Steven R. Smith, JD

Continuing Education Information

When the Supreme Court of the United States was called into session on October 5, 2015, nobody could have anticipated the surprising Term that was beginning. It began in an ordinary way, with the expectation that over the next nine months the Court might change the law in several important areas. By February 13, 2016, it had heard more than half of its cases for the Term and had announced the results in a few of them.

Then, on February 13, word came that Justice Antonin Scalia had died of a heart attack. In addition to the personal loss to his family and friends, it changed the Court and disrupted the expectations for the Term.

Under the procedures of the Court, to decide a case a justice must have been on the Court at the time of the oral argument, have participated in the argument in some way, and be a member of the Court on the day the decision is announced publicly. The 18 cases that had already been announced were decisions of the Court. But for the other cases of the Term—even those in which Justice Scalia had voted on or had even written an opinion—his vote was not included. Thus for approximately 60 cases of the Term, Justice Scalia was not part of the Court.

The Court continued with eight justices. That changed the dynamics, balance and voice of the Court—issues we will look at near the end of this article. Despite these dramatic changes, the Term produced some important and fascinating decisions.[1] During the Term the Court:

  • Allowed False Claims Act liability for mental health services based on an “implied false certification theory”;[2]
  • Struck down state laws that imposed substantial burdens on abortion clinics but did not actually promote maternal health;[3]
  • Essentially required states to provide the possibility of parole to juveniles who committed murder and were sentenced to life without parole;[4]
  • Decided a number of cases involving the selection and role of the jury in death sentence cases;[5]
  • Approved the use of race, in limited ways, in university admissions;[6]
  • Required states to enforce custody decisions from other states, including those related to LGBT adoption;[7]
  • Decided a number of other decisions related to the collection of healthcare data, restraining or seizing the assets of those accused of healthcare violations, breath and blood alcohol tests, sex offender registration, police liability and deadly force, the criminal activity of a former governor, and stun guns.

We will first look in some detail at some major cases of the Term, then at other interesting and significant cases. Then we will analyze the Term and the changes that are occurring in the Court. We will then consider the cases that may be important in the next Term.

Mental Health Services, Fraud and Abuse, and the False Claims Act

This Term the Court was called upon to interpret one of the most significant laws related to healthcare fraud and abuse. The False Claims Act (FCA) imposes civil penalties against anyone who falsely submits a claim for payment from the federal government.[8] It is hardly a new statute—it dates to the Civil War.[9] It imposes substantial penalties “on those who present or directly induce the submission of false or fraudulent claims…. A ‘claim’ now includes direct requests to the government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs.”[10] And the penalties can be substantial—including treble damages (three times the government’s actual loss) plus civil penalties of up to $10,000 per false claim.[11] (In addition to the federal act, most states also have some form of a false claims act.)

Medicare and Medicaid involve federal funds, so the FCA is commonly applied to healthcare providers. In fact, healthcare now accounts for more than half of the total government recovery under the FCA. The areas range from false billing and grossly inadequate services, to pharmaceutical companies promoting drugs for off-label uses.

The case this Term involved Yarushka Rivera, who, as a teenager, received counseling services for five years from Arbour Counseling Services, a mental health facility owned by Universal Health Services.[12] When she started having behavioral problems, five medical professionals at Arbour treated her. She suffered an adverse reaction to medication a “purported doctor at Arbour prescribed after diagnosing her with bipolar disorder.”[13] Her condition worsened, and she suffered another seizure and died when she was 17.

After Ms. Rivera died, Arbour told her parents that “few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal.”[14]  Of five professionals who had treated her, only one was licensed. For example, the person who diagnosed her as having bipolar disorder had a degree from an unaccredited Internet-based college and Massachusetts had refused to license her as a psychologist. The practitioner who prescribed medicine to her (held out as a psychiatrist) was actually a nurse who did not have authority to prescribe medication without supervision.[15]

Ms. Rivera was a patient receiving care under the Medicaid program, and Arbour used payment codes in submitting claims to Medicaid. Arbour employees misrepresented their qualifications and licensing status to the government to receive individual National Provider Identification numbers.[16]

The Massachusetts Medicaid program, unaware of these facts, over the years paid the claims for care presented by Arbour. Because Medicaid is a joint state-federal program, the presentation of Medicaid claims is also the presentation of a claim to the federal government. The Medicaid program would not have paid the claims “had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff.”[17]

The family investigated the death of Ms. Rivera and ultimately filed a federal FCA lawsuit against Universal Health.

An important aspect of the statute is that it allows private parties or “intervenors” to bring FCA cases. These intervenors are often whistle blowers, sometimes disgruntled employees. The process is a little complex. The government has the right to take over the case, but even if the government does not take over the case, the private party can pursue it. There is a strong economic incentive for these intervenors. If the government takes over the case, the intervenor may take 15%-25% of the government’s recovery. When the government does not take over cases, intervenors may pursue the case and if they win, they take up to 30% of the total awarded to the government. The Endnotes (available at the National Register website) have a link to an excellent primer by the Department of Justice on the FCA.[18]

In the case of Yarushka Rivera, Universal Health Services v. United States ex rel. Escobar, the parents of Ms. Rivera (“Escobar”) filed an FCA case as intervenors. The government did not take the cases and the family pursued the case. The legal question that arose was whether Universal Health (acting through Arbour) actually filed a false claim. It was clear that Universal violated a number of Medicaid regulations. Universal’s request for payment, however, did not actually claim that the services were provided by specific types of professionals, and it argued that none of the regulations Arbour violated was a “condition of payment.”[19] The question then became whether Universal violated the FCA under an “implied false certification theory of liability.”[20]

The “implied false certification” theory is that the failure to disclose information can sometimes be a violation of the FCA. Under this theory, a violation would occur if (1) the provider made a claim but failed to disclose material information related to the claim, and (2) that this failure to provide information had the effect of misrepresenting the truth. The Court accepted the “implied false certification” theory. By analogy it suggested that an applicant for a faculty position whose CV “lists prior jobs and then retirement, but fails to disclose that his ‘retirement’ was a prison stint for perpetrating a $12 million bank fraud” makes an “actionable misrepresentation.”[21]

The Court held that this theory can be the basis for FCA liability if two conditions are met. First, the request for payment must “make specific representations about the goods or services provided.” The use of specific billing codes (e.g., CPT or H&M codes), for example, makes a specific representation that those services were provided. The second condition is that “failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.”[22] This establishes the requirement that the nondisclosures be “material” to the government’s decision to pay the claim. The Court held that “material” means “having a natural tendency to influence...the payment.”[23] Where noncompliance is minor or insubstantial, the matter is not “material.”[24]

For healthcare providers this case is both good news and bad. In terms of the bad, the Court clearly established the “implied false certification theory.” Both the AMA[25] and AAMC[26] filed amicus briefs (these are “friend of the court” briefs filed, not by parties to the case, but by others with an interest in the case). The AMA and AAMC briefs opposed the use of “implied” false claims, arguing that it inappropriately expands the basis for False Claims lawsuits, but the Court did not accept those arguments. On the other hand, the Court clearly indicated that the false certification must have “material” misrepresentations—not trivial regulatory or contractual violations.[27] Furthermore, the Court emphasized that the claim must rely on allegations of fraud, not malpractice.[28]

...all healthcare providers—including solo and small offices—need to have compliance programs related to the payment of any federal claim (including Medicare and Medicaid).

The case certainly does nothing to discourage whistleblowers—private intervenors—from bringing FCA cases. It is a reminder that all healthcare providers—including solo and small offices—need to have compliance programs related to the payment of any federal claim (including Medicare and Medicaid).

Abortion (and Contraception)

Among the most anticipated cases of the Term was Whole Woman’s Health v. Hellerstedt, involving the regulation of abortion clinics.[29] Texas and some other states adopted health and safety regulations for abortion clinics. One set of regulations required that physicians performing abortions have admitting privileges at a hospital within 30 miles of the clinic. The other required abortion clinics to meet the state’s standards for “ambulatory surgical centers.”

In 1992 the Court ruled that abortion regulations by states are unconstitutional if they place an “undue burden” on the decision to have an abortion.[30] Of course, what constitutes “undue” is the key. In the 1992 Casey decision, the Court specified that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”[31] Substantial disagreements about applying this standard in practice emerged in lower-courts. One important question in Whole Woman’s Health this Term was how much importance to attach to whether an abortion restriction adopted in the name of maternal health would actually solve a real health problem.

Some of the attention to the Whole Woman’s Health case this Term was the fear (or hope) that the Court might either reconsider Roe v. Wade or approve state health and safety policies that would be sufficiently Draconian as to have the practical effect of making abortion inaccessible. Instead, in applying the “undue burden” test of Casey the Court clarified that a state must be able to demonstrate the legitimacy of health claims it makes to support laws that burden the right to abortion. The majority focused on a number of elements that suggested that both the admitting privileges and the ambulatory surgical centers rules would do virtually nothing to improve health.[32] For example abortions are, statistically, safer than many other common procedures that are allowed outside of the ambulatory care centers. At the same time, both of these rules were likely to significantly limit access to abortion facilities. For example, many abortion centers would likely close, and for others the cost of coming into compliance with the new law would be substantial.[33]

The case had some unfortunate procedural and technical questions involving claim preclusion and res judicata.[34] (These procedural concepts are intended to provide finality and prevent repeatedly litigating the same claims.) There were questions about some of the evidence cited by the lower courts. A significant part of the majority opinion and most of the dissent involved these questions.[35] The majority opinion struck down the entire Texas law even though there was a strong severability clause in it (i.e., if one part of the statute was declared unconstitutional, the remainder of the law could be “severed” from the unconstitutional portion and remain in force) and parts of the statute almost certainly were constitutional.[36] The primary disagreement appeared to be on these procedural and technical issues. It is perhaps regrettable that the Court did not select a “cleaner” case procedurally to decide the questions without the procedural issues.

Whole Woman’s Health did not change the “undue burden” standard for regulation of abortion facilities. But the case was important in that it clarified that states must be able to prove their health claims for such regulations. It is difficult to predict what the unintended consequences will be on the important procedural concepts of claim preclusion and res judicata.

As a practical matter, other states that had adopted laws similar to Texas either will have those laws invalidated or will have to change them. In those states that have laws along the lines of the Texas statute, it is probably reasonable to expect that other bills will be proposed that have the effect of making access to abortions more difficult. But if those laws are to be constitutional, the legislature will have to have a factual record that the laws will have a real positive impact on the welfare of women seeking to have abortions.

Contraception and the Free Exercise of Religion

The strangest outcome this Term may have been Zubik v. Burwell where the Supreme Court acted as mediator through the briefing process.[37] It was an intense and emotional case, but the Court may have mediated it successfully.[38] Lower courts frequently promote settlement of cases, but it is unusual for the Supreme Court to do so.

An ongoing disagreement about the Affordable Care Act is what religious organizations must do to “opt out” of the general requirement to provide contraceptive coverage to employees. The “opt out” means that they do not contract with insurance companies to provide contraception coverage, but the insurance companies provide it any way.

Some religious organizations challenged the obligation to submit forms to their insurers or the federal government that they object to contraceptive coverage.[39] In an unusual process, following oral argument, the Court requested additional briefing on the question of “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”[40] This was, in a sense, a “can we settle this case” question. A bit reluctantly, both the government and the nonprofit organizations “now confirm that such an option is feasible.”[41]

In light of that, the Court sent the cases back to federal circuit courts to work out details of what appeared to be a settlement. It was a unique way to decide the case.

Life Without Parole Imprisonment for Juveniles

In the last decade the Court has significantly changed the constitutional rules about sentencing juveniles who commit capital murder (that is, a killing for which the death penalty may be imposed). In 2005 the Court held that the Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits sentencing juveniles to death, even for the most awful murders.[42] The Court has held that the Eighth Amendment interpretation requires consulting society’s “evolving standards of decency.” Punishments permitted at one time may go on to be considered cruel and unusual as society changes. (A “juvenile” is someone under the age of 18 when the murder was committed.)

Life without parole for juveniles is permitted only “the rarest of children whose crimes reflect ‘irreparable corruption.’”

In the 2005 case prohibiting the juvenile death sentences, the Court noted that states (and the federal government) still had available the punishment of life imprisonment without the possibility of parole for capital crimes committed by juveniles.[43] That changed in 2012 when, in Miller v. Alabama, the Court held that a juvenile generally cannot be sentenced to life in prison without the possibility of parole. Life without parole for juveniles is permitted only “the rarest of children whose crimes reflect ‘irreparable corruption.’”[44]

This Term the Court was called upon to decide whether Miller applied retroactively—to prisoners who were sentenced before the Miller case. In Montgomery v. Louisiana, Montgomery sought to have his life without parole sentence changed.[45] He was 17 when he committed a capital murder in 1963, so for fifty years he had been in prison without the possibility of parole.

In a 6-3 decision, the Court held that the rule of Miller should be applied retroactively. It essentially held that the sentence, although it had been a constitutional sentence until 2012, was now unconstitutional as a violation of the Eighth Amendment.

Of course, going back as far as 50 years to reconsider a sentence is impractical. The Court held that rather than resentencing those who received life without parole for juvenile murders, states could start giving parole consideration to all those who were under 18 when they committed the murders. As a practical matter, of course, this simply meant that the Court’s decision converted virtually all of these life without parole sentences to life with the possibility of parole.

Justice Scalia wrote for the three dissenting justices.[46] This was, as it turned out, one of his last dissents and it demonstrated his flashes of sarcasm regarding the majority’s use of “evolving standards of decency.”[47][48] He concluded that “In Godfather fashion, the majority makes [states] an offer they can’t refuse. Avoid all the utterly impossible nonsense [of resentencing people years, decades after the trial was held by] simply ‘permitting juvenile homicide offenders to be considered for parole.’ Mission accomplished.”[49]

It is clear, the Godfather notwithstanding, that states cannot go back years, even decades, trying to resentence prisoners who committed homicide as juveniles and received sentences of life without parole (evidence is gone, witnesses are dead, and the process would be complicated and expensive). So it is true that granting all such prisoners, in effect, new sentences is “an offer they cannot refuse.” At the same time, having the chance to apply for parole is not the same as being granted parole. States are allowed to maintain their usual standards for granting parole. It will mean working up detailed parole reports and holding hearings. Prisoners (sentenced for juvenile offenses) who previously could not be considered for parole may now may present a case to parole boards that they deserve release. The emotional and psychological state (present and past) of these prisoners and future dangerousness are likely to important parts of these parole hearings.

Juries and Capital Punishment

A number of cases this Term dealt with capital punishment and various aspects of the jury in capital cases. All of these cases dealt with sentencing, not determinations of guilt. In the Brumfield v. Cain decision I reported on a year ago (S. Smith, The ACA Survives and Same Sex Marriage Thrives, Register Report, October, 2015), I noted some speculation that the Court was looking for an appropriate case to determine once and for all the constitutionality of the death penalty. That did not happen this Term. In all the capital punishment rulings handed down this year, the Court ruled on narrower, often procedural, grounds.

State procedures in capital cases usually have the same jurors who decide guilt go on to decide the sentence...

Jury Selection

Two cases dealt with selecting and qualifying capital juries. The first involved eliminating from the jury those who would not impose the death penalty. Some potential jurors are strongly opposed to the death penalty and could not vote to impose it. State procedures in capital cases usually have the same jurors who decide guilt go on to decide the sentence (general, life in prison or the death penalty). As a result, allowing someone on the jury who could not vote for the death penalty would allow on the jury people who could not abide by the instruction of the judge to consider the death penalty as one punishment option.

“Death qualified” jurors would be willing, if the facts warranted it, to vote for imposing the death penalty. Because death qualified jurors tend to be more likely to favor conviction than are strong opponents of the death penalty, the process of “death qualifying” a jury has two advantages for the prosecution. First, it “tilts” the jury toward guilt by removing some who would be more reluctant to find guilt. Second, it allows unfriendly jurors to be “struck for cause.” This means the prosecution does not have to use peremptory challenges on these jurors and can save them for other jurors. (Peremptory challenges are challenges, or strikes, that are not for cause, but exercised by one party because it is uncomfortable with the juror.) For the same reasons, defense attorneys are generally opposed to trial courts excusing jurors for the reluctance to use the death penalty.

In White v. Wheeler the defense claimed that a trial court had improperly excused a witness who had qualms about imposing the death penalty.[50] The juror gave “equivocal and inconsistent answers when questioned about whether he could consider voting to impose the death penalty.”[51] The Court unanimously held that trial courts should be given considerable deference in the decision to strike a juror for cause. The trial judges can see potential jurors and better assess their qualifications.[52]

A second case involved the prosecution using peremptory challenges to eliminate minority potential jurors from the jury. Thirty years ago in Batson v. Kentucky, the Court held that prosecutors violate the Equal Protection Clause of the Constitution when they use peremptory challenges to remove jurors because of their race.[53]

The process regarding Batson claims has been relatively clear: “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.”[54] The third step is an evaluation of the prosecutor’s credibility—is the “race neutral” explanation reason for excluding jurors genuine or a pretext for discrimination.

This Term the Court was asked to apply these rules to a case in which Timothy Foster had been sentenced to death after being convicted of murder-burglary. The prosecution struck all four of the black prospective jurors. In internal documents the prosecution had repeatedly made references to race.[55] The Court, in a 7-1 decision, found that the reasons the prosecution gave for striking at least two of those jurors were not credible and in fact were likely based on racial factors. The Court therefore overturned the murder conviction. This case applied the Batson rules to a concrete case and demonstrated the very difficult fact-specific inquiry that courts must undertake when a Batson issue arises.[56]

Jury Role and Instructions in Capital Sentencing

In imposing capital punishment, the jury must make the critical decision regarding life or death. This cannot be automatic nor made by the judge. This Term the Court decided three cases regarding that role.

In Lynch v. Arizona, the question was whether jurors should be told that if they decide against the death penalty, the penalty would automatically be life without the possibility of parole.[57] (The defense usually wants the jury to know that if the death penalty is not imposed, the defendant will be sentenced to life without parole, because this indicates that the defendant will be permanently removed from society with imposing the death penalty.) In other cases the Court has decided that where a capital defendant’s “future dangerousness is at issue…[due process] entitles the defendant to inform the jury of his parole ineligibility.”[58] That is, once dangerousness is expressly raised, the jury should know about non-capital ways of dealing with the defendant’s dangerousness.

In Lynch the trial court had refused to let the defense tell the jury that state law required life without parole if Lynch was not sentenced to death. But the prosecutor argued to the jury that in deciding on the death penalty it should consider Lynch’s future dangerousness. The Court held that this violated the Due Process clause and overturned the death sentence.[59] The Court emphasized the right of the defendant to explain the “no possibility of parole” option whenever his dangerousness has been raised by prosecutors.

Justice Scalia’s last opinion for the Court dealt with instructions regarding mitigating evidence in death penalty sentencing.[60] Capital defendants have a right to present any evidence “in mitigation” during sentencing—that is, information that might persuade the jury to impose a life sentence rather than death. The Court held that states do not have to tell juries that mitigating evidence need not be proven beyond a reasonable doubt.[61] In the same case the Court also held that it was constitutional to hold a single capital sentencing trial for co-defendants. The jury was instructed to give individualized consideration to each of the defendants.[62] The death penalty was upheld in this case.

Another case emphasized that juries (not judges) must make the decision to impose capital punishment.[63] Florida’s procedure allowed the jury to make a recommendation to the judge, but the judge did the actual sentencing. The Court held that such a process meant that the jury did not have the responsibility for making the life/death decisions. A recommendation is not the same as a decision. Presumably, for example, the seriousness of the decision to impose death would weigh more heavily when the jury knows it is actually imposing the penalty of death. The death sentence of Timothy Hurst was thus overturned. This case is notable in that it overturned earlier decisions of the Court that had approved the approach Florida was using.[64]

And a Case About Judges in Capital Cases

William v. Pennsylvania is a case almost too strange for fiction.[65] Ronald Castille was a district attorney in Philadelphia who approved his office seeking the death penalty against Terrance Williams. (Mr. Castille did not try the case, but state law required that he sign off on the decision to seek the death penalty.)

The strange coincidence presented years later. After Williams had been sentenced to death and Castille had become Chief Justice of the Pennsylvania Supreme Court, the appeal of Williams came before him as a Justice on the State Supreme Court. . The appeal included some issues of misconduct by the prosecutors (but not specifically Mr. Castille). Justice Castille refused to recuse himself from the case and participated in the decision. The Supreme Court disagreed, and held that the personal involvement of attorney Castille in the case precluded him from participating in the appeal (as a matter of constitutional due process).

Disclosing Exonerating Evidence

In a death penalty case that did not directly involve the role of jury or judges, the Court overturned the conviction of Michael Wearry because, before the trial, the prosecution had evidence tending to exonerate Wearry but failed to turn it over to the defense.[66] Since the 1960s the Court has held that The Sixth Amendment’s right to counsel provision requires the prosecution to turn over material evidence favorable to the accused.[67] The prosecution failed to do that and the Court overturned the conviction without oral argument.

The Bottom Lines

It is difficult to discern any clear trend or principle from the capital cases this Term. The law did not change much (except perhaps in the Florida case mandating that juries, not judges, impose the death penalty), and the Court was primarily applying or clarifying previous decisions. The cases do suggest how complicated and fact-specific many of the issues are in capital cases. The issue of constitutionality of the death penalty was left for another time.

Affirmative Action and Universities

Psychology faculty and university administrators should be aware of the affirmative action ruling in Fisher v. University of Texas[68]. This case had been in the federal courts so long that the plaintiff, Abigail Fisher, would have had time to complete her undergraduate work and finish graduate school too. The case raised the question of the degree to which race may be taken into account in university admissions (including professional schools). The case has been of interest to the professions, and the APA, AMA and AAMC (Association of American Medical Colleges), among many others, filed amicus briefs in support of allowing race to be considered in admissions.

Ms. Fisher filed suit when she was denied admission for UT’s 2008 freshman class. The basis of her suit was that UT violated the Fourteenth Amendment’s “equal protection” provision. In particular, that UT used race in a way not justified by the Court’s 2003 decisions that established a framework regarding university diversity.[69] Under those decisions race could be used as a number of “plus” factors in a holistic review of applicants’ files, but not as an automatic and decisive admissions criterion.

"through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest."

“Strict scrutiny” has been a central feature of race-conscious admissions. It means the university must show (1) a compelling interest in using race, (2) there is no other reasonably alternative to achieving the goal other than considering race, and (3) the use of race is “narrowly tailored” to achieve the compelling goals.[70]

In 2013 the Court considered Ms. Fisher’s claims (Fisher I). From the start, the case has been complicated by what the Court has called the “sui generis” element in UT admissions. [71] Texas law provides automatic admission for the top 10% of high school classes. This already provides substantial diversity in admissions. So a question has been whether UT can constitutionally use race as a consideration in the fairly small proportion of admissions that come from outside the 10%.

In Fisher I the Court found that the lower court’s review of the UT system had not been strict enough and was too accepting of UT’s claims about its need for additional diversity (beyond the 10% plan).[72] The Court sent the case back for additional consideration. The Court of Appeals again determined that the UT program met the strict scrutiny requirement, and Fisher again appealed to the Supreme Court (Fisher II).[73]

Justice Kennedy wrote for the majority in Fisher II.[74] He noted that consideration of race was included with a number of other factors, based on a complex study by the university, without quotas or specific goals and applied individually by members of the admissions office staff. Quoting the Court from Fisher I, the Court held that “a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow from student body diversity.’”[75] “There can be no quotas, and no separate pools, even if minority students receive a modest plus for race. There can be no undue weight placed on race, which must be just one factor among many. And if a holistic plan is adopted, reviewers must be trained to ensure uniform standards.”[76]

In a 4-3 decision the Court upheld the UT plan. (In addition to Justice Scalia, Justice Kagan did not participate—she had worked on the case when she was Solicitor General.) The majority opinion consisted of a review of the facts in relation to the factors enunciated in Fisher I and repeatedly cautioning UT on the limited nature of the holding and the continuing obligation of the university to refine the program. Perhaps Justice Kennedy threw up his hands in getting the facts defined clearly in “a suit that has already persisted for eight years and cost the parties on both sides significant resources. Petitioner long since has graduated from another college, and the University’s policy—and the data on which it first was based—may have evolved or changed in material ways.”[77] Ultimately Justice Kennedy concluded that “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.”[78]

Lost in many of the reviews and much of the commentary about this case have been the repeated references of the Court to the continuing obligations of the university if it wants to maintain racial factors in admissions.[79] In various ways (set out in the endnotes available online) the Court emphasized that “through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”[80] No justice in the majority indicated disagreement with these continuing obligations.

A lengthy dissent (more than twice the length of the majority opinion) by Justice Alito, joined by the Chief Justice and Justice Thomas, focused on factual uncertainties and argued that if the university had the burden of proving these items, such uncertainties meant that the university should not prevail.[81]

This case has been read by some commentators as “approving” or “green lighting” affirmative action.[82] But it seems the case has been read too broadly by some. It is perhaps more of a yellow light than green. The Court repeatedly referred to this case as being factually unique, filled with a record “almost devoid of information about the students who secured admission” and with facts that had changed during the eight years of litigation.[83] All of this, the Court noted, “may limit its value for prospective guidance” on how the law can be applied.[84] That is, the opinion of the majority repeatedly suggested the holding of the case may be fairly limited.

This case involved the question of whether the Constitution permits universities to use race in admissions decisions. They are not required to do so, of course. Thus, state law prohibitions on the use of race (e.g., in California and Michigan) stand. But institutions that wish to use race as a factor must do so in the limited way described by the Court.

The Court seemed tired of this case. The years of factual back and forth may suggest that the Court has painted itself into a corner of having stated legal criteria that will be very hard for it to review on a case-by-case basis. When that happens, it often means that the Court will give special deference to the lower courts. If that is so, it may be many years before the Court takes another university admissions case. In the meantime, universities may, with caution, study, care and ongoing review, consider race as part of a holistic review of individual applicants for admission.

The importance that the APA gave to this case is indicated by the fact that this was the only case before the Court this Term in which it filed an amicus brief. Its brief focused on the research related to the issues of the benefits of diversity and risks of isolation for minority students.[85] It provided expertise from the profession. (The retirement of Nathalie Gilfoyle as the General Counsel of the APA should be noted. She has been instrumental in providing meaningful amicus briefs for the APA and she will be missed.)[86]

The AAMC, along with the AMA and a number of other healthcare organizations, also filed an amicus brief. Its essential point was, “Medical schools have learned over many decades of experience that these goals cannot be accomplished unless physicians are educated in environments that reflect the ever-increasing diversity of the society they serve.”[87]

This case will not end federal courts’ involvement in university affirmative action cases. The limited nature of the decision and the emphasis on the continuing obligation of UT (and other universities) to continue to study and justify affirmative action programs, means that cases are likely to continue in lower courts. The Court “left the courthouse door open to future litigation, even at the University of Texas.”[88]

Child Custody and LGBT Parents

VL and EL were in a same-sex relationship for 16 years. During this time, through assisted reproductive technology, EL gave birth to three children (S, N and H). VL and EL raised the children together and eventually decided that VL would formally adopt them, essentially as the second parent (EL did not give up her parental rights). A Georgia court approved the adoption and formally recognized both VL and EL as legal parents. In 2011 EL and VL, while living in Alabama, ended their relationship.

VL filed a petition in the Alabama courts seeking custody or visitation rights.[89] The Alabama Supreme Court held that the Georgia court did not have jurisdiction to permit the adoption so the Alabama court did not recognize the adoption. VL, therefore, did not have visitation rights. VL appealed to the Supreme Court. The Supreme Court reversed the Alabama court, ruling that it must give “full faith and credit” to the Georgia adoption decree.

The Full Faith and Credit Clause is among the Constitution’s unifying elements, allowing national commerce and encouraging freedom of movement among the states.[90] It requires states to recognize the legal judgments of other states. VL asked that Alabama be required to recognize the Georgia adoption and the Court unanimously agreed.

There are very limited, narrow exceptions to full faith and credit. One exception is that states do not have to recognize the judicial decisions of another state if the court issuing an order in the other state did not have jurisdiction over the matter or people involved. In VL v. EL, the Georgia court did have jurisdiction and the US Supreme Court ordered Alabama to recognize the adoption.[91]

The effect of the EL-VL relationship was not discussed as part of the case, and it was not legally relevant. It was clear to everyone that Alabama could not object to the adoption based on the same sex of the parents. With the expansion of same sex marriages resulting from the Court’s decision a year ago,[92] and the movement from state to state, the Full Faith and Credit Clause will be of great importance in ensuring that legal relationships are “transportable” from one state to another. The clarity of this decision (it was unanimous and decided without oral argument) is, therefore, important in emphasizing that states are expected to honor the relationships sanctioned by other states.

States Limited in Collection of Health and Health Insurance Data

Vermont required that health insurers and others make detailed reports to the state about healthcare claims.[93] The purpose was to gather general information from throughout the state “about health care utilization and costs for services.” Approximately 20 states have, or are developing, similar databases.[94]

Several healthcare plans challenged the Vermont law as violating the federal Employee Retirement Income Security Act (ERISA).[95] ERISA specifically pre-empts “any and all state laws insofar as they may now or hereafter relate to any employee benefit plans.”[96] The preemption provision in ERISA is a particularly strong statement by Congress of federal law preempting state laws.[97] Employer-provided health insurance, of course, is an “employee benefit plan.” So the question in Gobeille v. Liberty Mutual Insurance was whether ERISA preempted the Vermont statutes requiring those health plans to provide data to the state.

In a 6-2 decision the Court held that ERISA does preempt the state reporting laws. The Court noted that it would be burdensome for health insurance companies to have to provide detailed data to the federal government under ERISA, and potentially 50 different kinds of data to the states. The Court noted that the states could seek the assistance of the federal agency with authority to require data, the Department of Labor. Presumably the federal agency could provide a uniform system for gathering the information which would be less burdensome than each state doing its own.

The AAMC[98] and AMA[99] each filed amicus briefs (with other parties) in this case. Both noted the value of all-payer databases to improving care and reducing costs. Both urged the Court that ERISA should not preempt the state law (a position the Court rejected.)

Seizing the Assets of Those Accused of Healthcare Violations

Federal officials have a little-known, but powerful tool (some would say bludgeon) in addressing violations of federal healthcare laws. The US Code permits the seizure, before trial, of assets related to healthcare violations. (The language is set out in the Endnotes available online on the National Register’s website).[100] The Supreme Court noted that this permits restraint or seizure of “(1) property obtained as a result of the crime, (2) property traceable to the crime, and (3) other property of equivalent value.”[101] That is, the government before trial can seize not only “tainted” money from the claimed healthcare violation, but also other funds unrelated to the asserted misconduct (“other property of equivalent value”).

In Luis v. United States the federal government charged Sila Luis with healthcare fraud including paying kickbacks and other crimes.[102] The government sought to prevent Luis from spending any of her $2 million in assets, including money “untainted” funds (unrelated to the alleged crimes). But she needed the money to pay lawyers for her criminal defense. Luis claimed that this was a violation of the Sixth Amendment right to an attorney because the restraint, in effect, precluded her from obtaining criminal attorneys. The Court held that where money is necessary to hire a criminal defense counsel, the restraint on untainted money may violate the Sixth Amendment.[103]

The statute allowing the government to restrain assets before trial is sometimes considered a “bludgeon” because even when funds are not necessary to obtain defense counsel, freezing the “untainted” funds can create financial havoc for almost anyone. Indeed, just the threat that assets could be restrained is likely to be enough to give the federal government the upper hand in negotiating deals in healthcare violation cases. In this case the Court gave some help to defendants who need their untainted funds to hire a lawyer.

Immigration—The Major Case that Wasn’t

Most Court watchers viewed United States v. Texas as one the major cases of this Term.[104] The case involved President Obama’s unilateral “deferred action” on removing groups of undocumented people from the US. This “DAPA” process was not based on individual review, but applied to very large groups. It raised questions of whether DAPA was actually a regulation adopted in violation of the Administrative Procedure Act and was not in accordance with federal immigration statutes. In addition to the immigration status of many people, DAPA raised fundamental questions of the power of the President relative to the Congress.

Its outcome, instead of a blockbuster, came down to one sentence: “The judgment is affirmed by an equally divided Court.” That is, the decision of the Fifth Circuit stood, but did not have any value as a national precedent. The circuit court had ruled that the administration action was not valid. This was likely one of the cases in which the death of Justice Scalia changed the Court’s decision—he very probably would have made this a 5-4 majority. But it probably did not change the actual outcome of the case itself because the 4-4 split had the effect of pholding the circuit court and striking down much of the administrative action.

In another immigration case the Court held that some state offenses qualify as “aggravated felonies” under the Immigration and Naturalization Act.[105] Those offenses make a resident alien deportable and subject to expedited removal.[106] This case interpreted the statute (not a constitutional interpretation) so Congress could change the statute. This decision is likely to increase somewhat the number of essentially automatic expulsions for conviction of aggravated felonies.

Drunk Drivers, Blood Alcohol and Searches

States have made it a crime to refuse breathalyzer or blood tests when a driver is suspected of drunk driving.[107] (The Fourth Amendment prohibits “unreasonable” searches and generally requires warrants for searches.[108] There is an exception to the warrant requirement when the search is made incident to a valid arrest.) In a series of cases this Term the Court was asked to determine whether breath and blood tests require a search warrant and whether states can make it a crime to refuse the tests.[109]

The Court held that breath tests create a minor invasion of privacy. Given the state’s interest in preventing the harm of drunk driving and the fact that blood alcohol dissipates over time, it is not a violation of the Fourth Amendment to have warrantless breath tests incident to arrest. That means that the state can make refusal to take the breath test a crime.[110]

As to blood tests, however, the bodily invasion is much greater: piercing the skin, a blood sample that contains a great deal of personal information beyond alcohol content, and a sample that can be preserved.[111] Therefore, the Court held that blood tests ordinarily require a warrant and states generally cannot impose criminal penalties for refusing a blood test.[112]  Of course, a search (including blood draw) may always be conducted with the actual consent of the person.

This case is likely to create a common national standard that strongly favors field breath tests because of the absence of a need for warrants. The question of the accuracy and reliability of these portable breath tests may be placed under increased scrutiny as a result. States can, and most probably will, create a system of “call in” warrant requests in which a magistrate is available to issue a warrant.

Expanding Searches

In another case, the police stopped a pedestrian and checked his identity—the stop and ID check was constitutionally improper under the Fourth Amendment. Police discovered that the pedestrian had a minor warrant outstanding and arrested him. Incident to arrest police conducted a search of the pedestrian and found illegal drugs.

The question was whether the drugs they discovered could be used as evidence against the defendant at trial.

The Court held that, even though the initial stop was not proper, the existence of a valid arrest warrant for the fact that there was an outstanding warrant “attenuated the violation [of the Fourth Amendment] sufficiently” so that the drugs were admissible.[113] Justice Sotomayor, in dissent, noted the potential negative effects of the police being able to inappropriately stop suspects, and then rely on warrants to search them.[114] She noted that official databases have over “7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses,” and that 16,000 of the 21,000 people of Ferguson, Missouri, have outstanding warrants.[115]

This case continues the trend of recent years of permitting evidence to be used even though it was gathered as a result of police errors or mistakes. (If there was “flagrant” or serious misconduct, the evidence is likely to be suppressed.) It may turn out to be one of the most important cases decided this Term.

Other Important Decisions of the Term

The Court decided a number of other interesting and important decisions this Term, including the following:

Sex Offender Registration

The federal Sex Offender Registration and Notification Act makes it a crime to fail to register or update a required sexual offender registration. The Court held that it is not a violation of this law to fail to update state registration authorities once an offender has left that state.[116]


The Court has repeatedly given strong force to the Federal Arbitration Act. It did so again this Term, overturning a California decision that attempted to interpret a consumer arbitration provision as unenforceable.[117] The lesson continues to be clear: arbitration agreements may be unfair and one-sided, but the Court is going to enforce them. That is likely to change only if Congress changes the statute. In the meantime, consumers should be careful in accepting arbitration agreements, and psychologists joining group practices or seeking employment in health care systems should also examine employment contracts to determine if arbitration clauses exist.

Police Liability and Deadly Force

The Court essentially dismissed a civil liability lawsuit against a police officer who fired number of shots toward the car of a fleeing felon. The shots hit and killed the suspect. The Court indicated that qualified immunity applied to the officer and that it was not a violation of clear precedent for him to fire at the suspect.[118]

Tobacco, RICO and the European Union

The Court held that the EU could not bring US Racketeer Influenced and Corrupt Organization Act (RICO) charges against a cigarette company for money laundering in other countries. The case essentially rested on the limited extraterritoriality of the RICO statute.[119]

The Hobbs Act and the Governor of Virginia

The Court overturned the Hobbs Act corruption conviction of the former Governor of Virginia. The jury instruction about what constituted an “official act” was too broad. It could have caused the jury to convict for common and appropriate activities of public officials.[120]

The Public Union Membership Case[121]

There was great expectation that a case involving the California teachers’ union would be the vehicle for the Court to hold that public employees could not be required to pay fees to public-sector unions. Instead, with the death of Justice Scalia, the Court deadlocked 4-4 on the case and thus the circuit court’s judgment (upholding the fees) was affirmed.

Stun Guns

The Court reversed a Massachusetts decision prohibiting the possession of stun guns.[122] The basis for the reversal was fairly technical, including the state court’s misapplication of the Court’s earlier Second Amendment case regarding the right to bear arms.[123]

Apportionment and Redistricting

The Court held that states are permitted to use total population (e.g., including children and noncitizens), instead of the number of registered voters in drawing legislative districts.[124] The Court also upheld districts within a state that were of differing size, acknowledging that the districts reflected a good faith effort to comply with the Voting Rights Act.[125]

Trials and Later Scientific Advances

The Court unanimously held that the scientific standards of the time of a trial are relevant in judging the competency of lawyers and witness—not standards that develop years later.[126] In this case Comparative Bullet Lead Analysis was used to convict a defendant, but 11 years later that analysis was no longer generally accepted by the scientific community.[127]


The Court released 80 merits opinions, including 63 signed opinions (after oral arguments), 13 summary reversals, and 4 cases affirmed by a tied 4-4 vote.[128] There were a large number of per curiam opinions (opinions not signed by an individual justice, but by the Court, and usually relatively brief opinions).

Almost half of the opinions were unanimous (48%). In addition, 11% were 8-1 and 20% were 7-2. Thus, more than 2/3 of the cases were unanimous or close to it. Only 5% of the cases were 5-4 (or 4-4). This represented a remarkable degree of consensus. (Because many cases were decided with eight members of the Court, it was necessary to calculate these data in an unusual way. A description of it is included in the Endnotes, available on the National Register’s website.)[129]

Justice Kennedy was again the “center” of the Court. He was in the majority in all of the 5-4 cases, and in the majority in 98% of all the cases decided during the Term. Justice Thomas was in the majority 72% of the time.

The death of Justice Scalia changed the Court. Most of the decisions this Term had only eight justices. Despite a number of predictions that the Court would have great difficulty with an even number of Justices, in fact there were only four cases (out of 54 decided after Justice Scalia’s death) in which the Court deadlocked 4-4—and, ironically one other case was not deadlocked because Justice Scalia was not there (the Texas affirmative action case). Undoubtedly some decisions were probably decided on more narrow grounds than they would have been by a full Court. One respected observer suggested that this was “the year that the law did not change.”[130] It was clear that the justices were trying hard to avoid deadlocks.

An eight-justice decision is not unusual. One study found that 22% (about 2000 cases) of Supreme Court cases over the last 70 years have been decided by fewer than nine justices. And of those, only 7% had split 4-4. (The most common reason for less than nine was recusal of a justice on a specific case.)[131]

The absence of Justice Scalia, nevertheless, will be felt in many ways. His sharp questioning, sense of humor (and sometimes ironic sarcasm), and vivid dissents will make the Court seem a less interesting place. Most of the justices will miss his personal collegiality—if not the sharp pen.[132] His commitment to the actual text of the Constitution and statutes will be an important legacy for some time.

President Obama nominated Judge Merrick B. Garland to replace Justice Scalia, but that nomination will not be taken up by the Senate at least until after the election. The election, of course, will have a substantial bearing on the makeup of the Court. In addition to the position of Justice Scalia, it seems likely that the next president will have one or more additional appointments. Justice Ginsburg is 83, Justice Kennedy is 80, and Justice Beyer is 78. As this year has demonstrated, it is risky to guess what the turnover will be in the Court.

The Court has already accepted a number of important cases for the next Term. These include the False Claims Act (again), antitrust cases involving credit card company and business association rules, the Handicapped Children’s Protection Act, the liability of a state when it “privatizes” or outsources public programs to outside vendors, and determination of intellectual disability as it pertains to capital punishment. In addition, the Court is likely to consider a Department of Education directive that schools “generally must treat transgender students consistent with their gender identity,” meaning that these students could select the restrooms in which they feel most comfortable.[133] In August the Court temporarily stayed a lower court decision ordering schools to implement the Department’s directive.[134] The stay lasts only until the Court can decide whether to hear the case in the coming term.[135]

On the first Monday in October the Court is most likely to consist of eight justices—with a likely addition during the course of the Term. It promises to be an extraordinary Term.

© Steven R. Smith

The author thanks Larry Benner, Andrew Boucher, Eric Drogin, Nathalie Gilfoyle, Morgan Sammons, Glenn Smith 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.


smithSteven R. Smith, JD, is Dean and Professor Emeritus, 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



The material here 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.

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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 bound sources, however, pagination is continuous.

[2] Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15–7. Argued April 19, 2016—Decided June 16, 2016. Justice Thomas wrote for a unanimous Court.

[3] Whole Woman’s Health v. Hellerstedt, No. 15–274. Argued March 2, 2016—Decided June 27, 2016.

[4] Montgomery v. Louisiana, No. 14–280. Argued October 13, 2015—Decided January 25, 2016.

[5] White v. Wheeler, No. 14–1372. Decided December 14, 2015; Foster v. Chatman, No. 14–8349. Argued November 2, 2015—Decided May 23, 2016; Lynch v. Arizona, No. 15–8366. Decided May 31, 2016; Hurst v. Florida, No. 14–7505. Argued October 13, 2015—Decided January 12, 2016; Williams v. Pennsylvania, No. 15–5040. Argued February 29, 2016—Decided June 9, 2016; Wearry v. Cain, No. 14–10008. Decided March 7, 2016.

[6] Fisher v. University of Texas at Austin, No. 14–981. Argued December 9, 2015—Decided June 23, 2016.

[7] V.L. v. E.L., No. 15–648 Decided March 7, 2016.

[8] The False Claims Act, 31 U. S. C. §3729 et seq.

[9] The Court provided a brief, interesting history of the act, including the following: “Enacted in 1863, the False Claims Act ‘was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.’ United States v. Bornstein, 423 U. S. 303, 309 (1976). ‘[A] series of sensational congressional investigations” prompted hearings where witnesses “painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war.’ United States v. McNinch, 356 U. S. 595, 599 (1958). Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subjecting violators to double damages, forfeiture, and up to five years’ imprisonment.  Act of Mar. 2, 1863, ch. 67, 12 Stat. 696.” Id. at 2-3.

[10] Id. at 3, citing §3729(b)(2)(A) of the statute.

[11] Id. citing §3729(a) of the statute and 28 CFR §85.3(a)(9) (2015) (adjusting penalties for inflation).

[12] These facts are taken from Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15–7. Argued April 19, 2016—Decided June 16, 2016. Justice Thomas wrote for a unanimous Court.

[13] Id. at 4.

[14] Id.

[15] Id. at 4-5.

[16] Id. at 5.

[17] Id. at 5-6.

[18] The Department of Justice has an excellent summary of all of this: The False Claims Act: A Primer, available at .

[19] United Health Services at 6.

[20] Id. at 7.

[21] Id. at 10 citing D. Dobbs, P. Hayden, & H.Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed.2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

[22] Id. at 11.

[23] Id. at 14.

[24] The Court went on to give a number of examples of relevant considerations. “[W]when evaluating materiality under the False Claims Act, the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of materiality can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.” Id. at 16.

[25] The AMA filed the brief with a number of other organizations. The brief is at: .

[26] The AAMC filed an amicus brief with the American Hospital Association and others. It is available here: .

[27] Id. at 18.

[28] Id.

[29] Whole Woman’s Health v. Hellerstedt, No. 15–274. Argued March 2, 2016—Decided June 27, 2016. Justice Breyer wrote for the Court. It was a 5-3 decision.

[30] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992).

[31] Id.

[32] The American College of Obstetricians and Gynecologists filed a brief essentially making the point that the Texas laws did not really promote the welfare of women. . On the other side of the issue was the brief of the American Association of Pro-Life Obstetricians and Gynecologists (along with a number of other organizations) argued that the Texas law was consistent with good medical practice. .

[33] Whole Woman’s Health.

[34] Id., particularly at 10-19.

[35] The primary dissent was written by Justice Alito, and joined by Chief Justice Roberts and Justice Thomas. Justice Thomas wrote a separate dissent, and Justice Ginsburg (who joined the majority opinion) wrote a concurring opinion.

[36] Id. at 36-39.

[37] Zubik v. Burwell, 14–1418, decided May 16, 2016, per curiam opinion. A per curiam opinion is from the Court rather than being attributed to any particular justice as the author. Justice Sotomayor, joined by Justice Ginsburg, issued a concurring opinion emphasizing that the Court was taking no position on the substantive legal issues of the case.

[38] The American College of Obstetricians and Gynecologists filed an amicus brief in this case (in conjunction with a number of other organizations). It argued, essentially, that contraceptive services are best “provided within the same overall framework as a woman’s other healthcare services in consultation with a woman’s chosen provider. The accommodation [provided by the government] accomplishes this, while at the same time respecting an employer’s sincerely held religious objections to contraception.”  The brief is available at:

[39] Zubik, supra.

[40] Id. at 1-3.

[41] Id.

[42] Roper v. Simmons, 543 U.S. 551 (2005).

[43] For an excellent review of the history of juvenile executions, see Victor L. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions For Juvenile Crimes, January 1, 1973 - February 28, 2005 (2005), available at .

[44] Miller v. Alabama, 567 U.S. ___, slip opinion at 17.

[45] Montgomery v. Louisiana, No. 14–280. Argued October 13, 2015—Decided January 25, 2016.

[46] Scalia, dissenting. Justices Alito and Thomas joined the dissent. Justice Thomas also issued an additional dissent. Much of both the majority and dissenting opinions dealt with technical issues regarding the Court’s prior retroactivity cases.

[47] Justice Scalia suggested that this defendant must have been sentenced and imprisoned by an “unevolved society” because only recently had the Eighth Amendment been recognized as prohibiting the sentence he received.” Id.

[48] Id. at 11

[49] Id. at 15.

[50] White v. Wheeler, No. 14–1372. Decided December 14, 2015. This was a unanimous per curiam opinion.

[51] Id. at 1.

[52] The Court also bluntly “reminded” the Court of Appeals that it should give deference to the trial court. The Court wrote, “This Court again advises the Court of Appeals that the provisions of AEDPA [Antiterrorism and Effective Death Penalty Act of 1996] apply with full force even when reviewing a conviction and sentence imposing the death penalty.” Id. at 8.

[53] Batson v. Kentucky, 476 U. S. 79 (1986). Batson challenges to juries are not limited to death penalty cases. But they take on special importance in capital cases because of the consequences of those cases.

[54] Snyder v. Louisiana, 552 U. S. 472 (2008).

[55] Foster v. Chatman, No. 14–8349. Argued November 2, 2015—Decided May 23, 2016. This was a 7-1 decision, with Chief Justice Roberts writing for the majority and Justice Thomas dissenting.

[56] Id. Most of the 25 page opinion of the Court consisted of stating and analyzing the facts surrounding the dismissal of the four jurors (particularly two of them).

[57] Lynch v. Arizona, No. 15–8366. Decided May 31, 2016. This was a per curiam decision, issued without oral argument.

[58] (Internal quotations and citations omitted.) Shafer v. South Carolina, 532 U. S. 36, 39 (2001); Simmons v. South Carolina, 512 U. S. 154 (1994),

[59] Lynch at 1, 4. Justices Thomas, joined by Justice Alito, dissented.

[60] Kansas v. Carr, No. 14–449. Argued October 7, 2015—Decided January 20, 2016. Justice Scalia wrote for the Court. It was an 8-1 decision with Justice Sotomayor dissenting.

[61] Id. at 9-13.

[62] Id. at 13-17.

[63] Hurst v. Florida, No. 14–7505. Argued October 13, 2015—Decided January 12, 2016. Justice Sotomayor wrote for the Court. Justice Breyer separately concurred. Justice Alito dissented.

[64] Id. at 8-9.

[65] Williams v. Pennsylvania, No. 15–5040. Argued February 29, 2016—Decided June 9, 2016. This was a 5-3 decision written by Justice Kennedy. Dissenting were Chief Justice Roberts and Justices Alito and Thomas.

[66] Wearry v. Cain, No. 14–10008. Decided March 7, 2016. This was a per curiam opinion. The decision was 6-2, with Justices Alito and Thomas dissenting.

[67] Brady v. Maryland, 373 U. S. 83 (1963).

[68] Fisher v. University of Texas at Austin, No. 14–981. Argued December 9, 2015—Decided June 23, 2016. This was a 4-3 decision. (Fisher II)

[69]  Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).

[70] The Supreme Court in Fisher II discussed these factors in the majority opinion on pages 6-8. Much of the majority and dissenting opinions was spent arguing about whether the factors had been met in this case and which side had the burden of proof.

[71] Fisher II at 8.

[72] Fisher v. University of Tex. at Austin, 570 U. S. ___ (2013) (Fisher I ). The opinion of the Supreme Court in that case is linked here: Fisher (Fisher I) v. University of Texas at Austin.

[73] Fisher II.

[74] Many observers of the Court were quite surprised by Justice Kennedy’s apparent switch from his earlier position in the Texas affirmative action case. Robert Barnes, Split Court Draws Mixed Reviews, but Kennedy's Role Remains Constant for Now, Washington Post (June 26, 2016) available at . One observer quoted in the article said she was “shocked by Justice Kennedy’s decision.”

[75] Id. at 11.

[76] Mark G. Yudof and Rachel F. Moran, Race-Conscious Admissions Policies Face More Tests After ‘Fisher,’ Chronicle of Higher Education, available at (July 17, 2016).

[77] Fisher II, at 10.

[78] Id. at 5.

[79] The following are the cautionary remarks in the majority opinion:

“That does not diminish, however, the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances….Going forward, [the University’s assessment of the program] must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.” [at 10]

“As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values.” [at 10]

“Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. [at 11]

“The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come.” [at 11]

“[A]sserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” [at 12]

“The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.” [at 19]

“The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” ­ [at 20]

[80] Id. at 11.

[81] Alito, dissenting. The majority opinion was 20 pages, the dissent 51. Justice Thomas also dissented separately saying that the use of race in university admissions violates the Equal Protection Clause of the Fourteenth Amendment.

[82] “Marisa Bono, a lawyer at the Mexican American Legal Defense and Education Fund, described the decision as a ‘green light’ for colleges to proceed with race-conscious admissions policies.” Robert Barnes, Supreme Court Upholds University of Texas Affirmative-Action Admissions, Washington Post (June 23), available at . She went on to say that, “’Today’s decision truly represents a clear and resounding message that UT and other institutions of higher education may consider race in the admissions process as long as they can show a very limited use of race that is narrowly tailored to achieve diversity,’ she said.”  The qualification about the ability to demonstrate a “very limited use of race that is narrowly tailored” is a critical one. Perhaps it is more of a yellow light than a green one.

[83] Id. at 8-10.

[84] Id. at 10.

[85] The APA brief is available here: .

[86]  A review of the work of Nathalie Gilfoyle was published in the Monitor. It begins: “Under the direction of General Counsel Nathalie Gilfoyle, APA has filed 90 amicus briefs on such critical topics as same-sex marriage and the death penalty for juveniles and people with intellectual disabilities. Those efforts have shaped some of the most significant legal decisions in the past two decades and enhanced the association's reputation as an authoritative source of scientific guidance for the courts. In a survey of former U.S. Supreme Court clerks published in the Journal of Law & Politics, a significant percentage of clerks cited APA's briefs as ‘consistently trustworthy.’" Jamie Chamberlin, APA’s General Counsel Retires: Nathalie Gilfoyle Leaves APA After 19 Years of Translating Psychological Science for the Courts, 47 APA Monitor 70 (#6) (June 2016) available at .

[87] The AAMC et al. .

[88] Yudof and Moran, supra. And opponents of the use of race in university admissions almost promised as much. "Roger B. Clegg, president of the Center for Equal Opportunity, said the decision “leaves plenty of room for future challenges to racial preference policies at other schools,’ he said in a statement. ‘Those challenges will continue.’” Barnes, Supreme Court Upholds University of Texas Affirmative-Action Admissions, Washington Post (June 23), supra.

[89] V.L. v. E.L., No. 15–648 Decided March 7, 2016. This was a per curiam decision. The Court decided the case without oral arguments. It was a unanimous decision.

[90] Article IV, § 1 of the Constitution provides that, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

[91] Id.

[92] Obergefell v. Hodges, No. 14–556. Argued April 28, 2015—Decided June 26, 2015.

[93] Gobeille v. Liberty Mutual Insurance, No. 14–181. Argued December 2, 2015—Decided March 1, 2016. Justice Kennedy delivered the opinion of the Court. It was a 6-2 decision. Vermont also requires that “health insurers, health care providers, health care facilities, and governmental agencies to report any ‘information relating to health care costs, prices, quality, utilization, or resources required’ by the state agency, including data relating to health insurance claims and enrollment.” Id. at 2.

[94] Id.

[95] Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq.

[96] 29 U. S. C. §1144(a).

[97] The Constitution makes “supreme” federal laws “made in pursuance” of the Constitution. Article VI, Clause 2 of the Constitution provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

[98] The AAMC brief in this case was filed with the American Hospital Association. It is available at: .

[99] The AMA filed a brief with the Vermont Medical Association. It is available at: .

[100] Essentially the statute provides: “If a person is disposing, or intends to dispose, of property obtained as a result of … a Federal health care offense or property which is traceable to such violation, the Attorney General may commence a civil action in any Federal court [to] prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value.” 18 U. S. C. §1345.  (In addition to “federal health care offenses,” the statute also applies to banking law violations.)

[101] §1345(a)(2).

[102] Luis v. United States, No. 14–419. Argued November 10, 2015—Decided March 30, 2016. This was essentially a 5-3 decision, but only four members of the Court signed the majority opinion (written by Justice Breyer). Justice Thomas concurred in the judgement, but did not join the majority opinion. His agreement was the nature of the Sixth Amendment, but he agreed that the government could not freeze these assets in a way that precluded hiring an attorney. There were two dissenting opinions, with three justices dissenting.

[103] Id. at 5-12.

[104] United States v. Texas, No. 15-674, announced June 23, 2016.

[105] Luna Torres v. Lynch, No. 14–1096. Argued November 3, 2015—Decided May 19, 2016. This was a 6-3 with an unusual alignment. Justice Kagan wrote for the majority. Justice Sotomayor filed a dissent in which Justices Thomas and Breyer joined.

[106] 108 Stat. 4322, 8 U. S. C. §1101(a)(43).

[107] Under the original laws, refusal to these procedures resulted in the loss of driving license. But with the increase in DUI penalties that was not sufficient to get drivers to consent, so states made it a crime to refuse to be tested.

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

[109] Birchfield v. North Dakota, No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Five justices joined the majority opinion as a whole. Two justices (Sotomayor and Ginsburg) would have made both breath and blood tests subject to the warrant requirement. One justice (Thomas) would have made both free from the warrant requirement.

[110] Id. at 20-22, 33-35.

[111] Id. at 22-23, 33-37.

[112] Id. at 36-37.

[113] Utah v. Strieff, No. 14–1373. Argued February 22, 2016—Decided June 20, 2016. This was a 5-3 decision. Justice Thomas wrote for the Court. Justice Sotomayor dissented, joined by Justice Ginsburg in most of the decision. Justice Kagan also dissented, Justice Ginsburg also joined this dissent.

[114] Justice Sotomayor, dissenting. The final part of Justice Sotomayor’s dissent, in which she was speaking only for herself, included a detailed discussion of why the type of policing the Court’s decision permits will be destructive and harmful to police-community relations.

[115] Id. at 7-8.

[116] Nichols v. United States, No. 15–5238. Argued March 1, 2016—Decided April 4, 2016. This was a unanimous decision of the Court. Justice Alito wrote for the Court.

[117] DIRECTV, Inc. v. Imburgia, No. 14–462. Argued October 6, 2015—Decided December 14, 2015. This was a 6-3 decision.

[118] Mullenix v. Luna, No. 14–1143. Decided November 9, 2015. This was a per curiam opinion in which all of the justices joined except Justice Sotomayor, who dissented. The Court decided this case without oral argument.

[119] RJR Nabisco, Inc. v. European Community, No. 15–138. Argued March 21, 2016—Decided June 20, 2016. The Court was badly split on various aspects of this case. Parts of it were 4-3. Justice Sotomayor (in addition to Justice Scalia) took no part in the decision.

[120] McDonnell v. United States, No. 15–474. Argued April 27, 2016—Decided June 27, 2016. The decision was unanimous.

[121] Friedrichs v. California Teachers Assn., No. 14-915 [March 29, 2016].

[122] Ctanaeo v. Massachusetts, No. 14–10078. Decided March 21, 2016. This was a per curiam opinion. The case was decided without oral argument. Justices Alito and Thomas concurred in the judgement. There were no dissents.

[123] McDonald v. Chicago, 561 U. S. 742, 750 (2010); District of Columbia v. Heller, 554 U. S. 570 (2008).

[124] Evenwel v. Abbott, No. 14–940. Argued December 8, 2015—Decided April 4, 2016. Justice Ginsburg wrote for the Court.

[125] Harris v. Arizona Independent Redistricting Comm’n, No. 14–232. Argued December 8, 2015—Decided April 20, 2016. The Court was unanimous and Justice Breyer wrote for the Court.

[126] Maryland v. Kulbicki, No. 14–848. Decided October 5, 2015. This was a per curiam opinion. The Court was unanimous.

[127] This case concerned the issue of whether the defense counsel had been inadequate in not more aggressively challenging the bullet evidence. At the time of the trial it was apparent that the attorney could not have challenged it effectively because it was generally accepted. This principle should be distinguished from the circumstances in which new scientific techniques may prove the “actual innocence” of someone convicted. For example, when DNA techniques became available it was possible to analyze retained tissue sample of earlier cases. In a number of instances this new technique proved that someone convicted of the crime could not have been the true offender. In those cases, the earlier conviction could be reversed. The Kulbicki case discussed in this article, however, was not about proving actual innocence, but rather assessing the competence of the defense attorney.

[128] Most of the data about the Term come from, an excellent source of information about the Court. Among its services is the Stat Pack, a wealth of data about the Court. Kedar S. Bhatia, Stat Pack for October Term 2015, SCOTUSBLOG (June 29, 2016), .

[129] The Stat Pack, referenced in the previous note, had the problem of how to combine counts of cases when there were sometimes nine justices and sometimes eight. Here is the explanation they provided of that calculation: “We treat cases with eight or fewer votes as if they were decided by the full Court. For example, we treat Lockhart v. United States, which had only eight Justices voting, as a 7-2 case throughout much of this Stat Pack. For 8-0, 7-1, and 6-2 decisions, we simply assume that the recused Justice would have joined the majority. In cases that are decided 5-3, we would look at each case individually to decide whether it was more likely that the recused Justice would join the majority or the dissent. …We have done our best to note where we assume a full Court and where we count only actual votes.” Id. at 5.

[130] Erwin Chemerinsky, The Year the Law Did Not Change, ABA Journal (June 30, 2016), available at . “The Supreme Court’s October Term 2015 was the year that the law did not change. It is hard to remember a Supreme Court term where the decisions did less to change the law. That, of course, does not make the decisions unimportant. But their significance is in preserving the status quo, not altering it.”

[131] Aliza Aufrichtig, Split Happens: Deadlocks Rarely Occur in the Supreme Court. But Why?, The Guardian (June 27, 2016) available at .

[132] Justice Scalia was known to be a close friend of many of his colleagues about whom he said nasty things in opinions. That was particularly the case with Justice Ginsburg. Irin Carmon, What Made The Friendship Between Scalia And Ginsburg Work?, Washington Post (February 13, 2016), available at .

[133] On January 7, 2015, the Office of Civil Rights of the Department of Education issued the following letter: “The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”

[134] The opinion of the Fourth Circuit in G. G. v Gloucester County School Board (2016) is here: . The school board’s application to the Supreme Court for the stay is here: .

[135] Gloucester County School Board v. G. G. Application to Recall and Stay [issued August 3, 2016], available at . Justices Ginsburg, Sotomayor and Kagan were opposed granting the stay. Justice Breyer said he was voting for it as a “courtesy” until the Court could decide whether to take the case.