CRS Report for Congress
Supreme Court Opinions: October 1999 Term
July 20, 2000
George Costello
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Adarand Constructors, Inc. v. Slater 120 S. Ct. 722, 68 USLW 3456 (1-12-00)
Mootness: The United States Court of Appeals for the Tenth Circuit erred in
dismissing this case as moot. The case, stemming from the remand in
Adarand Constructors, Inc. v. Pena (1995), involved petitioner low-bidder’s
challenge to racially discriminatory policies in award of highway construction
contracts. In response to earlier phases of the litigation, the Colorado
Department of Transportation (CDOT) eliminated its race-based
presumptions of disadvantaged status and instead authorized applicants to
self-certify the “disadvantaged” status of their majority owners. The
petitioner did so self-certify, based on the fact that it had been the subject of
racial discrimination under the old policy. The Court of Appeals then
dismissed the underlying action as moot because CDOT had recognized the
petitioner’s disadvantaged status. But the Court of Appeals failed to take
into account that Colorado’s self-certification procedures had not yet been
approved by the U.S. Department of Transportation (DOT) as required by
federal regulation. Given the “patent incompatibility of the certification with
the federal regulations,” it was “not at all clear” that the procedures could be
approved by DOT. The respondents did not meet their burden of establishing
that it was “absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.”

9-0. Per curiam.

Apprendi v. New Jersey 120 S. Ct. 2348, 68 USLW 4576 (6-26-00)
Due Process, right to trial by jury, sentence enhancement: A New Jersey
“hate crime” statute that allows a judge to extend a sentence upon finding by
a preponderance of the evidence that the defendant, in committing a crime for
which he has been found guilty, acted with a purpose to intimidate because of
race, violates the Fourteenth Amendment’s Due Process Clause and the Sixth
Amendment’s requirements of speedy and public trial by an impartial jury.
Any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
The hate crime law, which authorized the judge to extend imprisonment for a
“second-degree” offense to imprisonment from 10 to 20 years, thereby
authorized the judge to increase the defendant’s penalty for the “second-
degree” offense of possession of a firearm for an unlawful purpose,
punishable by imprisonment of 5 to 10 years, beyond the prescribed statutory
maximum for that offense. The effect is to turn a second-degree offense into
a first-degree offense under New Jersey law. The constitutional principles are
violated because the factual issue of whether the defendant acted with the
purpose of intimidating is left to the judge rather than being submitted to the
jury, and may be established by a preponderance of the evidence rather than
by proof beyond a reasonable doubt. Characterizing the inquiry as one of
“motive” does not save the statute as a sentencing measure, since “the
defendant’s intent in committing a crime is perhaps as close as one might
hope to come to a core criminal offense ‘element.’” The State’s reliance on
McMillan v. Pennsylvania (1986) and Almendarez-Torres v. United States
(1998) is misplaced. McMillan dealt with a mandatory minimum sentence
that did not authorize exceeding the statutory maximum for the underlying

offense, and the recidivism-based exception to the general rule recognized in
Almendarez-Torres is inapplicable to the New Jersey law.
5-4. Opinion of Court by Stevens, joined by Scalia, Souter, Thomas, and
Ginsburg. Concurring opinions by Scalia; and by Thomas, joined in part by
Scalia. Dissenting opinions by O’Connor, joined by Rehnquist, Kennedy, and
Breyer; and by Breyer, joined by Rehnquist.
Arizona v. California 120 S. Ct. 2304, 68 USLW 4553 (6-19-00)
Water allocation, Colorado River: The claims of the Quechan Tribe, and of
the United States on behalf of the Tribe, for increased rights to Colorado
River water are not precluded by the Court’s 1963 decision in Arizona v.
California or by a consent judgment entered by the United States Claims
Court in 1983. The case is remanded to the Special Master for consideration
of the claims for additional water rights appurtenant to disputed boundary
lands not attributed to the Fort Yuma Indian Reservation in earlier stages of
the litigation. The Special Master’s recommendations regarding allocation of
water for the Fort Mojave Reservation and the Colorado River Indian
Reservation are accepted.

6-3. Opinion of Court by Ginsburg, joined by Stevens, Scalia, Kennedy,

Souter, and Breyer. Opinion by Rehnquist, concurring in part and dissenting in
part, joined by O’Connor and Thomas.
Baral v. United States 120 S. Ct. 1006, 68 USLW 4119 (2-22-00)
Taxation, Federal: For purposes of determining the amount of credit or
refund to which a taxpayer is entitled as compensation for overpayment of
tax, the date on which withholding taxes and estimated tax payments are
“paid” is the due date on the taxpayer’s income tax return. Section
6511(b)(2)(A) of the Tax Code provides that the amount of credit or refund
“shall not exceed the portion of the tax paid within the period, immediately
preceding the filing of the claim, equal to 3 years plus the period of any
extension.” The “plain language” of section 6513(b) determines when
withholding and estimated taxes are “paid.” That section provides that “for
purposes of section 6511 . . . [withholding taxes] shall . . . be deemed to have
been paid on the 15th day of the fourth month following the close of his
taxable year,” and estimated taxes “shall be deemed to have been paid on the
last day prescribed for filing the return.” Here the taxpayer did not file his

1988 return and claim a refund until June 1, 1993. The three year “look-

back” period, lengthened as a result of the four-month extension he had
received in 1989, extended back to February 1, 1990. The taxpayer had paid
no portion of his overpaid tax during that period, since by operation of
section 6513 his payments were deemed to have been made on April 15,


9-0. Opinion for unanimous Court by Thomas.

Beck v. Prupis 120 S. Ct. 1608, 68 USLW 4320 (4-26-00)
RICO, conspiracy, nature of “overt act”: A person injured by an “overt
act” in furtherance of a RICO conspiracy has a cause of action under 18
U.S.C. § 1962(d), only if the “overt act” is an act of racketeering or
otherwise unlawful under RICO. The provision makes it “unlawful for any

person to conspire to violate”specified RICO provisions. When Congress
uses language, not otherwise defined, with a settled common-law meaning,
Congress is presumed to know and adopt that meaning. At the time of
RICO’s enactment in 1970, it was well established that a plaintiff could bring
suit for civil conspiracy only if he had been injured by an act that was itself
tortious. The RICO analogy to an act of a “tortious character” is an act that
is “independently wrongful under RICO.” In this case, the overt act of
discharging from employment was not independently wrongful under RICO.
This interpretation does not render the conspiracy language “mere
surplusage,” since, as long as one conspirator has committed an overt act, a
plaintiff could use the provision to sue other co-conspirators who have not
themselves committed an overt act.

7-2. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Ginsburg, and Breyer. Dissenting opinion by Stevens, joined
by Souter.
Board of Regents of the Univ. of Wisconsin System v. Southworth 120 S. Ct.

1346, 68 USLW 4220 (3-21-00)

First Amendment, mandatory student fees: The First Amendment permits
a public university to charge its students an activity fee that is used to support
student organizations that engage in expressive activities if the money is
allocated to those groups by use of viewpoint-neutral criteria. Students
opposed to the purposes and expression of some of the subsidized
organizations brought this challenge, alleging they should not be required to
subsidize speech they find objectionable. The parties stipulated that two of
the three processes for reviewing and approving funding are administered in a
viewpoint-neutral fashion. This viewpoint neutrality requirement “is in
general sufficient to protect the rights of the objecting students.” Rights
recognized in the context of union and state bar association dues are
implicated by the University’s program, but the protections adopted for those
contexts “are neither applicable nor workable” in the university context. In
those contexts the Court limited the required subsidy to speech “germane” to
the purposes of the union or bar association. The germaneness standard,
difficult enough to apply to unions and bar associations, “becomes all the
more unmanageable” in the university setting, where the purpose is “to
stimulate the whole universe of speech and ideas.” The University may if it
chooses adopt an optional or refund system, but there is no constitutional
requirement that it do so. Nor need the University distinguish between on-
campus and off-campus expressive activities. The third process the
University provides for allocating funds to student groups – a student
referendum in which the student body can vote to approve or to disapprove
an assessment – substitutes majority rule for viewpoint neutrality, and cannot
be upheld along with the other aspects of the program.

9-0. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia,

Thomas, and Ginsburg. Concurring opinion by Souter, joined by Stevens and
Bond v. United States 120 S. Ct. 1462, 68 USLW 4255 (4-17-00)

Fourth Amendment, luggage search: Border Patrol agents violated the
Fourth Amendment by feeling and squeezing carry-on luggage in the
overhead storage compartment of a bus. The bus passenger in this case had
exhibited an actual expectation of privacy by using an opaque bag and placing
it directly above his seat. A bus passenger who places his bag in an overhead
bin expects that other passengers will handle the bag in the process of making
room for their own luggage, but does not expect that other passengers will
“feel the bag in an exploratory manner.” That expectation of privacy is one
that society is prepared to recognize as reasonable, and the agent’s physical
manipulation of the bag therefore violated the passenger’s Fourth
Amendment rights.

7-2. Opinion of Court by Rehnquist, joined by Stevens, O’Connor, Kennedy,

Souter, Thomas, and Ginsburg. Dissenting opinion by Breyer, joined by
Boy Scouts of America v. Dale 120 S. Ct. 2446, 68 USLW 4625 (6-28-00)
First Amendment, freedom of association: Application of New Jersey’s
public accommodations law to require the Boy Scouts of America, a private,
non-profit organization, to admit an avowed homosexual as an adult member
and assistant scoutmaster violates the organization’s First Amendment
associational rights. The general mission of the Scouts, to instill values in
young people, is expressive activity entitled to First Amendment protection.
Although neither the Scout Oath nor the Scout Law expressly mentions
sexuality or sexual orientation, they do require a scout to be “clean” and
“morally straight.” The Court “accept[s] the Boy Scouts’ assertion” that the
organization teaches that homosexual conduct is not morally straight. This
assertion is documented by a 1978 “position statement” distributed to
members of the Scouts’ Executive Committee, and by other statements made
after the respondent’s membership in the Scouts was revoked. The Court
also “give[s] deference to [the] association’s view of what would impair its
expression.” Allowing a gay rights activist to serve in the Scouts would
“force the organization to send a message . . . that the Boy Scouts accepts
homosexual conduct as a legitimate form of behavior.” In earlier cases the
Court found that application of state public accommodations laws to the
Jaycees and to the Rotary Club would not materially interfere with the ideas
that these organizations sought to express. By contrast, application of New
Jersey’s public accommodations law does “significantly burden the Scouts’
right to oppose or disfavor homosexual conduct.” The Court’s decision in
Hurley v. Irish-American Gay Group (1995), in which the Court upheld the
right of parade organizers to exclude a message with which parade organizers
disagreed, is more on point. While homosexuality appears to have gained
“greater societal acceptance,” an organization is free to espouse an unpopular

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

and Thomas. Dissenting opinions by Stevens, joined by Souter, Ginsburg, and
Breyer; and by Souter, joined by Ginsburg and Breyer.
California Democratic Party v. Jones 120 S. Ct. 2402, 68 USLW 4604 (6-26-00)
First Amendment, right of association, “blanket” primary: California’s
“blanket” primary violates the First Amendment associational rights of

political parties. Under the blanket primary law, adopted by initiative in 1996
as Proposition 198, each voter’s primary ballot lists every candidate
regardless of party affiliation, and allows the voter to choose freely among all
the candidates. While the Court has held that racial discrimination in state-
sanctioned primary elections is state action for purposes of the Fifteenth
Amendment, these cases do not stand for any general proposition “that party
affairs are public affairs” that states may freely regulate. Rather, political
parties retain rights of association that include the “right to exclude” non-
members in the process of selecting nominees for public office. Proposition
198 impinges on these rights by forcing political parties to “adulterate their
candidate-selection process . . . by opening it up to persons wholly
unaffiliated with the party.” The law can be upheld, therefore, only if it is
narrowly tailored to serve a compelling state interest. No compelling state
interest is furthered by Proposition 198. Better representation of the
electorate and expansion of candidate debate are “inadmissible” interests that
reduce to “stark repudiation of freedom of political association.” The interest
in assuring an “effective” vote for “disenfranchised” independents and
minority party voters in “safe” districts is “overborne by the countervailing
and legitimate right of the party to determine its own membership
qualifications.” Other asserted interests in promoting fairness, voter choice,
voter participation, and voter “privacy” are not compelling justifications for a
blanket primary. Even if there were a compelling governmental interest,
Proposition 198 is not “narrowly tailored.” All of the asserted interests could
be protected by a “nonpartisan blanket primary,” in which parties might
nominate candidates prior to the primary, so that primary voters would not
choose a party’s nominee.

7-2. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

Souter, Thomas, and Breyer. Concurring opinion by Kennedy. Dissenting
opinion by Stevens, joined in part by Ginsburg.
Carmell v. Texas 120 S. Ct. 1620, 68 USLW 4325 (5-1-00)
Ex Post Facto Clause, corroboration of evidence: A Texas law that
eliminated a requirement that the testimony of a sexual assault victim age 14
or older must be corroborated by two other witnesses cannot constitutionally
be applied to a crime committed while the earlier law was in effect. Such
application violates the Ex Post Facto Clause of Art. I, sec. 10. The contours
of the Ex Post Facto Clause were set forth in the 1798 case of Calder v. Bull,
and included the category of “every law that alters the legal rules of evidence,
and receives less, or different testimony, than the law required at the time of
the commission of the offence, in order to convict the offender.” The Texas
law at issue is “unquestionably such a law.” Under the old law, the petitioner
could have been convicted only if the victim’s testimony were corroborated
by two other witnesses, while under the amended law, the petitioner could
(and was) convicted on the victim’s testimony alone. Neither Texas nor the
United States, as amicus, offers persuasive reasons for abandoning this
category of ex post facto law, which “resonates harmoniously” with one of
the Clause’s principal interests, that of “fundamental justice.” .
5-4. Opinion of Court by Stevens, joined by Scalia, Souter, Thomas, and
Breyer. Dissenting opinion by Ginsburg, joined by Rehnquist, O’Connor, and

Carter v. United States 120 S. Ct. 2159, 68 USLW 4513 (6-12-00)
Statutes, interpretation, lesser included offense: The crime defined by 18
U.S.C. § 2113(b) is not a lesser included offense of the crime defined by 18
U.S.C. § 2113(a). Subsection (b) penalizes anyone who “takes and carries
away, with intent to steal or purloin, any property or money” exceeding
$1,000 in value and belonging to a bank; subsection (a) penalizes anyone who
“by force and violence, or by intimidation,” takes from the person of another
any money or property belonging to a bank. Generally, a crime is a lesser
included offense of another crime only if the elements of the lesser offense are
a subset of the elements of the charged offense. Three elements of section
2113(b) are not elements of section 2113(a): specific intent to steal, carrying
away the stolen property, and valuation exceeding $1,000. Arguments for
departing from this “straightforward reading of the text” are rejected. The
fact that subsection (c) penalizes receipt of property taken from a bank in
violation of subsection (b) but makes no mention of subsection (a) is an
“anomaly,” but does not rise to the level of an “absurdity.” The fact that
subsections (a) and (b) closely resemble the common law crimes of robbery
and larceny does not require imputation of common-law meaning to the
provisions. Common law meaning is imputed when Congress borrows terms
of art with accumulated meaning, but neither the term “robbery” nor the term
“larceny” appears in the statutory text. The word “robbery” does appear in
the section’s title, but words in a title are useful only when they shed light on
some ambiguous word or phase in the text, and no such ambiguity exists.
The “intent to steal or purloin” element of subsection (b) is not implicit in
subsection (a). Only a general intent requirement – not the specific intent to
steal or purloin – should be read into subsection (a). Taking property in
violation of (a) should not be equated with taking and carrying away property
in violation of (b); it would hardly have been “absurd” for Congress to have
eliminated the asportation requirement from (a). The $1,000 valuation is
clearly an offense element and not a sentencing factor.
5-4. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Dissenting opinion by Ginsburg, joined by Stevens, Souter, and
Castillo v. United States 120 S. Ct. 2090, 68 USLW 4475 (6-5-00)
Statutes, interpretation; elements of offense: Language in 18 U.S.C. §
924(c) providing that a person who uses a machine gun during commission of
a crime of violence shall be sentenced to imprisonment for thirty years defines
a separate crime, and does not merely authorize an enhanced sentence. An
indictment for the machine gun offense therefore must identify the firearm
type and a jury must find that element proved beyond a reasonable doubt.
The section provides that anyone who uses a “firearm” during commission of
a crime of violence shall be sentenced to five years’ imprisonment, and then
increases the penalty sixfold if that firearm is a machine gun. While the literal
language of the section is “neutral” as to whether the relevant words create a
separate crime or merely authorize an enhanced penalty, the statutory
structure “strongly favors the ‘new crime’ interpretation.” The “machine
gun” provision is contained in the same sentence that establishes the elements
of the basic “uses a firearm” offense. It is the following three sentences that
refer directly to sentencing factors, such as recidivism. Although use of a

machine gun might be considered to fall within the traditional sentencing
category relating to the manner in which a crime is carried out, the same
could be said for use of a “firearm.” To ask a jury rather than a judge to
determine the type of weapon a defendant used will rarely complicate a trial
or risk unfairness. On the other hand, leaving the decision to the sentencing
judge may produce a conflict between the judge and jury when the jury must
determine which of several weapons a defendant used. References to
sentencing in the legislative history do not help the Government’s
interpretation, since the statute’s basic “uses a firearm” provision also deals
with sentencing. Finally, the “length and severity” of an added mandatory
sentence weighs in favor of treating the language as referring to an element of
an offense.

9-0. Opinion of Court by Breyer, joined by Rehnquist, Stevens, O’Connor,

Kennedy, Souter, Thomas, and Ginsburg, and joined in part by Scalia.
Christensen v. Harris County 120 S. Ct. 1655, 68 USLW 4343 (5-1-00)
FLSA, forced use of compensatory time: The Fair Labor Standards Act
(FLSA) does not prohibit the County from requiring its employees to
schedule time off in order to reduce the amount of accrued compensatory
time. Nothing in the FLSA expressly prohibits public employers from
compelling employees to utilize accrued compensatory time, and the law’s
requirement that an employee “shall be permitted to use” compensatory time
within a reasonable period of requesting to do so does not implicitly prohibit
such compulsion. This latter grant of authority to employees to use
compensatory time provided such use will not unduly disrupt the workplace
does not implicitly preclude other methods of spending compensatory time.
The provision should be read as safeguarding an employee’s right to receive
timely compensation, and as guaranteeing that an employee will get to use his
compensatory time. No deference is due a Department of Labor opinion
letter requiring advance agreement by an employee before an employer may
compel use of comp time. Interpretations such as those contained in opinion
letters are not arrived at after adjudication or notice-and-comment
rulemaking, lack the force of law, and consequently do not warrant Chevron-
type deference.
6-3 (merits); 5-4 (deference). Opinion of Court by Thomas, joined by
Rehnquist, O’Connor, Kennedy, and Souter, and joined in part by Scalia.
Concurring opinion by Souter. Opinion by Scalia concurring in part.
Dissenting opinions by Stevens, joined by Ginsburg and Breyer; and by Breyer,
joined by Ginsburg.
City of Erie v. Pap’s A. M. 120 S. Ct. 1382, 68 USLW 4239 (3-29-00)
First Amendment, nude dancing: Erie, Pennsylvania’s ordinance banning
public nudity does not violate the First Amendment as applied to the operator
of a nude dancing establishment open to the public. The ordinance permits
dancers to perform wearing only pasties and a G-string, but not totally nude.
One purpose of the ordinance was to combat negative “secondary effects,”
such as prostitution and other criminal activity, associated with the presence
of adult entertainment establishments. As a general prohibition on public
nudity, the ordinance is not aimed at suppression of expression, and
consequently should be evaluated under the framework set forth in United

States v. O’Brien (1968), for content-neutral restrictions on symbolic speech.
There is no Court majority, however, on how the O’Brien test applies. The
four-Justice plurality would allow the city to take “official notice of
‘legislative facts,’” and to rely on earlier cases permitting zoning of adult
establishments, and would not require a discrete evidentiary record in order to
satisfy O’Brien’s requirement that an incidental restriction on expression be
no greater than essential to achieve the regulation’s purpose . The two other
Justices concurring on the merits would hold that there is no need to identify
harmful secondary effects because “a general law regulating conduct and not
specifically directed at expression is not subject to First Amendment scrutiny
at all.” Although the “Kandyland” establishment operated by the respondents
has been closed, the case is not moot, since the respondents may have an
interest in resuming operations, and the city has an interest in reversing the
Pennsylvania Supreme Court’s decision in order to allow enforcement of its
6-3 (nudity ban); 7-2* (mootness). Opinion of Court (mootness only) by
O’Connor, joined by Rehnquist, Kennedy, Souter, and Breyer. Separate part of
O’Connor opinion joined by Rehnquist, Kennedy, and Breyer. Opinion by
Scalia, joined by Thomas, concurring in part (nudity ban) and dissenting in part
(mootness), joined by Thomas. Opinion by Souter, concurring in part
(applicability of O’Brien) and dissenting in part (evidentiary support).
Dissenting opinion by Stevens, joined by Ginsburg. *Justice Stevens’ dissent
does not address mootness.
Cortez Bryd Chips, Inc. v. Bill Harbert Constr. Co. 120 S. Ct. 1331, 68 USLW

4214 (3-20-00)

Venue, Federal Arbitration Act: The venue provisions of the Federal
Arbitration Act (FAA) are permissive, not exclusive. A case seeking to
confirm, vacate, or modify an arbitration award may be brought in any district
that is proper under the general venue statute or, as provided in the FAA, in
the district where the award was made. Sections 9, 10, and 11 of the FAA
provide that the district court in the district in which the award was made
“may” enter appropriate orders. Use of the word “may” is not necessarily
conclusive of congressional intent to provide for discretionary or permissive
authority. In this case, however, statutory history points toward a permissive
reading, and this conclusion is reinforced by consideration of the “practical
consequences” of a restrictive reading. When the FAA was enacted in 1925,
venue was ordinarily available only in the district of the defendant’s residence.
Against this background, the FAA’s venue provisions “had an obviously
liberalizing effect,” there being no indication that Congress intended to take
away the venue that is normally the most convenient for a defendant. The
“practical consequences” of a restrictive reading would include “a needless
tension” with § 3, which authorizes a court to stay, and retain jurisdiction
over, any action that is referable to arbitration; and the creation of
“anomalous results in the aftermath of arbitrations held abroad.”

9-0. Opinion for unanimous Court by Souter.

Crosby v. National Foreign Trade Council 120 S. Ct. 2288, 68 USLW 4445 (6-19-


Preemption, Massachusetts Burma law: A Massachusetts law barring state
agencies from buying goods or services from any entity listed as doing
business with Burma (Myanmar) is preempted by the federal sanctions law.
The Massachusetts law stands as “an obstacle to the accomplishment of
Congress’s full objectives under the federal act.” The Massachusetts law
undermines the federal law’s conferral on the President of effective discretion
to control economic sanctions against Burma. The President is authorized to
terminate sanctions initially imposed by statute, and is empowered to impose
additional sanctions limiting new investment in Burma. The presence of state
sanctions as well as their perpetual nature limits the President’s flexibility.
The Massachusetts law, which applies to contracts for goods and services and
to foreign as well as domestic companies, is broader in scope than the federal
law. The Massachusetts law also frustrates the President’s ability to engage in
effective diplomacy in carrying out the federal law’s directive to work with
other nations to develop a “comprehensive, multilateral strategy” for
improving democracy and human rights practices in Burma. The failure of
Congress to include express preemption language in the federal law is not
dispositive; lack of express congressional recognition does not preclude
operation of “conflict” preemption based on frustration of congressional

9-0. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,

Kennedy, Ginsburg, and Breyer. Concurring opinion by Scalia, joined by
Dickerson v. United States 120 S. Ct. 2326, 68 USLW 4566 (6-26-00)
Miranda rule, congressional power to abrogate: Miranda v. Arizona
(1966) was a constitutional decision that the Supreme Court declines to
overrule, and that may not be overruled by statute. In Miranda the Court laid
down “concrete constitutional guidelines” for the police to follow prior to
custodial interrogation of a suspect: police must warn a suspect that he has
the right to remain silent, that anything he says can be used against him in
court, that he has the right to an attorney, and that if he cannot afford an
attorney one can be appointed. Two years after the Miranda decision
Congress enacted 18 U.S.C. § 3501, which purported to reinstate the
voluntariness principle that had measured the validity of confessions prior to
Miranda, and that the Court had found inadequate in Miranda. Section 3501
is an invalid attempt by Congress to redefine a constitutional protection.
“Congress may not legislatively supersede [the Supreme Court’s] decisions
interpreting and applying the Constitution.” Although there is language in
some of the Court’s decisions suggesting that the Miranda warnings are
merely prophylactic rules, they are instead constitution-based rules. This is
not to say that the Miranda warnings are necessarily immutable. The Court
in Miranda invited a legislative rule that would be “at least as effective” in
protecting a suspect’s right to remain silent during custodial interrogation.
Section 3501, however, is not an adequate substitute for the Miranda
warnings. Miranda should not be overruled by the Court. Principles of stare
decisis “weigh heavily against” its overruling, and “Miranda has become
embedded in routine police practice to the point where the warnings have
become part of our national culture.” Moreover, subsequent cases have not
undermined Miranda’s “doctrinal underpinnings.”

7-2. Opinion of Court by Rehnquist, joined by Stevens, O’Connor, Kennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by
Drye v. United States 120 S. Ct. 474, 68 USLW 4010 (12- 7-99)
Federal tax lien, disclaimer of inheritance under state law: Disclaimer of
an inherited estate pursuant to state law does not operate to nullify a federal
tax lien imposed on the heir’s “property and rights to property” pursuant to
26 U.S.C. § 6321. The issue of whether the disclaimer right held under state
law constitutes “property or rights to property” within the meaning of the
federal tax lien statute is a matter of federal law. The language of the tax lien
statute is broad, and reveals on its face that Congress intended to reach every
interest in property that a taxpayer might have. Section 6334(a) of the Code,
which lists property exempt from levy, corroborates this broad reading.
Inheritances disclaimed under state law are not included in the listing of
exempt property, and Congress provided that this listing is exclusive.
Moreover, the tax lien treatment of disclaimers contrasts with that of section
2518(a), which expressly renders state-law disclaimers effective for federal
wealth-transfer tax purposes. The important consideration in determining
whether the disclaimer right constitutes a “property right” subject to tax lien
is the breadth of control the taxpayer may exercise over the property. Here,
Arkansas law conferred an unqualified right in the petitioner to receive the
entire value of his mother’s estate or to disclaim the inheritance and channel
its entire value to his daughter. This control rendered the inheritance
“property” or a “right to property” within the meaning of the statute.

9-0. Opinion for unanimous Court by Ginsburg.

Edwards v. Carpenter 120 S. Ct. 1587, 68 USLW 4308 (4-25-00)
Habeas corpus, ineffective assistance of counsel: A procedurally defaulted
claim of ineffective assistance of counsel can serve as cause to excuse the
procedural default of another habeas claim only if the habeas petitioner can
satisfy the “cause and prejudice” standard with respect to the ineffective
assistance claim itself. A prisoner must demonstrate cause (and prejudice
resulting therefrom), for his state-court default of any federal claim, including
a claim of ineffective assistance of counsel. The purposes of requiring
“exhaustion” of state remedies before presenting a federal habeas corpus
claim would be defeated if federal review were permitted to a prisoner who
had presented his claim to state court, but not in a timely manner allowing the
state court to consider it.

9-0. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

Souter, Thomas, and Ginsburg. Concurring opinion by Breyer, joined by
FDA v. Brown & Williamson Tobacco Corp. 120 S. Ct. 1291, 68 USLW 4194 (3-


FDA jurisdiction to regulate tobacco products: The FDA lacks authority
under the Federal Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco
products. Congress has “directly spoken” to the issue of FDA jurisdiction
within the meaning of Chevron v. NRDC (1984), and has precluded the

FDA’s assertion of jurisdiction. The issue is not determined solely by
reference to the FDCA’s definitions, but rather by reference to the Act as a
whole, by reference to “tobacco-specific” legislation enacted after the FDCA,
and to “common sense as to the manner in which Congress is likely to
delegate a policy decision of such economic and political magnitude to an
administrative agency.” Tobacco products “simply do not fit” within the
FDCA’s regulatory scheme. A core purpose of the FDCA is to ensure that
regulated products are “safe” and “effective” for their intended uses. Because
the FDA exhaustively documented that tobacco products are unsafe and
present extraordinary health risks, the agency would be required to remove
these products from the market if it asserts jurisdiction to regulate them.
Congress, however, has foreclosed the removal of tobacco products from the
market. The six laws enacted since 1965 that directly address smoking and
health all stop “well short of ordering a ban” on sale. Moreover, Congress’
tobacco-specific statutes have “effectively ratified” the FDA’s former, long-
held position that it lacked authority to regulate tobacco products absent
manufacturers’ claims of therapeutic benefit. Congress has relied on the
FDA’s denial of jurisdiction in legislating to address smoking and health, has
rejected bills that would have conferred such jurisdiction on the FDA, and has
also acted to preclude other agencies from exercising regulatory authority in
the area.

5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

and Thomas. Dissenting opinion by Breyer, joined by Stevens, Souter, and
Fiore v. White 120 S. Ct. 469, 68 USLW 4001 (11-30-99)
Certification of state law question to state court: An issue involving the
correct interpretation of a Pennsylvania statute at the time the petitioner’s
conviction became final is certified to the Pennsylvania Supreme Court. The
petitioner, who owned and operated a hazardous waste facility, and his co-
defendant, who was the facility’s general manager, were both convicted of
operating the facility without a permit. They possessed a permit, but had
altered a monitoring pipe in order to hide a leakage problem. The petitioner’s
conviction was affirmed on appeal, and the Pennsylvania Supreme Court
refused to review his case. After the petitioner’s conviction became final, the
Pennsylvania Supreme Court upheld an intermediate court’s reversal of the
facility manager’s conviction, and ruled that violation of permit conditions did
not constitute operation of the facility without a permit. The petitioner then
initiated habeas corpus proceedings, alleging a due process deprivation. The
question certified to the Pennsylvania Supreme Court is whether its
interpretation in the facility manager’s case stated the correct understanding
of the statute at the time the petitioner’s conviction became final, or whether
it changed a prior understanding. Answer to this certified question will help
the U.S. Supreme Court determine “the proper state law predicate” for
resolving the constitutional issue raised.

9-0. Opinion for unanimous Court by Breyer.

Fischer v. United States 120 S. Ct. 1780, 68 USLW 4370 (5-15-00)

Federal bribery statute, scope: The federal bribery statute’s prohibition on
defrauding organizations that receive over $10,000 in “benefits” under a
Federal program, 18 U.S.C. § 666, applies to hospital organizations that
participate in the Medicare program. Language in section 666 providing that
covered federal programs may involve a “grant, contract, subsidy, loan,
guarantee, insurance, or other form of Federal assistance” reveals that
Congress viewed many federal assistance programs as conferring benefits,
and also reveals “Congress’ expansive, unambiguous intent to ensure the
integrity” of participating organizations. The fact that patients receive
“benefits” under the program does not foreclose the possibility of other
beneficiaries. Medicare payments to providers “are made for significant and
substantial reasons in addition to compensation or reimbursement.” Medicare
is “a comprehensive federal assistance enterprise aimed at ensuring the
availability of quality health care for the broader community.” The
Government has “a legitimate and significant interest in prohibiting financial
fraud . . . being perpetrated upon Medicare providers,” since fraudulent acts
threaten the program’s integrity and raise the risk that the providers will lack
the resources necessary to maintain the desired level and quality of care.

7-2. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,

Souter, Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by
Flippo v. West Virginia 120 S. Ct. 7, 68 USLW 3260 (11-18-99)
Fourth Amendment, warrant requirement, crime scene search: There is
no general “murder scene exception” to the warrant requirement. In Mincey
v. Arizona (1978), the Court held that a warrantless search of an apartment
“was not constitutionally permissible simply because a homicide had recently
occurred there.” The state trial court’s finding in this case that a warrantless
search of “anything and everything found within” a crime scene that had been
secured for investigation was “within the law” is inconsistent with Mincey.
The trial court in this case erred, therefore, in relying on such a principle to
admit into evidence photographs found within a briefcase left at a crime

9-0. Per curiam.

Florida v. J. L. 120 S. Ct. 1375, 68 USLW 4236 (3-28-00)
Fourth Amendment, Terry stop, anonymous tip: An anonymous tip that a
person is carrying a gun is not, without more, sufficient to justify a police
officer’s stop and frisk of that person. Under some circumstances an
anonymous tip, suitably corroborated, may exhibit sufficient indicia of
reliability to provide reasonable suspicion necessary to justify an investigatory
Terry stop. The tip in this case, however, contained no predictive
information, and left the police with no means of testing the informant’s
knowledge or credibility about the alleged criminal activity. An accurate
description of a subject’s readily observable location and appearance does not
demonstrate that the tipster has knowledge of concealed criminal activity.
Reasonable suspicion requires that a tip be reliable in its assertion of illegality,

and not merely reliable in its identification of someone. There is no “firearm
exception” to this reasonable suspicion requirement. Such an exception
would “rove too far” by enabling anyone to harass another person simply by
placing an anonymous call to the police falsely accusing the person of
carrying a firearm. The Court will not “speculate” about whether there are
other circumstances (e.g., a report of a person carrying a bomb) where the
danger might be so great as to justify a search without a showing of
9-0. Opinion for unanimous Court by Ginsburg. Concurring opinion by
Kennedy, joined by Rehnquist.
Free v. Abbott Laboratories, Inc. 120 S. Ct. 1578, 68 USLW 4254 (4-3-00)
Federal courts, jurisdiction: The decision of the United States Court of
Appeals for the Fifth Circuit, holding that the supplemental jurisdiction
statute, 28 U.S.C. § 1367, overrules Zahn v. International Paper Co. (1973),
and thus expands federal subject matter jurisdiction in a class action to
encompass unnamed class members whose claims do not satisfy the amount-
in-controversy requirement of 28 U.S.C. § 1332, as long as diversity
jurisdiction exists for one named plaintiff, is affirmed by equally divided vote.

4-4. Per curiam. Justice O’Connor did not participate.

Friends of the Earth v. Laidlaw Envtl. Servs. 120 S. Ct. 693, 68 USLW 4044 (1-


Mootness, standing to sue: Environmental organizations had standing to
assert the interests of their members in a Clean Water Act citizen suit seeking
injunctive relief and civil penalties for violation of a discharge permit. The
relevant showing for Article III standing is not injury to the environment, but
rather injury to the plaintiffs. Here the environmental organizations
established standing by documenting that the defendant’s permit violations
directly affected the recreational, aesthetic, and economic interests of their
members. Redressability, one of the essential elements of standing, was
present even though civil penalties are payable to the Government rather than
to the plaintiffs. The civil penalties “carried with them a deterrent effect that
made it likely, as opposed to merely speculative, that the penalties would
redress [plaintiffs’] injuries by abating current violations and preventing future
ones.” The claims for civil penalties were not mooted by the defendant’s
compliance with its permit after the commencement of the litigation.
Mootness is not merely “standing set in a time frame.” There can be
exceptions to mootness, e.g., “capable of repetition, yet evading review,” that
cannot be recognized for standing. The district court’s denial of injunctive
relief and the plaintiffs’ failure to appeal that denial did not moot the case; the
district court’s assessment of civil penalties recognized a need for deterrence.

7-2. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, O’Connor,

Kennedy, Souter, and Breyer. Concurring opinions by Stevens and Kennedy.
Dissenting opinion by Scalia, joined by Thomas.
Garner v. Jones 120 S. Ct. 1362, 68 USLW 4230 (3-28-00)
Ex Post Facto Clause, extension of time between parole hearings:
Evidence was insufficient to determine whether action by the Georgia Board

of Pardons and Paroles extending from three years to eight years the period
between mandatory reconsideration of parole for inmates serving terms of life
imprisonment violates the Ex Post Facto Clause, Art. I, § 10, cl. 1. A
retroactive change in a law governing parole can violate the Clause if the
change creates “a sufficient risk of increasing the measure of punishment” for
a prisoner. In this case the rule changing the frequency of parole reviews was
qualified in two respects. The law gave the Board discretion to determine
how often within the eight-year period to reconsider an inmate’s status, and
the law also preserved the possibility of an earlier reconsideration based on a
change of circumstances or new information. This discretion, allowing the
Board to focus on prisoners deserving reconsideration, may result in some
prisoners being released earlier than would have been the case otherwise.
The record contained insufficient information to determine whether the
change in the rule significantly increases the likelihood of prolonging the
respondent’s incarceration.

6-3. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Thomas,

and Breyer. Concurring opinion by Scalia. Dissenting opinion by Souter,
joined by Stevens and Ginsburg.
Geier v. American Honda Motor Co. 120 S. Ct. 1913, 68 USLW 4425 (5-22-00)
Preemption, federal motor vehicle safety standard: Federal Motor Vehicle
Safety Standard 208, which required auto manufacturers to equip some but
not all of their 1987 vehicles with passive restraints, preempts a state common
law action against a manufacturer for negligence for failure to equip a 1987
vehicle with a driver’s side airbag. The express preemption provision of the
National Traffic and Motor Vehicle Safety Act, which prohibits states from
applying “any safety standard” different from an applicable federal standard,
does not by itself preempt the state tort action. Preemption by statute is
inconsistent with the Act’s “saving clause,” which provides that “compliance
with” a federal safety standard “does not exempt any person from any liability
under common law.” This saving clause, however, does not foreclose or limit
the operation of ordinary preemption principles governing override of state
laws – including common law tort rules – that conflict with federal statutes
or regulations. Application of the tort rule would actually conflict with
standard 208 because it would operate to frustrate the objectives of the
federal rule. The federal standard sought variety, by allowing manufacturers
to choose from among several different passive restraint systems, and also
sought a gradual phase-in of passive restraints. Imposition of liability for
failure to equip a particular car with an airbag is inconsistent with these
approaches of dealer-choice and gradualism.
5-4. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Dissenting opinion by Stevens, joined by Souter, Thomas, and
Gutierrez v. Ada 120 S. Ct. 740, 68 USLW 4066 (1-19-00)
Guam Organic Act, statutory construction: The Guam Organic Act does
not require a runoff election when a candidate slate for Governor and
Lieutenant Governor has received a majority of the votes cast for Governor
and Lieutenant Governor, but not a majority of the number of ballots cast in
the simultaneous general election. The Act provides for a runoff election “[i]f

no candidates receive a majority of the votes cast in any election . . . .” In
context, it is clear that “any election” refers to an election for Governor and
Lieutenant Governor. The reference to “any election” is preceded by two
references to gubernatorial election and followed by four. A word is known
by the company it keeps. “Other clues” confirm this interpretation. The
reference to “general election” later in the same provision suggests that
Congress would not have used “any election” to mean “general election.”
Also, Congress has distinguished between “votes” and “ballots” in the same
context of Guamanian elections. Equating the two terms would “impute to
the Congress a strange preference for making it hard to select a Governor” by
requiring a runoff “even though one slate already had a majority of all those
who cared to make any choice among gubernatorial candidates.” A law
enacted four years later, referring to “a majority of votes cast for the office of
Delegate” is more precise, but does not purport to differentiate between
Delegate and gubernatorial elections. The term “any election” does not
create a redundancy, since it may refer to the initial election and any elections
held in the future.

9-0. Opinion for unanimous Court by Souter.

Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc. 120 S. Ct. 2159, 68
USLW 4508 (6-12-00)
ERISA, action against nonfiduciaries: ERISA § 502(a)(3) authorizes a
civil action against a nonfiduciary who participates in a transaction prohibited
by ERISA § 406(a)(1). Section 406(a), which bars a fiduciary of an
employee benefit plan from causing the plan to engage in certain transactions
with a “party in interest,” imposes a duty only on the fiduciary. Section
502(a)(3), however, which authorizes a civil action to obtain “appropriate
equitable relief” to redress violations of title I, itself imposes certain duties.
Liability under section 502(a)(3), therefore, does not depend on whether
ERISA’s substantive provisions impose a specific duty on the party being
sued. The provision contains no limit on the universe of possible defendants,
while, by contrast, other provisions of ERISA do address who may be a
defendant. Because section 502(l) authorizes the Secretary to assess a civil
penalty against “any other person” who knowingly participates in a fiduciary’s
breach, “it follows that a participant, beneficiary, or fiduciary may bring suit
against an ‘other person’ under the similarly worded subsection (a)(3).”
Concerns about possible misuse of section 502(a)(3) are alleviated by the
limitation to “appropriate equitable relief.” Also, the common law of trusts
countenances the same sort of relief sought here, as, for example, when a
trustee breaches his fiduciary duty by transferring trust property to a third

9-0. Opinion for unanimous Court by Thomas.

Hartford Underwriters Ins. Co. v. Union Planters Bank 120 S. Ct. 1942, 68
USLW 4441 (5-30-00)
Bankruptcy, administrative claim: 11 U.S.C. § 506(c) does not allow an
administrative claimant of a bankruptcy estate to recover payment of its claim
from property encumbered by a secured creditor’s lien. The petitioner
insurance company had provided workers’ compensation insurance to

respondent company during Chapter 11 reorganization proceedings, and the
premiums were not paid. The reorganization was converted into a Chapter 7
liquidation, and the petitioner sought to recover the premiums as an
administrative expense. Section 506(c), which provides that “the trustee may
recover from property securing an allowed secured claim the reasonable,
necessary costs . . . of preserving . . . such property,” creates an exception to
the normal rule that secured claims are superior to administrative claims. The
plain language of the provision specifies that it is the “trustee” who may
recover administrative costs, and the proper inference is that the trustee is the
only party so empowered. The trustee’s “unique role in bankruptcy
proceedings makes it entirely plausible that Congress would provide a power
to him and not to others.” The fact that Congress did not use “only” or other
restrictive language does not mean that parties other than the trustee may
invoke the provision. In this case the language of the Code leaves no room
for clarification by reference to pre-Code practice. It is also “far from clear”
that policy implications favor petitioner’s position. In any event, achieving a
better policy outcome than that produced by a natural reading of the text “is a
task for Congress, not the courts.”

9-0. Opinion for unanimous Court by Scalia.

Hill v. Colorado 120 S. Ct. 2480, 68 USLW 4643 (6-28-00)
First Amendment, restrictions on speech near clinics: A Colorado statute
making it unlawful within 100 feet of a health care facility to approach within
eight feet of another person, without that person’s consent, for the purpose of
passing a leaflet or handbill, displaying a sign, or engaging in protest,
education, or counseling, is constitutional. The measure is a valid content-
neutral “time, place, or manner” regulation of speech that balances the rights
of law-abiding speakers to attempt to persuade others to change their views
and the recognized privacy interest of the unwilling listener in avoiding
unwanted communication. The restrictions are content-neutral because they
regulate only the places where some speech may occur, and because they
apply equally to all demonstrators, regardless of viewpoint. Although the
restrictions do not apply to all speech, the “kind of cursory examination” that
might be required to distinguish casual conversation from protest, education,
or counseling is not “problematic.” The law is “narrowly tailored” to achieve
the state’s interests. The 8-foot restriction does not significantly impair the
ability to convey messages by signs, and ordinarily allows speakers to come
within a normal conversational distance of their targets. Because the statute
allows the speaker to remain in one place, persons who wish to hand out
leaflets may position themselves beside entrances near the path of oncoming
pedestrians, and consequently are not deprived of the opportunity to get the
attention of persons entering a clinic. The statute is neither overbroad nor
unconstitutionally vague.

6-3. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Souter,

Ginsburg, and Breyer. Concurring opinion by Souter, joined by O’Connor,
Ginsburg, and Breyer. Dissenting opinions by Scalia, joined by Thomas; and
by Kennedy.
Hunt-Wesson, Inc. v. Franchise Tax Bd. Of California 120 S. Ct. 1022, 68 USLW


Taxation, State, “unitary” income, multistate corporation: California’s
rules for taxing its share of a multistate, nondomiciliary corporation’s income
violate the Due Process and Commerce Clauses by carving out an exception
to its interest expense deduction measured by the amount of nonunitary
dividend and interest income that the corporation has received. California
uses a “unitary business” income calculation for determining its taxable share
of a multistate corporation’s income. Under that system the corporation’s
total income from its nationwide business is first determined, and the share
appropriately attributed to California is then calculated by applying ratios
reflecting instate property, payroll, and sales. The “unitary” income subject
to tax excludes income derived from a business enterprise that is separate and
“discrete” from that conducted instate. A state may not constitutionally tax
this “nonunitary” business income. California specifies that the amount of
interest that may be deducted is the amount by which “interest expense
exceeds interest and dividend income . . . not subject to allocation by
formula” – i.e., the amount by which interest expense exceeds interest and
dividends received from nonunitary business or investment. If California
could show that its deduction limit actually reflects the portion of the expense
properly attributable to nonunitary income, the tax would not, in fact, be a tax
on nonunitary income. California cannot do so, however, and also cannot
establish that its limit is a reasonable effort to allocate the deduction between
taxable and tax-exempt income. Other approaches, such as ratio-based rules,
recognize that borrowing may support nonunitary investment as well as the
unitary business, but do not assume as California does that all borrowing first
supports nonunitary business.

9-0. Opinion for unanimous Court by Breyer.

Illinois v. Wardlow 120 S. Ct. 673, 68 USLW 4031 (1-12-00)
Fourth Amendment, flight from police, Terry stop: Police officers did not
violate the respondent’s Fourth Amendment rights by pursuing him and
subjecting him to a Terry stop after he fled from a high crime area upon the
arrival of the officers’ patrol. In Terry v. Ohio (1968), the Court held that a
police officer may conduct a brief, investigatory stop of a person if the officer
has a reasonable, articulable suspicion that the person is engaging in criminal
activity. Here, the respondent’s presence in a high-crime area was not
enough, standing alone, to create such a reasonable suspicion, but his
“unprovoked flight [from the area] when noticing the police,” did create a
reasonable suspicion that he was involved in criminal activity. “Headlong
flight – wherever it occurs – is the consummate act of evasion; it is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such.”
A person approached by officers who lack probable cause or reasonable
suspicion may refuse to cooperate, but “unprovoked flight is simply not a
mere refusal to cooperate.” The fact that there may be innocent reasons for
flight does not prevent an investigative stop; even in Terry the conduct
justifying the stop was ambiguous, and the officers were allowed to detain the
individual to “resolve the ambiguity.”

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

and Thomas. Dissenting and concurring (concurring only as to rejection of per
se approach) opinion by Stevens, joined by Souter, Ginsburg, and Breyer.
Johnson v. United States 120 S. Ct. 1795, 68 USLW 4378 (5-15-00)
Statutes, interpretation, retroactivity: A 1994 amendment to the
Sentencing Reform Act (18 U.S.C. § 3583h)) does not apply retroactively,
and hence there is no need to consider whether its retroactive application
would violate the prohibition on ex post facto laws. There are no indications
that Congress intended the provision to apply retroactively, and the normal
rule, in the absence of contrary indications, is that the effective date is the
date of enactment. The preexisting provision, 18 U.S.C. § 3583(e)(3),
permits imposition of additional supervised release following revocation of
supervised release and reimprisonment. The provision allows a court to
“revoke a term of supervised release, and require the person to serve in prison
all or part of the term of supervised release.” Focus on the verb “revoke”
would lead the Court to conclude that the language confers no authority to
impose supervised release following the reincarceration. The “conventional”
meaning of “revoke” is to annul by recalling or taking back. There are “some
textual reasons,” however, to conclude otherwise. Subsection (e)(1)
authorizes a court when circumstances warrant to “terminate” a term of
supervised release and discharge the supervised person. “If subsection (3)
had likewise been meant to conclude any possibility of supervised release
later, it would have been natural for Congress to write in like terms.” Also,
since subsection (3) provides that “all or part of the term of supervised
release” may be served in prison, this means that “something about the term
of supervised release survives” the revocation order. Moreover, there is an
“unconventional” usage of “revoke,” supported by a dictionary, that indicates
that the “recall” need not be final, but may be “tentative for deliberation.”
Finally, this “unconventional” reading comports with the evident
congressional purpose of improving the odds of a successful transition from
prison to liberty.

8-1. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,

Ginsburg, and Breyer, and joined in part by Kennedy. Concurring opinions by
Kennedy and by Thomas. Dissenting opinion by Scalia.
Jones v. United States 120 S. Ct. 1904, 68 USLW 4422 (5-22-00)
Commerce, arson of private residence: Arson of an owner-occupied private
residence does not fall within the coverage of the federal arson statute, 18
U.S.C. § 844(i), which prohibits arson of “any building used in interstate or
foreign commerce or in any activity affecting [such] commerce.” The key
word is “used,” and the appropriate inquiry is into the function of the
building. What is required is active employment of a building for commercial
purposes. “Use” of the building as collateral to obtain a mortgage from an
out-of-state lender, to obtain insurance from an out-of-state company, or to
receive natural gas from another state, does not satisfy this test. Nor does the
Court’s decision in Russell v. United States (1985), in which the Court
upheld application of the statute to arson of a 2-unit apartment building,

require a different result. The Russell Court merely recognized that rental of
real estate is “unquestionably” an activity that affects commerce. Were the
Court to accept the Government’s interpretation that owner-occupied private
residences are covered, “hardly a building in the land would fall outside the
federal statute’s domain.” Moreover, construing the statute as not applying
to such private residences is consistent with the principle of constitutional
doubt. A statute susceptible of two interpretations, one of which raises
serious constitutional questions and one of which does not, should be
interpreted to avoid the constitutional issue. Were the arson statute
interpreted to apply to owner-occupied private residences, the issue of its
validity under United States v. Lopez (1995) would be presented.
9-0. Opinion for unanimous Court by Ginsburg. Concurring opinions by
Stevens, joined by Thomas; and by Thomas, joined by Scalia.
Kimel v. Florida Bd. of Regents 120 S. Ct. 631, 68 USLW 4016 (1-11-00)
Age Discrimination in Employment Act; 14th Amendment Enforcement
Power: The Age Discrimination in Employment Act (ADEA) contains a clear
statement of congressional intent to abrogate states’ Eleventh Amendment
immunity from suit in federal court, but that abrogation exceeded
congressional authority under section 5 of the Fourteenth Amendment.
Congressional intent to abrogate states’ Eleventh Amendment immunity is
“unmistakably clear” in the ADEA. The Act authorizes employees to
maintain actions “against any employer (including a public agency) in any
Federal or State court of competent jurisdiction,” and defines the term “public
agency” to include “the government of a State or political subdivision
thereof.” Because Congress lacks power under Article I to abrogate states’
Eleventh Amendment immunity, but may do so pursuant to section 5 of the
Fourteenth Amendment, the private petitioners in this case may maintain their
federal court actions against states only if the ADEA is “appropriate”
legislation under section 5. The test for appropriateness is whether there is a
“congruence and proportionality between the [constitutional] injury to be
prevented or remedied and the means adopted to that end.” Age is not a
suspect class under the Equal Protection Clause, and hence age classifications
must be “irrational” before being held unconstitutional. Given this standard,
the ADEA is “so out of proportion to a remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior.” Congress pursuant to its section 5 power may
enact “reasonably prophylactic legislation,” but the legislative history of the
ADEA falls “well short” of demonstrating any pattern of age discrimination
by the states, let alone any discrimination rising to the level of a constitutional
5-4 (section 5 power); 7-2 (unmistakable clarity of abrogation). Opinion of
Court by O’Connor, joined in part by Rehnquist, Scalia, Kennedy, and
Thomas; and joined in separate part by Rehnquist, Stevens, Scalia, Souter,
Ginsburg, and Breyer. Opinion by Stevens, concurring in part and dissenting in
part, joined by Souter, Ginsburg, and Breyer. Opinion by Thomas, concurring
in part and dissenting in part, joined by Kennedy.
Los Angeles Police Dep’t v. United Reporting Publishing Corp. 120 S. Ct. 483, 68
USLW 4005 (12-7-99)

First Amendment, overbreadth: A California statute restricting access to
police-held information about the addresses of arrestees and crime victims is
not subject to a First Amendment facial challenge by a company that obtains
the information and sells it to others. The law requires that an entity
requesting an address declare that the information will not be used to sell a
product or service. At least for purposes of facial invalidity, the statute does
not abridge anyone’s speech, but instead merely regulates access to
information. “California could decide not to give out arrestee information at
all without violating the First Amendment.” The traditional rule is that a
person to whom a statute may constitutionally be applied may not challenge
that statute on the ground that it may conceivably be applied
unconstitutionally to others in situations not before the court. One of the
exceptions to this traditional rule is based on First Amendment overbreadth
but that exception is employed only sparingly, and the effect of the statute on
the company’s potential customers does not justify its invocation. Potential
customers face no threat of prosecution, and there is no possibility that
protected speech will be muted.

7-2. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Souter,

Thomas, Ginsburg, and Breyer. Concurring opinions by Scalia, joined by
Thomas; and by Ginsburg, joined by O’Connor, Souter, and Breyer.
Dissenting opinion by Stevens, joined by Kennedy.
Martinez v. Court of Appeal of California, Fourth App. Dist. 120 S. Ct. 684, 68
USLW 4040 (1-12-00)
Appeals, self-representation: There is no constitutional right to self-
representation on direct appeal from a criminal conviction. The rule of
Faretta v. California (1975) that a criminal defendant has a constitutional
right to proceed without counsel at trial, is inapplicable on appeal. The
Court’s conclusion in Faretta was based on three interrelated arguments,
relying on historical evidence, the structure of the Sixth Amendment, and
respect for the individual. The historical evidence supporting a trial right no
longer has the same force, and, in any event, “there simply was no long-
respected right of self-representation on appeal.” The structure of the Sixth
Amendment is not relevant; the Amendment identifies “rights that are
available in preparation for trial and at the trial itself,” but does not include
any right to appeal. Respect for individual autonomy is applicable to an
appellant as well as to a defendant at trial, but any right to self-representation
based on autonomy must be grounded in the Due Process Clause, and there is
insufficient risk of disloyal counsel or suspicion of disloyalty to justify
recognition of a constitutional right. “The requirement of representation by
trained counsel implies no disrespect for the individual inasmuch as it tends to
benefit the appellant as well as the court.”

9-0. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Separate concurring opinions by
Kennedy, Breyer, and Scalia.
Miller v. French 120 S. Ct. 2246, 68 USLW 4535 (6-19-00)
Prison Litigation Reform Act, stay of injunctions, separation of powers:
The automatic stay provision of the Prison Litigation Reform Act is
mandatory, and the Act precludes courts from exercising equitable power to

enjoin the stays. Under the provision, a motion to modify or terminate
prospective relief “shall operate as a stay during the period . . . beginning on
the 30th day after such motion is filed . . . and ending on the date the court
enters a final order ruling on the motion.” The statutory command that the
motion “shall operate as a stay during [the specified time period]” indicates
that the stay is mandatory throughout that time period. “To allow courts to
exercise their equitable discretion to prevent the stay from ‘operating’ during
this statutorily prescribed period would . . . contradict [the provision’s] plain
terms.” Because Congress’s intent to remove equitable discretion is
“unmistakable,” the doctrine of constitutional doubt is inapplicable and the
constitutional issue raised by the provision must be faced. The automatic stay
provision does not violate separation of powers principles. Hayburn’s Case
is inapplicable; the stay does not vest in Executive Branch officials review of
the decisions of an Article III court. Although the stay provision can be
viewed as legislatively suspending a final judgment of an Article III court, it
operates to establish new standards for prospective injunctive relief.
Prospective relief under a continuing injunction remains subject to alteration
due to changes in conditions and changes in the law. Whether the automatic
stay’s deadline for judicial decisionmaking is so short as to deprive litigants of
a meaningful opportunity to be heard is a due process question that is not
before the Court.
7-2 (statutory interpretation); 5-2 (separation of powers). Opinion of Court by
O’Connor, joined by Rehnquist, Scalia, Kennedy, and Thomas, and joined in
part by Souter and Ginsburg. Opinion by Souter, concurring in part (statutory
grounds) and dissenting in part (separation of powers), joined by Ginsburg.
Dissenting opinion (statutory grounds) by Breyer, joined by Stevens.
Mitchell v. Helms 120 S. Ct. 2530, 68 USLW 4668 (6-28-00)
Establishment Clause, aid to parochial schools: Provision of federal
assistance to private schools in the form of loans of educational materials and
equipment does not violate the Establishment Clause, even though some of
the private schools receiving assistance are religiously affiliated. The
assistance, authorized by chapter 2 of the Education Consolidation and
Improvement Act of 1981, is provided to public and private schools alike
based on the number of children enrolled in each school. Because of these
neutral, secular criteria, chapter 2 does not define its recipients by reference
to religion in violation of the principle set forth in Agostini v. Felton (1997).
Nor does chapter 2 result in “governmental indoctrination” of religion within
the meaning of Agostini. The four-Justice plurality and the two-Justice
concurrence disagree as to rationale, but agree that Meek v. Pittenger (1975)
and Wolman v. Walter (1977) are overruled with respect to their holdings
that governmental loan of instructional materials and equipment to religious
schools is unconstitutional. The distinction drawn in those cases between
loan of textbooks (held to be permissible) and loan of other instructional
materials and equipment (held impermissible) is untenable.

6-3. No opinion of Court. Opinion by Thomas, joined by Rehnquist, Scalia,

and Kennedy. Concurring opinion by O’Connor, joined by Breyer. Dissenting
opinion by Souter, joined by Stevens and Ginsburg.

Mobil Oil Expl. & Prod. S.E., Inc. v. United States 120 S. Ct. 2423, 68 USLW 4615
Government contracts, OCS oil and gas lease: The Government has
breached its outer continental shelf (OCS) oil and gas lease agreements with
the petitioner oil companies, and the companies are therefore entitled to
restitution of “bonus” payments made to the Government. In return for the
bonus payments, the companies in 1981 received 10-year lease contracts with
the United States that entitled them to explore for oil off the North Carolina
coast and develop any oil that they found, subject to royalty payments and to
compliance with specified statutes, including the Outer Continental Shelf
Lands Act (OCSLA), and regulations. A new law enacted in 1990, the Outer
Banks Protection Act (OBPA), imposed additional requirements. OBPA
prohibited the Secretary of the Interior from approving any OCS exploration
or development plan until new studies required by OBPA were completed
and requisite findings had been made, and placed a minimum 13-month delay
on approvals. Under the OCSLA, the Secretary had been required to
approve within 30 days an exploration plan that satisfied that Act’s
requirements. After enactment of OBPA, the Secretary took no further
action on the petitioners’ plans. This inaction constituted a breach of the
lease agreements. The lease agreements’ explicit references to future
regulations under specified laws means that the agreements were not subject
to future regulations promulgated under other laws, including new statutes
like OBPA. OBPA required Interior to impose the contract-violating delays,
but “the fact that Interior’s repudiation rested upon the enactment of a new
statute makes no significant difference.” The Government’s breach was
substantial and material. The companies did not waive their right to
restitution, since they did not receive “substantial” post-repudiation
performance from the Government. Whether the companies could ultimately
have developed oil under the contracts is irrelevant, since the companies seek
restitution of bonus payments rather than damages.

8-1. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Scalia,

Kennedy, Souter, Thomas, and Ginsburg. Dissenting opinion by Stevens.
Nelson v. Adams 120 S. Ct. 1579, 68 USLW 4311 (4-25-00)
Due process, personal liability: The federal district court denied the
petitioner due process and also violated Rule 15, Federal Rules of Civil
Procedure, by simultaneously granting a motion to amend the pleadings to
make the petitioner a party and subjecting him to liability for costs and
attorney’s fees in an action brought against a company of which he was
president and sole shareholder. Rule 15 directs that, if a court grants leave to
amend a pleading to add a party, that party must be given 10 days to respond
on the merits after service of the amended pleading. Here, the district court
granted permission to amend the pleading and altered the judgment “at a
single stroke.” The petitioner therefore was never given an opportunity to
respond and contest his personal liability after he was made a party and before
the entry of judgment against him.

9-0. Opinion for unanimous Court by Ginsburg.

New York v. Hill 120 S. Ct. 659, 68 USLW 4029 (1-11-00)

Interstate Agreement on Detainers: A defense counsel’s agreement to a
trial date outside the time period required by Article III of the Interstate
Agreement on Detainers (IAD) bars the defendant from seeking dismissal
because his trial did not occur within that period. Article III provides that a
prisoner must be brought to trial within 180 days of the prisoner’s request for
disposition of the detainer, “provided that for good cause shown . . . , the
prisoner and his counsel being present, the court . . . may grant any necessary
or reasonable continuance.” There is a general rule, applicable to most rights
of a criminal defendant, that presumes the availability of waiver. “Scheduling
matters” are among the rights that need not be waived personally by
defendants, but instead may be waived by action of counsel. The “necessary
or reasonable continuance” provision is the sole means by which the
prosecution may obtain an extension over the defendant’s objection, but it
does not preclude a defendant from waiving his right by other means. There
is no general principle that a private right that also benefits society may not be
waived. Waiver is not allowed if it would contravene a statutory policy, but
here there is no unalterable statutory policy barring waiver. There is no
requirement that waiver of the speedy trial rights guaranteed by the IAD be
effected by an affirmative request.

9-0. Opinion for unanimous Court by Scalia.

Nixon v. Shrink Missouri Government PAC 120 S. Ct. 897, 68 USLW 4102 (1-24-


First Amendment, campaign finance, contribution limitation: Buckley v.
Valeo (1976), in which the Court upheld against First Amendment challenge
restrictions on contributions to federal election campaigns and struck down
limitations on expenditures linked to specific candidates, is authority for
upholding state limits on contributions to state political candidates. State
contribution limits need not, however, be pegged to the dollar amounts
approved in Buckley. In distinguishing contribution limits from expenditure
limits, the Court in Buckley determined that limiting the amount of
contributions had little impact on speech and association rights protected by
the First Amendment. The Court also determined that prevention of
corruption and the appearance of corruption was a constitutionally sufficient
justification for the contribution limits. Here Missouri espouses those same
interests of preventing corruption and the appearance of corruption, and the
respondents allege that Missouri failed to produce empirical evidence to
justify invocation of those interests. This case “does not present a close call
requiring further definition of whatever the State’s evidentiary obligation may
be.” Missouri does not preserve legislative history. The record, however,
consisting of an affidavit by a legislative leader, newspaper articles, and
findings by the district court as well as the Eight Circuit, is sufficient to
substantiate Missouri’s concerns. The current Missouri limit of $1075 for
statewide elections is not, as a result of inflation, violative of Buckley. In
Buckley, the Court rejected the contention that the $1,000 limit then
approved was a constitutional minimum. Rather, the issue is whether the
limits are “so low as to impede the ability of candidates to amass the
resources necessary for effective advocacy.” Respondents have not
established that Missouri’s contribution limits so operate to suppress effective
political advocacy.

6-3. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,

Ginsburg, and Breyer. Concurring opinions by Stevens; and by Breyer, joined
by Ginsburg. Dissenting opinions by Kennedy; and by Thomas, joined by
Norfolk So. Ry. v. Shanklin 120 S. Ct. 1467, 68 USLW 4258 (4-17-00)
Preemption, Federal Railroad Safety Act: A state tort action alleging
negligence based on inadequate warning devices at a railway grade crossing is
preempted if the warning devices at issue were installed with federal funds
under a project approved by the federal government. Regulations
promulgated under the FRSA set standards for warning devices installed with
federal funds; these standards require automatic gates and flashing lights
where certain conditions are present, and require approval by the Federal
Highway Administration if those conditions are not present. The Court
determined in CSX Transportation, Inc. v. Easterwood (1993) that state tort
law is preempted if these regulations are applicable. The regulations are
applicable and “mandatory for all warning devices installed with federal
funds.” The FHWA’s new interpretation, that preemption is appropriate only
for the “priority” or “hazard program” that is based on diagnostic studies and
particularized analysis, and not for the “minimum protection” program, is not
entitled to deference. The agency’s new interpretation “contradicts the
regulations’ plain text,” and departs from the previous interpretation that the
Court adopted as “authoritative” in the Easterwood case. States are free to
install more protective warning devices, but they may not hold the railroad
responsible for the adequacy of devices installed with federal funds.

7-2. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,

Souter, Thomas, and Breyer. Concurring opinion by Breyer. Dissenting
opinion by Ginsburg, joined by Stevens.
Ohler v. United States 120 S. Ct. 1851, 68 USLW 4396 (5-22-00)
Evidence, appeals: A defendant in a criminal trial who during direct
examination voluntarily introduces evidence of a prior conviction may not on
appeal challenge the admission of such evidence. This is so even though the
testimony was offered only after an in limine ruling allowing the Government
to introduce the prior conviction as impeachment evidence. Generally, a
party introducing evidence cannot complain on appeal that the evidence was
erroneously admitted. Neither Federal Rule of Evidence 103 nor Rule 609
addresses the question. Rule 609 has been amended to clarify that prior
conviction evidence may be introduced on direct examination, but it does no
more than that. Both the Government and the defendant must make choices
as a criminal trial progresses, and there is nothing “unfair” about putting the
defendant to her choice as to whether to forego the tactical advantage of
preemptively introducing evidence of the conviction in order to preserve her
right to appeal the in limine ruling. Nor does this waiver rule
unconstitutionally burden her right to appeal.

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

and Thomas. Dissenting opinion by Souter, joined by Stevens, Ginsburg, and

Pegram v. Herdrich 120 S. Ct. 2143, 68 USLW 4501 (6-12-00)
ERISA, HMOs, fiduciary duty, treatment decisions: Treatment decisions
made by a health maintenance organization (HMO), acting through its
physician employees, are not fiduciary acts within the meaning of ERISA. In
this case a patient who suffered a ruptured appendix following her HMO
doctor’s decision to delay treatment sued for malpractice, and also sued the
HMO under ERISA for violation of a fiduciary duty by offering incentives to
their doctors to hold down treatment costs. An HMO’s treatment decisions
are intertwined with eligibility decisions. Typically fiduciary responsibilities
relate to managing assets and distributing property to beneficiaries, and it is
doubtful whether Congress intended to extend fiduciary responsibilities to
mixed eligibility and treatment decisions by HMO doctors. Consideration of
the consequences of extending coverage confirms that Congress made no
such choice. Allowing recovery for breach of fiduciary responsibility simply
upon a showing that the profit incentive to ration health care would generally
affect mixed eligibility and treatment decisions would have the effect of
eliminating the for-profit HMO, yet Congress “has promoted the formation of
HMO practices” for 27 years. Courts have “no warrant to precipitate [such
an] upheaval.” The appeals court’s effort to confine the fiduciary breach to
cases in which the financial motive was the “sole purpose” of delaying or
withholding treatment “entails erroneous corruption of fiduciary obligation.”
ERISA was not enacted “in order to federalize malpractice litigation in the
name of fiduciary duty.”

9-0. Opinion for unanimous Court by Souter.

Portuondo v. Agard 120 S. Ct. 1119, 68 USLW 4176 (3-6-00)
Prosecutorial comments: A defendant who testified at his trial was not
deprived of any constitutional rights as a result of the prosecutor’s comments,
during summation to the jury, that the defendant had had the opportunity to
hear all the other witnesses testify and to tailor his testimony accordingly.
Griffin v. California (1965), holding that a prosecutor’s comments about a
defendant’s failure to testify unconstitutionally burdened the defendant’s
privilege against self-incrimination, should not be extended to the present
context. Griffin prohibited the prosecutor from urging the jury to do
something the jury is not permitted to do. By contrast, it is “natural and
irresistible” for a jury, in evaluating the credibility of a defendant who testified
last, to take into account the fact that he had heard the testimony of those
witnesses who preceded him. The comments prohibited by Griffin suggested
evidence of guilt, while the comments here concerned the defendant’s
credibility as a witness. The Court, rejecting in Brooks v. Tennessee (1972)
the “heavy-handed” approach of requiring a defendant to testify at the outset
of his defense or not at all, had suggested that arguing credibility to the jury is
“the preferred means of counteracting tailoring of the defendant’s testimony.”
Because of the defendant’s Sixth Amendment right to confront witnesses, the
court cannot sequester the defendant, and allowing comment on the
defendant’s presence and “unique opportunity” to tailor testimony may
sometimes be “essential” to discovering the truth. No due process denial
stems from the fact that the defendant was required by state law to be present
at his trial.

7-2. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

and Thomas. Concurring opinion by Stevens, joined by Breyer. Dissenting
opinion by Ginsburg, joined by Souter.
Public Lands Council v. Babbitt 120 S. Ct. 1815, 68 USLW 4387 (5-15-00)
Public Lands, Taylor Grazing Act regulations: Three challenged aspects
of 1995 federal grazing regulations were within the Secretary of the Interior’s
authority under the Taylor Grazing Act. A new definition of “grazing
preference” omits reference to a specified quantity of forage, and explicitly
ties forage to that allocated by an applicable land use plan. Defining the
privileges in relation to land use plans does not violate the Secretary’s
responsibility to “safeguard” previously recognized grazing privileges. The
statute qualifies the duty to safeguard in several respects: it is to be achieved
only “so far as consistent with the [Act’s] purposes and provisions,” and
those purposes include preventing injury to the public grazing lands; and
issuance of a grazing permit is said to create no “right, title, interest, or
estate.” Moreover, Congress has directed the development of land use plans
for the rangelands, and “it is difficult to see how a definitional change that
simply refers to the use of such plans could violate the Taylor Act.” Other
considerations are that the prior system, quantifying grazing privileges in
terms of animal unit months, did not afford anything close to “absolute
security,” and the new definition does not automatically diminish the security
of existing grazing privileges. The second challenged regulation eliminates
the words “engaged in the livestock business” from the description of stock
owners qualified to apply for permits. The statute itself limits the category to
settlers, residents, “and other stock owners,” and extends a preference to
those engaged in the livestock business. The terms “stock owner” and “stock
owner engaged in the livestock business” are not coextensive. The third
challenge is to a change in the regulation that provides that ownership of
range improvements made pursuant to cooperative agreements shall be in the
name of the United States. Nothing in the statute denies the Secretary the
authority to decide when or whether to grant title to those who make
9-0. Opinion for unanimous Court by Breyer. Concurring opinion by
O’Connor, joined by Thomas.
Raleigh v. Illinois Dep’t of Revenue 120 S. Ct. 1951, 68 USLW 4445 (5-30-00)
Bankruptcy, tax claims, burden of proof: When the substantive law
creating a tax obligation puts the burden of proof on the taxpayer, the burden
remains on the taxpayer (in this case the trustee in bankruptcy) in a
proceeding in bankruptcy court. Creditors’ entitlements in bankruptcy arise
from the underlying substantive law creating the debtor’s obligation, unless
the Bankruptcy Code provides to the contrary. As a general matter, the
burden of proof is a “substantive” aspect of a claim, and tax law is no
candidate for exception. There is no indication in the Bankruptcy Code that
Congress has altered the burden of proof on tax claims. The Code’s silence
on the matter does not require reliance on pre-Code practice; that practice
was not well settled. Supreme Court precedent holding that “allowance” of
claims is a federal matter is not helpful, since “allowance” refers to ordering
of valid claims, not to the validity of claims in the first instance, and since the

burden of proof rule here bears only on validity. A bankruptcy court’s
equitable powers are limited by what the Code provides, and, in any event,
equitable principles do not necessarily favor the taxpayer’s position.

9-0. Opinion for unanimous Court by Souter.

Ramdass v. Angelone 120 S. Ct. 2113, 68 USLW 4486 (6-12-00)
Habeas corpus, capital sentencing, parole ineligibility: The rule of
Simmons v. South Carolina (1994), requiring that a capital sentencing jury be
informed that a defendant is parole ineligible if the State has put the
defendant’s future dangerousness at issue and if the only alternative to a death
sentences is life imprisonment without possibility of parole, is inapplicable to
the present case. Here the defendant was not parole ineligible at the time of
sentencing. Virginia has a three-strikes law providing that someone who has
been convicted three times of felony offenses of murder, rape, or robbery with
a deadly weapon is parole ineligible. At the time of sentencing in this case,
the defendant had one such final conviction, but a second such conviction had
not yet become final because the court had not entered judgment following
the jury’s verdict. Entry of a judgment order is not a purely ministerial act in
Virginia because the court may set aside the jury verdict in response to a
post-trial motion.

5-4. No opinion of Court. Opinion by Kennedy, joined by Rehnquist, Scalia,

and Thomas. Concurring opinion by O’Connor. Dissenting opinion by
Stevens, joined by Souter, Ginsburg, and Breyer.
Reeves v. Sanderson Plumbing Products, Inc. 120 S. Ct. 2097, 68 USLW 4480 (6-


Age Discrimination in Employment Act, burden of production: A
plaintiff’s prima facie case of discrimination, combined with sufficient
evidence to reject the employer’s nondiscriminatory explanation for its
decision, is adequate to sustain a finding of liability for intentional
discrimination under the Age Discrimination in Employment Act. The
appeals court erred in assuming that a plaintiff must always introduce
additional, independent evidence of discrimination once his prima facie case
has been made and the employer’s explanation has been disproved. It is
permissible for the trier of fact to infer the ultimate fact of discrimination from
the falsity of the employer’s explanation. Proof of such falsity will not always
be adequate to sustain a finding of liability, but discrimination “may well be
the most likely alternative explanation” for the employer’s action.
9-0. Opinion for unanimous court by O’Connor. Concurring opinion by
Reno v. Bossier Parish School Bd. 120 S. Ct. 866, 68 USLW 4086 (1-24-00)
Voting Rights Act, preclearance: Section 5 of the Voting Rights Act does
not prohibit preclearance of a redistricting plan enacted with a discriminatory
but non-retrogressive purpose. Section 5 authorizes the Attorney General to
preclear an election law change that “does not have the purpose and will not
have the effect of denying or abridging the right to vote on account of race or
color.” This language requires a covered jurisdiction to make two distinct
showings: that the proposed plan does not have the purpose of denying or

abridging the right to vote, and that the plan will not have that effect. The
Court had previously held that the no-effect requirement is limited to
retrogressive effects. The purpose prong is also so limited. The Court
“refuse[s] to adopt a construction that would attribute different meanings to
the same phrase in the same sentence, depending upon which object it is
modifying.” For purposes of preclearance, the baseline for determining
whether a voting practice “abridges” the right to vote is the status quo; if the
change “abridges the right to vote relative to the status quo, then
preclearance is denied, and the status quo (however discriminatory it may be)
remains in effect.” If a proposed voting change is not retrogressive, this
means that it “cannot be stopped in advance under the extraordinary burden-
shifting procedures of §5, but must be attacked through the normal means of
a §2 action.” “To deny preclearance to a plan that is not retrogressive – no
matter how unconstitutional it may be – would risk leaving in effect a status
quo that is even worse.” The case is not moot. Although there will be a new
census and presumably a new apportionment plan before the next scheduled
school board election in 2002, the current plan will serve as the baseline
against which the next plan will be measured for purposes of preclearance.
9-0 (mootness); 5-4 (merits). Opinion of Court by Scalia, unanimous as to
mootness, and joined by Rehnquist, O’Connor, Kennedy, and Thomas on the
merits. Concurring opinion by Thomas. Opinion by Souter concurring in part
and dissenting in part, joined by Stevens, Ginsburg, and Breyer. Dissenting
opinions by Stevens, joined by Ginsburg; and by Breyer.
Reno v. Condon 120 S. Ct. 666, 68 USLW 4037 (1-12-00)
Driver’s Privacy Protection Act; Tenth Amendment: The Driver’s Privacy
Protection Act (DPPA) is a valid exercise of the commerce power, and does
not violate the Tenth Amendment. The DPPA prohibits state departments of
motor vehicles (DMVs) and others to whom the DMVs provide information
from disclosing a driver’s personal information (name, address, phone
number, vehicle description, Social Security number, etc.) without the
driver’s consent. DMVs that violate the Act are subject to civil penalties.
The drivers’ information that the DPPA regulates is used by insurers,
marketers, and others engaged in interstate commerce to contact drivers with
customized solicitations, and therefore this information in this context
constitutes “an article of commerce” subject to regulation under the
commerce power. The DPPA does not violate the federalism principles
reflected in the Tenth Amendment and set forth in New York v. United States
(1992) and Printz v. United States (1997). South Carolina v. Baker (1988)
governs instead. Although compliance with the DPPA will require time and
effort on the part of state employees, the DPPA does not “commandeer”
states in enforcing federal law applicable to private entities. The DPPA
regulates state activities directly rather than seeking to control the manner in
which states regulate private parties. Also, the DPPA is generally applicable,
regulating both the states as initial suppliers and private entities that resell
drivers’ information – “the universe of entities that participate as suppliers to
the market for motor vehicles.”

9-0. Opinion for unanimous Court by Rehnquist.

Rice v. Cayetano 120 S. Ct. 1044, 68 USLW 4138 (2-23-00)

Fifteenth Amendment, voting restricted by ancestry: A provision of the
Hawaii Constitution restricting the right to vote for trustees of the Office of
Hawaiian Affairs (OHA) to persons who are descendants of people inhabiting
the Hawaiian Islands in 1778 violates the Fifteenth Amendment. The OHA
administers programs for the benefit of “Hawaiians” – the class of persons
who may vote for trustees – as well as for a subclass of “Native Hawaiians.”
The State’s electoral restriction enacts a race-based voting qualification
forbidden by the Fifteenth Amendment. Ancestry can be a proxy for race,
and that is the case here. The Court previously described racial
discrimination as “singl[ing] out identifiable classes of persons solely because
of their ancestry or ethnic characteristics,” and that is what Hawaii’s voting
restriction does. Simply because a class defined by ancestry does not include
all members of a race does not suffice to make the classification race-neutral.
The State’s arguments in support of the restriction are rejected. Cases
upholding differential treatment of certain members of Indian tribes are
inapplicable. Voting restrictions in tribal elections are “the internal affair of a
quasi-sovereign,” while the OHA elections are statewide elections to which
the Fifteenth Amendment applies. Morton v. Mancari (1974), involving a
hiring preference at the Bureau of Indian Affairs for members of federally
recognized tribes, should not be extended to the election area. Cases
exempting certain special district elections from the one person, one vote rule
derived from the Fourteenth Amendment are inapplicable to the Fifteenth
Amendment’s command of race neutrality. Hawaii’s restriction cannot be
upheld as merely ensuring alignment of interests between the fiduciaries and
beneficiaries of a trust, since the restriction rests “on the demeaning premise
that citizens of a particular race are somehow more qualified than others to
vote on certain matters.”

7-2. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia,

and Thomas. Concurring opinion by Breyer, joined by Souter. Dissenting
opinions by Stevens, joined by Ginsburg; and by Ginsburg.
Roe v. Flores-Ortega 120 S. Ct. 1029, 68 USLW 4132 (2-23-00)
Sixth Amendment, ineffective assistance of counsel: A defense counsel’s
failure to file a notice of appeal when the defendant has not clearly conveyed
his wishes about whether to appeal does not constitute per se ineffective
assistance of counsel in violation of the Sixth Amendment. Nor is
representation deficient as a constitutional matter if counsel fails to consult
with the defendant about an appeal. Instead, failure to appeal is measured by
the general test for ineffective counsel set forth in Strickland v. Washington
(1984): whether representation “fell below an objective standard of
reasonableness,” and whether counsel’s deficient performance prejudiced the
defendant. Counsel has a constitutionally mandated duty to consult with the
defendant about an appeal when there is reason to believe that a rational
defendant would want to appeal, or that this particular defendant has
reasonably demonstrated that he is interested in an appeal. All relevant
factors must be considered, e.g., whether conviction followed a trial or a
guilty plea, and whether a plea expressly reserved or waived rights to appeal.
To show prejudice, a defendant must demonstrate that, “but for counsel’s
deficient conduct” in not consulting with him about an appeal, he would have

6-3 (duty to consult); 9-0 (prejudice). Opinion of Court by O’Connor, joined
by Rehnquist, Scalia, Kennedy, Thomas, and Breyer, and joined in part by
Stevens, Souter, and Ginsburg. Concurring opinion by Breyer. Opinion by
Souter, joined by Stevens and Ginsburg, concurring in part and dissenting in
Rotella v. Wood 120 S. Ct. 1075, 68 USLW 4153 (2-23-00)
Civil RICO, limitations period: The injury discovery accrual rule – not the
injury and pattern discovery rule – applies to the four-year limitations period
applicable to civil RICO actions. This means that the statute of limitations
begins to run when the plaintiff knew or should have known of his injury.
Under the injury and pattern rule, the period would begin to run only after the
plaintiff discovers, or should discover, both an injury and a pattern of RICO
activity. This latter approach is “unsound for a number of reasons.” Under
RICO, predicate acts of racketeering can be 10 years apart, and remote from
time of trial. Even in medical malpractice suits, “where the cry for a
discovery rule is loudest,” it is the discovery of the injury, not discovery of
other aspects of the claim, that starts the clock. This rule places the burden
on the victim of inadequate medical treatment to determine within the
limitations period whether the inadequacy constituted malpractice. There is
no reason for accepting a lesser degree of responsibility on the part of the
RICO plaintiff. Also, Congress relied on the Clayton Act in formulating
RICO, and at the time RICO was enacted the Clayton Act’s injury-focused
accrual rule was well established.

9-0. Opinion for unanimous Court by Souter.

Santa Fe Ind. School Dist. v. Doe 120 S. Ct. 2266, 68 USLW 4525 (6-19-00)
Establishment Clause, student-led prayer at high school football games:
A Texas school district’s policy permitting a student-led, student-initiated
prayer delivered over public address systems at public high school football
games violates the Establishment Clause. The policy authorizes students to
determine by majority vote whether to select a student to deliver a “statement
or invocation” at football games, and then, also by majority vote, to select the
student who may do so. The policy “involves both perceived and actual
endorsement of religion.” The prayers are authorized by government policy,
and take place on government property at government-sponsored school-
related events. Moreover, “the policy, by its terms, invites and encourages
religious messages.” The government has not created the type of “public
forum” at which the pre-game invocations could be considered to be private
rather than government-sponsored speech. Selection of the speaker by
majority vote does not cure the constitutional defect, but rather “guarantees .
. . that minority candidates will never prevail and that their views will be
effectively silenced.” The policy cannot be justified by secular purposes,
given the policy’s approval of only one specific kind of message – an
invocation – and given the evolution of the policy, which began with the
“candid” title of “prayer at football games” and which originally created an
office of “student chaplain.” The football game venue does not distinguish
the prayer from the graduation prayer held to violate the Establishment
Clause in Lee v. Weisman (1992). Even though attendance at games is not
compulsory, the prayer “has the improper effect of coercing those present to

participate in an act of religious worship.” Finally, the respondents’ facial
challenge is not premature. Although no invocation has yet been delivered
under the policy, Establishment Clause values can be eroded in other ways,
e.g., by adoption of the policy and by subjecting the prayer issue to
majoritarian vote.

6-3. Opinion of Court by Stevens, joined by O’Connor, Kennedy, Souter,

Ginsburg, and Breyer. Dissenting opinion by Rehnquist, joined by Scalia and
Shalala v. Illinois Council on Long Term Care 120 S. Ct. 1084, 68 USLW 4159
Judicial review, Medicare Act: The Medicare Act bars federal question
jurisdiction over an action by provider nursing homes challenging the validity
of certain Medicare-related regulations. A section of the Social Security Act,

42 U.S.C. § 405(h), as incorporated in the Medicare Act by 42 U.S.C. §

1395ii, provides that “no action . . . to recover on any claim” arising under
the Medicare laws shall be brought “under section 1331 . . . of title 28,” the
section that confers federal question jurisdiction on federal courts. Instead,
such challenges must be brought under a separate and exclusive system of
administrative and judicial review for denials of Medicare claims. The nursing
homes’ challenge to the regulations is an action “to recover on any claim”
within the meaning of section 405(h). The language clearly applies to a
Medicare benefits case, and under the Court’s precedents, applies as well to
the challenge to the regulations. Weinberger v. Salfi (1975) and Heckler v.
Ringer (1984) govern interpretation. In Salfi the Court held that section
405(h) barred federal question jurisdiction in an action challenging a statutory
provision that denied the plaintiffs Social Security benefits. In Ringer, the
Court reached the same conclusion about an action challenging the lawfulness
of the agency’s determination not to provide Medicare Part B reimbursement
to persons who had undergone a particular medical operation. The appeals
court erred in concluding that Bowen v. Michigan Academy of Family
Physicians (1986) makes Salfi and Ringer inapplicable. The Court’s holding
in Michigan Academy that section 405(h) did not preclude federal question
review of the lawfulness of regulations governing procedures used to
calculate Medicare Part B benefits was not based on a general limitation of
that provision to “amount determinations” – a construction that would render
the provision inapplicable in the instant case – but instead was based on a
narrower exception for instances in which application would result in a denial
of all review rather than a channeling of review through the agency. The
Michigan Academy precedent is inapplicable because, under a “legally
permissible” interpretation by the Secretary of HHS, nursing home providers
are entitled to review of a determination that they are not in compliance with
governing law.
5-4. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Souter, and
Ginsburg. Dissenting opinions by Stevens; by Scalia; and by Thomas, joined
by Stevens and Kennedy, and joined in part by Scalia.
Sims v. Apfel 120 S. Ct. 2080, 68 USLW 4470 (6-5-00)
Judicial review, issue exhaustion, Social Security proceedings: A person
whose claim for Social Security benefits is denied by an administrative law

judge, and whose request for review by the Social Security Appeals Council
is denied, may obtain judicial review of issues that he did not request the
Appeals Council to review. Requirements for administrative issue exhaustion
are for the most part contained in statutes or regulations. Neither the Social
Security Act nor regulations implementing it require issue exhaustion. On
occasion the Court has imposed an administrative issue exhaustion
requirement in the absence of statute or regulation, but reasons for doing so
are inapplicable here. The basis for a judicially imposed rule is an analogy to
the rule that appellate courts refuse to consider issues that were not raised
before the trial court. The rationale is that issue exhaustion is appropriate in
an adversary proceeding. The administrative proceedings at issue are not
sufficiently adversarial to require issue exhaustion.
5-4. Opinion of Court by Thomas, joined by Stevens, O’Connor, Souter, and
Ginsburg. Separate part of Thomas opinion joined by Stevens, Souter, and
Ginsburg. Concurring opinion by O’Connor. Dissenting opinion by Breyer,
joined by Rehnquist, Scalia, and Kennedy.
Slack v. McDaniel 120 S. Ct. 1595, 68 USLW 4315 (4-26-00)
Habeas corpus, AEDPA, “second or successive petition”: Provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that
condition a habeas corpus petitioner’s right to appeal on issuance of a
certificate of appealability (COA) apply to appeals initiated after the Act’s
effective date, whether or not the habeas petition itself was filed in the district
court before AEDPA’s effective date. An appeal is a distinct step in
litigation, and, under AEDPA, an appellate case is commenced when the
application for a COA is filed. A COA may issue when the district court has
denied a habeas petition on procedural grounds without reaching the
petitioner’s constitutional claims, if the prisoner shows that jurists of reason
would find the constitutional claim and the procedural ruling at least
debatable. A habeas petition that is filed after an initial petition was
dismissed for failure to exhaust state remedies, and without adjudication on
the merits, is not a “second or successive petition” as that term is understood
in the habeas corpus context.
6-3 (effective date); 7-2 (second or successive petition). Opinion of Court by
Kennedy, joined in par by Rehnquist, O’Connor, Scalia, Thomas, and
Ginsburg; and joined in separate part by Rehnquist, Stevens, O’Connor, Souter,
Ginsburg, and Breyer. Opinion by Stevens, concurring in part, joined by
Souter and Breyer. Opinion by Scalia, concurring in part and dissenting in
part, joined by Thomas.
Smith v. Robbins 120 S. Ct. 746, 68 USLW 4069 (1-19-00)
Equal Protection, indigents, frivolous appeals: California’s procedures for
evaluating the request of an appointed counsel not to pursue an appeal that
would be frivolous are not unconstitutional simply because they diverge from
the procedures set forth by the Court in Anders v. California (1967).
Moreover, California’s procedures, derived from People v. Wende (1979),
satisfy all constitutional requirements. Under Anders procedures, the
attorney requesting permission to withdraw must submit a brief pointing out
anything in the record that might arguably support an appeal. Under
California’s Wende procedures, counsel summarizes the case’s procedural and

factual history. Counsel does not explicitly state that an appeal would be
frivolous, and does not request to withdraw, but instead expresses availability
to brief any issues on which the court desires briefing. The court, upon
receiving a Wende brief, must conduct a review of the entire record. These
Wende procedures satisfy the constitutional standard by providing a criminal
appellant the minimum safeguards necessary to make the appeal adequate and
effective. The Wende procedures are “undoubtedly far better than those
procedures we have found inadequate,” and “at least comparable to those
procedures we have approved.” On remand, respondent may still attempt to
prove that his appellate counsel was constitutionally ineffective; this claim
should be measured by the standards set forth in Strickland v. Washington
5-4. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Dissenting opinions by Stevens, joined by Ginsburg; and by Souter,
joined by Stevens, Ginsburg, and Breyer.
Stenberg v. Carhart 120 S. Ct. 2597, 68 USLW 4702 (6-28-00)
Abortion: Nebraska’s statute criminalizing the performance of “partial birth
abortions” is unconstitutional under principles set forth in Roe v. Wade
(1973) and Planned Parenthood v. Casey (1992). The statute prohibits
partial birth abortions “unless the procedure is necessary to save the life of the
mother,” and further defines partial birth abortion to mean “deliberately and
intentionally delivering into the vagina a living unborn child, or a substantial
portion thereof, for the purpose of performing a procedure that the person
performing such procedure knows will kill the unborn child and does kill the
unborn child.” The statute is inconsistent with the Court’s guidelines in
Planned Parenthood v. Casey because it lacks an exception for those
instances in which the banned procedure is necessary to preserve the health of
the mother. The statute is also unconstitutional on the alternative ground that
it imposes an “undue burden” on a woman’s right to choose to terminate her
pregnancy before viability. Nebraska’s ban covers not only dilation and
extraction (D&X), but also dilation and evacuation (D&E) procedures. D&E
is the most commonly used method for performing pre-viability second
trimester abortions, and prohibition of D&E would impose an undue burden
on a woman’s right to a pre-viability abortion.
5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Concurring opinions by Stevens, joined by Ginsburg; O’Connor;
and Ginsburg, joined by Stevens. Dissenting opinions by Rehnquist; Scalia;
Kennedy, joined by Rehnquist; and Thomas, joined by Rehnquist and Scalia.
Texas v. Lesage 120 S. Ct. 467, 68 USLW 3351 (11-29-99)
Summary judgment; racial discrimination, college admissions: The fact
that a public university rejected the application of a prospective student while
operating a racially discriminatory admissions program does not establish a
cause of action under 42 U.S.C. § 1983. The government can defeat liability
by demonstrating that it would have made the same decision absent the
forbidden discrimination. Because it was undisputed in this case that the
respondent’s application would have been rejected even if the university’s
admissions process had been completely color-blind, there was no factual

issue, and the State’s motion for summary judgment should have been

9-0. Per curiam.

Troxel v. Granville 120 S. Ct. 2054, 68 USLW 4458 (6-5-00)
Due Process, grandparent visitation rights: A Washington State law
allowing “any person” to petition a court “at any time” to obtain visitation
rights whenever visitation “may serve the best interests” of a child is
unconstitutional as applied to an order requiring a parent to allow her child’s
grandparents more extensive visitation than the parent wished. The Court has
long recognized the “fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” The Washington
statute, as applied, infringes on that fundamental right by placing the “best-
interests” determination solely in the hands of a judge, with no deference
accorded a parent’s decision that visitation would not be in her child’s best

6-3. No opinion of the Court. Opinion by O’Connor, joined by Rehnquist,

Ginsburg, and Breyer. Separate concurring opinions by Souter and Thomas.
Dissenting opinions by Stevens, Scalia, and Kennedy.
United States v. Hubbell 120 S. Ct. 2037, 68 USLW 4449 (6-5-00)
Self-Incrimination, personal papers, immunity: The Fifth Amendment
privilege against self-incrimination protects a witness from being compelled to
disclose the existence of incriminating documents that the Government is
unable to describe with reasonable particularity. The Independent Counsel
violated this principle by bringing criminal charges against the respondent
based on information gained from documents obtained by virtue of the
respondent’s compliance with a subpoena to produce all records related to his
and his family’s income, employment, and relationship with professional
clients. The district court’s order compelling production of documents also
extended use and derivative-use immunity pursuant to 18 U.S.C. § 6002, an
immunity that has been interpreted to be coextensive with the scope of the
privilege against self-incrimination. The act of producing documents that the
Government identifies with particularity is not testimonial in nature, and
ordinarily the privilege does not extend to the content of such documents.
However, the act of producing documents in response to a subpoena can have
a testimonial aspect if it communicates information about the existence,
custody, or authenticity of documents. The broad scope of the subpoena in
this case suggests that the Independent Counsel needed the respondent’s
assistance in identifying potential sources of information that could lead to his
prosecution, and that is what happened. The respondent, in complying with
the subpoena, provided the Independent Counsel with a mass of documents
falling within 11 broadly worded subpoena categories, and prosecutors culled
incriminating evidence from these documents. Because the Independent
Counsel is unable to prove that the evidence used in obtaining the indictment
and proposed to be used at trial was derived from legitimate sources wholly
independent of the testimonial aspect of respondent’s immunized conduct in
selecting and producing documents described in the subpoena, the indictment
must be dismissed.

8-1. Opinion of Court by Stevens, joined by O’Connor, Scalia, Kennedy,

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Thomas, joined
by Scalia. Dissenting statement by Rehnquist.
United States v. Johnson 120 S. Ct. 1114, 68 USLW 4174 (3-1-00)
Prisoners, supervised release: A prisoner serving time in federal prison for
multiple offenses, released after having served time under convictions held
invalid, is not entitled to have his excess prison time credited against
supervised release time still to be served on remaining convictions. The
language of 18 U.S.C. § 3624(e) controls. That section provides that “[t]he
term of supervised release commences on the day the person is released from
imprisonment.” The dictionary definition as well as the “ordinary,
commonsense” meaning of “release” is “to be freed from confinement.” The
section does allow concurrent counting, but only for prison terms of less than
30 days. The “proper inference” is that Congress considered exceptions and
intended to limit exceptions to those set forth. While the text of section 3624
“resolves the case,” the result “accords with the statute’s purpose and
design,” since supervised release serves “rehabilitative ends, distinct from
those served by incarceration.”

9-0. Opinion for unanimous Court by Kennedy.

United States v. Locke 120 S. Ct. 1135, 68 USLW 4184 (3-6-00)
Preemption, regulation of oil tankers: Four Washington State regulations
imposed on oil tankers for the purpose of preventing oil spills are preempted
by federal law. These four rules impose training requirements for tanker
crews, require crews to be proficient in the English language, impose staffing
requirements for navigation watch, and require reporting to state authorities
of certain marine casualties. The State regulations intrude in an area where
the federal interest in regulating navigation “without embarrassment from
intervention of the separate States and resulting difficulties with foreign
nations” is “manifest.” Congress has enacted a series of statutes and has
ratified international agreements governing oil tankers. Principal among the
statutes are the Ports and Waterways Safety Act of 1972 (PWSA) and the Oil
Pollution Act of 1990 (OPA). The Court’s interpretation of the PWSA in
Ray v. Atlantic Richfield Co. (1978) remains “correct and controlling.” The
Ninth Circuit erroneously relied on language in OPA Title I disclaiming any
intent to preempt state laws imposing additional liability or additional
requirements relating to the discharge of oil. Title I of the OPA does not
regulate vessel operation, design, or manning, and its savings clause is
similarly limited in scope. The preemptive reach of the PWSA and the
regulations promulgated under it is not affected by the OPA. Under Title I of
the PWSA, Congress preserved state authority to regulate the “peculiarities
of local waters if there is no conflict with federal regulatory determinations.”
Uniformity is required under Title II of the PWSA for federal rules governing
general seaworthiness of tankers and their crews – such things as
construction, operation, maintenance, equipping, and manning of vessels.
The first three Washington rules set forth above are subject to the “field
preemption rule surrounding Title II.” These training and crew qualification
rules address matters that are not unique to the waters of Puget Sound, and

impose requirements that affect tanker operations outside State waters.
Other sources of federal regulation govern the reporting of marine incidents,
and leave no room for duplicative or additional state requirements. The case
is remanded for further evaluation of various other State regulations being
challenged by tanker owners.

9-0. Opinion for unanimous Court by Kennedy.

United States v. Martinez-Salazar 120 S. Ct. 774, 68 USLW 4081 (1-19-00)
Peremptory challenges: A defendant charged with a federal offense who
exercises a peremptory challenge to remove a potential juror following the
trial court’s erroneous refusal to dismiss that juror for cause is not deprived
of any rule-based or constitutional right. Nothing in the Constitution requires
Congress to provide for peremptory challenges. Rule 24, Federal Rules of
Criminal Procedure, provides defendants with 10 peremptory challenges for
the petit jury and one challenge for an alternate juror, and authorizes a district
court to allow additional challenges in multiple-defendant cases. In this case
the defendant and his co-defendant exercised their 11 challenges and did not
request additional challenges, and defendant’s counsel stated that he had no
objection to the jurors who were seated. In Ross v. Oklahoma (1988), the
Court held in a state-law setting that loss of a peremptory challenge exercised
to cure the trial court’s error in not dismissing a juror for cause did not
deprive the defendant of any constitutional right “so long as the jury that sits
is impartial.” The same principle applies in the federal setting. Here the
defendant “used the challenge in line with a principal reason for peremptories:
to help secure the constitutional guarantee of trial by an impartial jury.” The
district court’s error did not result in the seating of any juror who should have
been dismissed for cause.

9-0. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, O’Connor,

Souter, Thomas, and Breyer. Concurring opinions by Souter; and by Scalia,
joined by Kennedy.
United States v. Morrison 120 S. Ct. 1740, 68 USLW 4351 (5-15-00)
Violence Against Women Act; Commerce power, 14th Amendment
enforcement power: 42 U.S.C. § 13981, a provision of the Violence
Against Women Act that creates a federal civil remedy for victims of gender-
motivated violence, exceeds congressional power under the Commerce
Clause and under section 5 of the Fourteenth Amendment. The guiding
Commerce Clause principles were set forth in United States v. Lopez (1995),
in which the Court held that the Gun-Free School Zones Act exceeded
congressional power to regulate “activities that substantially affect interstate
commerce.” So far, the Court has upheld commerce-power regulation of
intrastate activity only if that activity is economic in nature, and gender-
motivated crimes of violence “are not, in any sense of the phrase, economic
activity.” Like the Gun-Free School Zones Act, section 13981 contains no
jurisdictional element tying the regulated violence to interstate commerce.
Unlike the Gun-Free School Zones Act, section 13981 contains “numerous”
congressional findings about the impacts of gender-motivated crimes.
Congressional findings, however, do not necessarily suffice to sustain
Commerce Clause legislation. It is ultimately a judicial rather than a

legislative question whether particular activities substantially affect interstate
commerce. In this case the congressional findings rely heavily on a method of
reasoning rejected in Lopez, a but-for causal chain that traces from violence
to attenuated effects upon employment, production, transit, or consumption.
Congress lacks the power to regulate “noneconomic, violent criminal conduct
based solely on that conduct’s aggregate effect on interstate commerce.”
Regulation and punishment of crime that is not directed at the
instrumentalities, channels, or goods involved in interstate commerce has
always been the province of the States. Similarly, there are limitations to
Congress’s power under section 5 of the Fourteenth Amendment to enforce
that Amendment’s guarantees. The Amendment prohibits only state action,
and affords no protection against “merely private conduct.” This principle,
established in 1883 in United States v. Harris and the Civil Rights Cases,
was not overruled by dicta in United States v. Guest (1966). Even if
Congress’s aim is to correct state officials’ refusal or neglect in enforcing
evenhanded laws, the remedy here is simply not corrective in character, and
cannot be said to be congruent and proportional to the injury being addressed.
Section 13981 is not aimed at proscribing discriminatory administration by
state officials, but instead is aimed at private conduct. The section is “unlike
any of the § 5 remedies” that the Court has upheld; it does not apply to state
officials, and it applies uniformly throughout the nation rather than in targeted

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

and Thomas. Concurring opinion by Thomas. Dissenting opinions by Souter,
joined by Stevens, Ginsburg, and Breyer; and by Breyer, joined by Stevens, and
joined in part by Souter and Ginsburg.
United States v. Playboy Entertainment Group, Inc. 120 S. Ct. 1878, 68 USLW
First Amendment, regulation of indecent cable TV broadcasts: Section
505 of the Telecommunications Act of 1996, which required cable TV
operators that offer channels primarily devoted to sexually oriented
programming to prevent signal bleed either by fully scrambling those channels
or by limiting their transmission to hours when children are unlikely to be
viewing, violates the First Amendment. The provision, applicable to sexually
explicit adult programming, is content-based, and therefore is subject to strict
scrutiny: it must be “narrowly tailored to promote a compelling Government
interest.” Section 505 is not narrowly tailored in this sense, because section

504 offers a less restrictive alternative. Section 504 requires a cable operator,

upon request by a subscriber, to fully scramble any channel the subscriber
does not wish to receive. This key difference between cable television and
the broadcasting media – the capacity to block unwanted channels on a
household-by-household basis – enables the Government to support parental
authority without affecting the First Amendment rights of other speakers and
willing listeners. Here the only question is whether section 504, if adequately
publicized, can be effective. The Government failed to meet its burden of
proving that this alternative will not be effective in achieving its goals.
Although there were very few blocking requests under section 504 before the
addition of section 505, the Government did not establish the reason for this

low utilization, nor did it establish that signal bleed was actually a pervasive
5-4. Opinion of Court by Kennedy, joined by Stevens, Souter, Thomas, and
Ginsburg. Concurring opinions by Stevens and Thomas. Dissenting opinions
by Scalia; and by Breyer, joined by Rehnquist, O’Connor, and Scalia.
Vermont Agency of Nat. Res. v. United States ex rel. Stevens 120 S. Ct. 1858, 68
USLW 4399 (5-22-00)
False Claims Act, qui tam actions, standing to sue, state defendants: A
private individual may not maintain an action against a state, on behalf of the
United States, under the qui tam provision of the False Claims Act. A private
individual who brings such a qui tam action has standing to sue. The
provision allows an individual to sue any person who defrauds the
Government, and to collect a portion of any civil penalty or treble damages
assessed. The qui tam relator suffers no injury to a legally protected interest,
but adequate basis for standing derives from the principle that the assignee of
a claim has standing to assert the injury in fact suffered by the assignor. The
United States suffers injury in fact, and the False Claims Act effects a partial
assignment of the Government’s damages claim. The long tradition of qui
tam actions in England and in the American colonies supports this conclusion,
since Article III’s restriction of judicial power to “cases and controversies”
has been interpreted to mean “cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process.” The False Claims Act,
however, does not subject a state to liability in a qui tam action, because a
state is not “person” within the meaning of the Act. The Act does not define
the term “person,” and there is a longstanding presumption that “person”
does not include the sovereign. Nothing in the history and structure of the
Act overcomes this presumption. Moreover, the conclusion is supported by
two rules of construction: Congress may change the usual constitutional
balance between states and the federal government only by unmistakably clear
language, and statutes should be construed so as to avoid difficult
constitutional issues (here the Eleventh Amendment issue).

7-2. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,

Thomas, and Breyer. Concurring opinions by Breyer; and by Ginsburg, joined
by Breyer. Dissenting opinion by Stevens, joined by Souter.
Village of Willowbrook v. Olech 120 S. Ct. 1073, 68 USLW 4157 (2-23-00)
Equal Protection, “class of one”: Successful equal protection claims may be
brought by a “class of one” if the plaintiff establishes that she has been
intentionally treated differently from others similarly situated and that there is
no rational basis for the different treatment. The respondent in this case had
asked the Village to connect her property to the municipal water supply, and
the Village had conditioned the connection on a 33-foot easement rather than
a 15-foot easement required of other property owners. The respondent
alleged that the demand for a 33-foot easement was motivated by ill-will
stemming from a previous, successful lawsuit she had brought against the
Village; this allegation, if proved, would establish that the discriminatory
treatment was intentional.

9-0. Per curiam. Separate opinion by Breyer, concurring in the result.

Wal-Mart Stores, Inc. v. Samara Bros., Inc. 120 S. Ct. 1339, 68 USLW 4217 (3-


Lanham Act, trade dress infringement: In an action for infringement of
unregistered trade dress under section 43(a) of the Lanham Act, a product’s
design is distinctive, and therefore protectible, only upon a showing of
secondary meaning. A mark can be distinctive in one of two ways – if it is
inherently distinctive (i.e., if its inherent nature serves to identify a particular
source), or if it has developed secondary meaning. Secondary meaning is
found if the primary significance of the mark in the public mind is to identify
the source of a product rather than the product itself. Design, like color, is
not inherently distinctive, “since consumer predisposition to equate product
design with the source does not exist.” Moreover, application of inherent
distinctiveness to product design could harm consumer interests, since
competition could be deterred “by the plausible threat of successful suit.”
Courts that have a difficult time in marginal cases distinguishing between
product-design and product-packaging trade dress “should err on the side of
caution and classify ambiguous trade dress as product design, thereby
requiring secondary meaning.”

9-0. Opinion for unanimous Court by Scalia.

Weeks v. Angelone 120 S. Ct. 727, 68 USLW 4060 (1-19-00)
Jury instruction, capital case, mitigating factors: A trial judge does not
violate the Constitution by directing a jury’s attention to a specific paragraph
of a constitutionally sufficient sentencing instruction in response to the jury’s
question regarding the proper consideration of mitigating circumstances.
After four hours of deliberation, the jury had asked the judge whether it was
their “duty” to vote for the death penalty if they found the defendant “guilty”
of at least one aggravating factor. Rather than answering the question
directly, the judge referred the jury to language in the instruction providing
that the jury “may” fix the punishment at death upon finding that the state had
proved one aggravating factor, “or,” the instruction continued, “if you believe
from all the evidence that the death penalty is not justified, then you shall fix
the punishment [at life imprisonment].” The jury also received a separate
instruction that “you must consider a mitigating circumstance if you find there
is evidence to support it.” The Court had previously upheld the Virginia
pattern instruction at issue. “Given that the jury was adequately instructed,
and given that the trial judge responded to the jury’s question by directing its
attention to the precise paragraph of the constitutionally adequate instruction
that answers its inquiry,” there was no constitutional violation. Moreover,
federal habeas corpus relief is precluded by 28 U.S.C. § 2254(d); affirmance
of conviction was neither contrary to nor did it involve an unreasonable
application of clearly established federal law.

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,

and Thomas. Dissenting opinion by Stevens, joined by Ginsburg and Breyer,
and joined in part by Souter.
Weisgram v. Marley 120 S. Ct. 1011, 68 USLW 4122 (2-22-00)
Federal courts, appeals: Federal Rule of Civil Procedure 50 permits an
appellate court to direct the entry of judgment as a matter of law when it

determines that evidence was erroneously admitted at trial and that the
remaining, properly admitted evidence is insufficient to constitute a
submissible case. The Court had previously held in Neely v. Martin K. Eby
Constr. Co. (1967) that there are situations in which an appellate court may
appropriately enter judgment as a matter of law against the jury-verdict
winner. Cases in which there remains insufficient evidence to support the
jury’s verdict after exclusion of erroneously admitted evidence can fall into
this Neely category. The appellate court’s “informed discretion” should guide
its choice among the alternatives of ordering a new trial, remanding for the
trial court to determine whether a new trial is warranted, or directing entry of
judgment as a matter of law. Fairness to the parties is key to the exercise of
the appellate court’s discretion in the matter. A party whose verdict is set
aside on appeal will have had notice at trial of any alleged evidentiary
insufficiency, and it is “unconvincing” to suggest that allowing the appellate
court to direct entry of judgment for the defendant will punish plaintiffs who
could have shored up their cases by other means had they known that their
expert testimony would be found inadmissible.

9-0. Opinion for unanimous Court by Ginsburg.

Williams v. Taylor 120 S. Ct. 1479, 68 USLW 4279 (4-18-00)
Habeas corpus, AEDPA, failure to develop factual basis in state court: A
habeas corpus petitioner has “failed” to develop the factual basis of his claim
within the meaning of section 2254(e)(2) of the Antiterrorism and Effective
Death Penalty Act (AEDPA) only if there has been some lack of diligence on
his part. The provision, which denies a federal court evidentiary hearing to a
habeas corpus applicant who “has failed to develop the factual basis of [the]
claim in State court proceedings,” is not a no-fault standard. In ordinary
usage the word “failed” connotes some omission, fault, or negligence by the
person who has failed to do something. Moreover, this statutory language
“echoes” the Court’s characterization, in a case decided four years prior to
AEDPA’s enactment, of an attorney’s negligent failure to develop a factual
record. “When the words of the Court are used in a later statute governing
the same subject matter, it is respectful of Congress and of the Court’s own
processes to give the words the same meaning in the absence of specific
direction to the contrary.” In this case there was lack of diligence as to one
claim, involving the prosecution’s failure to disclose the psychiatric report of
a co-defendant and witness, since there were repeated references to the report
in the transcript of the sentencing proceeding. The petitioner met his burden
of showing diligence in efforts to develop facts supporting two other claims,
one involving juror bias and the other involving prosecutorial misconduct.

9-0. Opinion for unanimous Court by Kennedy.

Williams v. Taylor 120 S. Ct. 1495, 68 USLW 4263 (4-18-00)
Habeas corpus, AEDPA, ineffective assistance of counsel: Section

2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA),

which provides that a federal court may grant habeas corpus relief to a
prisoner who has already litigated the issue in state court only if the state-
court adjudication was “contrary to,” or involved an “unreasonable
application of,” clearly established federal law as determined by the Supreme

Court, imposed new constraints on the federal court’s power to grant relief.
In this case, the claim of ineffective assistance of counsel due to counsel’s
failure to investigate and present substantial mitigating evidence to the
sentencing jury involves law that had been “clearly established” by the
Supreme Court’s decision in Strickland v. Washington (1984). Counsel’s
representation during the sentencing phase fell short of the professional
standards mandated by Strickland, and also “prejudiced” the petitioner by
probably affecting the outcome of the proceeding. The Virginia Supreme
Court’s decision rejecting petitioner’s ineffective assistance claim was both
“contrary to” and involved an “unreasonable application” of Strickland. The
“contrary to” and “unreasonable application” clauses carry independent
meaning. The former clause requires that the state court’s decision must be
“substantially different from” the governing precedent. The “unreasonable
application” clause requires an objective test; the “subjective” test that asks
whether all jurists would agree that the state court’s application was
unreasonable is erroneous.

6-3 (result); 5-4 (applicable standard). Opinion of Court (in part) by Stevens,

joined by O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Separate part of
Stevens opinion joined by Souter, Ginsburg, and Breyer. Separate part of
Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Separate part of O’Connor opinion joined by Kennedy. Opinion by
Rehnquist, joined by Scalia and Thomas, concurring in part and dissenting in

Colorado law restricting speech near health clinics upheld............15
Nebraska partial-birth abortion law unconstitutional.................32
Administrative law
deference to agency interpretation, Chevron.......................10
issue exhaustion, Social Security proceedings......................30
review of decisions on Medicare claims..........................30
Age Discrimination in Employment Act
abrogation of state immunity in federal court invalid.................18
burden of production, false explanation by employer................26
entry of judgment by appeals court after exclusion of evidence.........38
self-representation, no right on appeal...........................19
federal statute inapplicable to owner-occupied private residence........18
Bank robbery
statutory definition, larceny not lesser included offense................6
administrative expenses, recovery limited to trustee.................15
tax claims, burden of proof....................................25
Burma sanctions
Massachusetts law preempted by federal law.......................8
Campaign finance
state contribution limit, validity................................22
Civil penalties
standing of environmental groups to sue, redressability..............13
College admissions
racial discrimination charge, summary judgment....................32
Commerce power
arson of private residence, statutory scope........................18
Violence Against Women Act.................................35
Counsel, ineffective assistance
failure to appeal or consult with client...........................28
habeas corpus, AEDPA......................................39
habeas corpus, procedural default..............................10
Death penalty
jury notice of defendant's ineligibility for parole....................26
mitigating factors, court's response to jury question.................37
Driver’s Privacy Protection Act
valid exercise of commerce power..............................27
Due Process
grandparent visitation law, rights of parents.......................32
personal liability, opportunity to respond to pleading................21
right to trial by jury, New Jersey sentence enhancement law............1
California blanket primary law unconstitutional.....................4
Hawaii restriction based on ancestry, 15th Amendment violation.......27
Eleventh Amendment

ADEA abrogation of state immunity invalid.......................18
Equal Protection
class of one, intentional discriminatory treatment...................37
action against nonfidiuciaries..................................14
HMO treatment decisions not fiduciary acts.......................24
waiver of appeal, voluntary introduction of prior conviction...........23
Ex Post Facto Clause
corroboration of evidence, Texas sexual assault law..................5
extension of time between parole hearings........................13
Fair Labor Standards Act
forced use of compensatory time................................7
False Claims Act
qui tam actions, standing to sue, state defendants...................36
Federal bribery statute
scope, Medicare "benefits"....................................11
Federal courts
supplemental jurisdiction, amount in controversy...................12
Fifteenth Amendment
Hawaii voting restriction based on ancestry.......................27
First Amendment
access to police-held info about arrestees & victims.................19
ban on nude dancing, "secondary effects"..........................7
cable TV, regulation of "indecent" programming...................36
Colorado restrictions on speech near health clinics..................15
freedom of association, Boy Scouts' exclusion of gay.................4
mandatory student fees, public university..........................3
Missouri campaign finance law, contribution limit..................22
right of association, California blanket primary law..................4
Food and Drug Administration
jurisdiction to regulate tobacco products.........................10
Fourteenth Amendment enforcement power
Age Discrimination in Employment Act not valid exercise............18
Violence Against Women Act not valid exercise....................35
Fourth Amendment
luggage search, bus passenger..................................3
Terry stop after flight from police..............................16
Terry stop, anonymous tip, no "firearm exception"..................12
warrant requirement, no "murder scene" exception..................12
Government contracts
OCS oil and gas lease, breach by Government.....................21
Grandparent visitation
Washington State law violates parent's due process rights............32
Guam Organic Act
runoff elections, when required................................14
Habeas corpus
AEDPA, failure to develop factual basis in state court...............38
AEDPA, ineffective assistance of counsel.........................39
AEDPA, “second or successive petition”.........................31

procedural default, ineffective assistance of counsel.................10
requirement of jury notice of defendant's parole ineligibilty............26
appointed counsel, frivolous appeals............................31
Interstate Agreement on Detainers
waiver of rights............................................22
Judicial review
federal question jurisdiction precluded by Medicare Act..............30
issue exhaustion, Social Security proceedings......................30
peremptory challenge, use to correct for-cause error................34
Lanham Act
trade dress infringement, product design.........................37
Limitations period
civil RICO, injury discovery accrual rule.........................29
payments to hospitals as "benefits" under federal bribery law..........11
Miranda rule
Congress lacks power to abrogate...............................9
abatement of pollution, civil penalties............................12
discrimination in contracting, possibility of recurrence................1
petitioner city's interest in reversal, future enforcement................7
Oil spills
preemption, Washington State oil tanker regulations................34
inapplicable to restriction on police-held information................19
Overruled decisions
Meek v. Pittenger (1975).....................................20
Wolman v. Walter (1977).....................................20
Peremptory challenges
use as cure for trial court error in not dismissing for cause............34
federal motor vehicle safety standard, state tort law.................13
Federal Railroad Safety Act, state tort action......................23
Massachusetts Burma sanctions law..............................8
Washington State oil tanker regulations..........................34
Prison Litigation Reform Act
automatic stay of injunctions, separation of powers.................20
supervised release, no credit for excess prison time served............33
expectation, search of luggage..................................4
Prosecutorial misconduct
comments to jury, defendant's ability to tailor testimony..............24
Public Lands
Taylor Grazing Act regulations................................25
Racial discrimination
college admissions, summary judgment..........................32
Religion, Establishment Clause

loan of materials and equipment to parochial schools upheld..........20
student-led prayer at high school football games invalid..............29
conspiracy, nature of “overt act”................................2
subpoena of personal papers, immunity..........................33
no right on appeal..........................................19
elements of offense, use of machine gun...........................6
reimprisonment following revocation of supervised release............17
Separation of powers
Prison Litigation Reform Act, automatic stay, equitable powers........20
Sixth Amendment
ineffective assistance of counsel, failure to consult on appeal..........28
Standing to sue
environmental organizations, interests of members..................12
Stare decisis
reason for not overruling Miranda...............................9
State action
limitation on 14th Amendment enforcement power..................35
Statutes, interpretation
congressional ratification of administrative interpretation.............10
context, subsequently enacted legislation.........................10
doctrine of constitutional doubt.............................18, 37
effective date, retroactivity....................................17
elements of offense, use of machine gun...........................6
lesser included offense, bank robbery and larceny....................5
permissive authority, use of word “may”..........................8
phrase used twice in same sentence, same meaning..................27
plain language, proper inference................................15
plain language, when taxes are deemed to be paid...................2
presumption that “person” does not include the sovereign............37
saving clause, National Traffic and Motor Vehicle Safety Act.........14
words, meaning derived from context............................14
Supreme Court
certification of state law question to state court....................11
Taxation, Federal
date paid, withholding and estimated taxes.........................2
tax lien, disclaimer of inheritance under state law....................9
Taxation, State
multistate corporation, "unitary" income.........................16
Taylor Grazing Act
regulations upheld..........................................25
Tenth Amendment
Driver's Privacy Protection Act, challenge rejected..................27
FDA, jurisdiction to regulate..................................10
Unconstitutional Federal laws
ADEA, abrogation of states' federal court immunity.................18

statutory override of Miranda, reinstating voluntariness test...........9
Telecommunications Act (limits on cable TV adult programming)......36
Violence Against Women Act.................................35
Unconstitutional State laws
California’s “blanket” primary law...............................4
Hawaii Constitution, voting restricted by ancestry..................27
Nebraska partial birth abortion law..............................32
New Jersey public accommodations law, application to Boy Scouts......4
New Jersey “hate crime” law...................................1
Texas sexual assault law, corroboration...........................5
Washington State grandparent visitation law......................32
Federal Arbitration Act, permissive venue.........................8
Violence Against Women Act
unconstitutional under commerce power, 14th amendment............35
Voting Rights Act
preclearance, discriminatory but non-retrogressive purpose...........26
Water allocation
Colorado River, claims of behalf of Indian tribes....................2