Supreme Court Opinions: October 2001 Term

Report for Congress
Supreme Court Opinions: October 2001 Term
July 15, 2002
George Costello
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2001 Term
This report contains synopses of Supreme Court decisions issued from the
beginning of the October 2001 Term through the end of the Term on June 28, 2002.
The purpose is to provide a quick reference guide for identification of cases of
interest. These synopses are created throughout the Term and are accessible via the
CRS Home Page [], which
also provides links from the synopses to the full text of the Court’s opinions. The
report supersedes an earlier cumulation issued as a congressional distribution
memorandum dated April 19, 2002. Included are all cases decided by signed opinion
and selected cases decided per curiam. Not included are other cases receiving
summary disposition and the many cases in which the Court denied review. Each
synopsis contains a summary of the Court's holding, and most contain a brief
statement of the Court's rationale. In addition, the date of decision is indicated, and
cites to United States Law Week and West's Supreme Court Reporter are provided.
Following each synopsis the vote on the Court's holding is indicated in bold typeface,
and authors of the Court's opinion and of any concurring and dissenting opinions,
along with the Justices who joined those opinions, are identified. Cases are listed
alphabetically, and a subject index is appended.

Supreme Court Opinions:
October 2001 Term
Alabama v. Shelton 122 S. Ct. 1764, 70 USLW 4438 (5-20-02)
Sixth Amendment right to counsel, suspended sentence: A suspended
sentence that may result in imprisonment may not be imposed on an indigent
defendant unless he was offered the assistance of counsel during his trial. The
Court held in Argersinger v. Hamlin (1972) that defense counsel must be
appointed in any prosecution that actually results in imprisonment. The same
rule should prevent activation of a suspended sentence of imprisonment after an
unrepresented defendant has violated the terms of probation. It makes “little
sense,” therefore, to allow the initial imposition of the suspended sentence at
trial. The probation revocation hearing in Alabama, in which the sole issue is
whether the defendant violated the terms of probation, “cannot compensate for
the absence of trial counsel [because] it does not even address the key Sixth
Amendment inquiry: whether the adjudication of guilt ... is sufficiently reliable
to permit incarceration.” The right to appointed counsel arises “at the critical
stage when ... guilt or innocence ... is decided and ... vulnerability to
imprisonment is determined.” The rule conditioning imposition of a suspended
sentence on provision of appointed counsel would not substantially limit the
states’ ability to impose probation. Most states already provide counsel to
misdemeanor defendants, and the option of pretrial probation is available to
those states that cannot bear the costs of providing counsel on a routine basis.
5-4. Opinion of Court by Ginsburg, joined by Stevens, O’Connor, Souter, and
Breyer. Dissenting opinion by Scalia, joined by Rehnquist, Kennedy, and
Ashcroft v. ACLU 122 S. Ct. 1700, 70 USLW 4381 (5-13-02)
First Amendment, Child Online Protection Act, “community standards”:
The Child Online Protection Act’s (COPA’s) reliance on “community
standards” to identify “material that is harmful to minors” does not by itself
render the statute substantially overbroad under the First Amendment. The fact
that Web publishers lack any means to limit access to their sites based on the
geographic location of particular Web users and that COPA may therefore
subject Web publishers to the standards of the most puritanical community does
not, without reference to COPA’s other provisions, require a holding that COPA
is facially unconstitutional. The case is remanded for further proceedings, and
the government remains enjoined from enforcing COPA.
8-1. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Breyer. Separate parts of Thomas opinion joined by Rehnquist, O’Connor, and
Scalia; and by Rehnquist and Scalia. Concurring opinions by O’Connor; by
Breyer; and by Kennedy, joined by Souter and Ginsburg. Dissenting opinion by

Ashcroft v. Free Speech Coalition 122 S. Ct. 1389, 70 USLW 4237 (4-16-02)
First Amendment, “virtual” child pornography: Two sections of the Child
Pornography Prevention Act of 1996 (CPPA) that extend the federal prohibition
against child pornography to sexually explicit images that appear to depict
minors but that were produced without using any real children violate the First
Amendment. These provisions cover any visual image that “appears to be” of
a minor engaging in sexually explicit conduct, and any image promoted or
presented in a way that “conveys the impression” that it depicts a minor
engaging in sexually explicit conduct. The first prohibition thus can extend to
computer-generated (“virtual”) images, to movies in which a young-looking
adult actor “appears to be a minor” engaging in sexual activity, and even to “a
Renaissance painting depicting a scene from classical mythology.” Neither
obscenity nor child pornography is protected by the First Amendment, but the
CPPA extends beyond both categories. A work is obscene, as defined by Miller
v. California (1973), only if the government proves that the work, taken as a
whole, appeals to the prurient interest, is patently offensive, and lacks serious
literary, artistic, political, or scientific value. The CPPA, which would punish
possession of material due to the presence of a single explicit scene regardless
of the work’s overall value, fails to satisfy the Miller test. The Court in New
York v. Ferber (1982) justified the First Amendment exception for child
pornography on the basis of the government’s interest in protecting the children
who are exploited and abused in the production process. The CPPA, however,
prohibits speech containing images which “do not involve, let alone harm, any
children in the production process.” The government’s rationales for the CPPA
– that “[p]edophiles might use the materials to encourage children to participate
in sexual activity” and might “whet their own sexual appetites” with it, “thereby
increasing ... the sexual abuse and exploitation of actual children” – are
inadequate. Government “may not prohibit speech because it increases the
chance an unlawful act will be committed ‘at some indefinite future time.’” The
government also argued that the existence of “virtual” child pornography “can
make it harder to prosecute pornographers who do use real minors,” because,
“[a]s imaging technology improves ... , it becomes more difficult to prove that
a picture was produced using actual children.” This rationale “turns the First
Amendment upside down. The government may not suppress lawful speech as
a means to suppress unlawful speech.” The government “does not offer a
serious defense” of the CPPA’s ban on pandering (the prohibition on conveying
the “impression” that materials depict a minor).
7-2 (youthful-adult porn and pandering); 6-3 (virtual porn). Opinion of Court by
Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer. Concurring opinion
by Thomas. Concurring and dissenting opinion by O’Connor, joined in part by
Rehnquist and Scalia. Dissenting opinion by Rehnquist, joined in part by Scalia.
Atkins v. Virginia 122 S. Ct. 2242, 70 USLW 4585 (6-20-02)
Eighth Amendment, execution of mentally retarded: Execution of a mentally
retarded individual constitutes cruel and unusual punishment prohibited by the
Eighth Amendment. The Eighth Amendment prohibits “excessive”
punishments, and reflects the principle that punishment “should be graduated
and proportioned to the offense.” What is excessive, or “cruel and unusual,” is
measured by today’s standards – the “evolving standards of decency that mark
the progress of a maturing society.” Proportionality review should be informed

by “objective standards,” the “clearest and most reliable” of which is the
legislation enacted by the states and by Congress. The Court’s “own judgment”
is also brought to bear. “Much has changed” since the Court concluded in
Penry v. Lynaugh (1989) that execution of the mentally retarded was not
unconstitutional. There was no “national consensus” in 1989, when only two
states and the Federal Government allowed executions but prohibited execution
of the mentally retarded, and fourteen other states prohibited capital punishment
altogether. Since then, an additional 16 states have prohibited execution of the
mentally retarded, and no states have enacted legislation reinstating the power.
“It is not so much the number of these States that is significant, but the
consistency of the direction of change.” In addition, so few mentally retarded
offenders have been executed in those states that have continued to allow it that
the practice can be said to be “truly unusual.” “[I]t is fair to say that a national
consensus has developed against [execution of the mentally retarded].” The
Court’s “independent evaluation of the issue reveals no reason to disagree with
the judgment of the legislatures” that have created this national consensus.
There is reason to question “whether either justification that has been
recognized as a basis for the death penalty applies to mentally retarded
offenders.” A penalty appropriate to effect retribution “necessarily depends on
the culpability of the offender,” and mental retardation diminishes culpability.
Deterrence – the other justification for capital punishment – can work only if
potential offenders can evaluate the potential consequences of their actions and
adjust behavior accordingly. Yet “the same cognitive and behavioral
impairments that make these defendants less morally culpable ... also make it
less likely that they can process the information of the possibility of execution
as a penalty and, as a result, control their conduct based on that information.”
Finally, mentally retarded offenders are more likely to make false confessions,
and less likely to be able to present their best case for mitigation.

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

Ginsburg, and Breyer. Dissenting opinions by Rehnquist, joined by Scalia and
Thomas; and by Scalia, joined by Rehnquist and Thomas.
Barnes v. Gorman 122 S. Ct. 2097, 70 USLW 4548 (6-17-02)
Punitive damages, ADA and Rehabilitation Act private actions: Punitive
damages may not be awarded in a private cause of action brought under section
202 of the Americans With Disabilities Act of 1990 (ADA) or section 504 of
the Rehabilitation Act of 1973. The ADA provides that available remedies shall
be those provided under section 505(a)(2) of the Rehabilitation Act, and that
provision in turn references remedies set forth in Title VI of the Civil Rights
Act. Title VI, which prohibits racial discrimination in federally funded
programs and activities, invokes Congress’s power under the Spending Clause.
Statutes enacted under the Spending Clause are “much in the nature of a
contract,” and rely on principles of offer and acceptance. Accordingly, funding
recipients may be held liable, and subjected to particular remedies, only if the
recipient “is on notice that, by accepting federal funding, it exposes itself to
liability of that nature.” A funding recipient is generally on notice that it is
subject both to remedies explicitly provided in the relevant statute, and to “those
remedies traditionally available in suits for breach of contract.” Title VI
mentions no remedies, and punitive damages – unlike compensatory damages
and injunctive relief – are generally not available for breach of contract. An

implied right to punitive damages cannot reasonably be found in Title VI. The
conclusion is “consistent” with the well-settled rule that a court may resort to
“any available remedy” when legal rights have been invaded. In the context of
violation of Spending Clause legislation, the legal wrong is failure to fulfill a
contractual obligation, and that wrong is remedied when the recipient
compensates the Government or a third-party beneficiary for the loss.

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

Souter, and Thomas. Concurring opinions by Souter, joined by O’Connor; and
by Stevens, joined by Ginsburg and Breyer.
Barnhart v. Sigmon Coal Co. 122 S. Ct. 941, 70 USLW 4127 (2-19-02)
Coal industry retiree health benefits: The Coal Industry Retiree Health
Benefit Act of 1992 does not authorize the Commissioner of Social Security to
assign responsibility for retired miners to the successors in interest of out-of-
business operator companies that were signatories to a bituminous coal wage
agreement. The Act is “clear and unambiguous” on this point. If a signatory
company is no longer in business, the Act assigns liability for covered retirees
to a defined group of “related persons.” There are three categories of “related
persons,” as well as an additional category of “a successor in interest of any
person described in” those three categories. Because a signatory company itself
is not described in any of the three categories of “related persons,” a successor
in interest of the signatory does not fall within the additional category. Under
the circumstances, successor liability should not be inferred. Other sections of
the Act provide clearly and explicitly for successor liability, and “it is generally
assumed that Congress acts intentionally and purposely” in the disparate
inclusion or exclusion of explicit language. Legislative history in the form of
floor statements by the bill’s sponsors cannot overcome the clear and
unambiguous statutory language. The “counter-intuitive” result – that a direct
successor in interest of a signatory may not be made responsible for a
signatory’s former employees while successors to corporate affiliates of the
signatory may be – is not an “absurd result” that requires a different
interpretation. The Court will not “second-guess” legislative compromises that
have been “brokered” among interest groups.

6-3. Opinion of Court by Thomas, joined by Rehnquist, Scalia, Kennedy, Souter,

and Ginsburg. Dissenting opinion by Stevens, joined by O’Connor and Breyer.
Barnhart v. Walton 122 S. Ct. 1265, 70 USLW 4231 (3-27-02)
Administrative law, deference to agency interpretation: The Social Security
Administration’s (SSA’s) interpretation of the term “disability” as including an
inability to work for a 12-month period is “lawful” and entitled to deference
under principles set forth in Chevron v. NRDC (1984). The Social Security Act
defines “disability” as an “inability” to engage in gainful employment due to an
“impairment ... which has lasted or can be expected to last for a continuous
period of not less than 12 months.” In interpreting the term “inability” to
include a 12-month requirement, the SSA reads “expected to last” as applicable
only prospectively, when the inability to work has not yet lasted 12 months.
Under the SSA’s interpretation, a claimant who has returned to work within the
12-month period is barred from benefits whether or not his impairment had been
expected to last longer than 12 months. The statute does not unambiguously
forbid the regulation. Although the “12-month” phrase modifies only the word

“impairment,” the statute is silent as to any durational requirement for
“inability” to work. The agency’s construction is “permissible.” The basic
objectives of the statute require that “some duration requirement” be
recognized, and the agency’s choice of 12 months is a reasonable one that
“reconciles” the “impairment” and “inability” language. The agency’s
regulations, although only recently promulgated by notice-and-comment
rulemaking, reflect a longstanding interpretation that Congress has not changed
in spite of frequently amending or reenacting the relevant provisions. The fact
that the Act authorizes a “trial work” period prior to the expiration of 12 months
for persons “entitled” to disability benefits does not preclude the SSA’s use of
“hindsight” to make the disability determination. Here again, the statute is
ambiguous and the agency’s interpretation is “reasonable,” it not being evident
why a claimant who returns to work early should qualify only if that return “was
a kind of medical surprise.”
9-0. Opinion of Court by Breyer, unanimous in part, and joined in separate part
by Rehnquist, Stevens, O’Connor, Kennedy, Souter, Thomas, and Ginsburg.
Concurring opinion by Scalia.
BE & K Construction Co. v. NLRB 122 S. Ct. 2390, 70 USLW 4647 (6-24-02)
Labor, First Amendment right of petition: The National Labor Relations
Board may not impose liability on an employer for filing a losing retaliatory
lawsuit against a union if the lawsuit was not objectively baseless. The class of
reasonably based but unsuccessful lawsuits falls within the scope of protection
of the First Amendment’s Petition Clause. Limiting sanctions to unsuccessful
lawsuits that are “retaliatory” does not save the Board’s policy. The Board’s
definition of a retaliatory suit as one brought with a motive to “interfere with”
the exercise of rights protected by the National Labor Relations Act (NLRA)
“broadly covers a substantial amount of genuine petitioning.” “Ill will is not
uncommon in litigation,” and regulation based on motive is “problematic.” The
Board also may not impose sanctions for lawsuits brought for a retaliatory
“purpose.” The relevant NLRA provision, which prohibits employers from
interfering with, restraining, or coercing employees in the exercise of their
rights, does not reach “all reasonably based but unsuccessful suits filed with a
retaliatory purpose.”
9-0. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Concurring opinions by Scalia, joined by Thomas; and by Breyer,
joined by Stevens, Souter, and Ginsburg.
Bell v. Cone 122 S. Ct. 1843, 70 USLW 4447 (5-28-02)
Habeas corpus, claim of ineffective assistance of counsel: A claim of
ineffective assistance of counsel during the sentencing phase of a capital murder
trial should have been analyzed under principles announced in Strickland v.
Washington (1984), not under United States v. Cronic (1984). In addition, the
Strickland inquiry is constrained by the Antiterrorism and Effective Death
Penalty Act of 1996, which allows habeas relief only if the state court’s
decision was “contrary to” or involved “an unreasonable application of clearly
established Federal law.” Strickland, which requires that a court’s review of an
attorney’s representation be “highly deferential,” established a two-part test: did
counsel’s performance fall below “an objective standard of reasonableness,” and
is there a “reasonable probability” that the result would have been different but

for counsel’s errors. Cronic recognized that there are some circumstances “so
likely to prejudice the accused” that actual proof of prejudice is unnecessary, as
for example, when “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” In this case, counsel failed to adduce
mitigating evidence during the sentencing phase, and waived a closing argument
at sentencing although the state had presented evidence of four aggravating
circumstances that required imposition of the death penalty if established and
not outweighed by mitigating evidence. Counsel did not “entirely” fail to
present mitigating evidence, but merely did so “at specific points” in the
process, so therefore Cronic is inapplicable. Because Strickland applies, there
is “no merit” to the claim that the state court decision was “contrary to” clearly
established law. Nor was there “unreasonable application” of Strickland.
During the guilt phase of the trial counsel had attempted to establish an insanity
defense, and had presented evidence of “Vietnam Veterans Syndrome.”
Counsel “could reasonably have concluded that the substance of [this] testimony
was still fresh to the jury” at the sentencing phase. Counsel’s decision to waive
final argument at sentencing “was not unreasonable,” given that the “junior”
prosecutor had presented a “low-key” closing, and a closing argument by
defense counsel would have allowed the “very persuasive” lead prosecutor to
offer rebuttal.

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

Souter, Thomas, Ginsburg, and Breyer. Dissenting opinion by Stevens.
Board of Educ. v. Earls 122 S. Ct. 2559, 70 USLW 4737 (6-27-02)
Fourth Amendment, drug testing of high school students: The drug testing
policy adopted by the school district of Tecumseh, Oklahoma, requiring all
middle school and high school students to consent to urinalysis testing for drugs
in order to participate in any extracurricular activities, is constitutional. The
policy “reasonably serves the School District’s important interest in detecting
and preventing drug use among its students.” The principles announced in
Vernonia School District v. Acton (1995), upholding drug testing of student
athletes, govern “the somewhat different facts of this case.” A student’s privacy
interest is “limited in a public school environment.” The fact that athletes are
subject to regular physicals and community undress “was not essential” to the
decision in Vernonia. That decision “depended primarily upon the school’s
custodial responsibility and authority,” which is equally applicable to athletic
and to non-athletic extracurricular activities. The “character” of the privacy
invasion is minimally intrusive. The policy provides that the faculty monitors
who collect urine samples are to wait outside a closed restroom stall while the
student produces the sample, and test results are kept in confidential files.
Finally, the “nature and immediacy of the government’s concerns” in protecting
the health and safety of its students and preventing drug use are important, and
the testing program is “a reasonably effective means” of addressing these
concerns. Although there was some evidence of drug use at Tecumseh schools,
a drug testing program need not always be justified by a demonstrated problem
of drug abuse, and there is no “threshold level” of drug use that need be
satisfied. The Fourth Amendment does not require that the “least restrictive
means” be employed, and in the public school context there is no need for
individualized suspicion.

5-4. Opinion of Court by Thomas, joined by Rehnquist, Scalia, Kennedy, and
Breyer. Concurring opinion by Breyer. Dissenting opinions by O’Connor,
joined by Souter; and by Ginsburg, joined by Stevens, O’Connor, and Souter.
Carey v. Saffold 122 S. Ct. 2134, 70 USLW 4558 (6-17-02)
Habeas corpus, AEDPA limitations period: The one-year limitations period
established by the Antiterrorism and Effective Death Penalty Act (AEDPA) for
seeking a federal habeas corpus remedy, tolled while an application for state
collateral review is “pending,” is tolled during the time between a lower state
court’s decision and the filing of a timely notice of appeal to a higher state
court. The ordinary meaning of the word “pending” includes “not yet decided.”
The principle applies as well to California’s unique collateral review system,
which provides for “original” habeas petitions in higher courts rather than for
“appeals,” and which measures timeliness of filing by a “reasonableness”
standard rather than a specified time period. California’s “original writ” system
“is not as special in practice as its terminology might suggest”; an original
petition in a higher court serves the same purpose that an appeal serves in other
states. California’s system functions in a way sufficiently like other state
systems of collateral review to bring intervals between a lower court decision
and a filing of a new petition in a higher court within the scope of the word
“pending.” This ruling has no application to “original writs” in those states
which grant original writs only in “extraordinary” cases. This case is remanded
for consideration of whether the habeas petitioner delayed unreasonably in
seeking review from the California Supreme Court.
5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Dissenting opinion by Kennedy, joined by Rehnquist, Scalia, and
Chao v. Mallard Bay Drilling, Inc. 122 S. Ct. 738, 70 USLW 4065 (1-9-02)
OSHA, Coast Guard: An oil and gas exploration barge, anchored in the
navigable waters of a state, is a “workplace” within the meaning of the
Occupational Safety and Health Act (“Act”). In this case the Occupational
Safety and Health Administration (OSHA) had authority to issue citations for
safety violations relating to an explosion that killed four crew members and
injured two others. The Act denies OSHA authority over “working conditions
of employees with respect to which other Federal agencies ... exercise statutory
authority to prescribe or enforce” occupational safety and health standards. Use
of the word “exercise” makes clear that an agency’s possession of unexercised
regulatory authority is “insufficient” to displace OSHA’s jurisdiction. OSHA’s
regulations have been “pre-empted” by Coast Guard regulation of “inspected
vessels.” The barge in this case, however, is an “uninspected vessel” over
which the Coast Guard has exercised only limited authority that is not related
to the safety violations at issue. General marine safety regulations governing
such things as fire extinguishers and life preservers do not address the
occupational safety concerns created by inland drilling operations. Because the
Coast Guard has not regulated the working conditions at issue in this case, and
has not asserted comprehensive regulatory authority over working conditions
on uninspected vessels, the Coast Guard has not “exercise[d]” its authority
within the meaning of the Act.

8-0. Opinion for unanimous Court by Stevens. Scalia did not participate.

Chevron U.S.A. Inc. v. Echazabal 122 S. Ct. 2045, 70 USLW 4516 (6-10-02)
Americans With Disabilities Act: An EEOC regulation authorizing refusal to
hire a disabled individual whose performance of the job would endanger his
own health because of his disability is a permissible regulation under the
Americans with Disabilities Act of 1990 (ADA). The statute allows employers
to impose job-related “qualification standards,” and provides that these “may
include a requirement that an individual shall not pose a direct threat to the
health or safety of other individuals in the workplace.” The EEOC regulation
“carries the defense one step further” by allowing an employer to screen out a
potential employee on the basis of a direct threat to the employee himself. The
statutory language does not create a negative inference that disallows the
regulation. The interpretive canon expressio unius est exclusio alterius is
inapplicable. The statutory text itself, with the “expansive phrasing of ‘may
include,’ points directly away” from the expression-exclusion rule. Also, the
statute contains “no series of terms from which an omission bespeaks a negative
implication.” Finally, “there is no apparent stopping point to the argument” that
Congress intended to limit protection to those in the workplace; the specified
interest in protecting others in the workplace could not have been intended to
require the hiring of someone whose disability would endanger those outside the
workplace. Although the EEOC’s regulations implementing the Rehabilitation
Act of 1973 had explicit threat-to-self language, regulations of certain other
agencies did not, and Congress’s omission of any such language in the ADA
created no negative implication. The EEOC’s ADA regulation is a reasonable
means of resolving the “tension” between the ADA and the Occupational Safety
and Health Act, which has an objective of assuring a safe and healthful working
environment for all workers.

9-0. Opinion for unanimous Court by Souter.

Chickasaw Nation v. United States 122 S. Ct. 528, 70 USLW 4020 (11-27-01)
Indian Gaming Regulatory Act; Taxation, Federal: The Indian Gaming
Regulatory Act does not exempt tribes from paying taxes imposed by chapter

35 of the Internal Revenue Code. The relevant language, in 25 U.S.C.

§ 2719(d)(i), provides that “the provisions of [the Internal Revenue Code]
(including sections 1441, 3402(q), 6041, and 60501, and chapter 35 of such
Code) concerning the reporting and withholding of taxes with respect to the
winnings from gaming or wagering operations shall apply to Indian gaming
operations ... in the same manner as such provisions apply to State gaming and
wagering operations.” The issue arises because the referenced Chapter 35
simply imposes taxes, and has nothing to do with the reporting or withholding
of taxes. The language outside the parenthetical – “concerning the reporting and
withholding of taxes” – is “unambiguous,” and controls the references within.
Use of the parentheses indicates that Congress intended the references to be
“simply illustrative, hence redundant.” The reference to chapter 35 “is simply
a bad example” – a “drafting mistake” resulting from the failure to delete an
inappropriate cross-reference. The legislative history supports this
interpretation. The original Senate bill applied both to taxation and to reporting
and withholding, but the reference to “taxation” was deleted in committee
without explanation. It is difficult to believe that the committee substituted a
“confusion-generating numerical cross-reference” for pre-existing language that
was “unambiguous.” The “easier” explanation is that the committee

unintentionally failed to remove what had become a superfluous cross-
reference. Canons of interpretation, some of which support a contrary
conclusion, are not mandatory rules, but are “guides that need not be
conclusive.” Moreover, the canon that all words of a statute are to be given
effect is “offset” by the canon that permits a court to reject words as surplusage
if they were inadvertently inserted or repugnant to the rest of the statute; and the
canon that ambiguous statutes are to be interpreted to benefit Indian tribes is
“offset” in this case by the canon requiring that tax exemptions be clearly
7-2. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Kennedy, and
Ginsburg; and joined in part by Scalia and Thomas. Dissenting opinion by
O’Connor, joined by Souter.
Christopher v. Harbury 122 S. Ct. 2179, 70 USLW 4614 (6-20-02)
Access to courts: The plaintiff, who alleged that defendant government officials
denied her access to the courts by intentionally deceiving her in concealing
information about her husband, a foreign dissident being detained and tortured
in his own country by persons paid by the CIA, failed to state an actionable
claim. The point of recognizing an access claim “is to provide some effective
vindication for a separate and distinct right to seek judicial relief for some
wrong.” The access right is “ancillary to the underlying claim.” A complaint
that alleges denial of access therefore must describe the underlying cause of
action in accordance with Federal Rule of Civil Procedure 8(a), and, when the
claim looks backward as this one does, must identify a remedy that has been
foreclosed. The need to identify a viable claim is especially important in cases
challenging the conduct of foreign relations, where issues of separation of
powers may implicate the doctrine of constitutional avoidance. The complaint
in this case “did not even come close to stating a constitutional claim for denial
of access upon which relief could be granted.” The complaint identified neither
the underlying cause of action nor any remedy that was independent of relief that
might be available on one or more of the 24 other counts set forth in the
complaint. Even though a cause of action (intentional infliction of emotional
distress) was identified during oral argument in the appeals court, there was no
identification of a remedy that could not be obtained on an existing count.
9-0. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor, Scalia
Kennedy, Ginsburg, and Breyer. Concurring opinion by Thomas.
City of Columbus v. Ours Garage and Wrecker Serv., Inc. 122 S. Ct. 2226, 70 USLW

4620 (6-20-02)

Preemption, political subdivisions exercising state authority: An exception
to federal preemption of state and local regulation of motor carriers involved in
the transportation of property (49 U.S.C. § 14501(c)(2)(A)), applicable to “the
safety regulatory authority of a State,” applies as well to safety regulations of a
political subdivision of a state. “Absent a clear statement to the contrary,
Congress’ reference to the ‘regulatory authority of a State’ should be read to
preserve, not preempt, the traditional prerogative of the States to delegate their
authority to their constituent parts.” The fact that the general preemption rule
and two of the four exceptions to the rule apply to both a “State” and a “political
subdivision of a State” does not require a ruling that the exception at issue,
lacking any reference to a political subdivision, is inapplicable to regulation by

a political subdivision. While the disparate inclusion and exclusion of the words
“political subdivisions” “support an argument of some force,” a reading of the
language “with a view to the basic tenets of our federal system” requires the
conclusion that the language is not a “clear and manifest” indication of
congressional intent to supplant local authority. The inference from the absence
of any reference to “political subdivisions” “would be more persuasive” if that
omission were “the sole difference” in wording. Moreover, a “restrictive
reading” of the word “State” would introduce “an interpretive conundrum”: if the
safety exception were confined to states, then localities would be preempted from
enforcing as well as enacting safety regulations.

7-2. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, Kennedy,

Souter, Thomas, and Breyer. Dissenting opinion by Scalia, joined by O’Connor.
City of Los Angeles v. Alameda Books, Inc. 122 S. Ct. 1728, 70 USLW 4369 (5-13-02)
First Amendment, zoning, “adult entertainment” businesses: The City’s
ordinance prohibiting the operation of more than one adult-oriented “business”
(e.g., an adult bookstore or an adult video arcade) in the same building is not
invalid on its face. Under the rule announced in Renton v. Playtime Theatres
(1986), such regulations directed at the secondary effects of adult-oriented
businesses are subjected to “intermediate” rather than “strict” scrutiny under the
First Amendment, and are upheld if they are “designed to serve a substantial
government interest” and if “reasonable alternative avenues of communication
remain[ ] available.” Los Angeles relied on a 1977 study showing that crime
rates are higher in areas with higher concentrations of adult establishments. The
city’s reliance on this study to ban multiple-use adult establishments is both
rational and sufficient. Cities must have a reasonable opportunity to experiment,
and need only rely on evidence that is “reasonably believed to be relevant” to the
adverse secondary effects. Having established a link between crime and
concentration of adult-oriented establishments, the city could reasonably infer
that reducing the concentration of adult operations, whether located in separate
establishments or in the same establishment, would reduce crime in a
neighborhood. This is sufficient to defeat a motion for summary judgment.

5-4. No opinion of the Court. Opinion by O’Connor, joined by Rehnquist, Scalia,

and Thomas. Concurring opinions by Scalia; and by Kennedy. Dissenting
opinion by Souter, joined by Stevens and Ginsburg, and joined in part by Breyer.
Correctional Servs. Corp. v. Malesko 122 S. Ct. 515, 70 USLW 4013 (11-27-01)
Constitutional tort, Bivens action: The implied right of action for damages
against federal officers alleged to have violated a citizen’s constitutional rights,
recognized in Bivens v. Six Unknown Fed. Narcotics Agents (1971), does not
extend to allow recovery against a private corporation that operates a halfway
house for the Bureau of Prisons. Because the purpose of Bivens is “to deter the
officer, not the agency,” the Court in 1994 refused to extend Bivens to permit suit
against a federal agency. The Court reasoned that plaintiffs, if given a choice of
suing a federal agency or suing an individual officer who could assert qualified
immunity, would sue the agency, and that the deterrent effects of the remedy
against individuals would thereby be lost. The same principle applies here. If
suit is allowed against a corporate defendant, then “claimants will focus their
collection efforts on it, and not the individual directly responsible” for the
violation of constitutional rights. Because federal prisoners in facilities run by

the Bureau of Prisons cannot bring a Bivens action against the Bureau or the
United States, the issue of whether “asymmetrical liability costs” should be
imposed on private prison facilities should be resolved by Congress, not the
courts. Bivens was justified in part by the unavailability of alternative remedies,
but here there are the alternatives of grievance procedures, parallel tort remedies,
and injunctive relief in federal court.
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinion by Scalia, joined by Thomas. Dissenting opinion
by Stevens, joined by Souter, Ginsburg, and Breyer.
Devlin v. Scardelletti 122 S. Ct. 2005, 70 USLW 4496 (6-10-02)
Class actions, appeals: A non-named member of a class certified under Federal
Rule of Civil Procedure 23 who has objected in a timely manner to approval of
a settlement at the fairness hearing may bring an appeal without first intervening.
Earlier cases have established that only parties to a lawsuit may appeal an
adverse judgment, but the right to appeal has never been restricted to named
parties. Non-named class members may be parties for some purposes and not for
others. The district court’s approval of a settlement binds members of the class
and amounts to a final decision on the objections to the settlement that non-
named class members have raised at the court’s fairness hearing. Class members
have no opportunity to opt out of a settlement, and therefore “are parties to the
proceedings in the sense of being bound by the settlement.” The Government’s
request, as an amicus, that the Court require class members to intervene for
purposes of appeal, is rejected as being of little value.

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

Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Kennedy and
Dusenbery v. United States 122 S. Ct. 694, 70 USLW 4044 (1-8-02)
Due Process, forfeiture, adequacy of notice to prison inmate: When the
United States seeks to notify a federal prison inmate of its intention to forfeit
property in which the inmate may have an interest, due process is satisfied by the
sending of written notice via certified mail addressed to the prisoner at the
prison, even if the receipt for the mail is signed by a prison officer and there is
no proof that the prisoner ever received the notice. Mullane v. Central Hanover
Bank & Trust (1950), not Mathews v. Eldridge (1976), provides the appropriate
analytical framework for the adequacy of notice: whether the notice “was
reasonably calculated under all the circumstances” to apprise the prisoner of the
pendency of the forfeiture proceeding. To satisfy this standard, the government
need not provide actual notice, but must “make efforts to provide actual notice.”
Those efforts need not be “heroic,” but merely reasonably calculated to notify the
targeted party. The fact that the Bureau of Prisons has improved its procedures
after the attempted notification in this case, and now requires the prisoner
recipient to sign a logbook acknowledging delivery, does not mean that the prior
procedures were constitutionally inadequate.
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Dissenting opinion by Ginsburg, joined by Stevens, Souter, and Breyer.

Edelman v. Lynchburg College 122 S. Ct. 1145, 70 USLW 4198 (3-19-02)
EEOC, verification of charge: The EEOC’s relation-back regulation, allowing
an otherwise timely filer of an employment discrimination charge to submit an
oath verifying that charge after the time for filing has expired, is valid. Title VII
of the Civil Rights Act requires that “charges” must be “in writing under oath or
affirmation,” and by separate provision sets a time limit (180 or 300 days) for
filing. The EEOC regulation permits the relation back of a verifying oath or
affirmation “to the date the charge was first received.” Neither statutory
provision defines “charge,” and the two provisions need not be read together as
meaning that a submission is a “charge” only if accompanied by an oath or
affirmation. Such a reading would ignore “the two quite different objectives of
the timing and verification requirements.” Because the Court “so clearly agree[s]
with the EEOC,” there is no need to consider the degree of deference that should
be accorded to the agency’s regulation. Other considerations are that Title VII
was designed to enable laypersons to initiate the process, that courts have
frequently allowed relation back when oaths are required, and that Congress has
amended Title VII several times “without once casting doubt on the
Commission’s construction.”

9-0. Opinion of Court by Souter, joined by Rehnquist, Stevens, Kennedy,

Thomas, Ginsburg, and Breyer. Concurring opinions by Thomas; and by
O’Connor, joined by Scalia.
EEOC v. Waffle House, Inc. 122 S. Ct. 754, 70 USLW 4081 (1-15-02)
Arbitration, EEOC authority to sue on employee’s behalf: An agreement
between an employer and employee to arbitrate employment-related disputes
rather than taking them to court does not bar the Equal Employment Opportunity
Commission (EEOC) from pursuing victim-specific judicial relief, such as
backpay, reinstatement, and damages, in an enforcement action alleging that the
employer has violated the Americans with Disabilities Act (ADA). Title VII of
the Civil Rights Act, which gives the EEOC authority to bring enforcement
actions to enjoin employers from engaging in unlawful employment practices,
and to obtain reinstatement, backpay, and compensatory and punitive damages,
“unambiguously authorize[s] the EEOC to obtain the relief that it seeks” in this
case. Arbitration under the Federal Arbitration Act (FAA) is a matter of consent,
not coercion, and the EEOC has not agreed to arbitrate its claims. The FAA
authorizes courts to enforce arbitration agreements between private parties, but
does not mention enforcement by public agencies and does not limit the EEOC’s
authority under Title VII. The Fourth Circuit erred in concluding that the
“competing policies” of the ADA and the FAA required a holding that the EEOC
could obtain only injunctive relief, and not victim-specific relief. Nothing in the
language of the statutes or the arbitration agreement supports the lower court’s
conclusion. The EEOC does not need the employee’s consent in order to bring
an enforcement action, but rather is “the master of its own case,” both with
respect to evaluating the strength of the public interest at stake and with respect
to assessing the need for victim-specific relief. Conferral of authority on the
court to order other “appropriate” equitable relief does not supplant the EEOC’s
authority to determine what relief to seek, but rather is a “limited reference to
only a subcategory of claims for equitable relief, not damages.”

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

Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by Rehnquist and
Federal Maritime Comm’n v. South Carolina State Ports Auth. 122 S. Ct. 1864, 70
USLW 4464 (5-28-02)
State sovereign immunity, adjudication by federal agency: State sovereign
immunity bars the Federal Maritime Commission from adjudicating complaints
filed by a private party against a non-consenting state. The fact that the
Commission does not exercise the judicial power of the United States does not
resolve the case. The Eleventh Amendment, which provides that the judicial
power shall not extend to suits against a state by citizens of another state, “does
not define the scope of the States’ sovereign immunity, [but rather] is but one
particular exemplification of that immunity.” State sovereign immunity is
protected by the presumption that the Constitution does not “rais[e] up any
proceedings against the States that were anomalous and unheard of when the
Constitution was adopted.” Commission proceedings before administrative law
judges (ALJs) are “the type of proceedings from which the Framers would have
thought the States possessed immunity when they agreed to enter the Union.”
The similarities between Commission proceedings and civil litigation targeted
by the Eleventh Amendment are “overwhelming.” Administrative law judges
and trial judges are “functionally comparable,” and the proceedings themselves
share “numerous common features.” “The preeminent purpose of state sovereign
immunity is to accord States the dignity that is consistent with their status as
sovereign entities.” The “affront” to a state’s dignity is the same whether an
adjudication takes place in an Article III court or in an administrative tribunal.
Two arguments raised by the United States are “unavailing.” The fact that the
Commission cannot enforce its own orders, but must seek enforcement in federal
district court, is a “distinction without a significant difference.” States are still
in effect coerced into defending themselves before the Commission, because they
may not challenge the merits of a Commission order when defending against an
enforcement action in district court. The argument that Commission proceedings
do not present the same threat to the financial integrity of states as would private
lawsuits (Commission reparations orders must be enforced by the private party
receiving the award, and in such actions the state can use sovereign immunity to
bar recovery) misses the point that the sovereign immunity doctrine’s “central
purpose” is to accord the states “respect.” State sovereign immunity does not
yield to “the constitutional necessity of uniformity in the regulation of maritime
commerce.” The sovereign immunity bar applies regardless of the relief sought
against the state, whether it be a reparations order or a cease-and-desist order.
5-4. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Dissenting opinions by Stevens; and by Breyer, joined by Stevens,
Souter, and Ginsburg.
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. 122 S. Ct. 1831, 70 USLW 4458
Patents, equivalents, prosecution history estoppel: Prosecution history
estoppel is not limited to claim amendments made “to avoid the prior art,” but
can also arise when a claim is narrowed to comply with section 112 of the patent
law. Prosecution history estoppel requires that claims be interpreted in light of

the history of the application process, so that a patentee who has narrowed a
claim in response to a rejection may not claim protection for alleged
“equivalents” of surrendered aspects of the claim. Section 112 requires that
work be described in “full, clear, concise, and exact terms.” “A narrowing
amendment made to satisfy any requirement of the Patent Act may give rise to
an estoppel.” A section 112 amendment, “even if only for the purpose of better
description,” can operate to narrow a patent’s scope, and thus estoppel may
apply. However, by narrowing a patent claim by amendment, the patentee does
not necessarily surrender all equivalents to the amended claim element. The
court should presume that the patentee surrendered all subject matter between the
broader and narrower language, but the patentee may show (and bears the burden
of showing) that the amendment does not surrender the particular equivalent at
issue. In order to do so, the patentee must establish that “one skilled in the art
could not reasonably be expected to have drafted a claim that would have
literally encompassed the alleged equivalent.”

9-0. Opinion for unanimous Court by Kennedy.

Franconia Assocs. v. United States 122 S. Ct. 1993, 70 USLW 4532 (6-10-02)
Limitations period, Tucker Act: Enactment of the Emergency Low Income
Housing Preservation Act of 1987 (ELIHPA), which restricted prepayment of
Farmers Home Administration (FmHA) loans, did not constitute a breach of loan
agreements that guaranteed an absolute prepayment right. Rather, breach occurs,
and the six-year limitations period for bringing suit under the Tucker Act begins
to run, when a borrower tenders prepayment and the Government then dishonors
its obligation to accept the tender. The Government’s obligation under the
agreements was not merely to allow borrowers the right to prepay, but also to
accept prepayment and execute the appropriate releases when borrowers tender
prepayment. A promisor’s renunciation of a contractual duty before the time
fixed in the contract for performance is a “repudiation.” Enactment of ELIHPA
therefore effected a repudiation of FmHA loans, not an immediate breach. The
text of the limitations provision, 28 U.S.C. § 2501, which bars claims not filed
within six years after the claim “first accrues,” is “unexceptional,” and does not
require a holding that the “first” accrual occurred with ELIHPA’s enactment. A
plaintiff should not be penalized for allowing the defendant the opportunity to
retract a wrongful repudiation. Also, a contrary holding might have the
detrimental effect of provoking additional litigation. The fact that the statement
of intent not to perform was effected by an act of Congress does not render the
repudiation doctrine futile. Congress may still change its mind and retract its
repudiation in a later enactment.

9-0. Opinion for unanimous Court by Ginsburg.

Gisbrecht v. Barnhart 122 S. Ct. 1817, 70 USLW 4477 (5-28-02)
Attorney’s fees, Social Security Act: The provision of the Social Security Act
limiting fees that may be charged for representation of Social Security benefits
claimants in court does not prohibit contingency fee agreements, but does
instruct courts to review contingency fees for reasonableness. 42 U.S.C.
§ 406(b) provides that a court may allow “a reasonable fee ... not in excess of 25
percent of the ... past-due benefits” that are awarded to the claimant. The text of
the provision, which is “inconclusive,” “does not exclude” contingent fee

agreements that are within the 25 percent ceiling. The two principal approaches
to fees – the lodestar method and contingent fees – provide interpretive guidance.
The lodestar method is derived by multiplying the number of hours reasonably
expended on litigation by a reasonable hourly rate, and often governs the amount
of fees properly shifted to the loser in litigation. Fee shifting is not at issue,
however; section 406(b) addresses instead fees payable from a successful party’s
recovery. Historically, Social Security representation has operated on a
contingency fee basis. The concern in 1965 when the section was adopted was
that “inordinately large fees” were being charged. Against this background, it is
unlikely that Congress intended to outlaw contingency fees altogether, or to
substitute a “lodestar method courts did not develop until some years later.”
Rather, section 406(b)’s reference to “a reasonable fee” provides for court review
as an “independent check” on contingency fee agreements that fall within the 25
percent ceiling.

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

Kennedy, Souter, Thomas, and Breyer. Dissenting opinion by Scalia.
Gonzaga University v. Doe 122 S. Ct. 2268, 70 USLW 4577 (6-20-02)
Family Educational Rights and Privacy Act, private actions: A student may
not sue a private university for damages under 42 U.S.C. § 1983 to enforce
provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA).
Relevant provisions of FERPA create no rights that are enforceable under section
1983. FERPA conditions the receipt of federal funds by educational agencies
and institutions on compliance with requirements relating to access to and
disclosure of student educational records, and directs the Secretary of Education
to enforce these spending conditions by terminating funding if appropriate. The
general rule, announced in Pennhurst State School and Hospital v. Halderman
(1981), is that federal funding laws provide no basis for private enforcement by
section 1983 unless Congress “speaks with a clear voice” in creating such rights.
Only violation of a right, not violation of a law, gives rise to a section 1983
action, and the same standard (“no less and no more”) used to determine whether
a statute creates a private right of action determines whether a statute confers
rights enforceable under section 1983. The issue is “whether Congress intended
to create a federal right.” “There is no question that FERPA’s nondisclosure
provisions fail to confer enforceable rights.” FERPA’s provisions “speak only
to the Secretary of Education,” and speak only of “institutional policy and
practice,” not of individual instances of disclosure. This focus is “two steps
removed from the interests of individual students and parents.”
7-2. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinion by Breyer, joined by Souter. Dissenting opinion by
Stevens, joined by Ginsburg.
Great-West Life & Annuity Ins. Co. v. Knudson 122 S. Ct. 708, 70 USLW 4056 (1-8-


ERISA, action for “equitable relief”: An action to enforce a reimbursement
provision of a health benefits plan is not an action for “equitable relief” within
the meaning of ERISA § 503(a)(3). That section authorizes an action to enjoin
any act or practice that violates the terms of a plan, or to obtain “other
appropriate equitable relief.” This is a reference to relief that was available in
an equity court when equity and law courts formed a “divided bench.” This may

be “an ancient classification,” but it is a classification that Congress has “plainly”
specified in the statute, and therefore one that courts may not render “devoid of
reason and effect.” Typically, specific performance of a contract to pay money
was not available in equity. Classifying the action as one seeking “restitution”
does not make it an equitable action. Restitution was not an exclusively
equitable remedy, but rather was available in both legal and equitable actions,
depending on the basis of the claim and the nature of remedies sought. The kind
of restitution that the petitioners seek – recovery of funds no longer in the
respondent’s possession – was a legal action for imposition of personal liability
rather than an equitable action for a constructive trust or equitable lien on
particular property. Analogy to the common law of trusts is “inapposite.” A
general characterization of one of ERISA’s primary purposes as enabling
enforcement of a benefits plan is “inadequate to overcome the words of
[ERISA’s] text regarding the specific issue under consideration.”
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Dissenting opinions by Stevens; and by Ginsburg, joined by Stevens,
Souter, and Breyer.
Harris v. United States 122 S. Ct. 2406, 70 USLW 4655 (6-24-02)
Sentencing, mandatory minimum, right to jury trial: The federal law
penalizing use of a firearm while committing a crime of violence or a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A), establishes a single offense with a
choice of three mandatory minimum sentences, not three separate offenses. The
seven-year mandatory minimum sentence applicable if the firearm is
“brandished” during the offense is therefore a sentencing factor and not an
element of a separate offense, and the finding of “brandishing” may
constitutionally be made by the judge. The structure of the statutory provision
suggests that “brandishing” is a sentencing factor. The provision follows the
customary federal pattern of listing offense elements in a single sentence, and of
introducing the sentencing factors with the word “shall.” There is no federal
tradition of treating brandishing or discharging a firearm (the other action for
which the section specifies an increased mandatory minimum sentence) as
offense elements; on the contrary, the Sentencing Guidelines treat brandishing
and discharging as sentencing factors for “numerous” offenses. Moreover, the
effect on the defendant’s sentence is consistent with traditional understandings
about how sentencing factors operate. The section specifies no maximum
sentence, and the judge may impose a sentence of seven years or more with or
without a finding that the defendant brandished a firearm. The constitutional
issue is controlled by McMillan v. Pennsylvania (1986), upholding an increase
in the mandatory minimum for an offense based on a judge’s finding, by a
preponderance of the evidence, that the defendant had possessed a firearm.
Apprendi v. New Jersey (2000), holding that a jury must find facts on which a
sentence exceeding the statutory maximum is based, is not applicable.
5-4. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and
Breyer. Separate part of Kennedy opinion joined by Rehnquist, O’Connor, and
Scalia. Concurring opinions by O’Connor and by Breyer. Dissenting opinion by
Thomas, joined by Stevens, Souter, and Ginsburg.

Hoffman Plastic Compounds, Inc. v. NLRB 122 S. Ct. 1275, 70 USLW 4209 (3-27-02)
Labor, immigration: The National Labor Relation Board’s award of backpay
to an undocumented alien who was not authorized to work in the United States
is foreclosed by federal immigration policy set forth in the Immigration Reform
and Control Act of 1986 (IRCA). The NLRB’s discretion to fashion remedies
for violations of the National Labor Relations Act (NLRA) “is not unlimited.”
The Court has “consistently set aside awards” to employees who have engaged
in “serious illegal conduct” relating to their employment, and will not defer to the
NLRB where the Board’s remedies “potentially trench upon federal statutes and
policies unrelated to the NLRA” and outside the Board’s field of expertise. In
Sure-Tan v. NLRB (1984), for example, the Court resolved a potential conflict
between labor and immigration law by concluding that employees must be
deemed unavailable for reinstatement or backpay “during any period when they
were not lawfully entitled to be present and employed in the United States.” It
is unnecessary to decide whether Sure-Tan can be distinguished, because the
“legal landscape ... significantly changed” with enactment of IRCA, a
“comprehensive scheme” that makes it “impossible for an undocumented alien
to obtain employment in the United States without some party directly
contravening explicit congressional policies.” Awarding backpay to an alien
who has criminally violated IRCA by obtaining employment with false
documents “trivializes the immigration laws [and] encourages future violations.”
“Other significant sanctions” are available to the NLRB against an employer who
violates the NLRA by laying off employees who engage in union organizing
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Dissenting opinion by Breyer, joined by Stevens, Souter, and Ginsburg.
Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc. 122 S. Ct. 1889, 70
USLW 4489 (6-3-02)
Jurisdiction, review of patent law claim: The Court of Appeals for the Federal
Circuit lacks appellate jurisdiction over a case in which the complaint did not
allege a claim arising under federal patent law, but the answer contained a patent-
law counterclaim. The Federal Circuit has jurisdiction over an appeal from a
district court decision if the district court’s jurisdiction was based on 28 U.S.C.
§ 1338. Section 1338 confers jurisdiction on district courts over “any civil action
arising under any Act of Congress relating to patents.” “Arising under” is the
same operative language used in 28 U.S.C. § 1331, and should be given the same
construction. The “well-pleaded-complaint” rule has long governed whether a
case “arises under” federal law for purposes of section 1331. This means that the
issue of whether a case “arises under” patent law – and thus the issue of whether
the Federal Circuit has appellate jurisdiction – is resolved by reference to the
plaintiff’s complaint. Cases have established that “arising under” jurisdiction
cannot depend on a defendant’s answer. Because a counterclaim appears as part
of the defendant’s answer, a counterclaim cannot serve as the basis for a district
court’s “arising under” jurisdiction. To rule otherwise would contravene the
longstanding policy of allowing a plaintiff to choose a state court rather than a
federal court, and would “radically expand” the class of removable cases. The
argument that “arising under” should have a different meaning for the Federal
Circuit’s jurisdiction in order to promote the uniformity of patent law is not
“available”; the Court’s task is “not to determine what would further Congress’s

goal ... , but to determine what the words of the statute must fairly be understood
to mean.” Moreover, section 1338's “arising under” language cannot mean one
thing in its own right, but “something quite different” when referenced by
another provision.

9-0. Opinion of Court by Scalia, joined by Rehnquist, Kennedy, Souter, Thomas,

and Breyer, and joined in part by Stevens. Concurring opinions by Stevens; and
by Ginsburg, joined by O’Connor.
Hope v. Pelzer 122 S. Ct. 2508, 70 USLW 4710 (6-27-02)
Qualified immunity, Eighth Amendment claim: The alleged actions of
Alabama prison guards in handcuffing the prisoner to a hitching post for long
periods of time constituted cruel and unusual punishment in violation of the
Eighth Amendment. The defendant prison guards, moreover, were not entitled
to qualified immunity from a civil damages action. Qualified immunity is
appropriate if the alleged actions did not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” The
required “fair warning” that defeats qualified immunity may be present even in
the absence of case law precedent based on materially similar fact situations.
“General statements of the law are not inherently incapable of giving fair and
clear warning.” Here the prison guards had fair warning, derived from Eleventh
Circuit precedent, a state corrections department regulation, and a Department
of Justice report warning of the unconstitutionality of the practice, that their
conduct violated the Eighth Amendment. In addition, the “obvious cruelty” of
the practice should have provided the guards with “some notice” that their
conduct violated the prisoner’s constitutional rights.

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

Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by Rehnquist and
Horn v. Banks 122 S. Ct. 2147, 70 USLW 3772 (6-17-02)
Habeas corpus, Teague analysis: The Court of Appeals for the Third Circuit
erred in concluding that there was no need to apply Teague v. Lane (1989)
analysis to determine whether a Supreme Court decision should be applied
retroactively to a case on habeas review. Teague announced a general rule,
subject to exceptions, that new constitutional rules of criminal procedure should
not be applied to cases which have become final before the new rules were
announced. A federal court may decline to apply Teague if the state has not
argued it, but may not decline to apply Teague simply because state courts
neglected to do so during state habeas review. Nor does the Antiterrorism and
Effective Death Penalty Act (AEDPA) relieve courts of the responsibility to
conduct Teague analysis. The AEDPA and Teague inquiries are “distinct.”

9-0. Per curiam.

HUD v. Rucker 122 S. Ct. 1230, 70 USLW 4206 (3-26-02)
Public housing, eviction for drug activity: The Anti-Drug Abuse Act of 1988
unambiguously requires that lease terms in federally assisted low-income
housing programs must vest local public housing authorities with the discretion
to evict tenants for the drug-related activity of household members and guests
whether or not the tenant knew, or should have known, about the drug activity.

The “plain language” of 42 U.S.C. § 1437(d)(l)(6) precludes an “innocent tenant”
exception. That section authorizes termination of tenancy for “any drug-related
criminal activity ... engaged in by a public housing tenant, any member of the
tenant’s household, or any guest or other person under the tenant’s control.”
Congress’ decision not to impose any qualification in the statute, combined with
use of the word “any” to modify “drug-related criminal activity,” refutes any
knowledge requirement. An interpretation of “under the tenant’s control” as
modifying “member of the tenant’s household” “runs counter to basic rules of
grammar”; the phrase instead modifies only “other person.” Comparison to a
related statutory provision containing an “innocent owner” exception for civil
forfeiture “reinforces the unambiguous text,” demonstrating that “Congress knew
exactly how to provide an ‘innocent owner’ defense,” yet did not do so in §
1437(d)(l)(6). Because the statute is unambiguous, there is “no need” to consult
legislative history. The plain meaning does not produce an “absurd result,” since
the statute does not require eviction but merely authorizes it. Elimination of the
threat to other residents posed by drug crime is the “obvious reason” why
Congress would have authorized no-fault evictions. Because there is no statutory
ambiguity, the canon of constitutional avoidance is inapplicable. Moreover, no-
fault evictions for drug-related crime create no serious constitutional doubts.

8-0. Opinion for unanimous Court by Rehnquist. Breyer did not participate.

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. 122 S. Ct. 593, 70 USLW

4032 (12-10-01)

Patents, utility patents, plants: Utility patents may be issued for newly
developed plant breeds pursuant to 35 U.S.C. § 101. In Diamond v. Chakrabarty
(1980), the Court characterized the language of § 101, which extends patent
protection to “any new and useful ... manufacture, or composition of matter,” as
being “extremely broad,” and as covering man-made micro-organisms. The
Board of Patent Appeals and Interferences has held that plants are within the
provision’s coverage. Neither the Plant Patent Act of 1930 (PPA) nor the Plant
Variety Protection Act (PVPA) removes plants from § 101's coverage. By
enacting the PPA in 1930, Congress conferred patent protection on asexually
reproduced plants. Although Congress then believed that plants were not
patentable under § 101, the premises for that belief have been disproved over
time. As the Court concluded in Chakrabarty, the distinction is not “between
living and inanimate things, but between products of nature, whether living or
not, and human-made inventions.” The 1952 recodification that placed the plant
patent language in a separate section of the Code did not limit the scope of §
101's broad language, and thus was not an affirmative decision to deny patent
protection to sexually reproduced plants. The PVPA, enacted in 1970, extended
patent protection to certain sexually reproduced plants, but contained no
statement that its coverage was intended to be the exclusive means of protecting
sexually reproducing plants. Repeals by implication are disfavored, and the two
statutes are capable of coexistence. The requirements for obtaining a utility
patent under § 101 are more stringent than those for obtaining a PVP certificate,
and the protections afforded by a utility patent are more extensive than those
afforded by a PVP certificate. Dual protection by statutes that overlap is
permissible so long as each reaches some distinct cases. Finally, although the
Patent and Trademark Office has issued 1,800 patents for plants, Congress has

not only failed to pass legislation disapproving this practice, but has passed one
law that suggests a recognition that plants are patentable under § 101.

6-2. Opinion of Court by Thomas, joined by Rehnquist, Scalia, Kennedy, Souter,

and Ginsburg. Concurring opinion by Scalia. Dissenting opinion by Breyer,
joined by Stevens. O’Connor did not participate.
JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd. 122 S. Ct. 2054,

70 USLW 4520 (6-10-02)

Federal courts, alienage diversity jurisdiction: A corporation organized under
the laws of the British Virgin Islands is a “citizen or subject of a foreign state”
for purposes of alienage diversity jurisdiction under 28 U.S.C. § 1332(a)(2).
That provision grants federal district courts jurisdiction over actions between
“citizens of a state and citizens or subjects of a foreign state.” Although the
British Virgin Islands is not recognized by the United States as an independent
foreign state, it is a British Overseas Territory, and its citizens are at least
“nationals” of the United Kingdom for purposes of alienage diversity
jurisdiction. Alienage jurisdiction of federal courts was authorized by Article III
of the Constitution because the “notoriously frosty” reception that foreign
creditors received in state courts was an impediment to international relations
and foreign investment. The jurisdictional statute had the same purpose. “Given
the object of the alienage statute, ... there is no serious question that ‘nationals’
were meant to be amenable to the jurisdiction of the federal courts.”

9-0. Opinion for unanimous Court by Souter.

Kansas v. Crane 122 S. Ct. 867, 70 USLW 4117 (1-22-02)
Sexual predator law, civil commitment: Civil commitment of a dangerous
sexual predator need not be based on a finding that the person is completely
unable to control his behavior. Rather, “there must be proof of serious difficulty
in controlling behavior,” and this proof “must be sufficient to distinguish [such
sexual predators subject to commitment] from the dangerous but typical
recidivist convicted in an ordinary criminal case.” The Kansas Supreme Court
misread Kansas v. Hendricks (1997) as requiring an “absolutist approach.”
“[T]he Constitution’s safeguards of human liberty in the area of mental illness
and the law are not always best enforced through precise bright-line rules.” The
Court instead will proceed “deliberately and contextually” in this area. Both
Hendricks and this case involved “volitional” impairments, so there is no need
to determine whether confinement based solely on an “emotional” abnormality
would be constitutional.

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

Kennedy, Souter, and Ginsburg. Dissenting opinion by Scalia, joined by Thomas.
Kelly v. South Carolina 122 S. Ct. 726, 70 USLW 4068 (1-9-02)
Due Process, capital sentencing, jury instruction on parole ineligibility: The
rule announced in two previous South Carolina cases (Simmons v. South
Carolina (1994) and Shafer v. South Carolina (2001)) – that a capital defendant
is entitled to inform the jury of his parole ineligibility under a sentence of life
imprisonment without possibility of parole, if that sentence and a death sentence
are the only sentencing alternatives, and if the defendant’s future dangerousness
is at issue – is not limited to situations in which the prosecutor states an intent

to prove future dangerousness. Rather, the rule applies to situations in which a
logical inference of future dangerousness may be drawn from the evidence.
Here, an inference of future dangerousness could be drawn from evidence of the
defendant’s violent behavior in prison, from evidence of his dangerous character,
and from the prosecutor’s description of him as a “dangerous” “bloody”
“butcher” who was “more frightening than a serial killer.” The fact that the jury
did not ask the court for further instruction on parole eligibility does not alter the
judge’s duty to give instructions adequate to explain the law.
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Dissenting opinions by Rehnquist, joined by Kennedy; and by Thomas,
joined by Scalia.
Kirk v. Louisiana 122 S. Ct. 2458, 70 USLW (6-24-02)
Fourth Amendment, entry into home: Police need either a warrant or probable
cause plus exigent circumstances to make a lawful entry into a home to conduct
a search or to make an arrest. Payton v. New York (1980) governs. Louisiana
courts erred in concluding that probable cause was sufficient justification for a
warrantless entry into a home, and that the issue of whether exigent
circumstances had existed was “irrelevant.”

9-0. Per curiam.

Lapides v. Board of Regents 122 S. Ct. 1640, 70 USLW 4425 (5-13-02)
Eleventh Amendment, removal to federal court: A state waives its Eleventh
Amendment immunity from suit in federal court when it removes a case from
state to federal court. The Court has long recognized that a state’s voluntary
appearance in federal court, as an intervenor or as a plaintiff, amounts to a waiver
of Eleventh Amendment immunity. By removing a case from state to federal
court, a state voluntarily invokes the federal court’s jurisdiction, and thereby
brings itself within the general principle of waiver by voluntary action. Cases
requiring a “clear” indication of a state’s intent are distinguishable when waivers
are effected by litigation conduct, and in any event the litigation act of removal
“is clear.” A benign motive, e.g., helping co-defendants avail themselves of
generous federal rules, “cannot make the critical difference.” The fact that state
law may not authorize the attorney general to waive the state’s Eleventh
Amendment immunity does not prevent waiver. Ford Motor Co. v. Department
of Treasury of Indiana (1945), relying on a similar state law to recognize
immunity after a state defendant had litigated in federal court, is overruled
“insofar as it would otherwise apply.” Holding that voluntary invocations of
federal jurisdiction constitute waiver of immunity is a “clear” rule that is easily
applied by both federal courts and the states themselves, and that avoids “the
problems of inconsistency and unfairness that a contrary rule of law would

9-0. Opinion for unanimous Court by Breyer.

Lee v. Kemna 122 S. Ct. 877, 70 USLW 4104 (1-22-02)
Habeas corpus, adequate state grounds to bar federal relief: Missouri
procedural rules, first injected into the case by a state appellate court, did not
constitute state grounds adequate to bar federal habeas corpus review. The
defendant’s motion for a brief continuance to allow time to locate his alibi

witnesses, who had been present but had left the courtroom, was denied by the
trial judge on the basis that the judge had a personal matter to attend to the next
day and another trial scheduled to begin on the following business day. The trial
judge also opined that the alibi witnesses had “in effect abandoned the
defendant.” Neither the prosecutor nor the trial judge identified any procedural
flaw in the presentation or content of the continuance motion. In dismissing the
appeal, however, the Missouri Court of Appeals cited non-compliance with rules
requiring that the continuance motion be submitted in writing, and specifying the
requisite showings for obtaining a continuance based on absence of witnesses.
Under the circumstances, where the court had “the information needed to rule
intelligently on the merits of the motion” and the petitioner “had substantially,
if imperfectly” made the required showing, the petitioner’s right to defend his
case “should not depend on a formal ritual ... that would further no perceivable
state interest.” Although ordinarily “violation of firmly established and regularly
followed state rules” will be adequate to foreclose federal review, there are
“exceptional cases” such as this one “in which exorbitant application of a
generally sound rule renders the state ground inadequate to stop consideration of
a federal question.”

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

Souter, and Breyer. Dissenting opinion by Kennedy, joined by Scalia and
McKune v. Lile 122 S. Ct. 2017, 70 USLW 4502 (6-10-02)
Self-incrimination, sexual abuse treatment program: The Kansas Sexual
Abuse Treatment Program, which requires participants to admit responsibility for
the crime for which they have been sentenced and to complete a sexual history
form detailing all prior sexual activities, does not violate a prisoner’s privilege
against self-incrimination. (A prisoner who testified at trial may risk prosecution
for perjury by admitting responsibility for his crime; a prisoner who has
committed crimes for which he has not been charged may risk prosecution by
revealing prior sexual activity.) Refusal to participate in the treatment program
results in a reduction of privileges within prison and transfer to a maximum
security unit, but does not extend the term of imprisonment or affect eligibility
for good-time credits or parole. These consequences, which can be described as
“minor” changes in living conditions, are not serious enough to compel a
prisoner to be a witness against himself. Although the penalties for refusal to
participate in the treatment program are the same as those imposed for prison
disciplinary violations, and give a prisoner a reason not to violate prison rules,
it would take more to compel a prisoner to expose himself to additional criminal

5-4. No opinion of Court. Opinion by Kennedy announcing Court’s judgment,

joined by Rehnquist, Scalia, and Thomas. Concurring opinion by O’Connor.
Dissenting opinion by Stevens, joined by Souter, Ginsburg, and Breyer.
Mickens v. Taylor 122 S. Ct. 1237, 70 USLW 4216 (3-27-02)
Sixth Amendment, attorney’s conflict of interest: In order to demonstrate a
violation of the Sixth Amendment right to the assistance of counsel when the
trial court has failed to inquire into the defense counsel’s potential conflict of
interest, about which the trial court knew or reasonably should have known, a
criminal defendant must establish that the conflict of interest adversely affected

his counsel’s performance. The situation in this case, in which court-appointed
defense counsel had been representing the murder victim at the time of the crime,
falls under the general rule established in Strickland v. Washington (1984), that
a defendant alleging a Sixth Amendment violation must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Exceptions authorizing automatic
reversal have been recognized for “situations in which the conviction will
reasonably not be regarded as fundamentally fair,” as, for example, when the
defense attorney, over his timely objection, must actively represent the
conflicting interests of co-defendants. Absent a timely objection by counsel
representing multiple defendants, however, a defendant must establish that his
counsel’s performance was affected by the conflict of interest. The trial court’s
failure to inquire into a potential conflict does not reduce this burden of proof for
the defendant. Moreover, a conflict caused by prior representation may be
treated differently than conflicts caused by concurrent representation.
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Concurring opinion by Kennedy, joined by O’Connor. Dissenting
opinions by Stevens; by Souter; and by Breyer, joined by Ginsburg.
National Cable & Telecommunications Ass’n v. Gulf Power Co. 122 S. Ct. 782, 70
USLW 4094 (1-16-02)
Pole attachments, high-speed Internet and wireless access: The Federal
Communications Commission (FCC) has jurisdiction under the Pole
Attachments Act to regulate rates that utility companies charge for pole
attachments for commingled high-speed Internet and traditional cable television
services, and for wireless telecommunications providers. These attachments “fall
within the heartland of the Act.” The Act requires the FCC to “regulate the rates,
terms, and conditions for pole attachments,” and defines these to include “any
attachment by a cable television system.” The addition of high-speed Internet
service to a cable that provides cable television service “does not change the
character of the attaching entity,” and it is the attaching entity – not the nature of
service – that determines jurisdiction under the Act. The fact that the Act
contains specific authority for two types of rates – one for attachments by cable
companies “solely to provide cable service,” the other for attachments by
telecommunications companies – does not mean that these are the exclusive rates
allowed, or that attachments not corresponding to either rate category are
disallowed. If the attachments at issue do not fall into either rate category, “this
would simply mean that the FCC must prescribe just and reasonable rates for
them.” The attachment of equipment of wireless telecommunications providers
is also subject to regulation under the Act. Pole attachments are defined to
include “any attachment by a ... provider of telecommunications service,” and
“telecommunications service” in turn is defined as the offering of
telecommunications to the public “regardless of the facilities used.”
6-2 (commingled cable, Internet); 8-0 (wireless telecommunications). Opinion of
Court by Kennedy, joined by Rehnquist, Stevens, Scalia, Ginsburg, and Breyer;
and joined in part by Thomas and Souter. Concurring and dissenting opinion by
Thomas, joined by Souter.

National Railroad Passenger Corp. v. Morgan 122 S. Ct. 2061, 70 USLW 4524 (6-10-


Limitations period, Title VII: A Title VII plaintiff raising claims of discrete
discriminatory or retaliatory acts must file his charge within the appropriate
number of days (180 or 300 days, as set forth in 42 U.S.C. § 2000e-5(e)(1))
following the occurrence of the discrete act. A charge alleging a hostile work
environment, however, will not be time barred so long as at least one of the
multiple acts that together created the hostile environment took place within the
time period. The statute provides that a charge “shall be filed” within the
requisite number of days “after the alleged unlawful employment practice
occurred.” There is usually no issue as to when a “discrete” discriminatory or
retaliatory act such as termination, failure to promote, denial of transfer, or
refusal to hire, occurred. Each such discrete discriminatory act “starts a new
clock” for filing charges. Hostile environment claims, on the other hand, are
based on the cumulative effect of individual acts, and cannot be said to occur on
any particular day. The series of separate acts collectively constitute one
“unlawful employment practice” within the meaning of the statute. Provided that
at least one act contributing to the claim occurs within the filing period, “the
entire time period of the hostile environment may be considered [in] determining
liability.” The act on which a filing is based need not be the last act; it is
possible that an unlawful practice has “occurred” even if it is continuing.
Employers have recourse, e.g., by raising a laches defense, if a plaintiff
unreasonably delays filing.

9-0 (discrete acts); 5-4 (hostile environment). Opinion of Court by Thomas,

joined by Stevens, Souter, Ginsburg, and Breyer; and joined in part by Rehnquist,
O’Connor, Scalia, and Kennedy. Concurring and dissenting opinion by
O’Connor, joined by Rehnquist, joined in part by Scalia and Kennedy, and joined
in separate part by Breyer.
Nebraska v. Wyoming 122 S. Ct. 585, 70 USLW 4338 (11-13-01)
Apportionment of North Platte River water: The Final Settlement and
Stipulation among the states of Colorado, Wyoming, and Nebraska, which
modifies the equitable apportionment of the North Platte River and includes the
parties’ agreement to create the North Platte Decree Committee to assist in
monitoring and administering the decree, is approved and adopted.

9-0. Per curiam.

New York v. FERC 122 S. Ct. 1012, 70 USLW 4166 (3-4-02)
Electricity regulation, FERC jurisdiction: The Federal Energy Regulatory
Commission (FERC) had jurisdiction to include “unbundled” retail transmissions
(those transmissions for which the costs of transmission and the costs of
electrical energy are separately billed for retail customers) within the scope of an
order that electric utilities provide competitors with non-discriminatory “open
access” to transmission services. FERC also had the authority not to include
“bundled” retail sales within the scope of the order. The “plain language of the
FPA [Federal Power Act] readily supports FERC’s claim of jurisdiction.” The
FPA grants FERC authority to regulate “the transmission of electric energy in
interstate commerce” and “the sale of electric energy at wholesale in interstate
commerce,” and also prohibits unreasonable rates and undue discrimination with
respect to covered transactions. FERC’s jurisdiction over transmissions is not

limited to the wholesale market. Due to the interconnected nature of the power
grids in the continental United States, “any electricity that enters the grid
immediately becomes part of a vast pool of energy that is constantly moving in
interstate commerce.” Consequently, the unbundled retail transmissions
regulated by FERC are “transmissions of electric energy in interstate commerce”
that are subject to FERC jurisdiction. The FPA went beyond merely closing the
“Attleboro” gap in regulation of wholesale, interstate transactions that are beyond
a state’s jurisdiction. The presumption against preemption, applicable when state
and federal laws conflict, is inapplicable in a case such as this, when the issue
instead is whether a federal agency is acting within the scope of its authority.
The FPA’s general policy statement about intent to preserve state jurisdiction,
echoed in the legislative history, “cannot nullify a clear and specific grant of
jurisdiction, even if the particular grant seems inconsistent with the broadly
expressed purpose.” Moreover, the legislative history “is not particularly helpful
because of the interim developments in the electric industry.” FERC had the
discretion to determine that it was not necessary to apply its open access remedy
to bundled retail transmissions. FERC did not rule that it lacked jurisdiction
over bundled sales, but rather sought to remedy a problem of discrimination in
the wholesale power market, and determined that its regulation of the wholesale
and unbundled markets was a sufficient response.
9-0 (jurisdiction over unbundled sales); 6-3 (decision not to regulate bundled
sales). Opinion of Court by Stevens, unanimous in part; and joined in separate
part by Rehnquist, O’Connor, Souter, Ginsburg, and Breyer. Concurring and
dissenting opinion by Thomas, joined by Scalia and Kennedy.
Owasso Indep. Sch. Dist. v. Falvo 122 S. Ct. 934, 70 USLW 4123 (2-19-02)
Educational privacy, peer grading: The practice of “peer grading,” under
which school teachers require students to score each others’ tests, is not
prohibited by the Family Educational Rights and Privacy Act of 1974. The Act
authorizes the withholding of federal funds from school districts that have a
policy or practice of permitting the release of “education records” of students
without their parents’ written consent. “Education records” are defined as
records directly related to a student which “are maintained by an educational
agency or institution or by a person acting for such agency or institution.”
Student papers subject to peer grading “are not, at that stage, ‘maintained’”
within the meaning of the definition. Moreover, a student grader is not “a person
acting for” an educational institution in maintaining records. “Correcting a
classmate’s work can be as much a part of the assignment as taking the test
itself,” and the Act does not prohibit such educational techniques. Other sections
of the Act support this interpretation. The school must “maintain a record” of
those who have requested access to a student’s education records, and this
requirement would become a “weighty administrative burden” on teachers if it
were applied in the peer grading context. The fact that this record of access is
to be kept with the education records suggests that the records are to be kept by
a “single central custodian.” Also, parents are entitled to a hearing to contest the
accuracy of education records, and it is doubtful that Congress intended to
authorize such formal challenges to the grading of each test or paper. Courts
should “hesitate” before interpreting a statute to “intervene in [such] drastic
fashion with traditional state functions.”

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

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Scalia.
Porter v. Nussle 122 S. Ct. 983, 70 USLW 4155 (2-26-02)
Prison Litigation Reform Act, exhaustion of administrative remedies: The
exhaustion requirement of the Prison Litigation Reform Act of 1995 (PLRA)
“applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or
some other wrong.” The Act provides that “no action shall be brought with
respect to prison conditions ... by a prisoner ... until such administrative remedies
as are available are exhausted.” In the context of enactment, it is clear that this
requirement “applies to all prisoners seeking redress for prison circumstances or
occurrences.” The Act was adopted to make exhaustion mandatory and to
“reduce the quantity and improve the quality of prisoner suits.” In 1991 the
Court had interpreted the term “prison conditions,” used in a similar context, to
include isolated incidents of excessive force as well as ongoing prison
conditions. There is no suggestion that Congress intended the PLRA to depart
from this interpretation and divide prisoner petitions into separate categories.
Indeed, it makes “scant sense” that Congress would have intended to dispense
with an exhaustion requirement for single-occurrence assaults while retaining the
requirement for widespread or routine beatings.

9-0. Opinion for unanimous Court by Ginsburg.

Ragsdale v. Wolverine World Wide, Inc. 122 S. Ct. 1155, 70 USLW 4191 (3-19-02)
Family and Medical Leave Act: A regulation penalizing an employer for failure
to comply with notification requirements of the Family and Medical Leave Act
(FMLA) “is contrary to the Act and beyond the Secretary of Labor’s authority.”
The statute requires employers to post information about employee rights under
FMLA, and imposes a small monetary penalty for non-compliance. The
regulation provides that, if an employee takes medical leave and the employer
does not designate the leave as FMLA leave and so notify the employee, the
leave taken does not count against the employee’s FMLA entitlement. In this
case the employer granted the employee 30 weeks of leave rather than the “total
of 12" required by the FMLA, but did not notify the employee that her leave
counted as FMLA leave. The regulation would have penalized the employer by
requiring that it grant an additional 12 weeks of leave. Even if the regulation’s
additional notice requirement is valid, the categorical penalty for its breach “is
contrary to the Act’s remedial design.” The FMLA authorizes damages and
equitable relief only if an employee establishes that she has been prejudiced by
a violation, yet the penalty regulation establishes an “irrebuttable” presumption
that an employee’s rights have been impaired. The regulation also has the effect
of entitling an employee to reinstatement and back pay. Not only does the
regulation work “an end run around important limitations” of FMLA, it also
“amends the FMLA’s most fundamental substantive guarantee – the employee’s
entitlement to ‘a total of 12 workweeks of leave.’” Finally, the penalty
regulation is “in considerable tension with the statute’s admonition” that it not
be construed to discourage employers from adopting “more generous” policies
than the Act requires.

5-4. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, Scalia, and
Thomas. Dissenting opinion by O’Connor, joined by Souter, Ginsburg, and
Raygor v. Regents of Univ. of Minnesota 122 S. Ct. 999, 70 USLW 4159 (2-27-02)
Eleventh Amendment, pendent jurisdiction, tolling of limitations period:
The supplemental jurisdiction statute, 28 U.S.C. § 1367, does not toll the
limitations period applicable to state law claims that are brought in state courts
after having been dismissed in federal court on Eleventh Amendment grounds.
The statute authorizes federal district courts to assert supplemental jurisdiction
over state law claims that are “part of the same case or controversy” as the
federal claim, and provides that the limitations period for “any” such state law
claim that is “asserted” shall be tolled during the pendency of the action in
federal court and for 30 days thereafter. The Eleventh Amendment bars the
adjudication in federal court of pendent (supplemental) state law claims against
non-consenting state defendants, and in that context constitutes “an explicit
limitation on federal jurisdiction.” Congress may abrogate states’ Eleventh
Amendment immunity only with “unmistakably clear” statutory language. The
language of section 1367 that tolls state limitations periods is not unmistakably
clear. “On its face,” the language “purports to apply to ‘any claim asserted,’” and
thus could be read to apply to claims that are asserted but later dismissed on
Eleventh Amendment grounds. But the Court has held that such general
language is insufficient to satisfy clear statement requirements. A clear
statement rule is appropriate because application of the tolling requirement to
extend the time for filing in state court would raise “serious” constitutional
doubts. If applied in this manner, the provision “at least affects the federal
balance in an area that has been a historic power of the States, whether or not it
constitutes an abrogation of state sovereign immunity.” The State did not
“unequivocally” express a consent to be sued in federal court, and hence did not
waive its Eleventh Amendment immunity.
6-3. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas; and joined in part by Ginsburg. Concurring opinion by Ginsburg.
Dissenting opinion by Stevens, joined by Souter and Breyer.
Republican Party of Minnesota v. White 122 S. Ct. 2528, 70 USLW 4720 (6-27-02)
First Amendment, limitation on judicial candidates’ speech: A canon of
judicial conduct adopted by the Minnesota Supreme Court that prohibits a
candidate for judicial office from “announc[ing] his or her views on disputed
legal or political issues” violates the First Amendment. Because this “announce
clause” prohibits speech on the basis of its content and burdens political speech
“at the core of our First Amendment freedoms,” strict scrutiny applies: the clause
must be “narrowly tailored” to serve a “compelling” state interest. The announce
clause is not narrowly tailored to serve the compelling interests of preserving the
impartiality and the appearance of impartiality of the state judiciary. Because the
clause restricts speech on the basis of issues, not parties, it is clearly not narrowly
tailored to serve impartiality in the traditional sense of lack of bias for or against
either party. Impartiality defined as “lack of preconception in favor of or against
a particular legal view” is not a compelling state interest, since “avoiding judicial
preconceptions on legal issues is neither possible nor desirable.” The clause is
“woefully underinclusive” if it is designed to promote “impartiality” in the sense

of “openmindedness,” since it prohibits speech by judges “only at certain times
and in certain forms.” The premise “that the special context of electioneering
justifies an abridgment of the right to speak out on disputed issues sets our First
Amendment jurisprudence on its head.” The Court has “never allowed the
government to prohibit candidates from communicating relevant information to
voters during an election.”
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Concurring opinions by O’Connor and by Kennedy. Dissenting
opinions by Stevens, joined by Souter, Ginsburg, and Breyer; and by Ginsburg,
joined by Stevens, Souter, and Breyer.
Ring v. Arizona 122 S. Ct. 2458, 70 USLW 4666 (6-24-02)
Sixth Amendment right to jury trial, capital sentencing: Arizona’s capital
sentencing law violates the Sixth Amendment right to jury trial by allowing a
sentencing judge to find an aggravating circumstance necessary for imposition
of the death penalty. Walton v. Arizona (1990), holding that the Sixth
Amendment does not require that specific findings authorizing the imposition of
a death sentence be made by the jury, is overruled. The Court established the
governing principle in Apprendi v. New Jersey (2000), holding that any fact
(other than the fact of a prior conviction) 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 “relevant inquiry is one not of form, but
of effect.” In effect, the required finding of an aggravating circumstance exposed
the defendant to a greater punishment than that authorized by the jury’s guilty
verdict. Characterizing a fact or circumstance as a “sentencing factor” rather
than an “element” of a crime “is not determinative of the question ‘who decides,’
judge or jury.” The fact that states have constructed “elaborate” capital
sentencing procedures in order to comply with requirements derived from the
Eighth Amendment does not require that capital defendants be denied the
constitutional protection recognized in Apprendi. Nor does the right to jury trial
depend on “the relative rationality, fairness, or efficiency” of potential
factfinders. “The right to trial by jury ... would be senselessly diminished if it
encompasses the factfinding necessary to increase a defendant’s sentence by two
years, but not the factfinding necessary to put him to death.”

7-2. Opinion of Court by Ginsburg, joined by Stevens, Scalia, Kennedy, Souter,

and Thomas. Concurring opinions by Scalia, joined by Thomas; by Kennedy; and
by Breyer. Dissenting opinion by O’Connor, joined by Rehnquist.
Rush Prudential HMO, Inc. v. Moran 122 S. Ct. 2151, 70 USLW 4600 (6-20-02)
ERISA, preemption: ERISA does not preempt section 4-10 of the Illinois
Health Maintenance Organization Act, which provides HMO subscribers with
a right to independent medical review of certain denials of benefits. ERISA
broadly preempts any state laws that “relate to” employee benefit plans, but
makes an exception for state laws that “regulat[e] insurance.” It is “beyond
serious dispute” that the Illinois HMO Act “relates to” employee benefit plans
within the meaning of ERISA, so the issue becomes whether the exception for
insurance regulation applies. The first aspect of determining whether a law
regulates insurance is “a common-sense enquiry” that focuses on the “primary
elements of an insurance contract” – the spreading and underwriting of a
policyholder’s risk. HMOs are both health care providers and insurers, and in

the latter capacity “actually underwrite and spread risk among their participants.”
Congress has understood this fact about HMOs “from the start,” beginning with
enactment of the HMO Act of 1973. The Illinois law also satisfies tests used to
determine whether a law regulates insurance for purposes of the McCarran-
Ferguson Act: it regulates an integral part of the policy relationship between
insurer and insured, and it does not apply to entities outside the insurance
industry. There is no federal uniformity policy embodied in ERISA that
overrides the preemption exception for state laws regulating insurance. The
Illinois provision imposes no new obligation or remedy that is inconsistent with
ERISA objectives. Restricting an insurer’s autonomy in defining “terms
congenial to its own interests” is “inseparable from enforcing the quintessentially
state-law standards of reasonable medical care.”
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Rehnquist, Scalia, and
Sao Paulo State v. American Tobacco Co. 122 S. Ct. 1290, 70 USLW 3613 (4-1-02)
Judges, disqualification: A federal district court judge whose name had
appeared erroneously, prior to his appointment to the bench, on a motion to file
an amicus brief in a similar suit against some of the same defendants, need not
have disqualified himself. 28 U.S.C. § 455(a) requires a judge to disqualify
himself “in any proceeding in which his impartiality might reasonably be
questioned.” The Court held in a 1988 case that this language requires
disqualification “‘if a reasonable person, knowing all the circumstances, would
expect that the judge would have actual knowledge’ of his interest or bias in the
case.” The Fifth Circuit erred in requiring recusal in this case based on what a
reasonable person would believe without knowing all of the circumstances – i.e.,
without knowing that the judge’s name had been added mistakenly and without
his knowledge to a pro forma motion filed by a trial lawyer’s association. The
motion had erroneously listed the judge as president of the association even
though he had retired from that position six months earlier.

9-0. Per curiam.

SEC v. Zandford 122 S. Ct. 1899, 70 USLW 4485 (6-3-02)
Securities fraud: A stockbroker entrusted with a power of attorney to engage in
securities transactions without his customer’s prior approval violated section
10(b) of the Securities Exchange Act of 1934 as well as SEC Rule 10b-5 by
selling the customer’s securities and using the proceeds for his own benefit. The
fraud was “in connection with the purchase or sale of any security” within the
meaning of the Act and rule. Among Congress’s objectives in passing the 1934
Act was “to insure honest securities markets and thereby promote investor
confidence” after the market crash of 1929. Consequently, the Act should be
construed “flexibly to effectuate its remedial purposes.” The SEC’s broad
reading of section 10(b) as covering the sale of securities with the intent to
misappropriate the proceeds is reasonable, and entitled to deference. Several
earlier decisions of the Court support this interpretation. In this case the
securities sales and the broker’s fraudulent practices were not independent
events, but rather were properly viewed as a “course of business.” To be covered
under the prohibition, fraud need not involve an affirmative misrepresentation,

or manipulation of a particular security. The fraud in this case prevents investors
from trusting their brokers to execute transactions for their benefit, and also
undermines the value of a discretionary account.

9-0. Opinion for unanimous Court by Stevens.

Stewart v. Smith 122 S. Ct. 2578, 70 USLW 3796 (6-28-02)
Habeas corpus, procedural default: The ruling of the Arizona Supreme Court
dismissing the petitioner’s state habeas corpus petition for failure to comply with
an Arizona rule of criminal procedure was based on state law grounds
independent of federal law. The Arizona rule, which provides for waiver of
habeas claims that have not been raised in earlier habeas petitions, does not
require courts to evaluate the merits of the particular claim. In fact, the state
court ruling did not depend on evaluation of the merits of the petitioner’s
ineffective-assistance-of-counsel claim. Because the petitioner defaulted on the
federal claim in state court and the state ruling was based on state procedural
grounds independent of the federal claim, the federal petition may also be barred.

9-0. Per curiam.

Swierkiewicz v. Sorema N.A. 122 S. Ct. 992, 70 USLW 4152 (2-26-02)
Civil procedure, specificity of complaint: A complaint in an employment
discrimination suit need not contain specific facts establishing a prima facie case
of discrimination. Rather, as provided by Federal Rule of Civil Procedure
8(a)(2), the complaint need only contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” and providing the defendant fair
notice of what the claim is and the grounds upon which it rests. The simplified
notice pleading system of which Rule 8(a) is a part was adopted to focus
litigation on the merits of a claim. Liberal discovery rules and summary
judgment motions are available to define disputed facts and issues. The prima
facie requirement set forth in McDonnell Douglas Corp. v. Green (1973) is an
evidentiary standard, not a pleading requirement. There are limited exceptions
to simplified pleading, but there is no heightened standard for employment
discrimination suits.

9-0. Opinion for unanimous Court by Thomas.

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency 122 S. Ct.

1465, 70 USLW 4260 (4-23-02)

Taking of property, moratorium on development: Two consecutive moratoria
on development of environmentally sensitive lands within the Lake Tahoe Basin,
lasting a total of 32 months while the Tahoe Regional Planning Agency was
preparing a comprehensive land use plan, did not constitute a per se taking of
property within the meaning of the Fifth Amendment. The issue of whether a
temporary moratorium on property development constitutes a taking is best
analyzed under the ad hoc, factual approach set out in the Penn Central case
(1978), and not under per se rules that are applied when government takes
physical possession of property. Precedents from the physical takings context are
generally inappropriate in the context of regulatory takings. The Court
recognized a “narrow exception” in the Lucas case (1992) by establishing a
categorical rule for regulatory takings that effect a permanent deprivation of all
beneficial use of property, but the temporary moratoria at issue do not fall within

that exception. The period of time during which the property was subject to the
moratoria may not be severed from the remainder of a fee simple property estate
in order to invoke the Lucas exception; the appropriate focus is on “the parcel as
a whole.” Both temporal and spatial dimensions must be considered if a property
interest is to be viewed in its entirety. “[B]ecause the property will recover value
as soon as the prohibition is lifted,” a fee simple estate is not rendered valueless
by a temporary prohibition on economic use. The Court’s decision in First
English (1987) is not controlling; there the Court dealt with valuation of
property, and did not rule on whether the temporary regulation at issue had
constituted a taking. Finally, considerations of fairness and justice do not require
creation of a new categorical rule for moratoria. An “extreme” rule that would
require compensation for any deprivation of all economic use, no matter how
brief, “would render routine government processes prohibitively expensive or
encourage hasty decisionmaking.” A narrower rule, excluding normal delays
associated with the processing of permits, or applicable only if delays exceed one
year, “would still impose serious financial constraints on the planning process.”
Although a one-year moratorium may well be viewed with “special skepticism,”
“in some cases a 1-year moratorium may not impose a burden at all.” Fairness
and justice “will best be served” by relying on the flexible Penn Central
approach, “rather than by attempting to craft a new categorical rule.”

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

Ginsburg, and Breyer. Dissenting opinions by Rehnquist, joined by Scalia and
Thomas; and by Thomas, joined by Scalia.
Thomas v. Chicago Park Dist. 122 S. Ct. 775, 70 USLW 4091 (1-15-02)
First Amendment, permit for use of park: Chicago’s municipal park
ordinance, which requires individuals to obtain a permit before conducting large-
scale events in a park, need not contain the procedural safeguards described in
Freedman v. Maryland (1965). Freedman involved a licensing board authorized
to censor movies based on their content, and the Court imposed safeguards
limiting the operation of prior restraint and requiring expeditious judicial review.
Chicago’s licensing scheme governing park use “is not subject-matter censorship
but content-neutral time, place, and manner regulation of the use of a public
forum.” The various grounds for denying a permit “are reasonably specific and
objective,” being designed to coordinate multiple uses of limited space and to
ensure financial accountability for damage caused by an event, and have nothing
to do with the content of speech. The fact that permit denial is discretionary
rather than mandatory when any of the listed grounds for denial are met does not
invalidate the ordinance. If this authority is abused by favoring or disfavoring
certain speakers, any such abuse “must be dealt with if and when a pattern of
unlawful favoritism appears.”

9-0. Opinion for unanimous Court by Scalia.

Thompson v. Western States Medical Center 122 S. Ct. 1497, 70 USLW 4275 (4-29-02)
First Amendment, commercial speech: Section 503A of the Federal Food,
Drug, and Cosmetic Act, added by the Food and Drug Administration
Modernization Act of 1997 to exempt “compounded drugs” from the regular
FDA approval process if providers comply with several restrictions, including
that they refrain from advertising or promoting the compounded drugs, violates

the First Amendment. “Compounded drugs” are drugs not commercially
available that a pharmacist, pursuant to prescription, specially tailors for
individual needs. The advertising restriction does not meet the Central Hudson
test for acceptable governmental regulation of commercial speech. Under
Central Hudson, government may regulate commercial speech that does not
relate to unlawful activity and that is not misleading if the asserted governmental
interest is “substantial,” if the regulation directly advances that interest, and if the
regulation “is not more extensive than is necessary to serve that interest.” The
government has an “important” interest in preventing the exemption for small-
scale compounding from becoming a loophole by which large-scale drug
manufacturing can avoid the FDA drug approval process. Even assuming that
drugs cannot be marketed on a large scale without advertising, the government
failed to demonstrate that the advertising restriction is “not more extensive than
is necessary” to serve its interest. “[R]egulating speech must be a last – not first
– resort,” and there are several non-speech-related means by which government
might achieve its interests in distinguishing compounding and large-scale
manufacturing. These include banning the use of commercial-scale equipment
in the compounding process, prohibiting sale of compounded drugs at wholesale,
prohibiting or limiting out-of-state sales, and various means of restricting the
amount of compounded drugs that a pharmacist may produce. The government
“has not offered any reason why these possibilities, alone or in combination,
would be insufficient” to achieve its objective. A hypothesized governmental
interest in limiting the sale of compounded drugs to patients who may not need
them, but who respond to advertisements by asking their doctors to prescribe
them, would not justify the advertising restriction. The fear that people would
make bad decisions if given truthful information is not a valid basis for
restricting speech.
5-4. Opinion of Court by O’Connor, joined by Scalia, Kennedy, Souter, and
Thomas. Concurring opinion by Thomas. Dissenting opinion by Breyer, joined
by Rehnquist, Stevens, and Ginsburg.
Toyota Motor Mfg., Ky., Inc. v. Williams 122 S. Ct. 681, 70 USLW 4050 (1-8-02)
Americans With Disabilities Act, definition of “disability”: A showing that
a physical impairment such as carpal tunnel syndrome affects an individual’s
ability to perform manual tasks at work does not establish that the employee is
disabled within the meaning of the ADA. When the ADA’s definition of
“disability,” which requires “a physical or mental impairment that substantially
limits one or more of the major life activities,” is applied to the major life
activity of “performing manual tasks,” an individual must be found to have an
impairment “that prevents or severely restricts the individual from doing
activities that are of central importance to most people’s daily lives.” A medical
diagnosis of impairment does not alone suffice. An “individualized assessment”
of the effects of an impairment is especially important for an impairment like
carpal tunnel syndrome, for which symptoms vary widely from individual to
individual. Moreover, “occupation-specific tasks may have only limited
relevance to the manual tasks inquiry.” The proper inquiry is whether the
claimant is unable to perform the variety of manual tasks that are central to most
people’s daily lives, e.g., household chores, bathing, and brushing one’s teeth.

9-0. Opinion for unanimous Court by O’Connor.

TRW Inc. v. Andrews 122 S. Ct. 441, 70 USLW 4006 (11-13-01)
Fair Credit Reporting Act, limitations period: The two-year statute of
limitations period that governs suits brought under the Fair Credit Reporting Act
is not a discovery rule. The provision, set forth in 15 U.S.C. § 1681p, states a
general rule that an action may be brought “within two years from the date on
which the liability arises,” and makes an exception for certain cases involving
willful misrepresentation, which may be brought within two years of the
plaintiff’s “discovery” of the misrepresentation. The Court of Appeals for the
Ninth Circuit erred in ruling that the FCRA’s limitations period falls within a
“general” federal discovery rule. It is not necessary to decide whether there is
such a general federal discovery rule, because “the text and structure of §1681p
evince Congress’ intent to preclude judicial implication of a discovery rule.”
The “most natural reading” of the provision is that “Congress implicitly excluded
a general discovery rule by explicitly including a more limited one.” A general
discovery rule would for practical purposes render the exception almost entirely
superfluous, and it is a “cardinal principle of statutory construction ... that no
clause, sentence, or word should be superfluous, void, or insignificant.” The
words “date on which the liability arises” do not require a discovery rule, and are
“not particularly instructive.” The provision’s legislative history is “similarly
unhelpful.” While Congress abandoned initial language that would have tied the
start of the limitations period to “the date of the occurrence of the violation,” it
also declined to include language tying the period to “the date on which the
violation is discovered.”

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

Kennedy, Souter, and Breyer. Concurring opinion by Scalia, joined by Thomas.
United States Postal Serv. v. Gregory 122 S. Ct. 431, 70 USLW 4001 (11-13-01)
Civil Service Reform Act: The Merit System Protection Board has broad
discretion under the Civil Service Reform Act to determine how to review prior
disciplinary actions that are pending during its review of a termination or other
serious disciplinary action. The Federal Circuit erred in its “sweeping” ruling
that the Board may never rely on prior disciplinary actions that are still subject
to ongoing review. The Board’s decisions should be reviewed under an
arbitrariness standard, and there was “nothing arbitrary about the Board’s
decision to independently review prior disciplinary actions.” The Board has
applied this policy consistently for 19 years, and, in view of the possible
alternatives – either waiting for the pending disciplinary actions to be resolved
or ignoring them altogether in the termination action – did not lack reasons for
its policy. The independent review of pending actions does not violate the
CSRA. The Board’s authority to review the serious disciplinary action of
termination must include the authority to review the series of disciplinary actions
on which the termination was based, even though some of those actions were
minor actions that the Board could not have reviewed independently.

9-0. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, Scalia,

Kennedy, Souter, Thomas, and Breyer. Concurring opinions by Thomas and
United States v. Arvizu 122 S. Ct. 744, 70 USLW 4076 (1-15-02)
Fourth Amendment, vehicle stop based on “reasonable suspicion”: A border
patrol agent had reasonable suspicion to stop a minivan traveling on unpaved

roads in a possible attempt to evade a border patrol checkpoint on the highway.
“Reasonable suspicion to believe that criminal activity may be afoot” is all that
the Fourth Amendment requires for an investigatory stop. In reviewing such
cases, courts must look at the “totality of the circumstances” to determine
whether the detaining officer, drawing on his experience as an officer, had a
“particularized and objective basis” for suspecting legal wrongdoing. The Ninth
Circuit departed from the totality of the circumstances inquiry by excluding
seven of the ten factors relied on by the officer as carrying little or no weight in
isolation, and by ruling that the remaining three were insufficient to render the
stop permissible. A determination that reasonable suspicion exists “need not rule
out the possibility of innocent conduct.” While each of the factors relied on by
the agent was susceptible to an innocent explanation, they sufficed, taken
together, to create a reasonable suspicion.

9-0. Opinion for unanimous Court by Rehnquist. Concurring opinion by Scalia.

United States v. Bass 122 S. Ct. 2389, 70 USLW 3797 (6-28-02)
Discovery, claim of racially selective prosecution: The defendant was not
entitled to a discovery order requiring the Government to provide information
relating to its decisions to seek the death penalty. Under United States v.
Armstrong (1996), a defendant seeking discovery on a claim of selective
prosecution must show some evidence of discriminatory intent and
discriminatory effect. The evidence of discriminatory effect must show that
similarly situated defendants of a different race were not prosecuted. The
defendant’s submission, consisting of nationwide statistics broken down only by
race, was inadequate to demonstrate discriminatory effect because it provided no
information about similarly situated defendants.

9-0. Per curiam.

United States v. Cotton 122 S. Ct. 1781, 70 USLW 4429 (5-20-02)
Plain error, defective indictment: The appeals court erred in vacating an
enhanced sentence because of a defective indictment about which the defendant
had not objected at trial. The indictment had omitted the factual basis for
increasing the sentence beyond the prescribed statutory maximum. It alleged
distribution and possession of a “detectable amount” of cocaine base – an offense
punishable by no more than 20 years’ imprisonment – but did not allege offenses
involving at least 50 grams, and punishable by imprisonment for life. The
defendant was sentenced to 30 years’ imprisonment. A defective indictment is
not a jurisdictional error that deprives a court of power to adjudicate a case. The
issue, therefore, involves application of the “plain error” test of Federal Rule of
Criminal Procedure 52(b). The error in this case was “plain.” There is no need
to determine whether the plain error affected “substantial rights,” however,
because the final part of the test was not satisfied: “the error did not seriously
affect the fairness, integrity, or public reputation of judicial proceedings.” The
evidence that the drug conspiracy involved at least 50 grams of cocaine base was
“overwhelming” and “essentially uncontroverted.”

9-0. Opinion for unanimous Court by Rehnquist.

United States v. Craft 122 S. Ct. 1414, 70 USLW 4249 (4-17-02)
Taxation, Federal, tax lien on “entireties” property: A federal tax lien may
attach to the taxpayer’s interest in property that the taxpayer and his spouse own
jointly in a “tenancy by the entirety.” A spouse’s share in a tenancy by the
entirety constitutes “property” or “rights to property” within the meaning of the
federal tax lien statute, 26 U.S.C. § 6321. What constitutes “property” under the
statute is “ultimately a question of federal law,” the answer to which “largely
depends upon” the substance but not the “labels” of state law. The Michigan
Supreme Court has “characterize[d]” a tenancy by the entirety as creating no
individual rights in a spouse that are separable from that of the other spouse. A
spouse does, however, have the right to use the property, the right to exclude
third parties from it, the right of survivorship, the right to become a tenant in
common upon divorce, the right to sell or encumber the property with his
spouse’s consent, and the right to block his spouse from selling or encumbering
the property unilaterally. These rights give a spouse “a substantial degree of
control” over entireties property, and therefore qualify as “property” or “rights
to property” under section 6321. It is already established, in a case involving
homestead property, that federal tax liens may attach to property that the taxpayer
may not alienate unilaterally. Legislative history indicating that in 1954 the
Senate rejected an amendment with explicit language making an interest in a
tenancy by the entirety subject to a tax lien is not persuasive. Failed legislative
proposals, and congressional inaction in general, lack persuasive force, and there
is some evidence that the rejected amendment was deemed superfluous. A
common law rule that tax liens could not attach to entireties property was not so
well established at the time of enactment as to require the presumption that
Congress intended the rule to control interpretation.

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

Ginsburg, and Breyer. Dissenting opinions by Scalia, joined by Thomas; and by
Thomas, joined by Stevens and Scalia.
United States v. Drayton 122 S. Ct. 2105, 70 USLW 4552 (6-17-02)
Fourth Amendment, search of bus passengers: Police officers who confront
passengers on a bus and ask to search their luggage and persons need not advise
the passengers of their right not to cooperate. The standard announced in Florida
v. Bostick (1991) – whether a reasonable person would feel free to terminate the
encounter – determines whether there was a seizure. The bus passengers in this
case were neither seized nor searched unreasonably when three police officers
got on a bus stopped at a station, one stationed himself in the rear facing forward,
one stationed himself in the front facing rearward, and the third proceeded from
back to front questioning passengers. There were ample grounds for the district
court to conclude that everything that took place between the officers and the
passenger was “cooperative,” and that there was nothing “coercive or
confrontational” about the encounter. An officer asked the defendant’s traveling
companion whether he objected to having his luggage and person searched, and
the companion gave his consent. After the officer found drugs on the
companion’s person, he asked the defendant whether he objected to being
searched, and the defendant indicated his consent. Under the totality of the
circumstances, the search was voluntary, and hence reasonable.

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

Thomas, and Breyer. Dissenting opinion by Souter, joined by Stevens and
United States v. Fior D’Italia, Inc. 122 S. Ct. 2117, 70 USLW 4565 (6-17-02)
Taxation, Federal, FICA taxes: The aggregate estimation method used by the
IRS to account for employees’ tips in calculating an employer’s Federal
Insurance Contribution Act (FICA) tax is authorized by the statute. The IRS has
the authority to make “assessments of all taxes ... which have not been duly
paid,” and this necessarily includes the authority to estimate an individual’s tax
liability if the method used is “reasonable.” The FICA tax is imposed on
“wages” paid by an employer, and the term “wages” is defined to include tips
“received by an employee in the course of his employment.” The respondent’s
linguistic argument “makes too much out of too little.” The fact that the
definitional language speaks in the singular is overborne by the fact that the
“operational” sections speak in the plural. The fact that other statutory
provisions authorize the IRS to use estimation for other purposes does not create
a negative implication that the IRS may not do so in calculating the tips
component of wages. The fact that the aggregate estimate will sometimes be
inaccurate does not mean that its use is unreasonable; a taxpayer remains free to
show that the method likely produced an inaccurate result in his case. Moreover,
the respondent did not establish that individualized assessments would inevitably
produce a more reasonable result than the estimates. An alleged “fairness”
problem created by an IRS regulation that directs the employer to calculate FICA
taxes on the basis of tips reported by employees is alleviated by the fact that
penalties do not attach until after the employer refuses an IRS demand for
payment based on estimated tips not reported. The “abuse of power” argument
also fails. Use of aggregate estimates is not prohibited by the statutes that protect
restaurants from onerous monitoring requirements.

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

Kennedy, and Ginsburg. Dissenting opinion by Souter, joined by Scalia and
United States v. Knights 122 S. Ct. 587, 70 USLW 4029 (12-10-01)
Fourth Amendment, search as condition of probation: A warrantless search
of a probationer subject to a probation order allowing law enforcement officers
to search him and his property at any time does not violate the Fourth
Amendment if the search is supported by reasonable suspicion. Searches
pursuant to such a probation condition need not be limited to those with a
probationary purpose. Griffin v. Wisconsin (1987), in which the Court upheld
searches of probationers as justified by a “special need” for supervision to assure
that probation restrictions are observed, expressly reserved the question of
whether searches of probationers are otherwise reasonable under the Fourth
Amendment. Probation status informs both sides of the Fourth Amendment
reasonableness balance. Probation is a form of criminal sanction. Criminal
sanctions by their nature curtail freedoms enjoyed by law-abiding citizens, and
the search condition significantly diminished the probationer’s reasonable
expectation of privacy. On the other side of the balance, the governmental
interest in protecting society from the increased probability that a probationer
will engage in criminal conduct justifies a lesser-than-probable-cause standard

for probationers. “When an officer has reasonable suspicion that a probationer
subject to a search condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion on the
probationer’s diminished privacy interests is reasonable.” Because the search in
this case passes the reasonableness test, the Court declines to decide whether the
respondent’s acceptance of the search condition constituted consent.

9-0. Opinion for unanimous Court by Rehnquist. Concurring opinion by Souter.

United States v. Ruiz 122 S. Ct. 2450, 70 USLW 4677 (6-24-02)
Sixth Amendment right to fair trial, waiver: A criminal defendant may waive
her right to receive impeachment information from the prosecution relating to
any informants or other witnesses, and also may waive her right to receive
information supporting any affirmative defense. The government’s action in
withdrawing its offer of a plea bargain because the defendant refused to waive
those rights, therefore, was not unconstitutional. The right to receive exculpatory
impeachment information from prosecutors before trial is part of the Sixth
Amendment’s basic “fair trial” guarantee. By pleading guilty, however, a
defendant forgoes the right to a fair trial and other accompanying constitutional
guarantees. Disclosure of impeachment information is an important aspect of the
fairness of a trial, but is not of special importance in relation to whether a plea
or waiver is voluntary. A waiver is voluntary if the defendant understands the
nature of the right and how it applies in general; there is no requirement that a
defendant also understand the specifics of the prosecution’s case and the specific
consequences of invoking or waiving the right. Due process considerations also
weigh against recognition of a right to receive impeachment information prior
to a guilty plea. The value to the defendant may be limited, and the harm to the
government’s interests in securing guilty pleas and conducting ongoing
investigations may be significant. Similar considerations govern a defendant’s
waiver of her right to receive government information regarding any affirmative
defenses the defendant may have.

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

Kennedy, Souter, and Ginsburg. Concurring opinion by Thomas.
United States v. Vonn 122 S. Ct. 1043, 70 USLW 4181 (3-4-02)
Criminal procedure, acceptance of guilty plea, harmless error: A defendant
who lets Rule 11 error pass without objection in the trial court must carry the
burden imposed by Rule 52(b) to establish that the error affected his substantive
rights. Rule 11 of the Federal Rules of Criminal Procedure requires that a judge,
prior to accepting a guilty plea, inform the defendant about the charges he faces
and the rights he will have if he proceeds to trial. Rule 11(h) adds a harmless
error rule applicable if the trial judge fails to adhere to Rule 11's requirements:
a violation “that does not affect substantial rights shall be disregarded.” This
restates Rule 52(a)’s general harmless error rule applicable to errors at trial, and
places the burden on the government to establish that the error was “harmless.”
Rule 52(b) provides that a defendant who failed to object to a “plain error” at
trial may still raise the issue on appeal, but places the burden on the defendant
to establish that his “substantial rights” were affected. Rule 11(h), added after
Rule 11 was revised to place more detailed requirements on the trial judge, did
not supplant applicability of Rule 52(b) for a defendant who fails to object to a

Rule 11 error. Otherwise, a defendant would lose nothing by failing to object to
obvious Rule 11 error when it occurs. The issue is not resolved by the text of the
rules. The interpretive canon attaching a negative inference to Congress’s
inclusion of a provision without a companion provision with which it is usually
paired is at best “only a guide,” and gives way to contrary indications. One
contrary indication is provided by the conflicting interpretational rule that repeals
by implication are disfavored. There is no “persuasive” reason to believe that
Rule 11(h) was intended to repeal Rule 52(b) for every Rule 11 case. In
determining the effect of a Rule 11 error, a court is not limited to the record of
the plea proceeding, but may look to the record of preliminary proceedings as
well. Because the defendant was informed in preliminary stages of his right to
counsel if he proceeded to trial, the case is remanded so that the Court of
Appeals can take this information into account.
8-1 (merits); 9-0 (remand). Opinion of Court by Souter, unanimous in part, and
joined in separate part by Rehnquist, O’Connor, Scalia, Kennedy, Thomas,
Ginsburg, and Breyer. Opinion by Stevens concurring in part and dissenting in
US Airways, Inc. v. Barnett 122 S. Ct. 1516, 70 USLW 4285 (4-29-02)
Americans with Disabilities Act, seniority rules: An employer’s showing that
an accommodation requested by an employee with a disability conflicts with the
rules of a seniority system is ordinarily sufficient to establish that the requested
accommodation is not “reasonable” within the meaning of the Americans with
Disabilities Act (ADA), and to entitle the employer to summary judgment. The
ADA does not create an absolute rule always favoring seniority systems or
always favoring a requested accommodation in spite of conflict with seniority
rules. But “ordinarily ... in the run of cases,” seniority rules will prevail. There
is case law precedent favoring seniority rights in the context of religious
discrimination under Title VII, and also under “the linguistically similar
Rehabilitation Act.” A seniority system, whether the result of collective
bargaining or whether unilaterally imposed by management, “provides important
employee benefits by creating, and fulfilling, employee expectations of fair,
uniform treatment.” To require a “typical employer to show more than the
existence of a seniority system might undermine the employees’ expectations of
consistent, uniform treatment.” “Nothing” in the ADA suggests that Congress
“intended to undermine seniority systems in this way.” However, once the
employer has established that an accommodation conflicts with seniority rules,
the employee may attempt to establish that “special circumstances” require a
different result, as would be the case, for example, if the employer “fairly
frequently” changes the seniority system unilaterally, and thereby diminishes
employee expectations to the point where one more departure would “not likely
make a difference.”
5-4. Opinion of Court by Breyer, joined by Rehnquist, Stevens, O’Connor, and
Kennedy. Concurring opinions by Stevens and O’Connor. Dissenting opinions
by Scalia, joined by Thomas; and by Souter, joined by Ginsburg.
Utah v. Evans 122 S. Ct. 2191, 70 USLW 4628 (6-20-02)
Census, “hot-deck” imputation method: The Census Bureau’s use of a
methodology called “hot-deck imputation” does not violate a statutory
prohibition on using a “statistical method known as ‘sampling’” for purposes of

apportionment of Representatives, and is not inconsistent with the Constitution’s
reference to an “actual enumeration” of population. Utah has standing to sue.
The relevant statutes do not bar post-census lawsuits or bar revision of the
certification of population on which apportionment of Representatives is based,
and it is “likely” that Utah’s success in this action “would bring about the
ultimate relief that Utah seeks.” “Hot-deck imputation” is a method, using
current (2000) census data, to fill in missing or confused information by
imputing to an address or unit the same population characteristics as a nearby
address or unit of the same type. Sampling, by contrast, relies on information
gathered from a subset of the whole to project information about the whole. The
two methods differ, therefore, in the nature of the enterprise, the methodology
used, and the objective. Moreover, “the history of the sampling statute suggests
that Congress did not have imputation in mind in 1958 when it wrote that law.”
The Census Bureau was then relying on data from small subsets of the
population to project answers to “subsidiary census questions” (e.g., about
automobile and telephone usage), and asked Congress for explicit authority to
continue the practice. The Bureau did not object to the restriction on sampling
for purposes of reapportionment, and did not suggest that the restriction would
impair its ability to continue to engage in apportionment-related imputation. For
many years the Bureau has interpreted the statute to permit imputation, and
Congress has enacted related legislation without changing that interpretation.
The Constitution’s reference in Art. I, § 2, cl. 3 to an “actual enumeration” does
not preclude use of imputation to fill in census data. The “general word
‘enumeration’ refers to a counting process without describing the count’s
methodological details.” In context, the word “actual” refers to the enumeration
to be used for apportioning the Third Congress. The history of the constitutional
phrase supports this interpretation. The Convention’s Committee of Style, which
had no authority to alter meaning, substituted the words “actual enumeration” for
language providing that the number of inhabitants “shall be taken in such manner
as [Congress] may direct.” Both versions served to distinguish the census from
the process of apportionment for the first Congress. “Enumeration” did not refer
to counting methodology in contemporaneous general usage, and
contemporaneous legal documents did not use the term in any specialized way.
The Constitution’s framers “did not write detailed census methodology into the
Constitution.” Imputation is constitutionally permissible in circumstances where
“all efforts have been made to reach every household, ... [and] where the
alternative is to make a far less accurate assessment.”

7-1 (statute); 5-2 (Census Clause); 8-1 (standing). Opinion of Court by Breyer,

joined by Rehnquist, Stevens, Souter, and Ginsburg. Concurring and dissenting
opinion by O’Connor. Concurring and dissenting opinion by Thomas, joined by
Kennedy. Dissenting opinion by Scalia.
Verizon Communications, Inc. v. FCC 122 S. Ct. 1646, 70 USLW 4396 (5-13-02)
Telecommunications Act of 1996, FCC regulation of equipment leasing: The
FCC can require state commissions to set the rates that “incumbents” may charge
new entrants for leasing elements of local telephone systems on a “forward-
looking” basis not tied to the incumbents’ investment. In the
Telecommunications Act of 1996, “Congress called for ratemaking different
from any historical practices, to achieve the entirely new objective of uprooting
the monopolies” and encouraging competitors by giving them “every possible

incentive to enter local retail telephone markets, short of confiscating the
incumbents’ property.” The FCC’s interpretation of the Act is a reasonable one
that is entitled to deference under Chevron principles. In implementing the Act’s
directive that state commissions set “just and reasonable” and
“nondiscriminatory” rates that are based on “the cost of providing the ... network
element,” the FCC specified by regulation a “forward-looking economic cost”
equal to the sum of the total element long-run incremental cost of the element
(“TELRIC”) and a reasonable allocation of forward-looking common costs. The
word “cost” is a “chameleon” dependent on its statutory setting, and need not be
tied to an incumbent’s actual, “historical” cost. The conferral of authority to set
“just and reasonable” rates “leaves methodology largely subject to discretion.”
The incumbents’ argument that TELRIC assumes perfect competition is
mistaken. It was not unreasonable for the FCC to choose TELRIC over the
alternative methodologies suggested by the incumbents, and the data over a four-
year period indicates that “substantial competitive capital spending” by entrants
has occurred under TELRIC. “TELRIC appears to be a reasonable policy for
now, and that is all that counts.” The rule of constitutional avoidance is
inapplicable because the incumbents have presented no evidence of TELRIC
rates and consequently have made no showing that any particular rates are
confiscatory. The FCC’s rules that require incumbents to “combine” unbundled
elements of their phone networks at the request of entrants who cannot
themselves combine them are also reasonable under Chevron. The statute’s
language, directing incumbents to provide unbundled elements “in a manner that
allows requesting carriers to combine such elements” is “not that plain,” and the
issue is one “of context as much as grammar.” Requiring incumbents to
combine elements is “consistent with the Act’s goals of competition and
7-1 (rates); 6-2 (combined elements rules). Opinion of Court by Souter, joined
by Rehnquist, Stevens, Kennedy, and Ginsburg; and joined in overlapping and
separate parts by Scalia and Thomas. Concurring and dissenting opinion by
Breyer, joined in part by Scalia. O’Connor did not participate.
Verizon Maryland, Inc. v. Public Serv. Comm’n 122 S. Ct. 1753, 70 USLW 4432 (5-


Telecommunications; federal court jurisdiction; Eleventh Amendment:
Federal district courts have jurisdiction over a telecommunication carrier’s claim
that the order of a state utility commission requiring reciprocal compensation for
telephone calls to Internet service providers violates federal law. Federal courts
have “federal question” jurisdiction under 28 U.S.C. § 1331 to determine
whether the state commission’s regulation is preempted by the
Telecommunications Act of 1996 or by an FCC ruling issued thereunder. The
fact that a section of the Act (47 U.S.C. § 252(e)(6)) provides for federal review
of certain agreements does not eliminate jurisdiction to review other agreements
and actions under section 1331. It is unnecessary to determine whether the state
commission waived its Eleventh Amendment immunity by voluntary
participation in the regulatory regime established by the Act, because Verizon
may proceed against individual commissioners pursuant to the doctrine of Ex
parte Young (1908). Verizon alleges an ongoing violation, and seeks only
prospective relief, not damages. The request that state officials be restrained
from enforcing an order in contravention of federal law “clearly satisfies” the

Young standard. The request for declaratory relief seeks to establish the
invalidity of past actions, but seeks no damages for past actions. Jurisdiction
under the Young exception is not affected by the merits of the preemption claim.
The 1996 Act does not evidence an intent to foreclose jurisdiction under Young.

8-0. Opinion for unanimous Court by Scalia. Concurring opinions by Kennedy;

and by Souter, joined by Ginsburg and Breyer. O’Connor did not participate.
Watchtower Bible & Tract Soc’y v. Village of Stratton 122 S. Ct. 2080, 70 USLW 4540
First Amendment, door-to-door advocacy: The village’s ordinance making it
a misdemeanor offense to engage in door-to-door advocacy without first
registering with the mayor and receiving a permit, required to be shown to an
officer or resident who so requests, violates the First Amendment. The Court has
invalidated restrictions on door-to-door canvassing and pamphleteering in a
series of cases, most of which, as does this case, involved Jehovah’s Witnesses.
The free and unhampered distribution of pamphlets is “an age-old form of
missionary evangelism,” and is important as well for the dissemination of other
ideas unrelated to religion. The asserted interests that the village seeks to protect
– the prevention of fraud, prevention of crime, and protection of privacy – are
“important.” Nevertheless, the breadth of the ordinance, extending to religious
and political as well as commercial speech, “raises constitutional concerns.” It
is “offensive ... to the very notion of a free society” that a citizen must first
inform the government before speaking to her neighbors. The requirement that
a canvasser when requested exhibit her permit, containing identification, requires
surrender of anonymity. Disclosure of identity may be required in some
circumstances, but the ordinance, “covering unpopular causes unrelated to
commercial transactions or to any special interest in protecting the electoral
process,” sweeps too broadly. The ordinance also suppresses speech by persons
with religious scruples against applying for a license, and effectively bans
spontaneous speech. The ordinance is not narrowly tailored to the village’s
stated interests. Prevention of fraud does not justify application to non-
commercial transactions, protection of privacy is amply served by allowing the
posting of “no-solicitation” signs, and the permit requirement is unlikely to
preclude criminals from knocking on doors.

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

Ginsburg, and Breyer. Concurring opinions by Breyer, joined by Souter and
Ginsburg; and by Scalia, joined by Thomas. Dissenting opinion by Rehnquist.
Wisconsin Dep’t of Health and Family Servs. v. Blumer 122 S. Ct. 962, 70 USLW 4139
Medicaid catastrophic coverage: Wisconsin’s “income-first” method of
allocating income between a spouse institutionalized in a nursing home and her
“community” spouse living at home is a permissible interpretation of the
Medicare Catastrophic Coverage Act of 1988. In order to prevent
“impoverishment” of the community spouse by drawing down all of the couple’s
income and assets before the institutionalized spouse can qualify for Medicaid
payments, the Act divides the couple’s assets between the spouses for purposes
of the eligibility determination, sets a minimum monthly subsistence allowance
for the community spouse, and permits income transfers from the
institutionalized spouse to the community spouse in order to meet that

subsistence allowance. Wisconsin’s “income-first” allocation method anticipates
this transfer of income and attributes it to the community spouse for purposes of
a hearing that determines the community spouse’s target income level (“resource
allowance”). Use of this method makes it less likely that the community
spouse’s monthly allowance will be increased, and therefore tends to require
couples to expend more of their resources in order to qualify the institutionalized
spouse for Medicaid. The words “community spouse’s income,” as used in the
provision of the Act that authorizes the hearing, “may be interpreted to include
potential, posteligibility transfers of income from the institutionalized spouse.”
Use of the possessive does not limit applicability to income actually possessed
by the community spouse at the time of the hearing, and therefore does not rule
out attribution of income that will be transferred to the community spouse after
the eligibility determination. Although the hearing is conducted pre-eligibility,
its purpose is to anticipate the post-eligibility financial situation of the couple.
The design and structure of the Act do not rule out the “income-first” rule, but
instead “offer affirmative support” for it.

6-3. Opinion of Court by Ginsburg, joined by Rehnquist, Kennedy, Souter,

Thomas, and Breyer. Dissenting opinion by Stevens, joined by O’Connor and
Young v. United States 122 S. Ct. 1036, 70 USLW 4178 (3-4-02)
Bankruptcy, tax debts: The three-year “lookback” period contained in section
507 of the Bankruptcy Code is tolled during the pendency of a prior bankruptcy
petition. The lookback language, which provides that an IRS claim for taxes that
were due within three years before a taxpayer filed a bankruptcy petition is
nondischargeable in bankruptcy, is a limitations period subject to traditional
principles of equitable tolling. The period was tolled during the pendency of the
taxpayer’s Chapter 13 bankruptcy petition, and therefore the IRS claim remained
nondischargeable for purposes of a Chapter 7 petition that the taxpayer had filed
after dismissal of the Chapter 13 petition. Otherwise, a taxpayer could render a
tax debt dischargeable by back-to-back filings, first filing a Chapter 13 petition,
then voluntarily dismissing the petition after the lookback period had lapsed, and
finally refiling under Chapter 7. Tolling is appropriate regardless of whether the
Chapter 13 filing was made in good faith, or solely for the purpose of running the
lookback period. Either way, the IRS was disabled from protecting its claim.
The Code’s inclusion of explicit tolling language in different contexts carries no
negative inference for section 507. Instructing non-bankruptcy courts to toll non-
bankruptcy limitations is compatible with an assumption that bankruptcy courts
will use their equitable powers to toll the Code’s limitations periods, and a
separate provision tolling a lookback period during the pendency of an offer in
compromise had the effect of supplementing the established principles of
equitable tolling.

9-0. Opinion for unanimous Court by Scalia.

Zelman v. Simmons-Harris 122 S. Ct. 2460, 70 USLW 4683 (6-27-02)
Religion, Establishment Clause, school vouchers: Ohio’s Pilot Project
Scholarship Program, which provides financial assistance in the form of tuition
vouchers for parents of schoolchildren in school districts that have been under
federal court supervision, does not violate the Establishment Clause. Parents

may use the vouchers for tuition at private schools of their choice, whether those
schools are religious or non-religious. The program permits the participation of
all schools within the district, authorizes grants to public schools in adjacent
districts that accept district students, and provides aid for tutors for students who
stay in public schools. The program does not have the effect of advancing
religion. The Court has distinguished between programs that provide aid directly
to religious schools and “programs of true private choice, in which government
aid reaches religious schools only as a result of the genuine and independent
choices of private individuals.” Ohio’s program is one of “true private choice,
... neutral in all respects toward religion.” It is “part of a general and
multifaceted undertaking ... to provide educational opportunities to the children
of a failed school district.” The program does not coerce parents into sending
their children to religious schools. Neither the fact that 82% of the private
schools participating in the program are religious schools nor the fact that 96%
of the students enrolled in the program attend religious schools renders the
assistance unconstitutional. Under Mueller v. Allen (1983), it is “irrelevant” that
the vast majority of recipients of governmental aid are parents of children in
religious schools so long as those schools are selected through the private and
independent choices of the parents. In such circumstances the incidental
advancement of religion and any perceived endorsement of religion are
“reasonably attributable to the individual recipient, not to the government, whose
role ends with the disbursement of benefits.”
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinions by O’Connor and by Thomas. Dissenting opinions
by Stevens; by Souter, joined by Stevens, Ginsburg, and Breyer; and by Breyer,
joined by Stevens and Souter.

Access to courts
adequacy of complaint alleging denial..............................9
Administrative law
deference to agency interpretation, FCC, phone system leasing.........40
deference to agency interpretation, meaning of "disability".............4
no deference to agency interpretation, family and medical leave ........26
Americans With Disabilities Act
definition of “disability”.......................................32
refusal to hire based on threat to health of applicant...................8
seniority rules, "reasonable accommodation".......................38
Apportionment of Representatives
census, "actual enumeration," sampling............................39
agreement does not bar EEOC suit on employee's behalf..............12
Attorney’s fees
Social Security Act, contingency fees permissible...................14
tax debts, tolling of "lookback" period............................42
“hot-deck” imputation method upheld.............................38
Child Online Protection Act
reliance on community standards not facially invalid..................1
Child pornography
Child Online Protection Act, constitutionality........................1
Child Pornography Prevention Act, "virtual" porn....................2
Civil commitment
sexual predators, ability to control behavior........................20
Civil procedure
notice pleading, employment discrimination case....................30
Civil rights
claim of hostile work environment, limitations period................24
Civil Service Reform Act
Merit System Protection Bd. review of termination actions............33
Class actions
appeal by non-named class member..............................11
Coal industry retiree health benefits
out-of-business companies, successors in interest.....................4
Coast Guard
uninspected vessels, OSHA jurisdiction............................7
Commercial speech
ban on ads for compounded drugs, constitutionality..................31
Counsel, assistance of
attorney’s conflict of interest, Strickland rule.......................22
imposition of suspended jail sentence on indigent defendant............1
ineffective assistance, sentencing, AEDPA limitations.................5
Criminal procedure
acceptance of guilty plea, harmless error...........................37

plain error, defective indictment, no objection at trial.................34
Cruel and unusual punishment
prison guards, mistreatment of prisoner............................18
Death penalty
due process, jury instruction on parole ineligibility...................20
execution of mentally retarded unconstitutional......................2
sentencing, findings, right to jury trial.............................28
claim of racially selective prosecution.............................34
Door-to-door advocacy
registration requirement, First Amendment.........................41
Drug testing
high school students, extracurricular activities.......................6
Drug use
public housing, termination of lease..............................18
Due Process
capital sentencing, instruction on parole ineligibility.................20
forfeiture, adequacy of notice to prison inmate......................11
regulation allowing relation back of oath verifying charge.............12
suit on employee's behalf not barred by arbitration agreement..........12
limitation on judicial candidates' speech, 1st Amdmt. violation.........27
Electricity regulation
FERC jurisdiction, bundled and unbundled retail sales................24
Eleventh Amendment
federal agency adjudication, sovereign immunity....................13
pendent claims, tolling of limitation period in state courts.............27
suit against individual state utility commissioners...................40
waiver, state's removal of case to federal court......................21
Employment discrimination
no heightened standard for specificity of complaint..................30
action for "equitable relief".....................................15
preemption, Illinois HMO law, exception for insurance laws...........28
Fair Credit Reporting Act
limitations period not a discovery rule.............................33
Fair trial
impeachment information, waiver as part of plea bargain..............37
Family and Medical Leave Act
regulation penalizing employer for failure to notify employee..........26
Family Educational Rights and Privacy Act
no private right of action to enforce...............................15
peer grading not release of prohibited "education records".............25
Federal courts
alienage diversity jurisdiction, BVI corporation.....................20
patent claims, jurisdiction of Federal Circuit........................17
removal by state waives Eleventh Amendment immunity..............21
electricity, jurisdiction, bundled and unbundled retail sales............24

First Amendment
commercial speech, ban on ads for compounded drugs................31
door-to-door advocacy.........................................41
limitation on judicial candidates’ speech...........................27
permit for use of park..........................................31
right of petition, retaliatory lawsuit against union.....................5
virtual child pornography........................................2
zoning, “adult entertainment” businesses..........................10
Food and drug law
ban on ads for compounded drugs is unconstitutional.................31
procedure, adequacy of notice to prisoner..........................11
Fourth Amendment
drug testing of high school students................................6
requirements for entry into home.................................21
search as condition of probation.................................36
search of bus passengers.......................................35
Government contracts
repudiation is not breach that triggers limitations period..............14
Habeas corpus
adequate state grounds to bar federal relief not established.............21
AEDPA limitations period, tolling while state appeal "pending".........7
procedural default in state court..................................30
retroactive application of decision, Teague rule.....................18
public housing, eviction for drug activity..........................18
IRCA policies trump NLRB remedial authority.....................17
Immunity from suit
prison guards not entitled to, cruel treatment of prisoner..............18
Indian Gaming Regulatory Act
tribes not exempted from federal taxes.............................8
federal district judges, disqualification............................29
Jury trial
capital sentencing, factual findings, Apprendi rule...................28
factfinding by judge to determine mandatory minimum sentence........16
NLRB sanctions for retaliatory lawsuit, 1st Amendment constraint.......5
NLRB's remedial authority constrained by immigration law............17
Limitations period
AEDPA, habeas actions, tolling...................................7
Fair Credit Reporting Act......................................33
pendent federal claims, tolling of period in state court................27
Title VII....................................................24
Tucker Act..................................................14
catastrophic coverage, allocation of spouses' incomes................41
Mentally retarded
execution constitutes cruel and unusual punishment...................2

Moratorium on development of property
not per se taking of property....................................30
Occupational Safety and Health Act
oil and gas barge, Coast Guard jurisdiction..........................7
Overruled decisions
Ford Motor Co. v. Indiana Department of Treasury (1945).............21
Penry v. Lynaugh (1989)........................................3
Walton v. Arizona (1990)......................................28
equivalents, prosecution history estoppel..........................13
Federal Circuit jurisdiction, "arising under"........................17
Pole attachments
high-speed Internet and wireless access............................23
ERISA, Illinois HMO Act......................................28
exception for "State" applies to political subdivisions..................9
presumption against preemption inapplicable, scope of FERC auth......25
Prison Litigation Reform Act
exhaustion of administrative remedies.............................26
adequate notice to inmate of proceedings to forfeit his property.........11
no action in constitutional tort against privately run prison.............10
prison guards, cruel treatment of prisoner, immunity from suit.........18
Private right of action
generally not conferred by federal funding laws.....................15
consent to warrantless search as condition of probation...............36
Punitive damages
unavailable in actions brought under ADA, Rehabilitation Act..........3
Racial discrimination
selective prosecution, discovery, required showing...................34
school vouchers, Establishment Clause............................42
fraud, misappropriation of funds by broker.........................29
sex abuse treatment, admission of responsibility.....................22
capital sentencing, fact findings, right to jury.......................28
mandatory minimum enhancement, right to jury trial.................16
Sexual predators
state law, grounds for civil commitment...........................20
treatment, admission of responsibility, self-incrimination..............22
Sovereign immunity
states, defense to adjudication before federal agency.................13
Spending power
contractual nature, punitive damages not available....................3
no private right of action to enforce FERPA........................15
sovereign immunity, adjudication by federal agency..................13

Statutes, interpretation
administrative interpretation, congressional acquiescence.............12
clear statement rule, abrogation of state immunity...................27
conflict between labor and immigration law........................17
consistent meaning of cross-referenced provision....................17
contrast with a related statutory provision..........................19
definition of word dependent on statutory context...................40
disparate inclusion or exclusion of explicit language..................4
drafting error.................................................8
dueling canons of interpretation...................................9
implication from disparate inclusion of words overridden.............10
legislative history, rejection of amendment.........................35
legislative history, sponsors' floor statements not controlling............4
negative inference yields to "contrary indications"...................38
overlapping statutes, "dual protection"............................19
penalty regulation invalid as contrary to Act's remedial design..........26
plain language precludes "innocent tenant" defense to eviction.........19
plain meaning, "equitable relief".................................16
rule of constitutional doubt inapplicable...........................40
superfluous meaning for words and sentences should be avoided........33
text and structure of act........................................33
use of possessive case.........................................42
Taking of property
moratorium on development....................................30
Taxation, Federal
bankruptcy proceedings, tolling of "lookback" period.................42
Indian Gaming Regulatory Act, taxation of gaming operations..........8
tax lien on spouse's interest in tenancy by entireties..................35
tips, aggregate estimation method, FICA tax........................36
FCC jurisdiction, pole attachments...............................23
FCC regulation of equipment leasing.............................39
federal question jurisdiction, preemption of state comm'n order.........40
Tort actions
no Bivens constitutional tort action against private prison.............10
Unconstitutional Federal laws
Child Pornography Prevention Act of 1996..........................2
Food and Drug Administration Modernization Act of 1997............31
Unconstitutional local laws
ordinance requiring permit for door-to-door advocacy................41
Unconstitutional state laws
Arizona’s capital sentencing law, factual findings by judge............28
Virginia death penalty law, as applied to mentally retarded.............2
use for religious school tuition, constitutionality.....................42
separation of "adult entertainment" businesses......................10