the supreme court, 2009 term william m. jay july 2010

The Supreme Court,2009 Term

William M. JayJuly 2010

The Supreme Court, 2009 Term

I. Overview of the Court’s work and workload this Term

II. Preview of themes

III. Five significant decisions

IV. Questions on any and all aspects of the Term

Raw Numbers

• 78 cert petitions granted for merits hearing

• 77 oral arguments (includes 2 original cases)

• 72 decisions after briefing and argument(plus 12 more decided summarily)– 46% unanimous– 18% 5-4

Source: ScotusBlog

Transitions

• Justice Sotomayor replaces Justice Souter– Similarities in background– 15 years younger

• A new Justice to replace Justice Stevens– 40 years younger

• Passing of Professor Ginsburg

Themes Emerging?

• The Supreme Court: Supreme or court?– “[I]f it is not necessary to decide more, it is

necessary not to decide more.” PDK Labs., Inc. v. DEA, 362 F. 3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment).

Themes Emerging?

• Eagerness to confront or avoid constitutional questions– Avoidance

• Honest services

– Questions presented / Reargument• Citizens United

– Qualified immunity• Bong Hits 4 Jesus / Strip search / Pearson

Themes Emerging?

• Warning shots– Big principle, small stakes

• PCAOB• Material support for foreign terrorists

– Big stakes, small decisions• Bilski• O’Brien• Voting Rights Act

Five Illustrative Cases

• City of Ontario v. Quon

• McDonald v. City of Chicago

• Doe v. Reed

• Stop the Beach Renourishment

• Berghuis v. Thompkins

• Plus a special bonus

City of Ontario v. Quon

• Questions Presented:– Does a government employee have a right to

keep information in a government-issued device private – even private from the government employer itself?

– If so, to what extent can employer search it?– What privacy rights do the people who traded

messages with the government employee have?


• Facts– Two-way pagers for city SWAT team– Written policy for computers, oral for pagers– 25,000 characters per month – but “if you pay

for the overages, you won’t be audited”– Plaintiff sent and received dirty text messages

• ex-wife • mistress • co-worker

– Plaintiff paid for his overages, but the department obtained and read his messages


• Trial court– Court concludes:

• Quon had a reasonable expectation of privacy• Search was reasonable in its scope, as long as the

police department’s actual purpose was regulatory and not investigative

– Jury finds: • Purpose of the search was regulatory, i.e., to see if

the 20,000-character limit was too low

– Judgment for City.


• Ninth Circuit– Quon had a reasonable expectation of privacy

• Lieutenant “in charge of the pagers” had an “informal policy” on which Quon could rely

– Search was unreasonable• Could test 20K limit without reading content

– Senders/recipients prevailed, too• Absent Quon’s consent, no “third-party review”

– Judgment as a matter of law for plaintiffs.


• O’Connor v. Ortega (O’Connor plurality)– Government as employer is still government

• Fourth Amendment applies• Some areas of privacy (desks, file cabinets)

– Government gets some leeway as employer• Investigation of workplace misconduct is not the

same as law-enforcement investigation• “Reasonableness” (both at inception and in scope),

not probable cause/warrant


• O’Connor v. Ortega (Scalia concurrence)– Any intrusion by government, even firemen

fighting a fire, implicates the Fourth Amendment without regard to “expectation of privacy” vis-à-vis the intruder

– The question is whether the intrusion is reasonable (here, whether it would be regarded as reasonable when performed by an employer, public or private)


• Unanimous reversal of Ninth Circuit, per Justice Kennedy– Satisfies both O’Connor plurality and Scalia– Reasonable because “efficient and expedient”

• Doesn’t have to be least restrictive means• Law enforcement officer• Employer-provided pager, so less likely to contain

intimate details (even though it did)• No assurances of confidentiality• Any statutory violation not relevant


• Assume expectation of privacy• Would have to consider lieutenant’s statements;

whether he had authority to make them; and whether police officers should expect searches in any event (e.g., open-records laws, litigation)

• “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”

• “On the other hand,” people can afford their own


• Senders/recipients lose, too• Those plaintiffs didn’t explain how they could win if

Quon lost• No need to address that aspect of the Ninth

Circuit’s decision


• Justice Scalia’s partial concurrence• “The Court . . . inexplicably interrupts its analysis

with . . . an excursus on the complexity and consequences of answering [the] admittedly irrelevant threshold question [of an expectation of privacy].”

• The Court’s reason for avoiding a decision of expectation of privacy in electronic devices “also seems to me exaggerated. . . . The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

• O’Connor test remains fuzzy and unworkable.


• What’s left?– Sender/recipient question – applicable in

many Fourth Amendment settings: does the sender of a letter, email, or text message lose any expectation of privacy, and if so, when?

– Expectation of privacy in employer-provided equipment

– Employer’s ability to defeat that expectation through policies (is it really an “expectation”?)

McDonald v. City of Chicago

• The Bill of Rights begins:“Congress shall make no law….”

• Chief Justice Marshall described the question whether the Bill of Rights applies to the States as “not of much difficulty.”Barron v. Baltimore (1833).


• Incorporation through the 14th Amendment

• What guarantees hasn’t the Supreme Court gotten around to incorporating yet?

• Quartering of soldiers (Third Amendment)• Indictment (Fifth Amendment) (1884)• Civil jury trial (Seventh Amendment) (1916)• Excessive bail and fines (Eighth Amendment)

• Each other right is incorporated in full• BUT: Justice Powell on non-unanimous juries


• Facts:– Chicago and Oak Park gun ordinances,

equivalent to D.C. ordinance struck down after Heller

• Near-complete ban on handguns

– Handgun owners who live in the cities want to keep their guns at home

• Seventh Circuit holds that Supreme Court precedents preclude applying 2d Amdt.


• 5-4 decision for plaintiffs, per Justice Alito– Incorporation on the “single, neutral principle”

applied to all “selectively incorporated” rights• “Federalism” argument rejected

– Self-defense is a basic right deeply rooted in U.S. history and tradition (citing States’ brief)

• Doesn’t matter that other civilized societies do without it

• History of the 14th Amendment’s adoption confirms that the right to keep and bear arms was considered fundamental


• Justice Thomas would reach the same result through the Privileges or Immunities Clause of the 14th Amendment– “No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States….”

• Plurality declines invitation to revisit 19th-century precedent (Slaughter-House Cases) blocking that path


• Justice Stevens dissents alone– “This is a substantive due process case.”– What matters is not whether the right is in the

Bill of Rights at all, but whether “the interest is comprised within the term ‘liberty.’”

• “…nor shall any State deprive any person of life, liberty, or property, without due process of law….”

– Must use “value judgments,” not history alone– “[L]iberty is on both sides of the equation”


• Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor– Heller was wrong as a historical matter– Second Amendment is not “fundamental”

• Contemporary disagreement over it• Doesn’t further structural “constitutional aims”• Legislatures are better suited than judges to

answer these questions


• Questions– What is the scope of the protected right that

now applies both to the United States and to the States?

• How did the Court determine that the right was fundamental without marking out what it protects?

• Heller’s recognition of longstanding prohibitions• Standard of review

– What else will be incorporated? What else is “deeply rooted” in “history and tradition”?

Doe v. Reed

• Facts:– Washington requires signatures to qualify a

referendum for the ballot– Washington also has an open-records law– Signatures are available under that law– Referendum on state civil-unions law

• Signatures requested under open-records law• Signatories brought federal suit to block disclosure

of their names

Doe v. Reed

• Count I– Disclosure violates First Amendment as

applied to referenda

• Count II– Disclosure violates First Amendment as

applied to these proponents, based on threats, harassment, and reprisals

• Preliminary injunction granted based on Count I only

Doe v. Reed

• Ninth Circuit reverses preliminary injunction– First Amendment analysis applies– Intermediate scrutiny– Public-records law survives

• Before cert petition filed, Supreme Court grants stay preventing names from being disclosed

Doe v. Reed

• 8-1 ruling for the State, per Chief Justice Roberts– First Amendment analysis does apply

• Petition signing is expressive activity, and doesn’t always have legal effect

• But States have flexibility in voting system design• “Exacting scrutiny,” drawn from campaign-finance

cases (like intermediate scrutiny)

– State interest in ballot integrity suffices• No need to consider “informational” interest

Doe v. Reed

• Battle of the concurrences– Justice Alito: Plaintiffs have a strong case on

Count II (as applied); State’s informational interest is weak

– Justice Sotomayor and Stevens (joined by Justices Ginsburg and Breyer): No they don’t, because the burden is nondiscriminatory

– Justice Scalia: No First Amendment analysis at all; have some “civic courage” when legislating (as we once did when voting)!

Doe v. Reed

• Dissent by Justice Thomas– Heavy burden on associational rights– The State can always promote its asserted

interests by less restrictive means than public disclosure

Stop the Beach Renourishment

• Question presented: Is there such a thing as a judicial taking?

• Answer: Maybe.


• Facts:– Under Florida law, littoral (oceanfront)

property owners get the benefit of accretion (gradual accumulation of land)

– But under Beach and Shore Preservation Act, property owners lose that benefit when their property undergoes beach renourishment

– Florida Supreme Court says the right to future accretions is contingent, not vested


• 8-0 to reject taking claim, but 4-4 on reasons (Florida property owner recused)

• Plurality opinion per Justice Scalia– A taking exists when an established property

right is destroyed without payment, irrespective of which branch destroys it

• Rejects notion that taking occurs when a change is “unpredictable”

– No judicial taking here


• Justice Kennedy, joined by Justice Sotomayor:– Substantive due process, not takings

analysis, is the way to check arbitrary action by courts

– SDP would forbid the action, rather than just require compensation

– Judicial takings analysis might give more power to judiciary (which doesn’t pay the $$)


• Justice Breyer, joined by Justice Ginsburg:– Even if a judicial taking exists, this isn’t it

(for the reasons given by the plurality)– As for the conclusion that a judicial taking can

exist, “I do not claim that [it is] unsound. I do not know. But I do know that, if we were to express our views on these questions, we would invite a host of federal takings claims without … mature consideration….”

Berghuis v. Thompkins

• Facts:– Thompkins is Mirandized (though didn’t sign

acknowledgment of rights)– Officers question Thompkins for 2 hours 45

minutes; he doesn’t invoke rights, but remains largely silent except for a few monosyllabic responses

– Finally, “Do you pray to God to forgive you for shooting that boy down?” “Yes.”


• State appeals court upholds conviction– Thompkins did not invoke right to remain

silent and impliedly waived it

• Federal appeals court grants habeas relief– State court’s conclusion was an unreasonable

application of clearly established federal law


• 5-4 ruling for the State, per Justice Kennedy– Rejects argument that remaining silent for a

sufficient period of time is an invocation of right to remain silent

• Miranda rights (to counsel, see Davis, and to remain silent) must be invoked unambiguously


• 5-4 ruling for the State, per Justice Kennedy– Knowing and voluntary waiver

• Need not be express, or come before questioning• Statement alone not enough• Thompkins understood his rights, and he made a

statement– Mirandizing showed he understood– Speaking was a “course of conduct indicating waiver”– No coercion


• Justice Sotomayor dissents, joined by Justices Stevens, Ginsburg, and Breyer– Unnecessary to decide so much

• Could have just decided that state court’s decision was sufficiently reasonable that habeas relief wasn’t warranted

– No waiver• No express waiver; refused even to sign

acknowledgment form; remained largely silent for 2 hours 45 minutes

• Can’t use the statement itself to show waiver


• Justice Sotomayor dissents, joined by Justices Stevens, Ginsburg, and Breyer– Invocation shouldn’t require an express

statement• Agrees that state court decision finding no

invocation was reasonable• But would not extend Davis (right to attorney) to

invocations of right to silence

SPECIAL BONUS

• In awarding civil-rights attorney’s fees, may the district court give a special bonus for extraordinary performance and results?

• That’s the question in Perdue v. Kenny A.– Petitioners and the United States said “never.”– District court said plaintiffs won most favor-

able result he’d seen in 58 years in the law

• Supreme Ct says “maybe, but not here.”

Other Highlights

• Juvenile LWOP• Immigration

consequences of plea• 14-day Miranda rule• Crush videos• Federal civil commit-

ment of sex offenders• Habeas time limit• Melendez-Diaz lives

• Cross in desert• NFL antitrust suit• Religious group

membership policies• “Method” patents• Arbitrator’s powers• Discriminatory taxes• Relation back

CRIMINAL CIVIL

NRG Power Mktg. v. Me. PUCSection 206 of the Federal Power Act (FPA), 16 U.S.C. § 824e(a), requires thatrates for the transmission and sale of electricity in interstate commerce be “justand reasonable.” Under the Mobile-Sierra doctrine--named for this Court'sdecisions in United Gas Pipeline Co. v. Mobile Gas Service Corp., 350 U.S.332 (1956), and FPC v. Sierra Pacific Power Co., 350 U.S. 348 (1956)—theFederal Energy Regulatory Commission (“FERC”) must “presume that the rateset out in a freely negotiated wholesale-energy contract meets the ‘just andreasonable’ requirement imposed by law,” and that “presumption may beovercome only if FERC concludes that the contract seriously harms the publicinterest.” Morgan Stanley Capital Group Inc. v. Pub. Util. Dist. No.1, 128 S. Ct.2733, 2737 (2008). In the decision below, the court of appeals held that, “whena rate challenge is brought by a non-contracting third party, the Mobile-Sierradoctrine simply does not apply.” The question presented is:

Whether Mobile-Sierra’s public-interest standard applies when a contract rate ischallenged by an entity that was not a party to the contract.

the supreme court, 2009 term william m. jay july 2010

Documents

term slide

scotusblog slide

quon questions

quon oconnor

quon trial court court

government employer

quon mcdonald

circuit quon