Steven R. Smith, JD
This article is dedicated to Judy E. Hall, a wonderful psychologist with a passion for justice.
At 10:00 AM on October, 2014, the Supreme Court of the United States began its new Term (technically the “October 2014 Term”), at the call of “Oyez,” by the Marshall of the Court. The Term promised to bring especially important cases involving the Affordable Care Act (“Obamacare”) and same-sex marriage. Those cases garnered the greatest attention, but the Court decided a number of other cases with far-reaching legal and practical consequences.
The Endnotes are available at the end of this article. The notes provide links to all of the cases discussed in this issue, as well as additional information on several matters discussed in the article.)
Among the most significant decisions were the following:
- The Constitution requires states to recognize same-sex marriages and also accept such marriages performed in other states.
- The Affordable Care Act permits health insurance subsidies for the federal Exchange as well as the Exchanges established by the states.
- Antitrust laws apply to state professional practice and licensing boards unless there is active state review and oversight of their activities.
- The statements of a young child to school personnel and others regarding child abuse can be admitted in evidence at a criminal trial of the alleged abuser.
- A defendant should be granted a hearing to determine if intellectual disability resulted in ineligibility for the death penalty. In another case, the Court upheld a particular mixture of chemicals being used for lethal injection. There are hints in this Term’s opinions that the Court may reconsider the question of whether capital punishment is constitutional.
- The Court also dealt with a series of official immunity cases involving those with mental (and other) disabilities; with several important search and seizure questions; and with cases involving discrimination in housing and employment.
After looking at the major cases of the Term, we will more briefly review a number of other cases of importance. Finally, we will analyze the significance of this Term and look forward to the next Term of the Court.
The Constitution and Same-Sex Marriage
Obergefell v. Hodges was a case of great importance, both in terms of its practical effect and in terms of constitutional philosophy and rights. The constitutional questions were whether the states are required by the Constitution to (1) license marriages between two persons of the same gender, and (2) recognize such marriages when performed in other states. In a 5-4 decision the Court answered “yes” to both questions. In short, it held that the Constitution requires states to recognize gay marriage.
The second issue had to do with the proper role of the Supreme Court and judges in a democracy, and the concept of “substantive due process.” That may be more important than it is exciting, so we will come back to it a bit later.
The Court’s opinion is as much a soaring tribute to marriage and the hopes of gay people as to the technical matters of the Constitution. The opening sentence of the opinion suggests as much: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” The opinion also notes that marriage has changed and evolved over the centuries (e.g., moving from arranged to voluntary, eliminating “coverture,” allowing persons of different races to marry).
Turning to the Constitution, the Court found the basis for its ruling primarily in the Due Process Clause of the Fourteenth Amendment (prohibiting a state from depriving “any person of life, liberty, or property, without due process of law”). This clause, the Court noted, is not limited to protecting procedural rights. It also precludes a state from invading “fundamental liberties” or “fundamental rights.” It acknowledged that there is no formula for determining what those rights are, and that this is made more complicated by the fact that the notion of “fundamental rights” changes over time.
The Court determined that the “right to marry” is one protected by the Constitution. It identified four principles in the Court’s earlier decisions. First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Third, marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Finally, “marriage is a keystone of our social order.”
The Court also noted that marriage carries important rights under state and federal law. But not recognizing same-sex marriage also “demeans gays and lesbians” by locking them out “of a central institution of the Nation’s society.”
The Court also held that the Equal Protection Clause of the Fourteenth Amendment is violated by a failure to allow same-sex marriages. The Court noted that marriage discrimination based on sexual orientation had universally existed for most of the time since the adoption of the Fourteenth Amendment. Indeed, in the 1970s the Court had upheld a state’s ban on gay marriage. But the Court also held that the meaning of the Equal Protection Clause changes over time, saying that “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
There were four dissenting opinions, focusing primarily in one way or another on the proper role of the Court in a democracy. Chief Justice Roberts most clearly set out this view. He acknowledged that the policy of permitting same-sex marriage may be a good one, but that this is for the states and Congress, not the courts, to decide.
At the heart of this dissent is that the majority relied on a broad concept of “substantive due process.” The Chief Justice noted the serious difficulties that the substantive due process doctrine has caused—starting with the Dred Scott decision and moving through many unfortunate decisions into the early twentieth century. The doctrine was discredited because it was without substantive limitation—relying too much on what judges think the law ought to be, rather than on a clear and precise basis in the Constitution. Chief Justice Roberts heard reverberations of the worst of the earlier, discredited substantive due process cases. In short, he asserts that the Constitution had nothing to do with the majority’s opinion.
...the right to personal choice regarding marriage is inherent in the concept of individual autonomy.
In his own dissent, Justice Scalia emphasized that the decision of the majority represented a threat to democracy where judges were imposing their views—and that even worse, that an unfixed meaning of “due process” could change frequently. It was, he said, “a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”  His dissent had a number of very critical comments about the Court assuming power it did not have and about the overall quality of the majority opinion.
Justice Thomas wrote a lengthy review of the historical meanings of “liberty” and “due process.” He concluded that: “In its haste to reach a desired result, the majority misapplies a clause focused on ‘due process’ to afford substantive rights, disregards the most plausible understanding of the ‘liberty’ protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society.”
Justice Alito also wrote a dissenting opinion. He laid out his concern that the Court was assuming powers it did not have and that this would lead to more judicial overreaching, presumably by liberal and conservative majorities alike. “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. … But all Americans, whatever their thinking on [same-sex marriage], should worry about what the majority’s claim of power portends.”
The APA, along with the AMA, American Psychiatric Association and several other organizations, filed an excellent amicus curiae brief. It did not simply reiterate the legal arguments or facts, or engage in some general statements. Rather, it presented scientific findings regarding the psychological issues related to same-sex marriage (summarized in the endnotes). It was very well-supported by citations to the psychological and medical literature. The lead attorney on the brief was Nathalie Gilfoyle, the APA general counsel.
The immediate practical effect of this decision is to enable same-sex marriage in all states. That in turn will require substantial changes in financial and other benefits in states that have not previously recognized those marriages.
The brief could be criticized for presenting evidence to the Supreme Court (not an unusual thing for amicus briefs, but some see it as an inappropriate place for the presentation of evidence). Part of the answer was an unusual promise to the Court that the brief constituted a fair summary: “This brief presents an accurate summary of the current state of scientific and professional knowledge concerning sexual orientation and families relevant to this case.” That promise, of course, is one that would have to be kept if the organization were to maintain credibility. The majority opinion appeared to agree with most of the points in the amicus brief, and cited it directly.
The immediate practical effect of this decision is to enable same-sex marriage in all states. That in turn will require substantial changes in financial and other benefits in states that have not previously recognized those marriages.
There are undoubtedly some follow-up issues that will have to be resolved. There have already been questions about whether it will now be a violation of civil rights laws for churches or vendors to decline, as a matter of their faith, to allow such wedding in their facilities. Justice Kennedy’s effort to provide some assurance on those issues was confusing. Already there have been challenges to the “one” part of the “one man and one woman” that the Court struck down. The reasoning of the Court does seem to invite such challenges.
Of greater uncertainty is the future of substantive due process. The expansive language in the majority opinion might suggest that a robust form of substantive due process could be returning. And (as with all process) it is a knife that will undoubtedly cut both ways—it can be used by a majority to support almost any proposition. The opinion in this case was written by Justice Kennedy, who decides most of the close cases so he might use substantive process again in future cases. Whatever the outcome of this case, the doctrine has had an unhappy history and we can only hope that this will not be repeated.
The Affordable Care Act and Exchange Subsidies
The case with the greatest immediate impact was King v. Burwell. This was characterized as “merely” a matter of statutory interpretation (as opposed to a constitutional question) of the meaning of part of the Affordable Care Act (ACA). The question was whether people who use the federal ACA Exchange could receive the same subsidy as those who use the state-established Exchanges.
The ACA told the states to establish Exchanges, but many did not do so, and there was no provision in the statute for forcing them to do so. At the time of this case, only 16 states had Exchanges. Because most states declined to establish Exchanges, the federal Exchange became the default. Therefore, the question of whether those who used the federal Exchange received the subsidy was enormously important. Subsidies for millions of individuals depended on that question. Furthermore, the absence of subsidies could have relieved many others of their obligation to purchase health insurance (because the cost of such insurance would exceed eight percent of their income).
The language of the ACA provides, however, that the insurance subsidy is available only if the persons enroll in “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act” (emphasis added). This case was about what “Exchange established by the State” means. Specifically, does it include the federal Exchange as well as the state Exchanges?
A six-justice majority held that the better interpretation of the statute was that the statute permitted subsidies through the federal Exchange. Interestingly enough, even the majority conceded the argument is strong that the plain meaning of phrase “established by the state” limits subsidies to state Exchanges. The decision came down to the meaning of this phrase in the context of the statute as a whole. In this instance, the majority held that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
The majority also noted that the ACA is sloppily written in many areas. In the words of the Court: “The Affordable Care Act contains more than a few examples of inartful drafting.” For example, the Act contains three separate sections numbered as “Section 1563.” This “unfortunate reality,” the Court noted, resulted in a law that “does not reflect the type of care and deliberation that one might expect of such significant legislation.” This might account for the use of “established by a state.” Nonetheless, the majority noted, it had to do its best to read the language in the context of the whole statute.
The dissenting justices essentially took the position that the language of the statute is sufficiently clear. The context of the whole statute “is a tool for understanding the terms of the law, not an excuse for rewriting them.” Thus, the majority is saying that “‘Exchange established by the State … means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” Among other things, the dissent said, it means that the words “established by the state” have no meaning at all in the statute, and it is unclear why Congress did not say “Exchange” instead of “Exchange established by the state.”
The dissenters also suggest that including this particular language could well have been intentional. Under this theory, Congress wanted to force the states to establish Exchanges, but did not have the constitutional authority to do so. Thus, Congress may have been trying to force states to set up Exchanges by setting up a system of subsidies that their citizens would get only if the state had an Exchange.
The Supreme Court has had more than two hundred years and thousands of cases to refine its grasp of the art of statutory interpretation. The result is that there is a case and quotation for just about any principle of interpretation. For 42 pages (21 in each opinion) the majority and dissent traded these cases and interpretation.
A six-justice majority held that the better interpretation of the statute was that the statute permitted subsidies through the federal Exchange.
The results of the case were that the subsidies granted through the federal Exchange will continue. It will not expand the subsidies. Had the decision gone the other way, however, there would have been a real challenge to the future of the ACA. In the ordinary course of statutory interpretation, if Congress does not like the Court’s interpretation it can (and often does) simply change the statute. This case came at a time when that would have been exceedingly difficult.
This case was unnecessary. It arose, the Court found, because of poor drafting of the statute. While the quality of much legal writing has improved, the quality of writing of statutes and regulations seems to be declining. This case is an example of the risk of that, and of the price to be paid for it.
Licensing, Professional Practice Regulation and Antitrust
In North Carolina State Board of Dental Examiners v. Federal Trade Commission the Court potentially disrupted the traditional role and impact of state professional practice and licensing rules. The issue had to do with how antitrust laws apply to the activities of the licensing boards. In this case, the North Carolina dental board had tried to prevent non-dentists from engaging in the practice of teeth whitening.
Antitrust laws (notably the Sherman Act and the Federal Trade Commission Act) prohibit combinations and conspiracies in restraint of trade. Competitors cannot come together to seek to set prices, divide the market, or prevent new competitors from entering the market. Since the 1940s, however, the Supreme Court has recognized a “state action” exception to the antitrust laws. That is, antitrust laws do not apply to actions that a state takes in its capacity as a “sovereign.” This immunity for states applies not only to state legislation, but also to acts of the executive, courts, and state agencies—or at least most state agencies. These bodies are exercising the state’s sovereign power.
The question before the Court this Term was whether a state licensing board is included in the state-action immunity. This is an important question because most of what a state board does technically is a form of collusion among competitors. The Court held that where a state board is “controlled by active market participants” (as most state professional boards are), antitrust immunity is not automatic. For the immunity to protect boards two conditions must exist:
- The state must have articulated a clear policy to allow the regulation that is an anticompetitive conduct (e.g., licensing), and
- The state must have provided active supervision of the anticompetitive conduct. This requires that the state appoint someone or some group to approve policies of the board.
The first of these requirements would often be met by the statute setting up the board. The Court focused some attention on the second requirement. It noted that this supervision was particularly important where a state “empowers a group of active market participants to decide who can participate in its market, and on what terms.” That, of course, is exactly what most professional licensing boards do.
The Court discussed the supervision requirement but did not define it in detail. It noted that active supervision requires, among other things, that state offices have the power to review specific decisions of the board and disapprove those that are not consistent with state policy. As a general matter the Court said that “the question is whether the State’s review mechanisms provide realistic assurance that a nonsovereign actor’s anticompetitive conduct promotes state policy rather than merely the party’s individual interests.”
The Court identified a few requirements of active supervision. “The supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it; the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy; and [the supervision must actually occur, not just be a possibility]. Further, the state supervisor may not itself be an active market participant.” Other than this guidance, the Court concluded that “the adequacy of supervision otherwise will depend on all the circumstances of a case.” (This last is a somewhat chilling thought—more about that in a moment.)
Three justices dissented. They felt that the majority expressed a “serious misunderstanding of the doctrine of state-action antitrust immunity that this Court recognized more than 60 years ago.” In addition, the dissent worried that the majority’s decision will have problematically “far-reaching effects on the States’ regulation of profession.” Yet, it is nearly impossible to know exactly what changes a state would have to make to comply with the Court’s ruling.
The dissent correctly notes that this is a case with the potential for considerable impact on the licensing and control of the professions. In most states this decision will require some kind of restructuring so that the professional boards are not the final decision maker, but (in effect) only make recommendations to a “supervisor.” The supervisor may be one person or another body, but the review is not pro forma. The reviewer cannot be an active market participant, thus risking some loss of expertise. As Justice Alito noted in dissent: “Staffing the State Board of Dental Examiners with certified public accountants would certainly lessen the risk of actions that place the well-being of dentists over those of the public, but this would also compromise the State’s interest in sensibly regulating a technical profession in which lay people have little expertise.”
The Court’s notation that the adequacy of the supervision will “depend on all the circumstances of the case” is cause for some concern. This language means that it will be easy to make an antitrust claim against a board, but difficult to dismiss it without a trial or hearing at which ALL of the circumstances can be considered. This can be a lengthy and expensive process.
Ironically, one outcome in the long run may be to harm, not help, the public interest. The AMA and others filed an amicus brief in this case that noted the threat to the public health (as described in the Endnotes).
It is likely that most of the antitrust claims resulting from this decision will not be brought by the Federal Trade Commission or the Justice Department. They will be brought instead by private individuals seeking to overturn a decision of the board or to intimidate the board. Antitrust cases that have to consider all of the circumstances are difficult and expensive to defend and boards have limited resources. This will not be lost on those denied a license or disciplined by board, or who are involved in near-quackery. Any organization tends to shy away from litigation, especially expensive litigation. That can be especially true of state boards with limited resources. There will be considerable pressure on boards to avoid this litigation; in other words, to reduce the standards rather than fight. These antitrust issues are likely to be raised routinely in ethics, competency and quality concerns of boards.
The “unauthorized practice” of the professions was, even before this case, a matter of concern legally for a variety of reasons. Those cases now will be even more problematic.
One other possible implication is that there will be pressure to move back toward “labeling” licensure rather than “practice” or “activity” licensing. “Labeling” means being able to call oneself by a specific title, say “psychologist” or “physician,” without a license. (It may, however, enable someone to use a similar name—“psychotherapist,” for example.) “Practice” or “activity” means that someone may not engage in a certain activity unless licensed. In this case it was whitening teeth. Label licensing is less likely to raise antitrust concerns than practice licensing. It would not be surprising to see some professions move more toward label licensing only.
The Court gave rather short shrift to concerns that its decision might make it more difficult to attract really good professionals to the boards. The possibility of personal liability can probably be dealt with, but it deserves attention. The problems with litigation and antitrust claims, and reviews of decisions of a board (potentially by nonprofessionals) can hardly be a plus in attracting the right professionals to the boards. That, too, will merit careful attention.
This case will give rise to considerable litigation for many years. Professional associations and boards should endeavor to get ahead of the issue by immediately studying ways in which the concerns of the FTC can be accommodated without significantly reducing the public protection that is part of well-administered professional licensing.
Children “Testifying” in Abuse Cases
A pre-school teacher noticed that L. P., a three-year old boy, had a bloodshot eye and asked him what happened. He first said nothing, but then said he fell. Later the teachers noticed some other marks on his face and again asked him who had hurt him. L. P. “‘seemed kind of bewildered and said something like, Dee, Dee.’” One of the teachers asked if Dee is big or little, and L. P. responded “Dee is big.” Lifting L. P.’s shirt, the pre-school officials found more injuries. The school contacted the child abuse hotline. At the hospital, a physician discovered additional injuries suggesting abuse.
Darius (“Dee”) Clark was caring for L. P. and L. P.’s younger sister in the absence of their mother. Clark was charged with various child abuse felonies. At the criminal trial L. P. did not testify, but the state wanted to introduce L. P.’s statements to the teachers as evidence of Clark’s guilt. The Sixth Amendment, however, provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Presenting L. P.’s statements to teacher might make him a witness against Clark. The question was whether that would violate the “Confrontation Clause.”
L.P. did not testify because there is an Ohio rule of evidence that children under ten are incompetent to testify in court if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” The trial court held a hearing and determined that L. P. (who was three at the time of the alleged abuse) was not competent to testify.
For many decades the Supreme Court has struggled with what the Confrontation Clause means in terms of out-of-court statements introduced at trial against criminal defendants. There have been a number of changes over time. In recent years, however, when a witness is not available to testify at trial, the Court has held that the Sixth Amendment prohibits only “testimonial” evidence. (That is, “non-testimonial” statements might be admitted into evidence.) Defining testimonial, of course, is critical. It is also hard. It generally means that where the “primary purpose” of an inquiry or questioning is to create a record for trial, it is testimonial.
In Ohio v. Clark the Court held that L. P.’s statement to the teachers was not testimonial because it was not gathered primarily for the purpose of presenting evidence in court, but rather to protect L. P. The court also noted that L. P.’s age was a factor. “Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. … [The Court cited research that very young children have very little understanding of prosecution.] Thus, it is extremely unlikely that a 3-year-old child in L. P.’s position would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all.”
By excluding a child witness in court as incompetent, the courts can nonetheless allow statements made by a child (presumably with the same incompetencies) outside of court.
L.P.’s statements to the teacher were admitted and Clark was convicted of most of the charges against him. All nine justices said it was proper to allow L. P.’s statements to be introduced at trial.
Justice Scalia (Justice Ginsburg joined him) disagreed, however, with the effort of the majority opinion to restrict the circumstances in which out-of-court statements are considered testimonial. Justice Thomas concurred based on his view that “testimonial” should depend on whether there are sufficient “indicia of solemnity to qualify as testimonial.”
To lawyers this makes sense. Like most constitutional guarantees, the Confrontation Clause cannot be absolute. (A wife, seeing her husband on the floor shot with his own gun, asks him, “John, what happened?” He answers, “Jake grabbed my gun and shot me,” then dies. There is little additional evidence. It would be strange if the Confrontation Clause prevented his dying statement from being admitted at Jake’s murder trial.) How to make sense of the Clause is a continuing problem. It has resulted in fairly complex, shifting rules. The unanswered questions in this case will undoubtedly lead to substantial additional litigation.
To non-lawyers, however, this case may seem a little Kafkaesque. By excluding a child witness in court as incompetent, the courts can nonetheless allow statements made by a child (presumably with the same incompetencies) outside of court. These would likely be circumstances that would make the child’s evidence even less reliable than testifying in court. The opinion also creates incentives for some prosecutors to try to make abuse victims unavailable for trial. That would allow their testimony to be admissible by hearsay. Aside from the legal technicalities, the likelihood of wrongful convictions under such a system must be considered for the long run.
Execution and Intellectual Disability
More than a decade ago in Atkins v. Virginia the Supreme Court held that the execution of an intellectually disabled defendant violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Brumfield v. Cain is a continuation of the effort to implement that decision fully. Brumfield had been sentenced to death before the Atkins case was decided. As a result, he petitioned the courts for a review of his case under the Atkins requirements but was turned down.
The majority of the Supreme Court held that the state courts should have held a hearing to determine whether Brumfield was so intellectually disabled so as to preclude him from receiving a capital sentence. Specifically, the state court made two mistakes. First, the lower court incorrectly put too much reliance on the fact that he had scored a 75 on an IQ test and neglected to consider the margin of error of the test. “Accounting for this margin of error, Brumfield’s reported IQ test result of 75 was squarely in the range of potential intellectual disability.” The second mistake was that the lower court had unreasonably failed to consider whether Brumfield’s impairment in adaptive functioning would have disqualified him from receiving the death penalty. The record at the trial court had raised serious doubts that he possessed requisite skills across a variety of areas (including, e.g., self-care, learning, self-direction, and the capacity for independent learning).
Based on the failure of the trial court to consider the IQ and adaptive functioning elements of intellectual disability, the Court held that Brumfield was entitled to a hearing to assert that he “so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the ‘law’s most severe sentence.” That is, Brumfield’s remedy is a formal hearing by the trial court to determine the issue of competence. It does not ensure that he will not be executed should the trial court determine he is competent.
Four justices dissented. The essential legal argument of the dissenters was based on the federal statute (Antiterrorism and Effective Death Penalty Act) that governs habeas corpus appeals to federal courts. That act significantly limits federal reversal of state court decisions. The dissenters would have held that the state court had not acted unreasonably in denying a full hearing on the competency question.
Other Death Penalty Cases
Glossip v. Gross was one of the strangest cases of the Term. Four prisoners sentenced to death challenged the mix of chemicals Oklahoma planned to use to execute them. They claimed that the first drug (500 milligrams of midazolam) might not be sufficient to render them unable to feel the pain of two other lethal drugs. The Court had earlier upheld a three-drug protocol when the first drug was sodium thiopental. But apparently that drug and another became unavailable because the manufacturers, because of opposition to the death penalty, refused to supply the drugs.
The majority determined that, because the death penalty is constitutional, there must be a constitutional way to carry it out. It held that the burden of proof was on the prisoners to prove that midazolam, as the first drug, was inadequate to produce unconsciousness (and they had not proved that in this case). Furthermore, the majority indicated that the prisoners would have to establish an alternative means of execution that was available (and they had not done that).
The dissent essentially disagreed with the majority’s interpretation of the evidence about the effects of midazolam. Justice Kagan suggested that the process could be the “chemical equivalent of burning alive.” The dissent also disagreed that to prevail the prisoners had to suggest an available alternative.
This was the core of the case before the Court. But another argument broke out that consumed a half of this very long case—a dissent by Justice Breyer (joined by Justice Ginsburg) and concurring opinions (actually, dissents to Justice Breyer’s dissent) by Justices Scalia and Thomas. That argument was over the constitutionality of the death penalty. We will return to that issue in a moment.
A much different capital trial issue was raised in Davis v. Ayala—the dismissal of jurors for racial reasons. The Court, almost twenty years ago, held that it violates the Constitution for the prosecution to use peremptory (discretionary) challenges to dismiss potential jurors for racial reasons. In Ayala’s trial for murder the prosecution dismissed prospective Hispanic and African-American jurors. The defense objected and the trial court held a hearing to determine if the prosecutor’s peremptory challenges were proper. The judge excluded defense counsel from that hearing. The state trial and supreme courts held that this exclusion, although improper, constituted “harmless error”—in other words, that it would not have made a difference if defense counsel had been present.
The Supreme Court, in a 5-4 decision, held that the exclusion was indeed harmless error, essentially because the issues the defense counsel might have raised were considered by the trial court anyway. The dissenting justices disagreed, noting several considerations the defense counsel might have raised or pressed had he been permitted to be present.
The constitutional status of the death penalty is different from the other cruel and unusual punishment cases the Court has heard in recent years. Capital punishment is specifically recognized in the text of the Constitution.
Of particular interest was Justice Kennedy’s concurring opinion, which had nothing to do with the legal issues in this case. Ayala had been in solitary confinement most of the 25 years he had been in prison for this offense. Justice Kennedy noted that 25,000 inmates in the US are in solitary confinement. He expressed concern about the inhumanity of these conditions—replete with literary and historical references—and expressed particular concern that there is not greater awareness of this issue.
Justice Kennedy’s off-topic discussion may be important for two reasons. First, he virtually invited a legal challenge to solitary confinement (and since he might well be the deciding vote in such a case, it is an invitation to be taken seriously). Second, I suggest below that Justice Kennedy seemed to imply that there may be a solitary confinement connection to capital punishment.
In another capital case, court-appointed attorneys missed a filing deadline for an appeal (technically, federal habeas corpus) for a defendant convicted of three counts of capital murder. The defendant requested different counsel, but the trial court declined to change his lawyers. Without waiting to receive briefs or have oral argument on the issue, the Court held that new attorneys should be appointed. It noted that the attorneys now had a conflict of interest with the client because the client’s only hope for having an appeal was that his attorneys were seriously incompetent.
Is the Court About to Reconsider Whether the Death Penalty is Constitutional?
In two of these cases there were hints that the Supreme Court might, in the near future, take up the question of the constitutionality of capital punishment. In 1976, the Court upheld the constitutionality of the death penalty (but restricted how it could be used and how it had to be applied).
In Glossip v. Gross Justice Breyer (joined by Justice Ginsburg) issued a long (43 page) “dissent” that was essentially unrelated to the Glossip case. It was a brief against the constitutionality of the death penalty. As the length suggests, it was a very full consideration of the arguments (with social science evidence cited) for doing away with the death penalty. The issue was now joined: Justices Scalia and Thomas each “dissented” to the claims of Justice Breyer.
In Davis v. Ayala, Justice Kennedy similarly wrote an opinion having almost nothing to do with the case. While this focused on solitary confinement, it specifically mentioned capital punishment. This is perhaps in part because many capital defendants are held in solitary confinement. It is possible that Justice Breyer’s opinion (that also discussed the lengthy confinement, frequently in solitary) was directed at Justice Kennedy—most likely an essential fifth vote if the death penalty were to be ruled unconstitutional.
The constitutional status of the death penalty is different from the other cruel and unusual punishment cases the Court has heard in recent years. Capital punishment is specifically recognized in the text of the Constitution. It might be difficult to claim that evolving standards of decency (of the Eighth Amendment) had changed what is specifically recognized in the Constitution.
It takes four justices to vote for the Court to take a case to hear. It seems Justice Breyer is inviting the Court to take up a case challenging the constitutionality of the death penalty case. What the outcome of that would be is in doubt—but it sounded as if he were speaking to Justice Kennedy. All of this, of course, is speculation. We will keep an eye out for the possibility of such a case.
Other Major Cases
A number of other cases of significance were decided this Term.
Government Immunity and Persons with Mental Illness
A major case appeared to be on the Court’s agenda this Term that should have determined whether the Americans with Disabilities Act (ADA) requires officers to provide “accommodations” to a mentally ill, armed, violent suspect they are taking into custody. But it is the case that went bust, in a legal sense.
San Francisco police were trying to take Teresa Sheehan into custody on what essentially was a temporary civil commitment hold. (Ms. Sheehan was in a group home and suffered from schizophrenia.) When police entered she threatened to kill them and struck at them with a knife. They closed the door. They later reopened it and tried to subdue her but she struck out at them again and ultimately the officers shot her several times. She survived and sued them essentially for failing to accommodate her mental illness when trying to take her into custody.
This case should have determined whether the ADA requires officers make accommodations when they are trying to bring into custody a suspect with mental illness. Because San Francisco so mishandled its appeal (details are set out in the endnotes), the Court could not decide the ADA question, which remains for another day.
...public officials are immune from civil rights lawsuits unless they have 'violated a statutory or constitutional right that was clearly established at the time of the challenged conduct'...
The Court did, however, decide that the individual officers could not have been liable for their actions. The Court held that the officers had no fair warning of what the Constitution requires.
The American Psychiatric Association, the American Psychological Association, and others filed an amicus brief in this case. It was not, in my opinion, a particularly helpful or persuasive one (details are in the endnotes). The Court did not follow the brief’s positions in result or reasoning, and the Court did not take up the substantive issue of whether the ADA applies to police in arresting a person with a mental illness.
Because the question of immunity arises frequently for healthcare and mental health employees of government agencies, we consider several of the cases the Court decided this Term. These cases were generally brought under 42 USC §1983, which provides that someone acting under color of law who deprives anyone “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” In applying this law, the Courts have held public officials are immune from civil rights lawsuits unless they have “violated a statutory or constitutional right that was clearly established at the time of the challenged conduct” (emphasis added). This means that any “reasonable official in [the official’s] shoes would have understood that he was violating” the statutory or constitutional right.
In Taylor v. Barkes, a prisoner with a history of psychiatric treatment and suicide attempts committed suicide while in jail. A Section1983 suit claimed that state officials had failed to supervise the private contractor who provided medical services in the jail (including intake screening). Among other things, they had failed to follow the standards of the National Commission on Correctional Health Care. The Court found immunity based on the proposition that no decision of the Court “establishes a right to the proper implementation of adequate suicide prevention protocols.”
The immunity is further illustrated in another case in which police officers engaged in a warrantless “knock and talk” search (knocking at a door and talking to whomever answers). But instead of using the front door, they went to a backyard deck and back door. That might have been an illegal form of entry and search, but it was “not beyond debate” that going to the backdoor was an illegal search, so there was immunity.
On the other hand, the Court this Term did make it somewhat easier for prisoners to establish Section 1983 liability in another fashion. A majority of the Court held that in a suit against jailers for using excessive force, the prisoner need only show “objectively” unreasonable force. That is, that a reasonable prison official under the circumstances would have understood the force to be unreasonably excessive. (This is opposed to a “subjective” standard, in which the defendants themselves would have to have understood it was excessive.)
In another (technical) decision, the Court gave those filing Section 1983 cases some latitude in the way their initial pleadings are drafted.
It should finally be noted that civil rights (or Section 1983) liability is not the only manner in which civil liability suits arise regarding government actions. An especially important one is the Federal Tort Claims Act. It provides that many of the tort claims that are allowed against individuals may also be filed against the federal government (essentially waiving some the federal government’s “sovereign immunity”). Malpractice claims, for example, may be brought through the Tort Claims Act. This Term the Court very slightly extended, in some circumstances, the time for filing these claims. These suits are generally against the government, not individual federal employees.
The qualified immunity of government officials remains an important protection against civil rights actions. It certainly puts a premium, however, on officials knowing when legal principles that apply to their work are clearly established.
Housing and Employment Discrimination
The “Sleeper of the Term” may be a housing discrimination case. The case dealt with the Fair Housing Act, which prohibits discrimination in housing matters (including zoning and similar local government regulation, private development, and the use of federal housing funds). The Court held that the act not only prohibits discrimination where there is a discriminatory intent or motive, but also where there is a “disparate impact.” “Disparate impact” essentially means “practices that have a disproportionately adverse effect on minorities unjustified by a legitimate rationale.” (Racial considerations were the primary focus of the case, but the act also prohibits discrimination based on color, religion, sex, familial status, or national origin.)
This was a matter of statutory interpretation (not constitutional law), so the five-justice majority looked at how other civil rights laws with similar language had been interpreted. The Civil Rights Act and Age Discrimination in Employment Act had been interpreted by the Court to include disparate impact. It also looked at the language of the Fair Housing Act. Both the majority and dissent found language and history to support conflicting readings of the statute.
The majority’s opinion limited the use of housing disparate impact (as set out in the endnotes). Whether lower courts will be able to implement these limitations effectively will be interesting to see.
"Disparate impact" essentially means "practices that have disproportionately adverse effect on minorities unjustified by a legitimate rationale."
This may be a “sleeper” case because it did not receive a lot of public attention. But it will have major significance. Ten federal circuits have been allowing disparate impact housing cases, so a decision going the other way would have changed the law markedly. The application of housing disparate impact in the lower courts has produced some unexpected results. The dissent opened with reference to an Eighth Circuit decision that strict code enforcement regarding rodent infestation might have a disparate impact because it would raise rents, thus disproportionately affecting minorities. The decision can be expected to lead to considerable litigation in the years ahead.
In another disparate impact case (involving employment) the Court held that the Pregnancy Discrimination Act was violated where a pregnant employee sought accommodation which the employer declined to provide for her while accommodating others “similar in the ability or inability to work.” The employer may be able to demonstrate a non-discriminatory basis for not accommodating a pregnant employee. However once it voluntarily grants a particular accommodation to (for example) a temporarily injured worker, it may be required to provide similar accommodation to pregnant workers.
In another case, the Court considered Abercrombie & Fitch’s decision not to hire an applicant because of the headscarf that she wore pursuant to her religion. The Court held that it could be a violation of the Civil Rights Act to fail to make a reasonable accommodation for such religious practices.
Other Cases of Interest
In other cases this Term the Court:
- Held that Medicaid providers cannot sue states to require that they provide higher Medicaid rates for services. (The AMA had filed a suit in this case asking the Court to allow such suits.)
- Narrowed prosecution for “threatening” statements in social network and other internet communications by holding that negligence in the communication is not sufficient for conviction under federal law.
- Determined that requiring someone to wear a GPS tracking bracelet to follow the person’s movements is a search, but it is not necessarily an unreasonable search when required of someone convicted of a sexual offense. (The Fourth Amendment prohibits only unreasonable searches.)
- Found that laws requiring hotels to maintain guest registers that are available upon request to law enforcement are unconstitutional searches.
- Held that police cannot extend (absent “reasonable suspicion of a crime”) a traffic stop for the purpose of conducting a dog-sniff search.
- Determined that the EPA violated the Clean Air Act with its power plant emission regulations because it failed to do a proper cost-benefit analysis.
- Expanded somewhat the reach of the False Claims Act (which is frequently used in healthcare fraud) by determining that the “first-to-file” limitation in the statute “keeps new claims out of court only while related claims are still alive, not in perpetuity.” The AMA filed an amicus brief in the case opposing this expansion.
Analysis of the Term
The Court decided 74 cases this Term (66 signed opinions and eight summary opinions). This was slightly below the average of the preceding ten-year average of 78. The Court was unanimous in 41% of the cases, and split 5-4 in 26% of them (the term before, it was unanimous in 66% of the cases, and split 5-4 in 14% of them).
The most common commentary on the Term was that it was liberal (e.g., “Stunning Series of Liberal Decisions” and “Conservatives Take a Hit”). One study suggested that it was the “most liberal term since 1969.” Same-sex marriage, the ACA, employment discrimination, and fair housing were examples.
This was borne out in the justices who were in the majority. Justices Breyer (92%), Sotomayor (89%), Kennedy (88%), Ginsburg (86%) and Kagan (85%) were in the majority most often, and all but Justice Kennedy are considered to be on the liberal side. By comparison, Justices Thomas (61%), Scalia (69%) and Alito (72%) were in the majority least often—that is, for all (including unanimous) cases. For the “divided cases” the split is even more dramatic, with Justice Breyer in the majority 86% of the cases and Justice Thomas at 34%.
Looking at it another way, Justice Thomas issued 19 dissents this Term. Justice Ginsburg issued only one. As in the past, Justice Kennedy was the deciding vote in most of the 5-4 cases (he was in the majority in 14 of these 19 5-4 cases).
The commentators attributed the liberal bent this Term to “discipline on the left side of the court and disarray on the right.” They pointed to “rigorous bloc voting” on the left. Whether that just happened or was the result of an intentional strategy or design is not clear.
It is easy to overanalyze any term. A single term does not make a trend. As long-time observers note, the cases that come along in any given term can make it appear that something has changed on the Court, when it is just the cases themselves that have changed. It is quite unlikely that this Term signaled a shift in the overall direction of the Court.
Supreme Court analysts continue to challenge baseball writers for the most implausible statistics. Court watchers have developed the “Question Index” (average number of questions each justice asks) and the “Laugh Index” (laughs during oral argument per justice). This year came the Sarcasm Index (most sarcastic justice). Justice Scalia won, hands down (see the endnotes for the study).
The close of a Term usually brings questions of whether a justice may be stepping down. Such speculation was essentially missing this year. With a presidential election underway, a voluntary resignation seemed almost out of the question.
The new Term will begin October 5, and the Court has been taking cases for it. There are already hot topics involving capital punishment, affirmative action, healthcare databases, public employee unions, one-person-one-vote, arbitration and jury selection. In addition, experts will be watching to see whether the Court is about to reduce its deference to federal agencies. It promises to be an interesting and important Term.
Steven R. Smith, JD, is Dean Emeritus and Professor of Law, 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. Professor Smith may be reached at firstname.lastname@example.org.
Location of Endnotes and Materials
The Endnotes for this article appear below. The material includes links to all of the cited cases as well as additional information about the cases and the statutes cited by the cases. It also provides information about locating materials about the Supreme Court.
The author wishes to thank Andrew Boucher, Eric Drogin, Morgan Sammons, and Lera Smith for their generous help with this article. Any remaining errors are as a result of the author failing to take their advice.
 A NOTE ON NOTES
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 www.supremecourtus.gov. The website for the opinions for this Term is http://www.supremecourt.gov/opinions/slipopinions.aspx. 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.)
Anyone who is interested can also sign up for free same-day, digested notification of the decisions of the Supreme Court. The website is: http://www.law.cornell.edu/bulletin. An excellent site for all things Supreme Court is SCOTUSblog at http://www.scotusblog.com/.
The citations in this article are to the Slip Opinions of the Court as published on the Court’s 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
 Obergefell v. Hodges, decided June 26, 2015. This was a 5-4 decision with Justice Kennedy writing for the majority. There were four dissenting opinions. The opinion broke along ideological lines, which Justice Kennedy joining the “liberal” group (using a common classification in the press).
 King v. Burwell, decided June 25, 2015. The opinion was written by Chief Justice Roberts. It was a 6-3 decision. In addition to Chief Justice Roberts, Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan were in the majority. Justice Scalia wrote a dissent in which Justices Thomas and Alito joined.
 North Carolina Bd. of Dental Examiners v. FTC, decided February 25, 2015. This was a 6-3 decision. Justice Kennedy wrote for the majority, and Justice Alito wrote for the three dissenting justices.
 Ohio v. Clark, decided June 18, 2015. The opinion of the court was written by Justice Alito. This was a unanimous decision, but there was a split among the justices about the basis for the decision. Six justices joined the majority opinion.
 The opinion begins with a history of marriage. It notes that, “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” Id. at 3
 E.g., “[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning. [L]aws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Id. at 17-18. “[T]this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.” Id. at 22.
 Id. at 1-2.
 Id.at 6.
 “Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity.” Id. at 6.
 Id.at 10.
 Id. at 10, citing Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting).
 “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” Obergefell at 11 (emphasis added).
 Id. at 12.
 Id. at 13.
 Id. at 14.
 Id. at 16.
 “These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.” Id. at 17, citing the amicus brief of the American Bar Association.
 Id. at 17.
 Id. at 12. The case was Baker v. Nelson, 409 U. S. 810 (1972). The Court in this case specifically overruled that earlier case (Baker) in the present case. Obergefell at 23.
 Obergefell at 20.
 Id. at 22.
 It also held that states must recognize same-sex marriages performed in other states. Id. at 28.
 Roberts, dissenting. He summarized his argument as follows: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.” Id. at 3.
 “The Court first applied substantive due process to strike down a statute in Dred Scott v. Sand-ford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so.” Roberts, dissenting at 11.
 Id. at 12-13.
 Id. at 20-22.
 “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.” Id. at 29.
 “Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . .’” Scalia, dissenting at 4.
 Id. at 5. Justice Scalia was especially unhappy about the reasoning of the majority. “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” Id. at 8, note 22.
 Many commentators noted (and collected) the “zingers” in his opinion. In addition to the above, examples of those regarding the Role of the Court: "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” “But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.”
 Examples of Justice Scalia’s comments concerning the Quality of the Majority Opinion:
“The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” “The opinion is couched in a style that is as pretentious as its content is egotistic.” “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.” “Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”
 Thomas, dissenting at 18.
 Alito, dissenting at 8.
 The APA brief can be found at http://www.apa.org/about/offices/ogc/amicus/obergefell-supreme-court.pdf . An amicus brief is a “friend of the Court” brief filed not by one of the parties, but by an organization or person with an interest or special expertise in the case. The APA was not alone. A record 147 amicus briefs were filed in this case.
 The high quality of amicus briefs filed by the APA has not always been the case. In earlier years the amicus briefs filed too often merely restated the legal arguments or were somewhat ambiguous about the scientific evidence presented. In recent years the APA has increasingly focused on the scientific issues.
 In summary the brief said that: “Scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that gay men and lesbians form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; that same-sex couples are no less fit than heterosexual parents to raise children, and their children are no less psychologically healthy and well-adjusted; and that denying same-sex couples access to marriage is both an instance of institutional stigma and a contributor to the negative treatment of lesbian, gay, and bisexual people.” Id. at 4-5.
 Id. at 5. The full assurance is as follows: “This brief presents an accurate summary of the current state of scientific and professional knowledge concerning sexual orientation and families relevant to this case. Amici have made a good faith effort to take into account the findings of all valid, published studies in these areas….Amici rely on the best empirical research available. Before citing a study, Amici have critically evaluated its methodology, including the reliability and validity of the measures and tests it employed, and the quality of its data-collection procedures and statistical analyses…. Scientific research is a cumulative process, and no empirical study is perfect in its design and execution. Accordingly, Amici base their conclusions as much as possible on findings that have been replicated across studies rather than on the findings of any single study….Even well-executed studies may be limited in their implications and generalizability. Many studies cited herein discuss their own limitations and provide suggestions for further research. This is consistent with the scientific method and does not impeach these studies’ overall conclusions…. Most of the empirical studies and literature reviews cited herein have been published in reputable, peer-reviewed academic journals. Some academic books, book chapters, and technical reports, which typically are not subject to the same peer-review standards as journal articles, are also cited, provided that they report research employing rigorous methods, are authored by established researchers, and accurately reflect professional consensus about the current state of knowledge.” Id. at 5-6. The very clear focus on providing a rigorously fair statement is a good additional step forward for the APA in amicus briefs to the Court. It is both important and somewhat dangerous. If the promise of fairness is not achieved, it will discredit the organization.
 “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.” Obergefell at 8.
 An unexpected issue arose almost immediately when a clerk refused to issue same-sex marriage licenses and was promptly jailed. Other officials may also raise similar objections. Arian Campo-Flores, Other State Officials Say No to Same-Sex Marriage, Wall Street Journal (September 13, 2015) available at http://www.wsj.com/articles/other-state-officials-say-no-to-same-sex-marriage-1442161531
 “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Majority opinion at 27.
 Exchanges are the ACA electronic marketplace in which people can compare and purchase health insurance policies. Those who are eligible for insurance subsidies under the ACA generally receive those subsidies when they purchase their policy through an Exchange.
 42 U. S. C. §18031(b)(1).
 26 U. S. C. §§36B(b)–(c).
 King v. Burwell at 20-21.
 “Petitioners’ arguments about the plain meaning of Section 36B are strong.” Id. at 20.
 Id. at 20 (omitting internal quotes and citations).
 Id. at 14.
 Id. at 15.
 Scalia, dissenting at 3. Justice Scalia was joined in this dissent by Justices Thomas and Alito.
 Id. at 1.
 “It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.” Id. at 17.
 Id. at 15-18. The majority took the positon, however, that “Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal.” Majority opinion at 19.
 As noted, the dissent suggested that it might have arisen not because of sloppy drafting, but because Congress wanted to offer the states a great deal (subsidies for their residents) that few if any states could refuse. If it were sloppy drafting, however, the dissent indicated that the Supreme Court has “no roving license to rewrite” those laws. Scalia dissenting at 19.
 Steven R. Smith, Being Optimistic about Legal Writing, The Scrivener at 1 (Fall 2010), available at http://www.scribes.org/sites/default/files/fall_2010_final_110710.pdf .
 North Carolina Bd. of Dental Examiners v. FTC, decided February 25, 2015. This was a 6-3 decision. Justice Kennedy wrote for the majority, and Justice Alito wrote for the three dissenting justices.
 15 U. S. C. §1 et sec.
 15 U.S.C §§ 41-58.
 Parker v. Brown, 317 U. S. 341 (1943).
 North Carolina Board of Dental Examiners at 5.
 Municipalities are not sovereigns and do not have immunity on their own. They are, however, creatures of the state and have somewhat limited antitrust immunity. There must be a clear articulation from the state of authority to the municipality that has anticompetitive effects. Hallie v. Eau Claire, 471 U. S. 34 (1985).
 The Court referred to these market participants as “a state board on which a controlling number of decision-makers are active market participants in the occupation the board regulates.”
 North Carolina Board of Dental Examiners at 9-11.
 Id. at 14
 Id. at 17-18 (internal quotations are omitted).
 Id. at 18 (citations and internal quotations are omitted).
 Alito, dissenting at 1. It noted that the precedent on which the Court relied was not a public agency, but rather a private trade association. Id. at 11.
 Id. at 11.
 Id. at 11.
 Brief of the American Dental Association, American Medical Association and others in North Carolina State Board of Dental Examiners v. FTC, available at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/ADA-Merits-Stage-Amicus-Br.pdf . Perhaps the most helpful part of the brief was the portion that summarized the perverse consequences for patients and the public” of the FTC proposal. It provided three areas of concern: A. Subordinating Public Health to Antitrust Considerations. …[T]he threat of antitrust liability may well cause state regulatory authorities to forbear from regulating at all in areas where the need to protect the public from un-sound medical practices or unqualified medical practitioners is most critical—lest they and their members be subjected to costly, burdensome, and uncertain antitrust litigation….B. Discouraging Service on Regulatory Boards. Affirmance could discourage conscientious practitioners from serving on state regulatory boards for fear of burdensome litigation and possible personal liability, including treble damage actions brought by persons claiming that the state regulators violated the federal antitrust laws…. Disrupting a 150-Year Tradition of Regulation by Practicing Professionals. Finally, in order to avoid intrusion by the FTC in health care regulatory matters traditionally the responsibility of the states, state legislatures would be pushed to alter their choices as to the membership and method of selection of members of state regulatory boards in favor of the FTC’s preferences on these matters. This result would interfere with a long tradition of regulation of the medical professions by boards composed of experienced and practicing doctors, which stretches back over 150 years and is based on virtually uniform state legislative judgments that such practitioners are best qualified to promote the public health.” Id. at 4-5. The Court in its opinion did not adopt position of the brief.
 To complicate matters of public protection further, as a practical matter the more legal challenges that can be raised in discipline or ethics cases, the weaker the enforcement becomes. Usually a review can only sustain or weaken the discipline (not increase it). The review process anticipated by this case certainly has that potential. Although the public is cynical about the professional discipline process, the sad thing is that the outcome of this case could weaken it still further.
 The AMA had specifically raised concerns about this in its amicus brief. (See above.)
 This is an incomplete description of the difficult and somewhat tortured history of the Court’s “confrontation” jurisprudence. A sense of it comes through in pages 4-7 of the Court’s opinion in this case.
 Id. at 7-9.
 Id. at 9. The Court also noted that as a historical matter, statements such as L. P.’s were admissible at common law in the U.S. and England. Id.
 Clark was a thoroughly unsympathetic defendant. He was caring for the two children because he had sent their mother (his girlfriend) to another city to engage in prostitution. Id. at 1.
 Scalia, dissenting at 1-3.
 Thomas, concurring at 2.
 The Ohio Rules of Evidence provide that children can testify only if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Ohio Rules of Evidence 601 A. The victim, a three-year old child was determined by the trial court to be incapable of understanding the facts and relating them accurately—therefore the child was not permitted to testify on court. Of course, at trial the judge and jury would have been able to hear directly what the witness says and assess the credibility and reliability of the witness. And there can be some form of cross examination to determine the possibility of error or untruthfulness. Even though not competent to be a witness at trial, the Supreme Court found it was proper to admit as evidence L. P.’s more informal statements to teachers. And those statements were not made in a way that the judge and jury could assess credibility and reliability, and without cross examination. Furthermore, the interviews with the child were not recorded or transcribed, so the report of the teachers and social works creates another source of error. It is impossible to determine what really happened that produced the statements (the leading, pressure, body language, etc.), or the inconsistent statements the child may have made (in this case it appeared that the child once said he had fallen, but it is unclear what other incorrect statements might have been given).
 Atkins v. Virginia, 536 U. S. 304 (2002).
 Brumfield v. Cain, decided June 18, 2015. This was a 5-4 decision. Justice Sotomayor wrote for the majority. Justice Thomas wrote a dissent, which Chief Justice Roberts, and justices Scalia and Alito joined (those joining the dissent did not join with a part of the dissent that the discussed the success the son of the murder victim had achieved).
 Id. at 8-9.
 Id. at 9.
 Id. at 11-12.
 Id. at 19.
 Thomas, dissenting at 11-15.
 In addition to the legal arguments, Justice Thomas first contrasted the defendant with the murder victim. He also described in some detail the extraordinary achievements (which included an NFL career) of one of the sons of the murder victim. The three other dissenters did not join in the part of the decision discussing the victim’s son. (Thomas, dissenting at 7-9.) Justice Alito noted that it was not “essential to the legal analysis in this case.” (Alito, dissenting at 1).
 Oklahoma, and most states, first used a drug to cause unconsciousness, then paralytic agent to paralyze the muscles (including the diaphragm) stopping respiration, and finally potassium chloride (causing cardiac arrest). Id. at 3.
 Baze v. Rees, 553 U. S. 35 (2008).
 The Court recounts the interesting story of how these drugs became unavailable. “[A]nti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences. The sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. After suspending domestic production in 2009, the company planned to resume production in Italy. Activists then pressured both the company and the Italian Government to stop the sale of sodium thiopental for use in lethal injections in this country. That effort proved successful, and in January 2011, the company announced that it would exit the sodium thiopental market entirely…. States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital, another barbiturate.... Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug to stop selling it for use in executions. See Bonner, supra. That manufacturer opposed the death penalty and took steps to block the shipment of pentobarbital for use in executions in the United States. The District Court below found that both sodium thiopental and pentobarbital are now unavailable.” Id. at 4-6 (internal citations omitted).
 “Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” Id. at 4 (internal quotations omitted).
 Id. at 11-16.
 Sotomayor, dissenting at 24. Justices Ginsburg, Breyer and Kagan joined Justice Sotomayor’s dissent.
 Justice Breyer’s dissent was 46 pages, Justice Scalia’s concurrence was seven pages and Justice Thomas’ concurrence was ten pages—63 pages of the total of about 125 pages.
 Batson v. Kentucky, 476 U. S. 79 (1986). The Batson process works as follows: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U. S. 472, 476–477 (2008).
 Davis v. Ayala at 12-28.
 Sotomayor, dissenting at4-7.
 Kennedy, concurring at 1. Justice Kennedy began by noting that his concurrence did not relate to a legal issue in this case. “This separate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case.” Id.
 “In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in ‘administrative segregation’ or, as it is better known, solitary confinement. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respondent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.” Id. at 1-2.
 Id. at 2-4. Justice Thomas also concurred to respond to Justice Kennedy. Justice Thomas wrote, “I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are afar sight more spacious than those in which his victims…now rest.” Thomas, concurring at 1.
 “[R]esearch still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” Kennedy, concurring at 4 (internal citation omitted).
 “So in many cases, it is as if a judge had no choice but to say: ‘In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.’ Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference.” Id. at 3.
 Id. at 8. Justices Alito and Thomas would have preferred to have briefs and oral arguments in this case, and so they dissented.
 Obtaining “equitable tolling” of the time to file the habeas petition is available only in instances of “serious attorney misconduct.” So, if the defendant does not get different attorneys, his attorneys would have to argue that they themselves engaged in that serious misconduct.
 Gregg v. Georgia, 428 U.S. 153 (1976).
 Glossip v. Gross, Breyer dissenting.
 Justice Breyer tied the constitutionality of the death penalty to this case by saying that he would like to have a full briefing on whether the death penalty violates the Constitution Id. at 1 He suggested that capital punishment may violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
 Id., Scalia concurring; Thomas concurring. Technically, Justices Scalia and Thomas were concurring in the opinion of the Court, but in fact they were answering Justice Breyer’s opinion.
 Justice Kennedy’s opinion when read carefully did seem to suggest the link to capital punishment. “So in many cases, it is as if a judge had no choice but to say: ‘In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.’ Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference.” Kennedy dissenting in Davis at 3 (emphasis added).
 Dahlia Lithwick, Fates Worse Than Death?, Slate (July 14, 2015) available at http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/will_kennedy_overturn_the_death_penalty_his_views_on_solitary_confinement.html .
 Notably the Fifth Amendment provides that no “person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.”
 City and County of San Francisco v. Sheehan, decided May 18, 2015. Although the Court was unanimous on the substantive questions (Justice Breyer did not participate in this case), Justices Scalia and Kagan would have refused to hear because of the “bait-and-switch” of San Francisco in getting the Court to decide the case. The bait-and-switch claim is discussed below.
 The Court dismissed the central question as certiorari having been “improvidently granted.” Id. at 1.
 San Francisco asked the Supreme Court to decide one question, and then briefed and argued a different question—a question it had not raised before the appellate court. The justices were irritated. The uncomfortable opening of the oral argument is set out at: http://www.supremecourt.gov/oral_arguments/audio/2014/13-1412 (audio); and at: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1412_o290.pdf (transcript). The Court refused to decide the case that San Francisco had argued (it did decide a second issue). Justices Scalia and Kagan would have dismissed the entire case as improvidently granted.
 Id. at 17.
 The amicus brief is available at http://www.apa.org/about/offices/ogc/amicus/sheehan.pdf . The brief was drafted by distinguished counsel (but in this case not the general counsel of the American Psychiatric Association or American Psychiatric Association) and was clearly written. (There is possible confusion regarding the “APA.” The “APA” in this brief refers to the American Psychiatric Association, while it referred to the American Psychological Association in the Obergefell—gay marriage amicus brief.) Unfortunately, much of it was a reiteration of the facts and legal arguments that the parties were making, which is not particularly helpful to the Court. E.g., Id. 23-30. There was a lengthy discussion in a couple of places of possible approaches that police might use in dealing with mentally ill people (see generally, 5-21). However, it did not include the persuasive data that the brief in Obergefell provided (and they simply may not have been available), concluding “the programs described above have not provided any panacea to the deep problems…and responsibilities borne by police officers in responding to mental health crises.” That undoubtedly was a fair, and therefore necessary, disclaimer. But it is not clear that it provided the Court much assistance in thinking about the reasonableness of the police. Particularly strange was the brief’s assertion, more than once that, “this Court should start from the uncontested premise that the ADA applies to arrests and requires reasonable accommodation in that context.” Id. at 25 (also see 23). This was strange because that was precisely the question on which the Court had granted certiorari (From the start, the “Question Presented” when asking the Court to undertake review began, “1. Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of ringing the suspect into custody.” San Francisco v. Sheehan, On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, available at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/140522-Petition-for-Certiorari-CCSF-v-Sheehan.pdf .) This was, of course, the very problem that caused the Court to dismiss the review as improvidently granted, and the dissent to claim “bait and switch.” (See above.)
 Sheehan at 10-11.
 Id. at 4.
 Id. at 7.
 There are many procedural and substantive limitations on this waiver of sovereign immunity, however. For example, for a claim to be recognized, it must first be presented to the federal agency for administrative review. This must be done within two years after the claim accrues. If the agency denies the claim, it must be filed in court within six months of the denial. 28 USC §2401.
 Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., decided June 25, 2015. Justice Kennedy wrote for the majority. It was a 5-4 decision.
 Id. at 1 (internal quotes are omitted).
 42 U. S. C. §§3604(a), 306054(a).
 The majority’s limitation on disparate impact housing cases begins with the pleadings. It indicates that the plaintiff in such a case must make out a prima facie case early on. “A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all.” Id. at 20. It is not just that there are racial differences in housing, but that they result for specific policies or actions. Therefore, “a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that racial imbalance does not, without more, establish a prima facie case of disparate impact and thus protects defendants from being held liable for racial disparities they did not create.” Id. at 20 (internal quotations omitted). Furthermore, “Governmental or private policies are not contrary to the disparate-impact requirement unless they are artificial, arbitrary, and unnecessary barriers”… Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.” Id. at 21 (internal quotations omitted). Finally, “even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that arbitrarily operates invidiously to discriminate on the basis of race.” If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means.” Id.at 22 (internal quotations omitted).
 The dissent opened with the following case: The Eighth Circuit “concluded that [a] city’s aggressive enforcement of the Housing Code was actionable because making landlords respond to rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors, and the like increased the price of rent. Since minorities were statistically more likely to fall into the bottom bracket for household adjusted median family income, they were disproportionately affected by those rent increases, i.e., there was a ‘disparate impact.’” Alito, dissenting at 1 (internal quotations omitted), citing Gallagher v. Magner, 619 F. 3d 823 (8th Cir. 2010).
 Brief of the American Medical Association and others in Armstrong v. Exceptional Child Center, available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/14-15_amicus_resp_AMA.authcheckdam.pdf . The brief urged the Court to allow challenges to the state-determined Medicaid reimbursement rates.
 Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, decided May 26, 2015. Justice Alito wrote for a unanimous Court.
 American Medical Association joined the amicus brief drafted by the Chamber of Commerce of the United States and others in this case, available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/12-1497_pet_amcu_cocus-etal.authcheckdam.pdf . The brief urged the Court not to “stop the clock” on false claims cases, and allow the first-to-file rule to preclude anyone from later filing another suit after the first lawsuit is dismissed. The Court agreed with the first position but did not adopt the second.
 “The stunning series of liberal decisions delivered by the Supreme Court this Term….” Adam Liptak, Right Divided, a Disciplined Left Steered the Supreme Court, New York Times (June 30, 2015) available at http://www.nytimes.com/2015/07/01/us/supreme-court-tacks-left-with-push-from-disciplined-liberals.html?_r=0 .
 Denise M. Champagne, Conservatives Take a Hit an Latest Supreme Court Term: Attorney Says Liberals Won 10 Of 19 5-4 Decisions, Including the Top Two “Blockbuster Cases,” Detroit Legal News (July 23, 2015, available at http://www.legalnews.com/detroit/1409817 .
 “The court issued liberal decisions in 56 percent of cases this term, according to the Supreme Court Database, using a widely accepted standard developed by political scientists. The final percentage is the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren. The closest contenders are the previous term and the one that started in 2004 and ended with the announcement of Justice Sandra Day O’Connor’s retirement.” Alicia Parlapiano, Adam Liptak and Jeremy Bowers, The Roberts Court’s Surprising Move Leftward, New York Times (June 29, 2015), available at http://www.nytimes.com/interactive/2015/06/23/upshot/the-roberts-courts-surprising-move-leftward.html?abt=0002&abg=0 .
 The data reported in this section are taken from the SCOTUSblog Stat Pack for October Term 2014 (June 30, 2105), available at http://www.scotusblog.com/2015/06/final-stat-pack-for-october-term-2014/ .
 Adam Liptak, Right Divided, a Disciplined Left Steered the Supreme Court, New York Times (June 30, 2015) available at http://www.nytimes.com/2015/07/01/us/supreme-court-tacks-left-with-push-from-disciplined-liberals.html?_r=0 .
 The “agreement among pairs of justices” data demonstrate an interesting level of accord. “Pairs of justices agreement” tracks how often any two justices voted the same way (e.g., how often Justice Breyer and Justice Ginsburg agreed. The “liberal” justices had a very high agreement level, as the following table indicates.
1 Ginsburg - Breyer 94.4%
2 Breyer - Sotomayor 94.4%
3 Breyer - Kagan 94.4%
4 Ginsburg - Kagan 93.2%
5 Ginsburg - Sotomayor 91.9%
6 Sotomayor – Kagan 90.5%
These data are from SCOTUSblog, Stat Pack at 31.
 For an excellent series of essays in which by experts on the Court consider whether there has been a major shift in the Court, see Politico Magazine, Did the Roberts Court Really Lurch Left?: Gay marriage. Health care. Housing. Was It a Sea Change ... or a Blip?, Politico (June 29, 2015), available at
 Richard L. Hansen, Essay: The Most Sarcastic Justice (February 8, 2015). 18 Green Bag 2d 215 (2015); UC Irvine School of Law Research Paper No. 2015-11. Available at SSRN: http://ssrn.com/abstract=2550923 . Out of “134 results in which a Justice’s opinion is described as sarcastic or caustic. Justice Scalia had 75 of them, and the rest of the Justices who have been on the Court any time through 1986 and 2013 combined had 59 such descriptions of opinions.” Id. at 216. The methodology, however, left something to be desired. It counted only circumstances in which law review writers referred to a Supreme Court majority, concurring or dissenting opinion was described was sarcastic or caustic. Thus, it depended on the opinions of law review writers—perhaps an iffy proposition. Nonetheless, it is hard to imagine a Court-watcher who would not agree with the results.
 For many years the Court has expressly deferred to agencies in allowing them to interpret the statutes for which they are responsible. In two cases this year, the ACA Exchange case and the EPA-air quality case, the Court seemed to back away from that deference. Should that signal a new approach to deference to federal agencies, it would be a major change.
© Steven R. Smith 2015