The Supreme Court, 2010 Term

1. The Supreme Court,2010 Term William M. Jay July 2011

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

3. Raw Numbers • 77 cert petitions granted for merits hearing, plus 1 appeal and 1 original case • 78 oral arguments • 75 decisions after briefing and argument • Two split 4-4; two dismissed without opinion • 48% unanimous • 20% 5-4 or 5-3 • 31 recusals (28 Kagan, 2 Sotomayor, 1 Chief) Source: ScotusBlog

4. Transitions • Justice Kagan replaces Justice Stevens

5. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket

6. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor

7. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor • Experience in the Executive Branch

8. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor • Experience in the Executive Branch • Experience at the lectern

9. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor • Experience in the Executive Branch • Experience at the lectern • 40 years younger than her predecessor

10. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor • Experience in the Executive Branch • Experience at the lectern • 40 years younger than her predecessor • Retirement…

11. Transitions • Justice Kagan replaces Justice Stevens • Less track record than Justice Sotomayor on many of the issues on the Court’s docket • A fourth law professor • Experience in the Executive Branch • Experience at the lectern • 40 years younger than her predecessor • Retirement… of the Court librarian

12. Some Illustrative Cases • Four free-speech cases • Ariz. Free Enterprise • Sorrell v. IMS Health • Snyder v. Phelps • Brown v. EMA

13. Some Illustrative Cases Four free-speech cases • Ariz. Free Enterprise • Sorrell v. IMS Health • Snyder v. Phelps • Brown v. EMA Preemption Chamber of Commerce v. Whiting

14. Some Illustrative Cases Four free-speech cases • Ariz. Free Enterprise • Sorrell v. IMS Health • Snyder v. Phelps • Brown v. EMA Preemption Chamber of Commerce v. Whiting Important criminal case Davis v. United States

15. Some Illustrative Cases Four free-speech cases • Ariz. Free Enterprise • Sorrell v. IMS Health • Snyder v. Phelps • Brown v. EMA Preemption Chamber of Commerce v. Whiting Important criminal case Davis v. United States Cases about the role of the courts

16. Arizona Free Enterprise Fund’sFreedom Club PAC v. Bennett • Arizona offers public financing to qualifying candidates for state office • Initial lump sum (varies by office) (“X”) • Matching funds based on opponents’ fundraising or spending above X • Matching funds based on independent groups’ spending on the election • Absolute cap: 3X

17. Arizona Free Enterprise • Plaintiffs • Candidates who faced publicly funded opponents • Independent groups who advertised against publicly funded candidates or in favor of their opponents • Plaintiffs alleged they had been chilled in their fundraising or spending

18. Arizona Free Enterprise • Buckley v. Valeo (1976) • First Amendment protects unlimited spending • Public financing is constitutional • Davis v. FEC (2008) • “Millionaire’s Amendment” to McCain-Feingold • Self-funded candidate spends $350,000 • Opponents’ contribution limits triple: from $2300 to $6900 per donor • Opponents can accept coordinated contributions from parties

19. Arizona Free Enterprise • Davis v. FEC (2008) • Supreme Court holds, 5-4, that Millionaire’s Amendment substantially burdened Davis’s exercise of his First Amendment right to fund his own campaign • “Special and potentially significant burden” • Substantial burden → strict scrutiny • Leveling the playing field is not a compelling (or valid) interest

20. Arizona Free Enterprise • On the logic of Davis, district court strikes down Arizona matching-funds law • Ninth Circuit disagrees and upholds the law • Matching funds create a disincentive like disclosure requirements • Intermediate scrutiny • Anticorruption interest

21. Arizona Free Enterprise 5-4 for plaintiffs, per Chief Justice Roberts • Strict scrutiny applies • Substantial burden, just like Davis • This subsidy is “in direct response to the political speech of another, to allow the recipient to counter that speech” • Worse than Davis, because no fundraising • Multiplier effect; effect on independent groups • Choice is “trigger matching funds, change your message, or do not speak” • More speech only as a step to less speech

22. Arizona Free Enterprise • Matching funds fail strict scrutiny • Leveling the playing field is “a dangerous enterprise,” not a valid justification • Anticorruption interest is inadequate here • Self-funders, independent groups pose no corruption risk • Contribution limits already combat corruption • Encouraging participation in public financing is not a sufficient justification given the burden it imposes

23. Arizona Free Enterprise Justice Kagan dissents • Public financing is constitutional • Matching funds are a way to find the “sweet spot” • No substantial burden • “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury” • Content-neutral subsidy; plaintiffs’ chutzpah

24. Arizona Free Enterprise Justice Kagan dissents • Davis is about a discriminatory restriction, not a nondiscriminatory subsidy • Anticorruption interest • Nobody relies on “leveling”; 1 interest suffices • Buckley said that lump-sum public financing fights corruption by getting people to decline contributions; this is just a fine-tuning of the lump-sum program

25. Arizona Free Enterprise For public financing, what now? Matching funds appear to be dead (as most courts had held after Davis but before the Ninth Circuit decision in Arizona Free Enterprise) Buckley still says the presidential (lump-sum) public-financing program is constitutional No “separation of campaign and state,” yet Multiplier-match for small contributions?

26. Sorrell v. IMS Health, Inc. • Facts • Drug companies use “detailing” • Vermont statute regulates “prescriber-identifying information.” Without consent: • Pharmacy can’t sell it (for marketing?) • Pharmacy can’t allow it to be used for marketing • Drug company can’t use it in marketing • Drug companies and data miners both sue • Similar Maine and N.H. statutes upheld • Second Circuit strikes down Vermont’s

27. Sorrell v. IMS Health, Inc. 6-3 for plaintiffs, per Justice Kennedy Heightened scrutiny Burdens disfavored speech (marketing) by disfavored speakers (drug companies) Not an incidental burden, like fair-housing laws that prohibit “Whites Only” signs Regulates speech, not just “access to information” or “beef jerky” It’s not the government’s information The access restriction burdens speech

28. Sorrell v. IMS Health, Inc. Heightened scrutiny The creation and dissemination of information are speech This content-based restriction is like a ban on selling cookbooks, lab results, train schedules Detailers can’t do their job (speech) without this commodity (information); like banning a trade magazine from buying ink

29. Sorrell v. IMS Health, Inc. Heightened scrutiny… but what kind? Restrictions on commercial speech get less scrutiny than, e.g., restrictions on political speech But is a business’s disclosure or use of prescriber-identifying information always commercial?

30. Sorrell v. IMS Health, Inc. Heightened scrutiny… but what kind? Restrictions on commercial speech get less scrutiny than, e.g., restrictions on political speech But is a business’s disclosure or use of prescriber-identifying information always commercial? The Court doesn’t answer.

31. Sorrell v. IMS Health, Inc. Vermont statute fails intermediate (commercial-speech) scrutiny Protection of doctors’ privacy Bogus because the information may be disclosed to all but a narrow disfavored class And although some content-based privacy measures might be OK, here the content-discrimination has nothing to do with privacy

32. Sorrell v. IMS Health, Inc. Protection of doctors from harassment So don’t let the drug rep into your office “Many are those who must endure speech they do not like, but that is a necessary cost of freedom” Protection of public health and fisc Can’t be done by suppressing truthful, non-misleading speech for fear people will listen

33. Sorrell v. IMS Health, Inc. What can the State do? Fund its own counter-speech (“use generic drugs, they’re cheaper and just as good”) Regulate false and misleading speech (even with content-based regulation) Perhaps, regulate prescriber-identifying information more tightly and evenhandedly

34. Sorrell v. IMS Health, Inc. Justice Breyer dissents, joined by Justices Ginsburg and Kagan No heightened scrutiny This is just economic regulation (Glickman) No restriction on what you may or must say Drugs are heavily regulated (gov’t info) If laws like this one must survive heightened scrutiny, then judges and not legislatures will be making economic policy (Lochner)

35. Sorrell v. IMS Health, Inc. His bottom line Where the government directs the collection or retention of certain information, regulations on what may be done with that information need not pass heightened scrutiny “Content-based” or “speaker-based” doesn’t matter in the context of economic regulation; that’s how governments choose and implement policy

36. Sorrell v. IMS Health, Inc. Statute also survives heightened scrutiny Letting detailers in the door, but restricting their access to information, is a valid way to give doctors access to detailers’ information but still control prices and protect privacy

37. Snyder v. Phelps Facts Lance Corporal Matthew Snyder, USMC, was killed in Iraq in the line of duty Members of Westboro Baptist Church protested his funeral Protest occurred 1,000 feet from church Funeral procession passed within 200 feet; LCpl Snyder’s father Albert saw tops of signs Albert Snyder later saw signs on news “Epic” posted on Internet

38. Snyder v. Phelps • Snyder sued Westboro, Phelpses under Maryland tort law • Prevailed on claims of intentional infliction of emotional distress, intrusion upon seclusion • Won $2.9M compensatory, $2.1M punitive • Lost on defamation, publicity of private life • Fourth Circuit invalidated award under First Amendment, ordered judgment for defendants as a matter of law

39. Snyder v. Phelps 8-1 for Phelpses, per Chief Justice Roberts • Speech was on a matter of public concern, at least in its “overall thrust and dominant theme” • Not an attack on the family in guise of speech • Peacefully, in the traditional public forum • “had the right to be where they were” • “It was what Westboro said that exposed it to tort damages”

40. Snyder v. Phelps • IIED tort is itself problematic • “Malleable” and “subjective” (Hustler) • “Captive audience” doctrine doesn’t justify treating seclusion tort differently • Albert Snyder wasn’t a captive audience • States have other regulatory options • “Our holding today is narrow.”

41. Snyder v. Phelps Justice Alito dissents alone • Speech was mostly not on a matter of public concern; the Snyders were private figures • Words can inflict injury; Phelpses “brutally attacked Matthew Snyder” • “Neither classic ‘fighting words’ nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.” • “Special protection” at funerals?

42. Brown v. Entertainment Merchants Association (EMA) • Facts • California prohibits sale or rental of violent video games to minors • VVGs involve “killing, maiming, dismembering, or sexually assaulting an image of a human being” • Phrased like an obscenity statute: • “appeals to a deviant or morbid interest of minors” • “patently offensive” to community standards for minors • lacks “serious literary, artistic, political, or scientific value for minors”

43. Brown v. EMA Video-game industry brings First Amendment suit District court in northern California grants permanent injunction Ninth Circuit affirms Consistent with rulings in 7th and 8th Circuits, other district courts Supreme Court grants cert nonetheless

44. Brown v. EMA 7-2 for video-game manufacturers (but only 5 votes for Justice Scalia’s opinion) Video games, in general, receive First Amendment protection “It is difficult to distinguish politics from entertainment, and dangerous to try” California’s statute is content-based So ordinarily strict scrutiny would apply

45. Brown v. EMA Court rejects California’s argument that video-game violence is unprotected speech, like obscenity Obscenity is not “whatever a legislature finds shocking”; it’s only depictions of sex Restrictions on the sale of obscenity to minors do not receive strict scrutiny (Ginsberg), but violent video games are not obscene Restrictions on sale to minors only in “relatively narrow and well-defined circumstances”

46. Brown v. EMA No tradition of denying First Amendment protection to depictions of violence At a minimum, “a long … tradition of proscription” is required Stevens – crush videos The First Amendment strikes the balance California concedes no tradition for adults Court concludes no tradition for minors, either

47. Brown v. EMA Examples of gore in juvenile entertainment Snow White, Cinderella, Hansel & Gretel The Odyssey and the Inferno Lord of the Flies Examples of failed censorship attempts Dime novels and “penny dreadfuls” Movies Radio dramas Comic books

48. Brown v. EMA Video games are not materially different Cultural and intellectual difference, but no constitutional difference, between reading Dante and playing Mortal Kombat Video games are “interactive,” but choose-your-own-adventure novels have existed since 1969 And in some ways, “all literature is interactive” Yeah, some video games are disgusting But disgust is not a valid basis for restricting expression. That’s the point of free speech.

49. Brown v. EMA So strict scrutiny applies Statute flunks strict scrutiny “Wildly underinclusive” No greater effect on kids than Bugs Bunny, Road Runner, Sonic the Hedgehog, or a picture of a gun California does not restrict Saturday-morning cartoons or pictures of guns Underinclusiveness suggests pretext, censorship And California lets kids have the games with adult approval (even aunt or uncle)

50. Brown v. EMA Statute flunks strict scrutiny Also overinclusive Some parents would let their kids have the games, but California prohibits selling those kids the games directly This is “only in support of what the State thinks parents ought to want” So although both ends (reduce youth violence, help parents) are legitimate, the statute doesn’t properly further them