The Supreme Court, 2009 Term

1. The Supreme Court,2009 Term William M. Jay July 2010

2. The Supreme Court, 2009 Term • Overview of the Court’s work and workload this Term • Preview of themes • Five significant decisions • Questions on any and all aspects of the Term

3. 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

4. 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

5. 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).

6. 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

7. Themes Emerging? • Warning shots • Big principle, small stakes • PCAOB • Material support for foreign terrorists • Big stakes, small decisions • Bilski • O’Brien • Voting Rights Act

8. 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

9. 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?

10. City of Ontario v. Quon • 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

11. City of Ontario v. Quon • 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.

12. City of Ontario v. Quon • 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.

13. City of Ontario v. Quon • 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

14. City of Ontario v. Quon • 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)

15. City of Ontario v. Quon • 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

16. City of Ontario v. Quon • 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

17. City of Ontario v. Quon • 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

18. City of Ontario v. Quon • 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.

19. City of Ontario v. Quon • 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”?)

20. McDonald v. City of Chicago • The Bill of Rights begins:“Congressshall 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).

21. McDonald v. City of Chicago • 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

22. McDonald v. City of Chicago • 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.

23. McDonald v. City of Chicago • 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

24. McDonald v. City of Chicago • 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

25. McDonald v. City of Chicago • 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”

26. McDonald v. City of Chicago • 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

27. McDonald v. City of Chicago • 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”?

28. 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

29. 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

30. 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

31. 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

32. 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)!

33. 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

34. Stop the Beach Renourishment • Question presented: Is there such a thing as a judicial taking? • Answer: Maybe.

35. Stop the Beach Renourishment • 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

36. Stop the Beach Renourishment • 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

37. Stop the Beach Renourishment • 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 $$)

38. Stop the Beach Renourishment • 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….”

39. 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.”

40. Berghuis v. Thompkins • 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

41. Berghuis v. Thompkins • 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

42. Berghuis v. Thompkins • 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

43. Berghuis v. Thompkins • 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

44. Berghuis v. Thompkins • 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

45. 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.”

46. 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 Other Highlights CRIMINAL CIVIL

47. NRG Power Mktg. v. Me. PUC Section 206 of the Federal Power Act (FPA), 16 U.S.C. § 824e(a), requires that rates for the transmission and sale of electricity in interstate commerce be “just and reasonable.” Under the Mobile-Sierra doctrine--named for this Court's decisions 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)—the Federal Energy Regulatory Commission (“FERC”) must “presume that the rate set out in a freely negotiated wholesale-energy contract meets the ‘just and reasonable’ requirement imposed by law,” and that “presumption may be overcome only if FERC concludes that the contract seriously harms the public interest.” 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, “when a rate challenge is brought by a non-contracting third party, the Mobile-Sierra doctrine simply does not apply.” The question presented is: Whether Mobile-Sierra’s public-interest standard applies when a contract rate is challenged by an entity that was not a party to the contract.