term the Court decided nine or ten IP cases, an extraordinary number. We will only briefly look at a couple of interesting cases, and have an overview of the rest.

Continuing a recent trend, the Court narrowed the kinds of things that can be patented.[80] It considered the patentability of computer software and unanimously held that computer programs that merely use computer instructions to implement a well-know process or present an abstract idea are not patentable. In another case, the Court (again, unanimously) interpreted the requirement that a patent application be “reasonably definite.”[81] It tightened that requirement, holding that “a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.”[82]

The Court also decided patent cases limiting recovery when no person has directly infringed the patent,[83] and placing the burden of proof on the patent holder (rather than on someone challenging the patent).[84] In two cases the Court made it easier for the “prevailing party” in patent litigation to be awarded attorney’s fees.[85] Attorney’s fees are permitted under the Patent Act in “exceptional cases,” but the Court lowered the bar with respect to what an “exceptional” case may be.

These cases seem a bit technical, but they are important. The Supreme Court has had a very active role in patent law recently. The fact that the Court is generally unanimous in its holdings is significant. Collectively, the practical effect of these cases, and perhaps the purpose of them, is to make it more difficult for patent trolls. (Patent trolls, or “non-practicing entities,” are companies that purchase numbers of patents that are not being actively used and threaten to sue many companies for various kinds of infringement. They generally are willing to settle for less than it would cost to litigate the patent, so companies are inclined to settle with them.) This Term’s decision will make it more difficult for trolls by demanding more definiteness in the patent description (thus eliminating very broad claims for patents), narrowing computer program patents, and threatening that they could be charged with attorney’s fees if they push bad patent claims.

The Court also decided two interesting copyright cases—one, the Aereo case, would be a candidate for the strangest opinion of the Term.[86] Aereo provided a service that (among other things) allowed subscribers to watch TV programs on the internet at the same time they were broadcast over the air. The broadcasters objected that this violated their copyright. Justice Breyer’s majority opinion (joined by five other justices) is somewhat difficult to follow, but clearly sided with the broadcast networks in saying that Aereo “essentially functions like a cable television system,” even though it technologically provides the service in a different way.[87] Thus, while the patent cases narrowed patents, this case seemed to expand the reach of copyright law[88] in a somewhat confusing way.[89] Concern about stifling creativity in cloud computing and new technology was raised in the oral argument, as well as among technology experts.[90] The Court said directly that the decision was narrow but acknowledged that it was unclear how it would apply to other technologies.[91]

A second copyright case involved the 1980 movie Raging Bull.[92] Many years after the movie was released the copyright holder (of the screenplay) sued MGM for copyright infringement. Because of the “ongoing infringement” the suit was not barred by the three-year statute of limitations, although the damages would be limited to the three years preceding the suit.

Finally, a dispute between two “fruit juice” manufacturers is a reminder that it is important to read the fine print on labels. FDA regulations permitted Minute Maid to prominently label a juice “Pomegranate Blueberry,” when in fact it contained only 0.3% pomegranate juice and 0.2% blueberry juice.[93] The Court allowed POM Wonderful to sue Minute Maid (technically, Coca-Cola) for unfair competition from misleading product descriptions.[94]

Official Liability

Professionals who are employed by or who work for a government agency will be interested in a number of cases concerning personal liability for official actions. Government officials may be sued as individuals under federal law. This is most commonly referred to as civil rights or “Section 1983” liability.[95] Officials have a qualified immunity, however, which protects officials so long as they do not violate “clearly established” federal law. (Certain judicial officers and prosecutors have “absolute” immunity, which as the term implies is even stronger immunity.)

In all of the official liability cases this Term, the Court upheld the qualified immunity of government officials. In such cases, determining “clearly established” federal law is often the central issue. It usually requires a decision from the Supreme Court, the relevant circuit court or state supreme court, or a consensus of other cases.[96] Collectively these cases should reassure government employees that their qualified immunity protects against Section1983 liability. On the other hand, these cases also are a reminder that the immunity is qualified by “clearly established” federal law, particularly when articulated by the Supreme Court. It is important, therefore, to understand the Court’s relevant decisions.

One case concerning qualified immunity may be of special interest to mental health professionals.[97] The Aviation and Transportation Security Act gives airlines and their employees qualified immunity against liability for reporting suspicious behavior.[98] The immunity is lost if the employee knows that the report is false or is made in reckless disregard of the truth. In the Air Wisconsin case, employees without mental health training reported that a pilot (who had acted aggressively) was “unstable” and that the airline was “concerned about his mental stability.”  The jury awarded substantial damages for defamation. The Supreme Court overturned the award, holding that the qualified immunity applied to the airline and that “mentally unstable” did not imply a serious mental defect when used by a lay person.[99]
Other Cases of General Importance

The Court decided a number of other cases that are of more general interest, briefly noted below.

Guns: Someone who purchases a gun for someone else, but falsely claims it is for himself, commits as federal crime. That is true even though the ultimate recipient of the gun could have legally purchased it himself.[100]

Whistleblowers: Whistleblowers received additional protection in two cases. It is illegal to retaliate against whistleblowers who are employees of the contractors and subcontractors of public companies.[101]  The Court also held that a public employee-whistleblower called to testify about corruption has qualified immunity that precludes retaliation.[102]

Presidential Appointments: The Court limited the authority of the President to make recess appointments,[103] holding that such appointments can only be made when Congress says it is in recess or could not transact business (usually periods of ten days or greater).[104]

Environmental Law: The Court upheld a portion of the Environmental Protection Agency’s regulations regarding carbon dioxide, but struck down another portion of the regulations as exceeding the EPA’s statutory authority.[105] This was a victory for both sides. The EPA was able to regulate major sources of carbon dioxide. But the EPA was warned that in adopting future regulations its power does not include “the power to revise clear statutory terms.”[106] In another case, the Court upheld the ambient air quality standards under the Clean Air Act. Those standards apply to a variety of air pollutants that are difficult to control because they travel between states.[107]

Elections: An Ohio law prohibiting political candidates from making “false statements” is probably unconstitutional and can be reviewed by the federal courts even before it is enforced by Ohio.[108] In another case, the “aggregate” campaign contribution limits (restriction on the total someone may contribute to all federal offices, parties and political action committees) were found to violate the First Amendment.[109]

Prayer: A town council’s practice of opening its meetings with prayer offered by various clergy does not violate the First Amendment (Establishment of Religion) where the town does not discriminate regarding who may offer the prayer.[110]

Frequent Fliers: Finally, because there are many readers who are frequent fliers, we must sadly report that frequent fliers lost one this Term. Northwest (now Delta) terminated one of its Platinum Elite members (Rabbi S. Binyomin Ginsberg), who then sued claiming that the airline had violated state law. The Court held that the Airline Deregulation Act of 1978 (ADA) pre-empted the state law requirement of good faith and fair dealing.[111]

Analysis of the Term and a Look Ahead

The October Term 2013 began on October 7, 2013, and the last substantive decision was announced on June 30, 2014.[112] Between those dates it issued 73 decisions—67 signed opinions and six summary reversals.[113]

Of these 73 decisions, an astonishing 48 (66%) were unanimous decisions—something that has not happened for more than sixty years. Surprisingly few cases—only 10 (14%)—were 5-4 decisions. In each of these 5-4 decisions, Justice Kennedy was in the majority.

Of course, with two-thirds of the cases decided unanimously, all of the Justices were in the majority most of the time. Focusing only on those cases that were not unanimous, the percentage of time a justice was in the majority ranged from 84% (Justice Kennedy) to 46% (Justice Sotomayor).

There is an old cliché that the Supreme Court does not take cases in order to affirm the lower court. That is not literally true, of course, but this Term the Court did reverse lower courts in 73% of the cases. The worst record of reversal was attained by the Ninth Circuit, which was reversed 92% of the time (11 of 12 cases).

There are endless data on the Court nowadays. The laughs-per-justice statistic is not that useful, but the number of questions asked (average per argument) is a little more interesting. It ranged this Term from 19.6 questions per argument (Justice Scalia) to 0.0 (Justice Thomas). It varies by justice, but collectively they ask about 110 questions in an hour’s oral argument—the attorneys stay busy! This brings us back to the “friendly Court” data mentioned earlier.

Does the 66% rate of unanimous decisions indicate that there are not many serious differences within the Court? Hardly. Nobody who has read the cases discussed above will miss that point. First, it should be noted that data from a single Term can be misleading. The rate of unanimity will probably deviate toward the norm next Term. But there is also more than that at work.

From the time of his confirmation Chief Justice Roberts has emphasized narrow decisions, modest change and finding common ground. The decisions this Term may reflect his urgings. He also has brought a lighter touch to oral arguments. His predecessors were more formal, even stuffy. He is kind to the attorneys arguing and often brings a sense of conversation to the arguments. He is the one who routinely started calling the opposing attorney “your friend.”

He also seems to have pushed to find common ground. This Term perhaps demonstrates, however, that finding an agreed upon outcome is not the same thing as finding real unanimity. As NYU law professor Samuel Issacharoff notes, “No one should confuse these outcomes with a sudden outbreak of Kumbaya fever at the Court.”[114] For example, the case involving “buffer zones” for abortion clinics was unanimous, but there were very strong differences among the justices in the legal basis for the ruling. Similarly, a case involving presidential “recess appointments” appeared to be unanimous, but there was a dramatic difference of opinion regarding when the Constitution permits such appointments. One commentator calls it “Faux-nimity” or “Un-unanimous.”[115]

The cautious, incremental approach irritated a few justices, particularly Justice Scalia. One reporter suggested that his dissatisfaction “all but created a new judicial genre—he wrote three furious concurrences.”[116] He, Justice Thomas, and to some degree Justice Alito would have been much more inclined to reverse precedents with which they disagree. On the other hand, some see a long game—a “stealth overruling”[117] that Chief Justice Roberts is promoting to take a step or two before making a dramatic ruling. If that is the case, and if the makeup of the Court stays the same, it would be reasonable to expect these same issues to return for another shoe to drop—we will have to stay tuned to find out.

The membership of the Court appears likely to stay the same for the immediate future. No member of the Court announced an intention to step down. After the Term there was a focus on Justice Ginsburg. She is 82 and had bouts of cancer in 1999 and 2009, so there was some speculation that she might want to have a successor appointed while the Democrats control the presidency and the Senate. During the summer she repeatedly indicated that she had no intention of stepping down now—and current political circumstances even now make it doubtful that a successor could be nominated and approved quickly.

The Court will return to session on October 6, 2014. It has already accepted a number of cases for consideration. There will be cases raising issues of voting rights and racial discrimination, social media (Facebook) and criminal threats, and state licensing of health care professionals and antitrust. There may well be cases dealing with same sex marriages, abortion rights and the Affordable Care Act (subsidies for state-based exchanges).

It sounds as though there will be much to discuss by the end of the next Term.


Steve_Smith_webSteven R. Smith, JD, is Professor of Law and Dean Emeritus 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 of the APA Ethics Committee, ABPP Board of Trustees, and National Register Board of Directors.


For most of the cases and many other citations, clicking on the citation will take the reader to the original material.


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. By clicking on the name of the case for cases decided this Term, you should be taken 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.)

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[1] The Wall Street Journal did the count. See Jacob Gershman, The Supreme Court has Gotten a lot “Friendlier” Under Roberts, Wall Street Journal, July 16, 2014, available at .


[2] Hall v. Florida, decided May 27, 2014. It was a 5-4 decision.


[3] Burwell v. Hobby Lobby Stores, was decided June 30, 2014. It was a 5-4 decision with Justice Alito writing for the majority.


[4] McCullen v. Coakley, decided June 26, 2014. This was a unanimous decision.


[5] Kansas v. Cheever, decided December 11, 2013. This was a unanimous decision.


[6] Schuette v. BAMN, decided April 22, 2014. The decision was 6-2.


[vii] Riley v. California, decided June 25, 2014. This was a unanimous decision.


[7] Hall v. Florida, decided May 27, 2014. Justice Kennedy wrote for the five-justice majority that included Justices Ginsburg, Breyer, Sotomayor and Kagan.


[8] Id. at 3, with the Court quoting the sentencing judge. The Court summarized the testimony from the lower court as follows (all quotation marks are from the original Court’s decision): Although “[t]eachers and siblings alike immediately recognized [Hall] to be significantly mentally retarded . . . [t]his retardation did not garner any sympathy from his mother, but rather caused much scorn to befall him.” Id., at 20. Hall was “[c]onstantly beaten because he was ‘slow’ or because he made simple mistakes.” Ibid. His mother “would strap [Hall] to his bed at night, with a rope thrown over a rafter. In the morning, she would awaken Hall by hoisting him up and whipping him with a belt, rope, or cord.” Ibid. Hall was beaten “ten or fifteen times a week sometimes.” Id., at 477. His mother tied him “in a ‘croaker’ sack, swung it over a fire, and beat him,” “buried him in the sand up to his neck to ‘strengthen his legs,’” and “held a gun on Hall . . . while she poked [him] with sticks.” Hall v. Florida, 614 So. 2d 473, 480 (Fla. 1993) (Barkett, C. J., dissenting).


[9] Hall v. Florida at 5.


[10] Id. at 2. (In previous cases the Court had used the term “mental retardation” but noted it was changing the nomenclature to “intellectual disability.”) The Court described the change as follows, “Previous opinions of this Court have employed the term ‘mental retardation.’ This opinion uses the term “intellectual disability” to describe the identical phenomenon. See Rosa’s Law, 124 Stat. 2643 (changing entries in the U. S. Code from ‘mental retardation’ to ‘intellectual disability’); Schalock et. al, The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007). This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders….” Id. at 2.


[11] 536 U.S. 304 (2002).


[12] Hall v. Florida at 9, quoting the Florida Supreme Court.


[13] Id.


[14] An amicus or amicus curiae brief is written to the court as “a friend of the court” rather than as a party. Thus, it is written to supply information to the court that the parties themselves might no present, or because of the special understanding of the amicus.  The American Psychological Association filed an amicus brief with other organization. The brief is available at The brief is discussed later in the article.


[15] Id. at 8 quoting the APA amici curiae brief and DSM-5.


[16] Id. at 10.


[17] Id. at 21.


[18] Id.


[19] Alito, dissenting, at 1. Justice Alito wrote for the four dissenters. Also dissenting were Chief Justice Roberts, and Justices Scalia and Thomas.


[20] Alito, dissenting, at 2. Emphasis was in the dissenting opinion.


[21] Here is summary of the four reasons the dissent gave for not following the dictates of professional societies: “The Court’s reliance on the views of professional associations will also lead to serious practical problems. I will briefly note a few. First, because the views of professional associations often change, tying Eighth Amendment law to these views will lead to instability and continue to fuel protracted litigation…. Second, the Court’s approach implicitly calls upon the Judiciary either to follow every new change in the thinking of these professional organizations or to judge the validity of each new change…. Third, the Court’s approach requires the Judiciary to determine which professional organizations are entitled to special deference. And what if professional organizations disagree? … Fourth, the Court binds Eighth Amendment law to definitions of intellectual disability that are promulgated for use in making a variety of decisions that are quite different from the decision whether the imposition of a death sentence in a particular case would serve a valid penological end.”  Id. at 8-10.


[22] Decisions regarding the Eighth Amendment have held that defining cruel and unusual punishment requires consideration of “evolving standards of decency.” Thus, there is not a fixed standard of cruelty defined at the time the Eighth Amendment was adopted. Those evolving standards of decency are, in large measure, defined by what the states are doing. In this case, the majority opinion has a much different calculation of the states than does the dissent. (Compare the majority opinion pages 12-16 and the dissent pages 4-7.) The majority finds a considerable consensus of the states opposing what Florida does, the dissent no such consensus.


[23]   The American Psychological Association (and its General Counsel, Nathalie Gilfoyle) were the lead authors on the brief. The majority opinion referred to it as the American Psychological Association, or APA, brief. It was filed with the American Psychiatric Association, American Academy of Psychiatry and the Law, Florida Psychological Association, National Association of Social Workers, and National Association of Social Workers Florida Chapter. It is available at .


[24] Although not specifically related to the APA brief in this case, the issue of amicus briefs became a matter of considerable discussion following the conclusion of the Term. There were 800 amicus briefs filed during the Term, and more than 1000 the previous Term. Adam Liptak, Seeking Facts, Justices Settle for What Briefs Tell Them, New York Times (September 1, 2014), available at The problem is that these briefs often include facts that were not admitted at trial and have not been subject to cross examination or challenge. See Alli Orr Larsen, The Trouble with Amicus Facts (August 27, 2014). Virginia Law Review, Forthcoming; William & Mary Law School Research Paper No. 09-273. Available at SSRN:


[25] Id. at 6.


[26] Interestingly, the dissent referred to the “American Psychiatric Association (APA)” as the professional society on which the majority relied, rather than the American Psychological Association. The dissent wrote, “In these prior cases, when the Court referred to the evolving standards of a maturing ‘society,’ the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).” Dissent at 2. This reference may refer to sponsorship of the DSM-5 rather than a confusion of APAs.


[27] In Tennard v. Dretke, 542 U.S. 274 (2004), for example, the Court held that defendants had an Eighth Amendment right to have low IQ/intellectual disability considered by the jury as a mitigating factor that would avoid the death penalty.


[28] Burwell v. Hobby Lobby Stores was decided June 30, 2014. It was a 5-4 decision with Justice Alito writing for the majority. Justices Ginsburg, Sotomayor, Breyer and Kagan dissented.  The decision of the Court also included a decision in the case of Conestoga Wood Specialties v. Burwell.


[29] The RFRA was passed with support from the full breadth of the political and religious spectrum. It passed the House unanimously and the Senate 97 to 3. President Clinton signed it.


[30] 42 U.S.C. §2000bb–1(a).


[31] 42 U.S.C. §2000bb–1(b).


[32] 1 U.S.C. §1.


[33] “We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations … and HHS concedes that a nonprofit corporation can be a ‘person’ within the meaning of RFRA.” Hobby Lobby at 19.


[34] “The Dictionary Act’s definition, however, controls only where ‘context’ does not ‘indicat[e] otherwise.’… §1.Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added)….Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law.” Ginsburg, dissenting, at 14.


[35] “To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8  Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9.”  Hobby Lobby at 9-10.


[36] “The Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and wellbeing.” Ginsburg, dissenting, at 27-28.




[38] McCullen v. Coakley, decided June 26, 2014. The decision was unanimous, but the Court was substantially split on the reasons for the decision. The majority opinion was written by Chief Justice Roberts. Justices Scalia and Alito wrote concurring opinions.


[39] The concurring justices suggested that the majority was giving “abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” Scalia, concurring, at 1.


[40] The five justices who took this position were the four justices generally considered “liberal” (Ginsburg, Breyer, Sotomayor and Kagan) plus Chief Justice Roberts. The four concurring justices who did not find a compelling interest or content neutrality were Justices Scalia, Kennedy, Thomas and Alito. This 5-4 alignment was the same as the decision to uphold the constitutionality of the ACA.


[41] The concurring justices were Scalia, Kennedy, Thomas and Alito.


[42] Hill v. Colorado, 530 U. S. 703 (2000). Some of the concurring justices would have overturned this case, claiming that it created a special First Amendment rule for abortion clinics. Scalia, dissenting.


[43] McCullen majority opinion at 23-29.


[44] Estelle v. Smith, 451 U. S. 454 (1981).


[45] Buchanan v. Kentucky, 483 U. S. 402, 423–424 (1987).


[46] Kansas v. Cheever, decided December 11, 2013. This was a unanimous decision. The opinion was written by Justice Kagan.


[47] Id. at 4-5.  “Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. Defendants need not assert a ‘mental disease or defect’ in order to assert a defense based on ‘mental status.’” Id. at 8.


[48] The Court noted that this is similar to the rule that when a defendant chooses to testify, the Fifth Amendment “does not allow him to refuse to answer related question on cross-examination.” Id. at 6.


[49] Id. at 6.


[50] Hinton v. Alabama, decided February 24, 2014. This was a unanimous, per curiam decision (decision of the Court written for the Court without a specific justice being named as the author of the decision).


[51] The attorney was mistaken about the statutory limit for the expert and ignored the invitation of the trial court to come back to it if the funds it allocated were inadequate.


[52] Id. at 13, citing Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009).


[53] About half the states have mechanisms for putting voter initiatives on the ballot.


[54] The ballot proposal was called Proposal 2 and became Article I, §26, of the Michigan Constitution. It passed by a margin of 58 percent to 42 percent.


[55] Schuette v. BAMN, decided April 22, 2014. (BAMN stands for Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary.) The decision was 6-2. The plurality opinion was written by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito. Justices Scalia and Thomas concurred in a separate opinion. Justice Breyer concurred in a separate opinion. Justices Sotomayor and Ginsburg dissented. Justice Kagan did not participate in the decision because she had worked on the case while she was Solicitor General.


[56] Id. at 18.


[57] Justice Scalia, concurring, joined by Justice Thomas.


[58] Justice Breyer, concurring at 6.


[59] Justice Sotomayor, dissenting, joined by Justice Breyer.


[60] Id. at 17.


[61] Riley v. California, decided June 25, 2014. This a unanimous decision, with Justice Alito concurring in only part of the decision. Chief Justice Roberts wrote the opinion for the Court. There was a companion case—a case decided in the same opinion: United States v. Wurie (2014).


[62] The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


[63] Chimel v. California, 395 U. S. 752 (1969). Justice Alito wrote a concurring opinion to say that there may be reasons other than officer safety or the preservation of evidence for permitting searches incident to arrest.


[64] Riley at 17.


[65] Id. at 17-23.


[66] Fernandez v. California, decided February 25, 2014. This was a 6-3 decision. An earlier case, Georgia v. Randolph, 547 U. S. 103 (2006), held that the objection of one occupant who is present prevents a search subject to consent. The question in Fernandez was what happens when the objecting party is no longer present.


[67] Prado Navarette v. California, decided April 22, 2014. The 5-4 decision did not follow a customary ideological spit. Justice Thomas wrote for the majority, joined by Chief Justice Roberts, and justices Kennedy, Breyer and Alito. Justice Scalia dissented, joined by justices Ginsburg, Sotomayor and Kagan.


[68] Harris v. Quinn, decided June 30, 2014. Justice Alito wrote for the majority. There were four dissenting justices, Justices Kagan, Ginsburg, Breyer and Sotomayor. They found that the precedents of the Court allowed for such agency fees.


[69] Id. at 29-34. The agency fee essentially required objecting union member to support the lobbying effort of the union. Unlike some other compelled speech that the Court has upheld, the majority held that here the speech was not similar to “commercial speech.” Here the interest of the state in forcing the agency fee was not sufficiently strong to justify this compelled speech.


[70] See the opinion of Justice Kagan, dissenting.


[71] Paroline v. United States, decided April 23, 2014. Justice Kennedy wrote the majority opinion. This was a 5-4 decision. Chief Justice Roberts and Justices Scalia, Thomas and Sotomayor dissented.


[72] 18 U. S. C. §2259. This section of federal law is part of the Violence Against Women Act of 1994. The section requires district courts to award restitution for several federal crimes, including child pornography possession. Id. at 1.


[73] “These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role…. These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of §2259, and thus the ‘full amount’ of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means.” Id. at 23.


[74] Chief Justice Roberts, dissenting, joined by Justices Scalia and Thomas.


[75] Justice Sotomayor, dissenting.


[76] Lozano v. Montoya Alvarez, decided March 5, 2014. This was a unanimous decision. Justice Thomas wrote the opinion.


[77] Hague Convention, Article 12.


[78] Scialabba v. Cuellar de Osorio, decided June 9, 2014. The Court was badly split on the decision: “KAGAN, J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and GINSBURG, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined, and in which THOMAS, J., joined except as to footnote 3.”  Quoted from the Court’s summary of the decision.


[79] Alice Corp. v. CLS Bank International, decided June 19, 2014. Justice Thomas wrote for a unanimous Court.


[80] Nautilus, Inc. v. Biosig Instruments, decided June 2, 2014. Justice Ginsburg wrote for the Court, which was unanimous.


[81] Id. at 1.


[82] Limelight Networks v. Akamai Technologies, decided June 2, 2014. This was a unanimous decision. The opinion was written by Justice Alito.


[83] Medtronic, Inc. v. Mirowski Family Ventures, decided January 22, 2014. This was a unanimous decision. The opinion was written by Justice Breyer.


[84] Octane Fitness v. ICON Health & Fitness, decided April 29, 2014. This was a unanimous decision. Justice Sotomayor wrote the opinion for the Court (Justice Scalia disagreed with three footnotes, 1-3 of the opinion). The second case is Highmark v. Allcare Health Management System, decided April 29, 2014. This was also a unanimous decision written by Justice Sotomayor.


[85] American Broadcasting Cos. v. Aereo, decided June 25, 2014. This was a 6-3 decision. Justice Breyer wrote for the majority. Aereo had thousands of individual antennas in a warehouse that captured the program the subscriber wanted to watch and sent it to that subscriber over the internet.


[86] Id. at 10. Aereo had arranged the individual antennas for subscribers to provide to that specific subscriber what his or her antenna was pulling from over the air broadcasts. That was designed to fit what the Supreme Court had previously suggested would avoid the copyright problem.


[87] In Aereo the Court did not apply the test it had established in infringement cases involving technology. Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984) is an example of the rule the Court established that direct copyright infringement must involve an act “of volitional conduct” directed at the copyright work.


[88] The confusion was not confined to the general public. After the decision in the Aereo case, Aereo applied to the U.S. Copyright Office to be considered a cable company, and that office refused to treat it as a cable company. Keach Hagey, Copyright Office Denies Aereo Request to Be Classed as Cable System, Wall Street Journal, July 17, 2014, available at .


[89] Joe Mullin, New Motions Show Gaping Holes in Supreme Court’s Aereo Ruling, Ars Technica, August 4, 2014, available at ; Ali Sternburg, 8 Passages from the Supreme Court’s Aereo Decision That May Have Negative Implications for the Cloud, Project Disco, June 25, 2014, available at . ; Wendy Davis, Supreme Court Concerned That Aereo Ruling Will Harm Cloud Computing, MediaPost, April 22, 2014, available at  [based on the oral arguments].   On the other side of this proposition, see Mark Rogowsky, Myth-Busting The Aereo Decision: No, The Supreme Court Didn't Kill It... Nor Did They Kill Dropbox, Forbes, June 26, 2014, available at .


[90] Id. at 15-17. “We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us.” Id. at 17.


[91] Petrella v. Metro-Goldwyn-Mayer, decided January 21, 2014.This was a 6-3 decision. The majority opinion was written by Justice Ginsburg.


[92] POM Wonderful v. Coca-Cola, decided June 12, 2014. This was a unanimous decision, although Justice Breyer was recused. Justice Kennedy wrote for the Court.


[93] POM Wonderful sued under the Lanham Act, 15 U. S. C. §1125, which “allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions.” POM Wonderful at 2.


[94] This refers to 42 United States Code §1983, which provides in part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….”  For federal officers, the liability may be what is known as a “Bivens action” which refers to a case establishing it, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Because the standards are essentially the same for 1983 and Bivens actions, they are discussed as the same thing in this section of the article.


[95] See Plumhoff v. Rickard, decided May 27, 2014.


[96] Air Wisconsin Airlines v. Hoeper, decided January 27, 2014. This was a unanimous decision, although there was a 6-3 split about the basis for a part of the decision. Justice Sotomayor delivered the opinion of the Court.


[97] 49 U. S. C. §44901. In the statute there is qualified immunity for reporting suspicious behavior, but such behavior does not apply to “any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” Id. at (a), (b).


[98] Air Wisconsin at 16-18.


[99] Abramski v. United States, decided June 16, 2014. This was a 5-4 decision. Justice Kagan wrote for the majority.


[100] Lawson v. FMR, decided March 4, 2014. This was, at its core, a 6-3 decision, with Justice Ginsburg writing for the majority. This decision was based on the Sarbanes-Oxley Act of 2002, which provided, ““No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” §1514A(a) (quoted by the Court in Lawson).


[101] Lane v. Franks, decided June 19, 2014. This was a unanimous decision. Justice Sotomayor announced the decision of the Court.


[102] Recess appointments are presidential appointments to office that usually require confirmation by the Senate. The essential question in this case is what is a “recess” and when does a vacancy occur. Article II, Section 2, clause 3 of the Constitution gives the President the “power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  This was the first time the Court had been called upon to interpret this provision of the Constitution.


[103] NLRB v. Noel Canning, decided June 26, 2014. This was a unanimous decision striking down some inappropriate recess appointments, but the Court was divided 5-4 concerning the meaning of the “recess appointments” provision of the Constitution. Justice Breyer wrote for the 5-justice majority.


[104] Utility Air Regulatory Group v. EPA, decided June 23, 2014. Justice Scalia wrote for the Court. The decision was in some respects unanimous, but it was fairly split—essentially 5-4 on most issues. Here is how the Report of Decisions described it: “SCALIA, J., announced the judgment of the Court and delivered an opinion, Parts I and II of which were for the Court. ROBERTS, C. J., and KENNEDY, J., joined that opinion in full; THOMAS and ALITO, JJ., joined as to Parts I, II–A, and II–B–1; and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Part II–B–2. BREYER J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.”


[105] Id. at 23.


[106] EPA v. EME Homer City Generation, decided April 29, 2014. Justice Ginsburg wrote for the Court. It was a 6-2 decision, with Justice Alito recused.


[107] Susan B. Anthony List v. Driehaus, decided June 16, 2014. Justice Thomas wrote for a unanimous Court. This was essentially a procedural holding, but the sense of the Court that this was probably unconstitutional was apparent.


[108] McCutcheon v. Federal Election Commission, decided April 2, 2014. This was a 5-4 majority, but Justice Thomas (who was in the 5-member majority) did not join that opinion. Thus, opinion of the Court was a plurality opinion written by Chief Justice Roberts with Justice Thomas joining the result but not the opinion.


[109] Town of Greece v. Galloway, decided May 5, 2014. This was essentially a 5-4 decision but the Court was divided on some of the reasoning. Here is how the decision is described by the Court’s Reporter of Decisions: “KENNEDY, J., delivered the opinion of the Court, except as to Part II–B. ROBERTS, C. J., and ALITO, J., joined the opinion in full, and SCALIA and THOMAS, JJ., joined except as to Part II–B. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined as to Part II. BREYER, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined.”


[110] Northwest v. Ginsberg, decided April 2, 2014. The decision was unanimous and the opinion was written by Justice Alito.


[111] On July 1, 2014, the Court did announce one additional per curiam decision in Williams v. Johnson.


[112] In addition, two cases were dismissed after oral argument. These data are taken from an extraordinarily helpful website SOCUSBLOG at It is an excellent site for all things “Supreme Court.”


[113] Samuel Issacharoff, quoted in Adam Liptak, Compromise at the Supreme Court Veils Its Rifts, New York Times, July 1, 2014, available at .


[114] Robert Barnes, For These Supreme Court Justices, Unanimous Doesn’t Mean Unity, Washington Post, July 1, 2014, available at .


[115] Adam Liptak, Compromise at the Supreme Court Veils Its Rifts, New York Times, July 1, 2014, available at .


[116] Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Georgetown Law Journal 1 (2010).