Supreme Court Opinions: October 2002 Term

CRS Report for Congress
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Supreme Court Opinions: October 2002 Term
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2002 Term
This report contains synopses of Supreme C ourt d ecisions issued from t he
begi nning of the October 2002 Term through t he end o f t he Term on J une 26, 2003.
In cl uded i n t hi s l i s t i n g are al l cases deci ded b y s i gned opi n i o n a n d s e l ect ed cases
decided p e r c uriam. In addition t o t he summary, t he date of deci sion is indicat ed,
and cites to United States L a w Week and W est 's Supreme C ourt Reporter are
provided. Fol l o w i n g each synopsis the vote o n t he Court's holding is indicated in
bol d t yp eface, and aut hors o f t he C o u r t ' s o p i n i on and o f any concurri ng and
dissenting opinions, along with the J ustices who j oined t hose opinions, are identified.
Cases are listed alphabeti cally, and a s ubject index i s appended. These s ynopses are
prepared throughout the Term and can b e acces s ed t hrough t he CRS Home Page
[ h ttp:// l/law/ tml], which also provides links
from t he synopses to the full t ex ts of the C ourt’s opinions.

Supreme C ourt Opinions: October 2002
American Ins. Ass’n v. Garamendi 123 S. Ct. 2374, 71 USLW 4524 (6-23-03)
Preemp t i o n , f o rei gn r e l a t i o n s : C alifornia’s Holocaust Victim Insurance Relief
Act, whic h requires any insurance company doing business i n t he state t o
disclose information about policies it or “related” companies sold in Europe
between 1920 and 1945, is preempted as interfering with the Federal
Government’s conduct o f foreign rela t i o n s . The relevant foreign policy i s
ex pressed p ri nci p al l y i n ex ecut i v e agreem ent s wi t h Germ any, Aust ri a, and
France. Ex ecut i v e agreem ent s t h at set t l e c l ai m s of U.S . nat i onal s agai nst
foreign governments d ate t o 1799, and C ongress has acquie s ced in this
longstanding practice. Although t he agreements at issue h ere address claims
agai nst forei gn corpo r at ions rather than foreign governments, that distinction
“does not m at t er.” T he P o t s dam and Yal t a agreem ent s are p recedent for
ex ecutive agreem ents addressing reparations im p l i cating private parties, and
limiting t he permissible s cope of such agreem ents by requiring a s harp dividing
line “would ham string the P resident in settling i nternational c o n t roversies.”
Val i d ex ecut i v e agreem ent s m ay p reem pt st at e l aw. T he C ourt i n Z s cherni g v.
Miller (1968) held that state l aws m ay n o t intrude into the field of foreign
affairs, “whi ch t h e C onstitution entrusts t o t he Pres ident and the C ongress,”
even in the absen ce of conflict with some affirmative federal activity. In t his
case t here is “sufficiently clear conflict t o require finding preemption.” The
general policy o f “enc ourag[ i ng] E uropean governments and companies t o
volunteer settlement funds in preference to litigation o r coercive s anctions” h as
hel d t rue i n t h e i nsurance area, where t he ex ecut i v e agr eem ent s have
“encourage[ d] European i n surers t o wo rk with [the International C ommission
on Hol o caust Era Insurance C l a i m s ] t o d evel op accept abl e cl ai m procedures,
including procedures governing d isclos ure o f policy i nformation.” California’s
different tack of providi n g r e gulatory s anctions, s upplemented by litigation,
“t hreat ens t o frust rat e t h e operat i o n o f t he part i cul ar m echani s m t he P resi d ent
has chosen.” “California s e e k s t o u s e an iron fist where t he President h as
consistently chosen kid gloves.” C ongress’s s ilence o n t he subject “is not to be
equated with congressional d isapproval” of the P resident’s policies.
5-4. Opinion of Court by Souter, j oine d by Rehnquist, O’Connor, K ennedy, a nd
Breyer. Dissenting opinion by Ginsburg, j oined by Stevens, Scalia, a nd T homas.
Archer v. Wa rner 123 S. Ct. 1462, 71 USLW 4249 (3-31-03)
Bankruptcy: A debt embodied in a s ettlement agreement t hat s ettled a
credi t o r’s e a rl i er cl ai m for m oney obt ai ned b y fraud can be consi d ered a d ebt
“for money . . . obtained b y . . . fraud” within the m eaning o f s ection

523(a)(2)(A) of the Bankruptcy Code, and hence i s nondischargeable i n

novation” that replaced the d ebt for mone y obtained b y fraud with a n ew debt,
that new d ebt can also amount to a d ebt f o r m o n e y obtained b y fraud. The
outcome is go v e rned by Brownv.Felsen (1979), i n which the court h eld
nondischargeable a d ebt embodied in a s tipulation and c o n s e n t j udgment
resolving a suit based o n fraud. The C ourt i n Brown sa i d t h at “t he m ere fact
that a conscientious cre d itor h as previously reduced his claim to judgment
should not bar furth e r inquiry into the t rue n ature o f t he debt,” and t he same
reasoni ng appl i es h ere. Th ere i s n o s i gni fi cant d i fference b et ween a d ebt
embodied in a s ettlement and one embodied in a s tipulation and judgment. The
fact that the b ankruptcy provision, which o rigi nally applied only t o “judgments
sounding in fraud,” was l ater broadened t o cover all such “liabilities” indicates
that Congress “intended t he fullest p o s s i b l e i nquiry” t o ensure t hat all debts
ari s i n g out of fraud are ex cept ed from d i s charge.

7-2. Opinion of C o u r t by Breye r, j oined by Rehnquist, O’Connor, Scalia,

K e nnedy, Souter, a nd Ginsburg. Dissen ting opinion by T homas, j o i n e d by
Barnhart v. Peabody Coal Co. 123 S. Ct. 748, 71 USLW 4041 (1-15-03)
Co a l I n d ustry Retiree Health B enef i t Act, deadline f or assignment of retirees :
The Coal Industry R etiree Health Benefit Act’s requiremen t that the
Commissioner o f S ocial S ecurity “shall, before October 1 , 1993,” assign each
eligible coal industry retiree to an operating company for purposes of
responsibility for funding benefits does not invalidate an i nitial assignmen t
mad e after t hat dat e. The claim that the deadline i s j urisdictional i s
“unsupportable” and “counterintuitive. ” C oupling t he mandatory “shall” with
a s peci fi c d eadl i n e does not a u t o m at i cal l y voi d agency act i o n t aken aft er t he
deadline. The Act does not specify a cons equence for noncom pliance with the
deadline, and “in the ordinary course” federal courts will not impose t heir own
sanction. The fact that other p ro v i sions of the Act combine “shall” with a
deadline i n a manner “that could not possibly b e read to prohibit action outside
the s tatutory period” p r o vides “s tructural clues .” “P lausibility” governs
resolution o f t he issue: Congress “would h ave s aid m ore t han i t d id, and would
not have couched its intent in langua ge . . . already h eld t o l ack any clear
jurisdictional significance” had i t i n t en ded t o limit authority to act after t he
deadl i n e. The A ct ’s ex press refer e n c e s t o “unassi gn ed” b enefi ci ari es m erel y
m ean s t h a t C o n gress recogn i z ed t h at i n som e i n st ances t h ere w oul d b e n o
operator t o which a b eneficiary could b e a ssign ed; C ongress did not foresee t hat
t he deadline for assignment might not be met. It is fair to read t h e A ct ’s
requirement that an operator’s percentage of obligations be determined on the
basis o f assign m e n t s “as of” t he deadline d ate as qualified b y C ongress’
assumption t hat all possible assign ments would b e m ade b y t hat d ate. Congress
i n t ended t o allocate t he greatest number o f b eneficiaries to a responsible
operator, and t he deadline s hould b e read “as a s pur to prompt action, not as a
bar t o t ardy completion.”

6-3. Opinion of Court by Souter, j oined by Rehnquist, Stevens, Kennedy,

Ginsburg, and Breye r. Dissenting opinion by Scalia, j oined b y O ’ C o n nor and

Removal, action “arising under” National Bank Act : An action b rought in
st at e court t o recov e r d am ages from a nat i onal b ank for chargi ng ex cessi ve
interest in violation o f both t he common l aw usury doctrin e and an Alabama
usury statute may be rem oved t o federal district court as an action “arising
under” federal l aw, even t hough t he complaint d id not refer t o any federal l aw.
As a general rul e , a case i s not removable i f t he complaint does not allege a
federal cl ai m ; pot ent i al d efenses b ased on federal l aw, even i f referenced by t h e
co mplaint, ordinarily do not creat e a basis for rem oval. In two i nstances ,
however, i nvolving certain causes o f action under t he Labor M a n a ge ment
R el at i ons Act and ER IS A, t h e C o u r t h as recogn i z ed ex cept i ons because t h e
federal s t at u t e “whol l y di spl aces” t he st at e-l aw cause of act i on. The Nat i onal
Bank Act (NBA) is another s uch s tatute. The Court h as long held that sections
85 and 8 6 o f t he NBA p rovide the ex clusive cause of action for usury claims
a g a i n s t n at i onal b anks, and has al s o recogn i z ed t h at “t he speci al nat u re o f
federally chartered b anks” requires uniform rules limiting liability and
prescribing ex clusive remedies for overcharges.

7-2. Opinion of Court by Steve ns, j oine d by Rehnquist, O ’ C o n nor, K ennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, j oined by T homas.
Black & Decker Disability Plan v. Nord 123 S. Ct. 1965, 71 USLW 4405 (5-27-03)
E R IS A, d ef eren ce to treati n g p h y si ci a n : T h e “t reat i n g physi ci an rul e”
applicable by regulation t o S ocial S ecurity disability benefit determinations does
not apply t o disability determinations under employee b enefit plans covered b y
ERIS A. The S ecret ary of Labor’s regulations implementing ERISA’s
provisions on employe e b e n efit plans do not require ex tra respect for t he
opinions of treating physicians, nothing in the Ac t i t s e l f s uggests t hat plan
adm i n i s t rat ors m ust accord t reat i n g physi ci ans s peci al deference, and t he Ni nt h
Circuit erred i n imposing s uch a rule. The two s tatutory regimes are different.
The S ocial S ecurity Act c reat es a nationwide benefits program, and
pres umptions help the Administrat or cope with the volume of claims and
provide guidance to the administ r at i v e l aw judges who m ake t he initial
determin at ions. ERISA does not require the s am e uniformity. R at her,
em ployers “have large l eeway to design disability ...plans as theyseefit,”and
the v alidity of a claim depends upon interpretation o f t he particular plan at issue.
“C ourt s have no warrant t o requi re adm i n i s t rat ors a u t om at i cal l y t o accord
special weight to theopinions of a claimant’s physician [orto] impose...a
discrete burden o f ex p lanation when t hey [ do not] . ”

9-0. Opinion for unanimous Court by Ginsburg.

Boei ng Co. v. United States 123 S. Ct. 1099, 71 USLW 4131 (3-4 -03)
Taxation, DISC s , R&D expenses: A Treasury R egulation t hat governs
a c count i n g o f research and d evel opm ent ex p enses (R &D) for dom es t i c
international s ales corporations (DIS Cs) and foreign s ales corporations i s a
reasonable i n t erp r et ation of t he stat ute, and i s entitled t o deference by courts.
The r e g u l a t ion requires t hat R &D ex penses be allocated to a b roadly defined
ca tego ry of products from a list o f S tandard Industrial C lassifications (SIC s),
and p revents Boeing from attributing all such costs t o o n e p a r ticular product
model even i n years when t here were no sales for that product. The regulation
t h ereby p revent s B o e i n g from d educt i n g R &D ex penses t h at are not al so
refl ect ed i n com b i n ed t ax abl e i ncom e d eri v ed by Boei ng and i t s DIS C for t he

“prescri be al l n eedful rul es and regul at i ons” for t h e enforcem ent o f t he In t ernal
Revenue Code. M oreover, the statute does n o t define “combined tax able
income” and does not specifically refer to R &D ex penses. Although t he statute
does refer t o a p ercent age of com b i n ed t ax abl e i ncom e t hat i s “at t ri but abl e” t o
ex port s al es , t his limitation does not prevent t he Secret ary from classifying all
R&D as an i ndirect cost “attributable” t o all ex port s ales of products in a
broadly defined SIC cat egory. Similarly, general l an guage calling for a
“ratable” apportionment o f ex p enses t hat cannot definitely be allocated to some
item o r class of gross i ncome does not prevent apportionment o n a categorical
basis. A regulation governing computa tion o f combined t ax able income does
n o t override the regulation at i ssue, but instead relies o n t he chal l e n g e d
regulation for its application. To the ex t ent t hat l egislative history is relevant,
it “weigh s i n favor of the Government’s position.”

7-2. Opini o n o f Court by Steve ns, j oi ned by Rehnquist, O’Connor, K ennedy,

Souter, Ginsburg, and Breyer. Dissenting opinion by T homas, j oined by Scalia.
Borden Ranch Partnership v. U.S. Army Corps o f Engineers 123 S. Ct. 599, 71
USLW 4025 (12-16-02)
Cl ean Water Act, w etl an d s : The decision of the U.S. C ourt o f Appeals for the
Ninth C ircuit is upheld by an equally divided vote. The Ninth Circuit h eld t hat
the “deep ripping” plowing method, which disgorges and replaces soi l i n
wetlands and results in draining the l and and converting i t t o d ry land, is subject
to regu lation under t he Clean W ater Act as the d ischarge of a pollutant.

4-4. Per curiam. J ustice K ennedy did not participate.

Branchv.Smith 123 S. Ct. 1429, 71 USLW 4232 (3-31-03)
Con g ressi on al red i s t r i c t i n g , Voti n g Ri g h ts Act, cou rt-ord ered p l an :A
federal d istrict c o u r t p roperly enj oined a Mississippi state court’s o rder
imposing a congressional districting plan for the s tate, and properly fashioned
i t s own redi s t ri ct i n g p l an rat her t han o rderi n g at -l arge el ect i ons i n accordance
wi t h 2 U.S .C . § 2 a(c). T he i n j unct i o n was proper b ecause t h e s t at e-court p l an,
adopted after t he state l egislature had f ailed t o redistrict o n t he basis o f t he 2000
census, “was not precleared [ under § 5 o f t he Voting R ights Act] an d h a d n o
prospect of being p recleared in time fo r t he 2002 election.” Section 5 requires
precl earance when a covered j uri s di ct i o n s eeks t o adm i n i s t er a change i n vot i n g
procedures. A st at e’s change i n vot i n g p rocedures m ay t ake effect i f t h e
Attorney General has not interposed an objection within 60 days of the s tate’s
submission. In this case, however, t he 60-day p eriod h ad been postponed b y t he
Atto rn ey G e n eral’s request for additional i nformation. The S tate did not
provide the requested information until Feb. 20, 2002. T h e d eadline for
candidate qualification was March 1 , 2002, and t he federal c o u rt’s injunction
was i ssued on Feb. 26, 2002. The 60-day p eriod t hat b egan running on Feb. 20
with submission of the additional i nformation “had no l egal significance”
because t h e s t at e “never appeal ed” t he federal court ’s i nj unct i o n and t hus was
no lon ger “s eek[ing] t o administer” the s tate-court plan. In fashioning a
redistricting plan for Mississippi, t he federal court p roperly relied o n 2 U.S.C.
§ 2 c, whi ch d i rect s t hat s i n gl e-m em b er di st ri ct s “shal l b e est abl i s hed b y l aw.”
Although t his l angu age “assuredly envisi ons legi slative action, it also embraces
act i o n b y s t at e and federal court s ” w hen l egi s l at u res h ave not act ed. A n earl i er-
enacted provision, 2 U.S.C. § 2a(c)(5), whi ch d i rect s t hat represent at i v es shal l

t h ereof” following an apportionmen t which has reduced the number o f
Representatives to which t he stat e i s entitled, is inapplicab l e . A M i ssissippi
s t at u te also calling for at-l arge el ect i o n o f R ep res e n t at i v es i n s u ch ci rcu m s t an ces
is similarly i napplicable.

9-0 (propriety of inj unction); 7-2 (remedy). Opinion of Cou r t by Scalia,

u n a n i mous in part, and j oined in separate part by Rehnquist, Stevens, Souter,
Ginsburg, and Br e ye r . S e parate part of Scalia opinion j oined by Rehnquist,
K e nnedy, a nd Ginsburg. Concurring opi n i o n s by K e nnedy, j oined i n part by
S t evens, Souter, a nd Br eyer; a nd by Stevens, j oined by Souter and Br e ye r .
Concurring and dissenting opini on by O’Connor, j oined by T homas.
Breuer v. Ji m’s C oncret e of Brevard, Inc. 123 S. Ct. 1882, 71 USLW 4367 (5-19-03)
Fa ir L a b o r S tandards Act, removal of cases to f ederal court :TheFair
Labor Standards Act (FLS A), which provi des t hat a suit “m ay be maintained .
. . i n any Federal o r S tate court o f competent jurisdiction,” does not bar removal
of a s uit from s tate to federal court. Such removal i s authoriz ed by 28 U.S.C.
§ 1441(a) “ e x cept as o therwise ex pressly p rovided b y Act of Congress.” Use
of the word “maintained” does not amount to an ex press p rohibition o f removal;
the word i s ambiguous with respect to removal. “If u se of an ambiguous word
like‘maintain’qualifiedasanexpress provision...,thentherequirement [in
effect] would call for nothing more than a ‘provision,’ pure and simple, l eaving
the word ‘ex pressly’ with no consequence whatsoever.” M oreover, the FLS A
provision contrasts with langua ge in other statutes (a civil action “may not be
removed”) t hat evidences an “i ndisputable” prohibition of rem oval. Removal
does nothing to defeat a right to “maintain” an ac t i o n t o f i n al judgment, but
merely tran sfers t he action from one fo rum t o another. A contrary reading could
defeat change of venue as well as removal. A number o f o ther statutes use t he
sa m e language allowing actions to be “mai nt ai ned” i n st at e o r federal court s ,
and i t i s “j u st t o o h ard t o b el i eve t h at a ri ght t o ‘m ai nt ai n’ an act i o n w as ever
meant t o displace the right to remove.”

9-0. Opinion for unanimous Court by Souter.

Brown v. L egal Found. of Washington 123 S. Ct. 1406, 71 USLW 4221 (3-26-03)
Taking of property, IOLTA accounts: W ashi ngt o n S t at e’s i nt erest o n
lawyers’ trust accounts (IOLT A) program, which r e quires each lawyer to
de p o s it into a s ingl e pooled IOLTA account for all that lawyer’s clients any
client funds that cannot otherwise earn net interest for an i ndividual client, and
whi c h r e q u i r es t he lawyer to direct the b ank t o p ay interest on the pooled
account to the Foundation, to be used for charitable and educational purposes,
does not violate t he J u s t C o mpensation C lause o f t he Fi fth Amendment (as
applicable to the S tate through t he Fourteenth Amendment). A law t hat requires
t h a t i n t e r e st on a client’s funds be transferred t o a different owner for a
legitimate public use could constitute a per s e taking requiring paym ent o f j ust
compensation t o t h e client. No “just compensation” is due, however. J ust
com p ensat i o n i s m easured by t h e o wner’s pecuni ary l oss, and t hat l oss i s z ero
if the W ashingt o n l a w is obeyed b y p lacing in the IOLTA account only t hose
client funds that, i nvested individually, could not provide a n et positive return
5-4. Opinion of Court by Steve ns, j oine d by O’Connor, Souter, Ginsburg, and
Breyer. Dissenting opinions by Sca lia, j oi n e d b y Rehnquist, K ennedy, a nd
T homas; a nd by K e nnedy.

Du e Process, el emen ts of cri me at ti me of con v i cti on : The Fl orida S upreme
Court m ust consider whether a pocket knife with a b lade of 2 1/ 2 to 3 i nches i n
length was a “dangerous weapon” within the m eaning o f t he state’s first-degree
burgl ary s tatute at the time in 1989 when the p etitioner’s conviction for t h at
cri m e becam e fi n al , o r w het h er t h e kni fe i n st ead was a “com m o n pocket kni fe”
ex cepted from t he definition o f “weapon.” In 1997 the Florida Supreme C ourt,
relying on a 1951 opinion of the s tate attorney general, interpreted t he provision
for t he first time as ex cl uding a pocket knife with a blade length of 33/ 4 i n ches.
T h e s tate court characteriz ed its 1997 decision as part of a “centu r y- l o n g
evolutionary process” in interpreting t he provis i o n , and t his characteriz ation
raises the question o f what t he provision meant i n 1989 when the p etitioner was
convicted. In a similar s ituation, the C ourt i n Fiori v. White (2001) found a due
process v iolation i n a state’s refusal to apply t o an earlier conviction a definitive
and ex onerating i nterpret ation of a criminal stat ute s ai d t o reflect a clarification
of the s tatute’s plain l a n gu a g e rather t han a new i nterpretation. A conviction
denies due process i f i t i s clear that th e d efendant’s conduct d id not violate an
el em ent of t he crime set forth in the statute.


C havez v. Mart i n ez 123 S. Ct. 1994, 71 USLW 4387 (5-27-03)
Du e Process, sel f -i n cri mi n a ti on : The respondent’s claim for damages
premised on police officers’ violation of his privilege agai nst s el f-incrimination
is rejected. T he officers i nterrogated t he respondent while he was i n a hospital
being treated for gunshot wounds, and failed to give him a Miranda warning.
The respondent was not charged with a crime, and hence t he statements he gave
in response t o t he questioning were not used against h im at a criminal trial. Any
such claim o f outrageous conduct b y police, howe v e r , m ay raise an i ssue o f
denial of substantive due process. The case i s rem anded for consi d erat i o n o f t he
due process i ssue.
5-3 (due process); 6-3 (self-i n c r i mination). Opi nion of Court by Souter (due
process i ssue), j oined by Stevens, K ennedy, Ginsburg, and Breyer. Separate part
of Souter opinion j oined by Breyer. No opi nion of Court on s elf-incrimination.
Opinion by T homas, j oined by Rehnquist, and j oined in separate and overlapping
parts by O’Connor and Scalia. Opinion by Scalia concurring in part. O p i nion
by Stevens concurri n g in part and dissenting i n part. Opinion by K ennedy
concurring in part and dissenting i n part, j oined by Stevens and j oined in part by
Ginsburg. Opinion by Ginsburg concurring in part and dissenting i n part.

Co mmerce power, Federal Arbitration Act: The Alabama S upreme C ourt
applied an “improperly cramped view of Congress’ Commerce C lause power”
in holding that the Federal Arbitration Act (FAA) applies only t o t ransactions
“i n” interstate commerce, and t herefore did not apply t o d ebt restructur i ng
agreem ent s bet w een an Al abam a b ank and an Al abam a const ruct i o n com pany.
The FAA applies t o contracts “evidenci ng a t ransaction i nvolving commerce.”
The t erm “involving commerce” is the “functional equivalent” o f t he term
“affect i n g com m er ce,” and ordi nari l y si gn al s “t h e b roadest p erm i ssi bl e
ex erci se” o f t he com m erc e p o w er. “[ I] t i s perfect l y cl ear t h at t h e FAA
encom p asses a wi der range of t ransact i ons t h an t hose act ual l y ‘i n com m erce.’”
There w as no need, t herefore, t o fi n d t hat t he rest ruct uri n g rel at ed t o i n t erst at e
transactions or to out-of-state project s. Nor was it necessary to find that any of
the i ndividual d ebt-restructuring agreem ents, s tanding alone, h ad a s ubstantial
effect on interstate commerce; the i ssue i nstead is the cumulative impact of “t he
economic activity in question.” The agreements at issue m eet the FAA’s
“involv i n g commerce” test. The respondent company engaged in business
throughout the s outheastern United S tates u sing loans from t he petitioner b ank;
t h e d ebt was secured b y al l of t h e com pany’s business assets, i ncluding out-of-
st at e asset s ; and com m erci al l endi ng – t he “general pract i ce” represent ed b y t he
transactions – h as “broad impact” o n t he national economy.


City of Cuyahoga Falls v. Buckeye Community Hope Found. 12 3 S . C t . 1 3 89, 71
USLW 4213 (3-25-03)
Equal Protection, due process, ref erendum: C ity officials did not violate t he
Equal P rotect i o n C l ause by s ubmitting t o t he voters a petition t o repeal an
ordinanc e a u t h o riz i ng construction of l ow-income housing, or by denying
building p ermits while the referendum was p ending. The respondents failed t o
es tablish a raci ally discriminat ory i ntent. The C it y act ed pursuant t o t he
requirements o f its charter i n s ubmitting t he referendum petition t o t he voters,
and t he city engi neer performed “a nondiscretionary, ministerial act” i n d enyi ng
the buil d i n g p ermits while the referendum was p ending. S tatements m ade b y
privat e i ndividuals during t he petition drive may no t be attributed to city
offi ci al s. “In fact , b y adheri ng t o chart er p r o c e d u r es, ci t y offi ci al s enabl ed
public debate on the referendum to take place, thus advancing s ignificant First
Amendment i nterests.” Respondents also failed t o establish a substantive due
process denial. The denial of building permits “i n no sense constituted
egregi ous or arbitrary govern m e n t conduct.” Although t he substance o f a
measure approved b y referendum may b e challenged as arbitrary and capricious,
the s ubjection o f an o rdinance to pub lic approval t hrough a referendum cannot
be considered an invalid delegation of power , a n d in this cas e i s not arbitrary
government conduct t hat violates due process.

9-0. Opinion for unanimous Court by O’Connor. Concurring opinion by Scalia,

j oined by T homas.

Du e Process, delay in h olding of hearing: The city did not deny the
respondent due process b y d elaying a hearing o n t he validity of an automobile
impoundme n t f e e u n t i l 27 days after h is car had b een towed. The d elay is
supported b y application o f t he three factors s et forth i n Mathew s v. Eldridge
(1976) for d etermining whether an indivi dual h as received t h e p r o c ess t hat i s
“due.” The p rivate interest affected – t he temporary l oss o f t he u s e o f m oney
– i s ful l y com p ensabl e. A 30-day d el ay i s unl i k el y t o creat e t he ri sk of
significant fact ual errors. T h e city’s interest in “administrative necessity,”
however, “argu es strongly in the city’s favor.” The city already holds hearings
within 48 hours for those p ersons unable t o p ay impoundment fees, and it would
be “burdensome” to have to hold all such hearings so promptly.


Clackamas Gastroenterology Assocs., P.C. v. Wells 123 S. Ct. 1673, 71 USLW 4293
ADA, d ef i n i tion of “emp loyee” : The issue o f whet h er the four shareholder-
directors o f t he petitioner p rofessional corporation are “employees” under t he
Americans with Disabilities Act (ADA) – an i ssue t hat i n t his case d etermines
whether t he corporation i s an “employer” s ubject to ADA coverage as having
15 or more “employees” – should b e resolved b y application o f common l aw
principles that define the m aster-serva nt relationship. The ADA’s d efinition o f
an “em ployee” as “an individual employed by an employer” is “completely
circular and ex p lains nothing,”and i n s uch i nstances the C ourt ordinarily
presumes that Congress intended t he co m m o n l a w o f agency to govern. T he
petitioner’s approach of as king whet her t he shareholder-direct ors are in reality
partners “simply begs the question,” an d t he appeals courts’ approach seeking
gu i d ance in the ADA’s b road purposes overlooks Congress’s reasons f o r
limiting coverage to firms with 15 or more employees. The common l aw
definition of t he master-servant relationship provides “helpful guidance,” and
i s refl ect ed i n EEOC “gu i d el i n es.” Under t hat EEOC / com m o n l aw approach,
the princi p al issue i s whether the s hareholder-directors operate independently
and m anage t he fi rm or are i nst ead subj ect t o t h e fi rm ’s cont rol . The case i s
remanded for further factual findings related to this inquiry.

7-2. Opinion of Court by Steve ns, j oi ned by Rehnquist, O ’ C onnor, Scalia,

K e nnedy, Souter, a nd T homas. Dissen ting opinion by Ginsburg, j oined by
Clay v. United States 123 S. Ct. 1072, 71 USLW 4155 (3-4 -03)
H a b e as corpus, limitations peri od : W hen a federal d efendant takes a n
unsuccessful direct appeal from a judgment of conviction, but does not petition
for a writ of certiorari from t he Suprem e C ourt, his conviction b ecomes “final”
for purposes of the one-year limitation p erio d for filing for postconviction relief
under 2 8 U.S.C. § 2255 when the time ex pires for filing t he petition for
certiorari. T he lower courts erred i n ruling t hat t he conviction b ecame final on
the earlier dat e when t he appellate court i ssued its mandate in the direct appeal .
Fi nality has “a l ong-recogn ized, clear meaning” in the contex t o f postconviction
relief: it attaches when the S upreme C our t affirms a conviction o n t he merits on
direct review or denies a petition for cer t i o rari , o r when t he time for filing a
certiorari petition ex pires . T h e Court “pres ume[ s] that Congress intends its
statutes to be read in conformity with this C o u r t ’ s p recedents.” Parallel

conclusion. The fact that a provision governing petitions from s tate prisoners
i s worded di fferent l y – i t el aborat es on “t he dat e on whi ch t he j udgm ent becam e
final” by adding the words “by t he conclusion of direct review or the ex p iration
o f t h e t ime for s eeking s uch review” – does not mean that § 2255 must be
interp ret ed differently. C ongress might have felt the need to spel l out the
meaning of “final” in the contex t of petitions by stat e prisoners but not in the
contex t of petitions by federal prisoners in order t o m ake i t clear that finality is
be deter m i n e d b y a uniform federal rul e rat her t han b y reference t o st at e l aw
rules. A provision governing petitions by deat h-sentenced stat e prisoners is not
similar enough t o § 2255 to create any presumption as t o § 2255's m eaning.

9-0. Opinion for unanimous Court by Ginsburg.

Connecticut Dep’t o f Public Safety v. Doe 123 S. Ct. 1160, 71 USLW 4158 (3-5 -03)
Du e Process, “Megan ’s L a w ”: C onnecticut’s Megan’s Law did not deprive t he
respondent of due process b y requiring that he be listed as a convicted sex
offender o n t he State’s W ebsite without affording h im a h earing t o attempt t o
prove that he is not currently dangerous. Even i f i n j ury t o reputation could
constitute a deprivation of a liberty i n terest, due proces s does not entitle a
person to a hea ri ng to establish a fact that is not material . W hether or not the
respondent is currentl y dangerous “is of n o consequence under C onnecticut’s
Megan’s La w . ” The l aw’s posting requirements “turn on an offender’s
conviction alone.” W hile it may be t hat a cl a i m c o u l d b e raised t hat public
disclosures about currently non-dangerous sex o ffenders violate s ubstantive due
process, the respondent disavowed any reliance o n t hat argument, and t he issue
was not properly b efore t he Court.

9-0. Opinion of Court by Rehnquist, j oi n e d by O’Connor, Scalia, K ennedy,

Souter, T homas, Ginsburg, a n d Breye r. Concurring opinions by Scalia; by
Souter, j oined by Ginsburg; and by Stevens.
Cook County v. United States ex r el. C handler 123 S. Ct. 1239, 72 USLW 4192 (3-


False Claims Act, applicability to l ocal governments : Local governments are
“persons” s ubj ect t o qui tam actions under t he False C laims Act. Long before
enactment of the False Claims Act (FCA) in 1863 private corporations had b een
held to be artificial persons ordinarily incl uded within the s tatutory term
“person.” Although i t was not until six years after enactment of the FCA that
the S upreme C ourt h eld t hat m unicipal corporations are al s o “ p e r s ons,” this
decision merely reflected a c o m m o n understanding antedating t he FC A. The
Dictionary Act defines “person” to incl ude corporat e entities “unles s t he
contex t” shows o therwise, but not hing about the FCA makes t he common
understanding inappropriate. The tex t is not inherently inconsistent with local
government liability. The original act incl uded references to natural persons in
the l and o r n aval forces, but also referred unqualifiedly t o o ther “persons.” And,
al t hough municipalities may not be subject to criminal penalties, “t hat i s no
reason t o ex em pt t h em from rem e d i es t hat s ensi bl y appl y. ” T he fact t h at
Congress in 1863 was p rimarily concerned with frauds c o mmitted by private
contractors during t he Civil W ar does not a l t e r t h e f act that Congress wrote
ex pansively t o cover a l l fraud. 1986 amendments to the FCA that raised the
ceiling on damages from double t o t reble d id not repeal by implication t he
FC A’s a p p licability to local governments. Although m unicipalities are

compensatory as well as punitive t raits. S ome liability beyond the am ount of
a fraud is usually necessary to compensate the government completely for t he
l o sses o ccasi oned b y fraud. The FC A does not provi de for p rej udgm ent i n t erest
or for consequential d amages that typi cally co me with recovery for fraud, an d
qui tam recoveri es m u st be subt ract ed from t he government’s recovery. M ore
important than the presumption against punitive recovery is the presum p t i on
against repeals b y implication. “The basic purpose o f t he 198 6 a m e n d m ents
was t o m ake t he FC A a more useful tool agai nst fraud in modern times,” and it
is “s imply not plausible” that Congress intended at t he same time to repeal sub
silentio the liability of local governments, “which today often administer or
receive federal funds.”

9-0. Opinion for unanimous Court by Souter.

Dastar Corp. v. T wentieth Century Fox Film Corp. 123 S. Ct. 2041, 71 USLW 4415
Lanham Act , “origin” of goods : S ection 4 3 o f t he Lanham Act, which
prohi b i t s “ a fal s e d esi gnat i o n o f o ri gi n,” does not prevent t he unaccredi t ed
copying o f a non-copyrigh ted work. The phrase “origin of goods” “refers to the
producer of the t angi ble goods that are o ffered for sale, and not to the author of
a n y i d e a , concept, or communication embodied in those goods.” Thus th e
petitioner corporation i s t he “origi n” of a v ideo set about t h e European
campaigns of W o rld W ar II that it produced and s old, even though i t copied the
videos from a television serie s based o n General Eisenhower’s book Crusade
in Europe, and made only minor modifications before selling t hem. The “most
natural understanding of the ‘ori g in’ o f ‘goods,’” d erived from d ictionary
definitions, i s “ t h e p roducer of the t an gi ble p roduct s old i n t he marketplace.”
In terpreting t he phrase t o encompass the p erson wh o s e i d eas are embodied in
the p roduct would b e “out of accord with the h istory and purpose o f t he Lanham
Act . ” T he Lanham Act prohi bi t s act i ons t h at decei ve consum ers. A b rand-l o yal
consumer cares about whether a favored company p roduced or stands behind a
p r o duct, but does not necessarily care who originally design ed or devise d t h e
formula for the p roduct. A d ifferent rule for “communicative” products, where
authorship is important to purchas ers, would result i n conflict with copyrigh t
law, which p rovid e s t hat t he righ t t o copy without attribution passes t o t he
public upon ex piration o f a copyrigh t. To hold t he La n h a m A ct applicable in
this way wou l d b e “ a k in to finding . . . a s pecies of perpetual p atent and
copyrigh t.” W hen C ongress has changed copyrigh t l aw, “it has done so with
much more specificity than the Lanha m A c t ’ s ambiguous use o f ‘origin.’”
Interpreting “origin” t o require attribution of no n - co pyrighted m at erial would
pose p ract i cal probl em s as wel l , i n cl udi ng t h e d et erm i n at i o n o f “who i s i n t he
line of ‘origin.’”
8-0. Opinion of Court by Scalia, j oined by a ll J ustices except Breyer, who did
not participate.

Du e Process, detention of aliens; judicial review : M andatory detention of an
alien p ending removal p roceedings , without an individualiz ed determination o f
risk of flight and d anger t o t he community, does not violate due process under
the circumstances of th i s cas e, in which a lawful permanent resident alien
brought a habeas corpus action challenging t he constituti o n a l i t y of det ention
rather than availing h imself o f p rocedures under which h e co u l d challenge
incl usion i n t he mandatory detention cat egory. A provision of the Immigration
and Nationality Act, 8 U.S.C. § 1226c, requires t he Attorney General t o d etain
“any alien” who i s removable from t hi s country because he has b een convicted
of any o f cert ai n speci fi ed cri m es. “C ongress regu l arl y m akes rul es t hat woul d
b e u n acceptable i f applied t o citiz ens,” and the C ourt “has recogn iz ed t h e
v al i d i t y of det ent i o n duri n g d eport at i o n p roceedi n gs .” Det ent i o n p endi ng
rem oval p roceedi n gs “necessari l y serves t h e purpose o f p revent i n g d eport abl e
criminal aliens from fleeing,” and t hu s i n c r e ases the chance o f s uccessful
removal. This detention i s normally of relativel y s hort duratio n . If d e tention
becomes “unreas onably l ong,” the a l i e n m ay become entitled t o an
individualized determination as t o risk o f flight and d angerousness. J udicial
revi ew i s not prec l u d e d b y l angu age d ecl ari n g t hat t he At t o rney General ’s
discretionary judgment applyi ng the s ection s hall not be subject to review, and
t h at no court m ay set asi de any act i o n o r d eci s i o n o f t h e A t t o rney General
regarding t he detention o f any alien. Here the respondent was not challenging
a “discretionary judgment” o r “decision” of the Attorney General, but rather the
“statutory framework that permits his d etention without bail.”
5-4 (detention); 6-3 (j udicial revi ew). Opinion of Court by Rehnquist, j oined by
K ennedy, j oined i n part by Stevens, Souter, Ginsburg, and Breyer, and j oined i n
separate p a r t b y O’Connor, Scalia, a nd T homas. Concurring opinions by
K e nnedy; a nd by O’Connor, j oined by Scalia a n d T homas. Concurring and
dissenting opinions by Souter, j oined by Stevens and Ginsburg; and by Breyer.
Desert Pal a ce, Inc. v. C o st a 71 USLW 4434 (6-9 -03)
Civil rights, proof in “mix e d - mo t i v e” cases: A pl ai nt i ff n eed not present
direct evidence of discrimination i n order to obtai n a mix ed-motive i nstruction
in an action b rought under Title VII o f t he Civil R ights Act of 1991. The 1991
Act p rovides t hat an unlawful employm ent p ract i ce i s es t a b l i s hed i f t he
com p l ai n i n g p art y “dem onst r a t e s t h at race, col o r, rel i gi on, sex , or nat i onal
origin was a motivating factor for any employment practice, even though o ther
fact ors al s o m ot i v at ed t h e p r a c t i c e . ” This m eans t hat “a p laintiff n eed only
present s ufficient evidence for a reasonable j ury t o conclude, b y a
preponderance o f t he evidence, that [ a prohibited consideratio n ] w a s a
motivating factor for any employment practice.” T h a t e v i dence m ay be
circumstantial. The s tatute is unambiguous. A plaintiff “need only
demonstrat e” a discriminat ory m otive; the s tatute “does not mention, much less
require, t hat a plaintiff m ake a h eigh tened s howing t hrough d irect evidence.”
Moreover, t h e A ct defi nes t he t erm “dem onst rat es” as m eani n g “t o m eet t h e
bu r d ens o f p roduction and persuasion.” This contrasts with other s ituations,
where “Congress has b een unequivocal when imposing h eigh tened p roof
requirements.” Title VII’s s ilence with respect to the t ype of evidence required
also “suggests” that the “conventional rule of civil litigation” applicable in Title
VII cases should gover n , vi z. , t hat t he plaintiff m ust p rove her case “by a
preponderance o f t he evidence, using d irect or circumstantial evidence. ” C ourts

cases,” and i n o t h er cont ex t s as wel l .
9-0. Opinion for unanimous Court b y T homas. Concurring opinion by
Dole Food Co. v. Patrickson 123 S. Ct. 1655, 71 USLW 4301 (4-22-03)
Fo rei gn S overei gn Immu n i ti es Act : A subsidiary of a corporation i n which a
foreign s tate owns a m aj ority of shares is not an “agency or instrumentality” of
the forei gn stat e for purposes of the Forei gn Sovereign Immunities Act (FSIA),
and h ence is not entitled t o removal under 2 8 U.S.C. § 1441 as a “foreign s tate.”
“Forei gn st at e” i s defi ned b y t he FS IA t o i n cl ude an “ a g ency or
instrumentality,” defined i n t urn t o i nclude an entity “t h e m ajority of whose
shares or other ownership interest is owned by a foreign s tate.” “A corporation
is an instrumentality of a foreign state under t his d efinition only i f t he foreign
stat e owns a majority of the corporation’s s hares.” The meaning o f s hare
ownership i s d etermined by reference t o corporation l aw, and o n l y “direct
ownership” satisfies the requirement . “W h ere C ongress i n t e n d s to refer t o
ownership i n o ther than the formal s ense, i t knows how to do so,” a s , f or
ex am pl e, i n st at ut es t h at refer t o “di rect and i ndirect ownership,” or that define
an owner as s omeone who “owns or controls” an enti t y. A s h a reholder, by
virtue of its ownership o f s hares, does not own t he corporation’s a s s e ts, and
therefore does not own s ubsidiary corporations. “ O t h er ownership interest”
does not incl ude a s tate’s “i nteres t” in its instrumentality’s subsidiary, but rather
is designed to recognize t he possibility of different ownership forms in other
countries. Instrumentality status must be determined as of the time the action
is filed, not as of the time of t h e c onduct giving rise t o t he suit. This
interpretation i s required by “plai n t ex t,” vi z. , use of the pr e s e n t tense i n t he
FS IA definition (“a majority of whose s hares . . . is owned by a forei gn st at e”).
Anal ogy t o s tatus-based immunities, which derive from an officer’s stat us at the
time of the conduct giving rise t o suit, is inapt. Cases recogn iz ing s tatus-based
immunities do not involve interpretation of a statu t e, an d t he reasons for t he
offici al immunities do not apply t o a foreign s tate.
7-2 (ownership of subsidiary); 9-0 (timing of determi nation). Opinion of Court
by K e nnedy, j oined i n part by Rehnquist , Stevens, Scalia, Souter, T homas, and
G i n s b u r g, and unanimous in separate part. Concurring and dissenting opini o n
by Breyer, j oined by O’Connor.
Dow C hemical C o. v. Stephenson 71 USLW 4440 (6-9 -03)
Class actions, Agent Orange litigat i o n : The decision of the U.S. C ourt of
Appeals for the S econd Circuit, reversing a d i strict court’s dismissal of an
act i o n b rought by Vi et na m v et erans against manufacturers o f t he herbicide
Agent Orange as b arred b y a 1984 class action s e ttlement, is affirmed by an
equally divided vote.

4-4. Per curiam. J ustice Stephens did not participate.

Earl y v. P acker 123 S. Ct. 362, 71 USLW 3312 (11-4-02)
H a b eas corp u s , a l l eged coerci on of ju ry verd i ct: The Ninth C ircuit erred i n
granting habeas corpus relief t o a petitioner who alleged t hat t he stat e t rial judge
had coerced the j ury’s v erdict by instructing t he jury, d eadlocked 11 to 1, to
del i b erat e furt h er and at t em p t t o reach a unani m ous verdi c t . The C al i forni a
appellate court’s d ecision upholding the conviction was not “contrary to clearly

no need to cite t h e est abl i s h ed federal l aw, as l ong as t h e resul t o r reasoni ng
does not contradict that l a w . T h e C alifornia court d id not fail to apply t he
“t otality of th e circumstances ” t es t by focusing on t hree particular inci dents;
those i ncidents constituted “the essence” of the complaint about juror coercion,
and i n any event t he “fai r i m port ” of t h e court ’s d eci si on i s t h at i t consi d ered t h e
cum u l at i v e i m p act of al l t he evi d ence. Al so, S uprem e C ourt d eci si ons deri ved
fro m t h e C ourt’s s upervisory power over t he federal courts do not constitute
“cl early es tablished federal law” to which s tate courts must conform.


El dred v. Ashcrof t 123 S. Ct. 769, 71 USLW 4052 (1-15-03)
Cop y ri gh t T erm E x ten s i o n Act, Co p yri g h t Cl au se: The Copyrigh t Term
Ex tension Act (CTEA), which ex t ends the copyrigh t t erm from life o f t he author
pl us 50 years t o l i fe p l u s 7 0 years, and appl i es t he change t o ex i s t i n g as wel l as
to future copyrigh ts, i s a valid ex ercise of Congress’s auth o r i t y u nder t he
Copyrigh t C lause. The C lause, which empowers C ongress to grant copyrigh ts
“for limited times,” authorizes Congress to ex tend t h e t erm s of ex isting
copyrights. The word “limited” does not mean that a copyright t erm, once s et ,
becomes i nalterable. There i s “an unbroke n congressional p ractice” of applyi ng
copyri gh t t erm ex t ensi ons t o ex i s t i n g copyri gh t s , and t h e s am e p ract i ce h as been
applied t o pat ents. Application of t he CTEA’s ex tension t o ex i sting copyrights
is a “rational” ex erci se of power. On t he issue of rationality, t he Court “defer[s]
substantially to Congress.” The ex tension conforms copyrigh t p ractice t o t hat
of the European Union, consistent with the Berne Convention, and ensures that
Am eri can aut hors w i l l recei ve t h e s am e copyri gh t p rot ect i o n i n E urope as t h ei r
European counterparts. C o n g ress also rationally relied o n p redictions that
longer terms would encourage copyrigh t holders to invest in r e s t o r ation and
public distribution of works. The Court rej ect s t he argu m e n t that permitting
C ongress t o ex t end ex i s t i n g copyri gh t s recogn i z es a power t o creat e “perpet ual ”
copyrights in violation of t he “limited times” constrai nt. “Petitioners fail to
show how the C TEA crosses a constitutionally signifi cant t hres hold.” Also
rej ect ed i s t h e argum ent t hat t here m u st b e a quid pro quo. Authors n eed not
submit a new writing i n ex change for an ex tension; the origi nal bargain entails
“a copyright not only for the time in place ...,but also foranyrenewalor
ex tension l egislated during t hat time .” The “congruence and p roportio nality”
standard recently used to limit congressional power under § 5 o f t he Fourteenth
Amendment i s i napplicable t o t h e C opyrigh t C lause. The C TEA does not
violate t he Fi rst Amendment. The C opyrigh t C lause and the First Amendment
were enacted close i n time, and “copyri ght’s limited m onopolies are compatible
with free s peech principles.” In addition, copyrigh t l aw has “built-in free s peech
safegu ards.”

7-2. O p i nion of Court by Ginsburg, j o ined by Rehnquist, O’Connor, Scalia,

K e nnedy, Souter, a nd T homas. Dissentin g opinions by Stevens a nd by Breyer.

FE RC regu l ati o n , “f i l e d rate” p reemp ti o n d octri n e: U nder t he “fi l ed rat e”
doctrine, wholes al e elect ricity rates filed with FERC or fix ed by FERC m ust be
gi ven binding effect by stat e public utility commissions setting i ntrastat e ret ai l
rat e s . A F E R C t ariff t hat does not set rat es, but that delegates discretion t o a
p u b l i c utility holding company t o allocat e capacity and costs am ong its
operating companies, can also have preem pt i v e effect un d e r t h e fi l ed r at e
doctrine. The Louisiana P ublic Service Commission’s o rder disallowing costs
related t o electricity sharing under Entergy’s system agreement, and h aving t he
effect of “trapping” costs so that Entergy Louisiana could not recoup them
t h rough ret ai l s al es, i s t herefore preem pt ed. T he fact t h at FER C h a d not
speci fi cal l y approved t he cost al l o cat i o n for the p eriod covered b y t he Louisiana
PSC’s order does not matter; the only i ssu e i s “whet her t he FER C t ari ff di ct at es
how and b y whom that [ allocation] should b e m ade.”

9-0. Opinion for unanimous Court by T homas.

Ewing v. C alifornia 123 S. Ct. 1179, 71 USLW 4167 (3-5 -03)
Cruel and unusual punishment; “ three-strik e s ” law : C alifornia’s “Three
Strikes and You’re Out” law i s not unconstitutional as applied i n s entencing a
repeat felon t o imprisonment of 25 years t o life for stealing t hree golf cl u b s
valued at $399 apiece. The t hree strikes l aw applies when a person is convicted
of a felony (here “felony grand t heft”) and h as previously been convicted of one
or more prior felonies defined as “seri ous” o r “violent.” There was n o opinion
of the C ourt. Three J ustices determined that the circumstances did not warrant
application o f t he “narrow p roportionality principle” applicable to non-capital
cases and d eri v ed from t he Ei gh t h Am endm ent ’s C ruel a n d U n u sual
Punishments C lause, the s entence b eing “j ustified by t he Stat e’s public safety
interest in incapacitating and deterring recidivist felons, a n d amply s upported
by [the petitioner’s] l ong, s erious criminal record.” One J ustice asserted that the
proportionality princi ple cannot be intelligently applied when t he penological
go a l i s i n capaci t at i o n rat her t han ret ri bution, and one J u stice argued t hat t he
Cruel and Unusual P unishments C lause “contains no proportionality principle.”
5-4. Opinion announcing t he Court’s j udgme nt by O’Conno r , j oined by
Rehnquist and K ennedy. Concurring opinions by Scalia and by T homas.
Dissenting opinions by Stevens, j oined by Souter, Ginsburg, and Breyer; and by
Breyer, j oined by Stevens, Souter, a nd Ginsburg.
FCC v. N extWa ve P e r s o n a l C ommunications, Inc. 123 S. Ct. 832, 71 USLW 4085
B a n k ru p tcy, revocati o n o f FCC l i cen se: S ection 525 of the Bankruptcy Code
prohibits the FCC from revoking communications licenses h eld b y a debtor in
bankruptcy upon the d ebtor’s failure to make timely paym ents for purchase o f
the licenses . Section 525 provides t hat a government agency “may not . . .
revoke” a license held by a d ebtor “ s o l e l y b e cause” t he debtor has not paid a
debt that is dischargeable in bankruptcy. Nex tWave’s failure to make paym ents
on the licenses was the “prox imate cause” of cancellation, and i t i s “irrelevant”
that the FCC had a regulatory motive. When Congress has i ntended t o p rovide
regu latory ex ceptions t o b a n k r uptcy la w requirements, “it h as done so clearly
and ex p ressl y. ” T he l i cense obl i gat i ons are “debts t hat [ are] dischargeable” i n
bankruptcy. “Debt” i s d efined broadly i n t erms of any “righ t t o p ayment,” and
consequently “a debt is a debt, even when the obligation t o pay it is al s o a
regu latory condition.” Dischargeab ility is not t i e d t o authority to modify

wi t h i n an ex press ex cept i o n t o d i s charge, and no such ex cept i o n appl i es. The
Court’s i nterpret ation of s ection 525 does not create any conflict wit h t he
Communi cations Act; the FCC’s “policy preference” for s elling licenses on
credit and t hen cancelling t he licenses rat her t han asserting s ecurity interests i s
not mandated b y t he Communications Act. The dissent’s argument that section
525 should b e i nterpreted more narro wly, in conformity with as s e rted
congressional “purposes,” is rejected.

8-1. Opinion of Court by Scalia , j oine d by Rehnquist, O’Connor, K ennedy,

Souter, T homas, a nd Ginsb u r g. Concu rring opinion by Stevens. Dissenting
opinion by Breyer.
FEC v. Beaumont 123 S. Ct. 2200, 71 USLW 4451 (6-16-03)
Fi rst A men d men t, camp ai gn f i n a n ce, corp orate con tri b u ti o n s : The ban o n
direct corporate contributions to candi dates for federal o ffice imposed by 2
U.S .C. § 1441b may validly be applied to nonprofit advocacy corporations. The
law a llows corporations to es tablish political action committees (“separate
segregated fund[ s] to be utiliz ed for political purposes”) that may m ake
contributions as well as other ex p enditu res i n connection with federal elections.
The C ourt h as di st i n gu i s hed b et ween co rporate contributions and “independent
ex penditures” by corporations, uphol ding a prohibition on contributions in FEC
v. National Rig h t t o Work Committee (1982), and striking down a ban o n
independent ex penditu res as applied t o a nonprofit advocacy corporation i n FEC
v. Massachusetts Citizens f or Life (1986). The corporations involved i n t he two
cas es were similar, an d Massachusetts Citizens f or Life distinguished National
Right to Work on the b asi s o f “its addressing regulation of contributions, not
ex penditures.” “ C o n c e rn about the corrupting potential underlyi ng the
corporate b an may i ndeed be implicated by advocacy corporations” even t hough
t h ey are “general l y di fferent from t radi t i onal busi n ess corporat i ons.” Advocacy
corporat i ons, a s d o for-profi t corporat i ons, b enefi t from “st at e-creat ed
advantages,”andare“nolesssusceptibleto conduits for
ci rcumventing contribution limits imposed on individuals.” Restrictions on
contributions have not been subjected t o t h e s am e l evel of Fi rst A m end m ent
scrut i n y as i ndependent ex pendi t u res b ecause “cont ri but i o n s l i e cl oser t o t h e
edges t han t o t he core of political ex pression.” Section 1441b is not correctly
characterized as a com pl et e b an on cont ri butions, s ince corporations are allowed
to es tablish and pay t he administrative ex penses of P ACs.

7-2. Opinion of C o u r t b y Souter, j oine d by Rehnquist, Steve ns, O’Connor,

Ginsburg, and Breye r. Concurring opinion by K e nnedy. Dissenting opinion by
T homas, j oined by Scalia.
Fitzgerald v. Raci ng Ass’n of C entral Iowa 123 S. Ct. 2156, 71 USLW 4438 (6-9 -03)
State taxation, equal p rotection : Iowa’s differential t ax ation o f revenues from
slot machines – a max imum rat e of 20% if the s lot m achines are on ex cursion
ri verboat s and a m ax i m u m rat e o f 36% i f t h e s l o t m achi n es are at a racet rack –
do e s not violate t he Equal P rotection C lause o f t he Fourteenth Amendment.
The classification i s s ubject to rational bas is review. There must be a plausible
policy reason for t he classification, there m ust b e j ustifyi ng facts t hat t he
legi slat ure rationally may have considered true, and the relationship o f t he
cl assification t o its goal must not be so attenuated as t o render t he distinction
arbitrary o r i rrational. The Iowa S uprem e C ourt erred i n i nvalidating t he law as
frustrating what i t viewed as t he law’s bas ic objective of res cuing racetracks

racetracks’ economic intere sts b y granting t racks t he authority to operate slot
m a c h ines. M ore fundamentally, l egislatures m ay, within the boun d s o f
rationality, “deci de whom they wish to help with thei r t ax laws and how much
help those l aws ought to provide.” Also, a l a w c a n s erve m ore purposes than
one and b al ance di fferent obj ect i v es. W hat i s h arm ful t o t h e racet racks m ay be
h e lpful t o t he riverboats, and the l egislature may have wanted t o enco u r age
economic development of river communities or t o protect reliance i nteres ts of
riverboat operators whose revenues h ad previously been tax ed at t he 20% rate.
The Allegheny Pittsburgh Coal Co. case (1989) is distingu ishable. There t h e
Court s truck down p roperty t ax assessm ents in the “absence of any indication
...thatpolicies underlyi ng [ t he law] could conceivably h ave b een the purpose
for t he . . . unequal assessment”; h ere t he facts d o not preclude an inference t hat
the reason for t he different rates was to a i d t he riverboat i ndustry o r riverside

9-0. Opinion for unanimous Court by Breye r.

Franchise Tax Bd. of California v. Hyatt 123 S. Ct. 1683, 71 USLW 4307 (4-23-03)
Fu l l Fa i th a n d Cred i t, s overei gn i mmu n i ty : The Full Faith and C redit C lause
does not require Nevada to gi ve full fait h and credit to California’s statute
immunizing its tax collection agency from s uit. The C lause does not compel a
stat e t o substitute the statutes of other stat es for its own statutes dealing with a
subject matter concerning which i t i s competent to legi slate. The C ourt
abandoned t he balancing-of-interes ts approach to conflicts of law i n 1981,
concluding that it is frequently the cas e t hat a court can lawfully apply either the
law o f one state o r t he c o n t r a r y law o f another. In this case, involving the
C a l i f o r n i a agency’s alleged i ntentional torts against s omeone allegi ng to be a
citizen of Nevada, Nevada has “s ignificant contact s” and s uffici ent i nteres ts to
avoid t he conclusion that choice of its own l aw i s arbi t rary o r unfai r. The t ax
board’s request for a new rule recogn iz ing “core soverei gnt y” i n t erest s refl ect ed
in sovereign immunity stat utes is reject ed. “ T h e question of which sovereign
interest should b e d eemed more weighty i s not one that can be easily answered.”
In t h i s cas e t here is neither a “princi pled distinction” nor a “constitutionally
significant distinction” between competing state interests at i ssue i n an earlier
case (C al i forni a’s i nt erest i n aut o m o b i l e acci dent s o n i t s roads and Nevada’s
interest in tort cl aims agai nst its university em ployee) and t hose at i ssue i n t he
pres ent cas e (Nevada’s interest in protecting its citizens against intentional t orts,
C al i forni a’s i nt erest i n col l ect i n g t ax es). Here t h e N evada S uprem e C ourt
“sensitivel y applied principles of comity with a healthy regard for California’s
sovereign s tatus.”

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

Votin g Righ ts Act, state l egislative red istricting: T he federal d i s t r i c t court
fai l ed t o consi d er al l o f t he rel evant fact ors w hen i t d et erm i n ed t h at Georgi a’s
redistricting for its Stat e S enat e violated s ection 5 of t he Voting R ights Act , and
therefore was not entitled t o precl earance. Section 5 s eeks t o i nsure t hat s tates
do not adopt changes i n voting p r o c e d ures that “lead to a retrogression in the
position of raci al minorities with respect to thei r effective ex ercise of t he
el ect oral franchi se.” “Effect i v e ex erci s e o f t he electoral franchise” i ncludes t he
ability of minority voters t o elect a candidate of thei r choice, and can be
achieved t hrough creation of “safe” districts in which minority voters constitute
well over 50% of eligible voters. Effective ex ercise o f t he franchise can also be
achieved, however, b y i ncreasing t he concentration of minority voters i n other
districts i n which they have a reasona b l e chance (but not a n ear certainty) o f
electing candidates o f t heir choice or influencing t he outcome of elect i ons.
Georgi a’s S enat e redi s t ri ct i n g p l an “unpacked” s everal safe di st ri ct s, reduci n g
mi n o r i t y strength in each to just over 50%, but at the s ame time increased
minority voting s tren gt h i n o ther districts i n o rder to increase t he number o f
“i nfluence” and “coalitional” district s. The district court “did not engage in the
correct retrogression analys is because it focused t oo heavily on the ability of the
m i n o r i t y group to el ect a candidate of its choice in the [ safe] districts,” and
negl ect ed to credit the s tate’s creation of additional i nfluence an d c o a litional
district s. The district court did not abuse its discretion i n allowing privat e
litigants to intervene i n t he action.
5-4. Opinion of Court by O’Connor, j oine d by Rehnquist, Scalia, K ennedy, a nd
T homas. Concurring opinions by K e nnedy and by T homas. Dissenting opinion
by Souter, j oined by Stevens, Ginsburg, and Breyer.
Gratz v. Bollinger 123 S. Ct. 2411, 71 USLW 4480 (6-23-03)
E q u a l p rotecti o n , raci al d i scri mi n a ti on , col l ege ad mi ssi on s: The University
of Michigan’s policy g o v e r n ing ad mission of undergraduates relies
i m p e rmissibly o n t he race of applicants , and violates the Equal P rote c t i o n
Clause of the Fourteenth Amendment. All racial classifica tions reviewed under
the C l a u s e m ust b e s trictly scrutiniz ed without regard to the race of those
burdened or benefitted. The University’s policy, which automatically gi ves 20
points, or one-fifth of t he total points needed t o gu arant ee adm i ssi on, t o every
applicant who is a m ember o f an “underrepresented minority” d efined by race
(African-Americans, Hispanics, and Nativ e Americans), i s not narrowly t ailored
to achieve the asserted interest in educational diversity. M ichigan’s program
does not meet the conditions proposed by J u stice P owell i n h is 1978 opinion in
Regents v. B akke, allowing a public university t o t a k e race into account in its
admissions policies i n t he contex t of “flex ible” consideration of “al l pertinent
el em ent s of di versi t y i n l i ght of t h e p art i cul ar qual i fi cat i ons of each appl i cant . ”
R at h er t h an provi di ng for i ndi vi dual i z ed consi d erat i o n o f each appl i c a n t , t h e
policy“hastheeffect ofmaking‘thefactorofrace...decisive’forvirtually
every minimall y qual i f i e d underrepresent e d m i nori t y applicant.” The possibility
that a s tudent’s application might be “f lagged” for i ndividualiz ed consideration
does not save the policy, since t his flaggi ng can operate only after allocation o f
the automatic points. The fact that there are practical difficulties i n applyi ng
individualiz ed consideration at s o l arge a u n i v ersity “does not render
constitutional an otherwise problem atic system .” A petitioner who was denied
admission as a freshman and who ex p ressed an i nterest i n t ransferring if

and w as an adequat e represent at i v e i n a cl ass act i on.
6-3. Opinion of Court by Rehnquist, j oi ned by O’Connor, Scalia, K ennedy, a nd
T homas. Concurring o p i n i o n s b y O’Connor, j oined i n part by Breye r; by
T homas; a nd by Breyer. Dissenting opi nions by Stevens, j oined by Souter; by
Souter, j oined i n part by Ginsburg; and by Ginsburg, j oined by Souter, a nd j oined
Green Tree Financial C orp. v. Bazzle 123 S. Ct. 2402, 71 USLW 4538 (6-23-03)
Arbitration : T he i ssue o f w het h er an arbi t rat i o n cl ause i n a cont ract bet w een
a c o mmercial l ender and its customers forbids cl as s arbitration i s a matter for
t h e arbitrator to decide. Because there i s a “strong likelihood” in these cases
t h at t h e arbi t rat or’s deci si on “refl ect ed a court ’s i nt erpret at i o n o f t he cont ract s
rather than an arbi t rator’s interpreta tion,” the case i s remanded for further
proceedi n gs . T he cases do not fal l wi t h i n narrow ex cept i ons rel at i n g t o whet h er
the parties a greed t o arbitrat e a m atter, but relate instead to “what kind of
arbitration proceeding the parties agreed to.” The issue is one of contract
interpretation and arbitration procedures that arbitrat ors “are wel l s ituat ed to

5-4. No opinion of Court. Opinion a nnouncing t he Court’s j udgme nt by Breyer,

j oined by Scalia, Souter, a nd Ginsbur g. Concu r r i ng opinion by Stevens.
Dissenting opinions by Rehnquist, joined by O’Connor and K ennedy; a nd by
Grutter v. Bollinger 123 S. Ct. 2325, 71 USLW 4498 (6-23-03)
E q u a l p rotec t i o n , raci al d i scri mi nation, l aw school admi ssions :The
University of Michigan Law S chool’s rel i a n c e o n race as a factor governing
admission of students does not violate t he Equal P rotection C lau s e o f t he
Fourteenth Amendment. The l aw school seek s t o e n r o l l a “critical mass” of
underrepresented minority students i n order to produce classes “both d iverse
and academically outstanding.” “Student body diversity is a compelling s tate
interest that can justify t he use of race in university admissions.” Strict scrutiny
is not al ways “s trict i n t h e o r y, but fatal i n fact.” Some governmental uses of
race can withstand s trict s crutiny. Th e l aw school’s “educational j udgment that
such diversity is essential t o its educational mission, ” s upported b y amici
pointing t o similar needs of t he business and military communities, “i s one to
whi ch we d efer.” Educat i onal b enefi t s of di versi t y i n c l u d e “cross-raci al
understanding” an d “ l ivelier” and “more enlightening” classroom discussion.
Dispelling t he stereotype that there i s a single “minority viewpoint” on any issue
can be achi eved b y a “ cri t i cal m ass” of minority students, but not by “token
representation.” The l aw school’s admi ssions progra m i s “narrowly t ailored”
to achieve the compelling i nteres t of diversity. The program does not es tablish
a “quota,” but is “a highly individualiz ed , holistic review of each applicant’s
file, giving s erious consideration t o all the ways an applicant might contribute
to a d iverse educational environment.” “Some attention t o numbers, without
more, does not transform a flex ible admissions system into a rigid quota.” The
number of minority students enrolled between 1993 and 2000 showed variation
(from 13.5 to 20.1 percent) in “a range i nconsistent with a quota.” The law
s chool adequately considered and rej ected race-neutral alternatives to i t s
5-4. Opinion of Court by O’Connor, j oined b y Stevens, Souter, Ginsburg, and
Breyer, and j oined in part by Scalia and T homas. Co n c u rring opinion by

j oined by T homas; a nd by T homas, j oined i n part by Scalia. Dissenting opinions
by Rehnquist, j oined by Scalia, K ennedy, a nd T homas; a nd by K e nnedy.
Hillside Dairy, Inc. v. L yons 123 S. Ct. 2142, 71 USLW 4425 (6-9 -03)
C o mmerce, stat e r e g u l a t i o n ; Pr i v i l e g e s a n d I mmu n i t i e s C l a u s e : S ection 144
of the Federal Agriculture Im provement and R eform Act of 1996, disclaiming
preem ption of any Cal i f ornia l aw regulating “the percentage of milk solids or
solids not fat i n fluid milk” does not operate to ex em pt California’s milk pricing
laws from s crutiny under t he Co m m erce C lause. Although C ongress may
aut hori z e s t at es t o regul at e i nt erst at e c o m m erce i n ways t hat , absent
aut h o r ization, would be hel d t o be i nvalid as burdening or discriminating
agai nst i nt erst at e c o m m erce, C ongress m u st ex press i t s i n t ent t o do so
unambiguously. The federal s tatute at issue unambiguously ex presses an i ntent
to authorize C alifornia’s “compositional and labeling l aws” for milk, but “t hat
ex pression does not encompass t he pricing and poo l i n g l aws.” A claim
challenging C alifornia’s prici ng and pooling l aws as violative of t he Privileges
and Immunities C lause o f Art. IV, § 2 , s hould not have been dismissed s imply
because the l aws d o not on their face discriminate o n t he basis o f residency or
citizenship. “Absence of an ex press stat em ent ...identifying out-of-state
citizenship as a bas is for disparate treatment is not a s uffici ent bas is for rej ecting
this cl aim.”

8-1 ( c o mme r c e ) ; 9-0 (privileges and immunities). Opinion of Court by Stevens,

unanimous in part, and j oined in separate part by Rehnquist, O’Connor, Scalia,
K ennedy, Souter, Ginsburg, and Breyer. Concurring and dissenting opinion by
Howsam v. Dean Witter Reynolds, Inc. 123 S. Ct. 588, 71 USLW 4019 (12-10-02)
Arbitration : An arbitrator rather than a court s hould apply an arbitration rule
of the National Associ ation of S ecurities Deal ers (NASD) that is applicable to
a dispute arising out of a contract between the parties, and t hat governs t he time
limit for s ubmitting i ssues to arbitration. Because a r b i tration i s a matter o f
contract and a party cannot be required t o s ubmit to arbitration without agreeing
to do so, t he general rule i s t hat a question of arbitrability is for j udici al
determination unles s t he parties clearly and unmistakably p rovide otherwise.
T h e NASD time limit rule, however, i s a “gat eway” procedural matter t hat
parties would likel y ex pect the arbitrat or to d eci d e , a n d that , t herefore, i s
“presu m p t i v e l y for the arbitrator, not for t he judge.” This conclusion is
consistent with a comment to the R evised Unifo r m A rbitration Act : “in the
absence of an agreem ent t o t he contrary, i ssues of substantive arbitrability . . .
are for a court t o deci de and i ssues of procedural arbitrability, i .e., whet her
prereq u i s i tes such as time limits ...havebeen met, areforthearbitratorsto

8-0. Opinion of Court by Breye r, j oined by Rehnquist, Steve ns, Scalia, K ennedy,

Souter, and Ginsburg. Concurring opinion by Thomas. O’Connor did not
I l linois ex r el. Madigan v. Telemarketing Assocs., Inc. 123 S. Ct. 1829, 71 U S L W


Fi rst Amendmen t, ch aritable solicitations, f raud : The Fi rst Amendment
does not prohibit a state from b ringing a fraud action against fund r a i s e r s who
make false o r misleading representations intended t o d eceive potential donors

invalidated state l aws t hat p roh i b i t e d fundraisers from k eeping m ore t han a
specified percentage of money collected, o r t hat required fundraisers to disclose
to potential donors t he percentage of thei r contributions that would actually be
turner over t o charity. These decisions were premised on the belief t hat neither
high f undraising costs nor failure to di sclose the fundraiser’s fee establishes
fraud, the C ourt ex plaining t hat s tates could s till “vigorously enforce” antifraud
laws to protect the public from fal se or misleading charitable s olicitations. “So
long as the emphasis i s o n what t he fun d raisers misleadingl y convey, and not
on percentage limitations on sol i c i t o rs’ fees per s e, s uch actions need not
impermissibly chill protected speech.” The s t a t e bears t he burden o f p roof in
a “properly t ailored” fraud action; the Illinois l aw requires t he state t o p rove by
“clear and convincing evidence” that the d efendant knowingl y m ade a fal se
rep r esentation of a material fact with the intent to mislead, and succeed ed i n
doi ng so. In t hi s case t he pl eadi n g d escri b ed m i s represent at i ons t h at are
unprotected by the First Amendme n t. Fundraisers allegedly asserted that “a
sign ificant amount” o f each dollar donated would b e p aid over t o t he charity,
when in fact “the amount of funds being p aid over t o c h arity (15 cents or less
on the dollar) was m erel y i nciden tal t o t he fund raising effort,” an d also
allegedly asserted falsely t hat “substantial portions” o f funds collected wou l d
be used to support a message center for Persian Gulf t roops.

9-0. Opinion for unanimous Court by Gins burg. Concurring opinion by Scalia,

INSv.Ventura 123 S. Ct. 353, 71 USLW 3314 (11-4-02)
Immi grati o n , revi ew o f B IA d eci si on : The Ninth C ircuit erred i n d eciding an
immigration cas e o n t he merits rather than remanding to the Board of
Immigration Appeal s t o resolve an issue i t had not ad d r es s e d – the i ssue of
whet her ci rcum s t ances i n Guat em al a h ad changed s o m uch f o l l o wi ng t h e end
of a civil war t hat t he respondent would not face p e r s e c u t i o n o n account of
political opinions if he were denied as yl um and forced to return to Guat em al a.
Generally, a court s hould remand t o an agency for initial d ecision on a m atter
that the s tatute places primarily in agency hands. By relyi ng on an ambiguous
fi ve-year-ol d S t at e D epart m ent report t o reach i t s concl u si on t h at t h e t hreat of
political persecution rem ai ned, the court disregarded the agency’s l egally
m andat ed rol e and “creat ed pot ent i al l y far-reachi n g l egal precedent ...without
gi ving the BIA the opportunity to addres s t he matter i n t he first i nstance.”


Inyo County v. Paiute-Shoshone Indians 123 S. Ct. 1887, 71 USLW 4370 (5-19-03)
S ection 1983, “p erson ,” sovereign immu n i ty: An Indian Tribe d o e s not
qualify as a “person” who m ay su e u nder 4 2 U.S.C. § 1983 to vindicate an
interest in immunity from compliance with a criminal search warrant. S ection
1983 uses the word “person” in two contex ts, t o d escribe claimants who may
sue and to describe potential d efendants who, “under color of state l aw,” deprive
someone of federal rights. The C ourt h as held that Congress did not intend to
override state s overeign immunity, and that therefore a s tate is not a “person”
subject to suit under s ection 1983. Even i f similar p rotection i s accorded to
Indian tribes, however, this would not mean that tribes cannot be claimant
“persons” for purposes of section 1983. Th e general presumption t hat i dentical
words i n t he sam e act are i nt ended t o h ave i dent i cal m eani n gs “i s not ri gi d,” and

recogn iz ed as “persons” i n o ther contex ts, but the purposes of section 1983
would not be served by such recogn ition under t he circumstances of this case.
Section 1983 “ was design ed to secure private rights against government
encroachment,...not to advanceasovereign’sprerogativetowithhold
evidence relevant to a criminal investigation.”

9-0. Opinion of Court by Ginsburg, j o ined by Rehnquist, O’Connor, Scalia ,

K e nnedy, Souter, T homas, a nd Breyer . Concurring opinion by Stevens.
Jinks v. Richland County 123 S. Ct. 1667, 71 USLW 4310 (4-22-03)
Necessary and Proper Clau se, supplemen tal jurisdiction: 28 U.S.C. §
1367(d), which provides for the t olling o f a state s tatute of limitations while a
state cause of action t hat i s s upplemental t o a federal claim is pending in federal
court, and for 3 0 d a ys thereafter, is constitutional. Although t he Constitution
does not ex pressly grant Congress the power to toll limitations periods for s tate-
law claims brought in a s tate court, the power conferred by Art. I, § 8, cl. 18 to
m ake al l l aws “necessary and p roper for carryi n g i nt o ex ecut i on” powers v est ed
in the federal government supports section 1367(d). That p rovision is necessary
and p roper t o effectuate Congress’s power to “constitute tribunals inferior to the
S uprem e C ourt , ” and t o enabl e t h e fai r and effi ci ent ex erci s e o f “ t h e j udi ci al
power of the United S tates.” A law need not be “absolutely necessary” t o t he
ex erci se of an enum erat ed p o w e r t o b e “necessary and p roper.” “R at h er, i t
suffices t h at § 1367(d) is ‘conducive t o t he due administration o f j ustice’ in
federal court and is ‘plainly adapted’ to that end.” The p rovision is conducive
t o t h e adm i n i s t rat i o n o f j ust i ce b ecause i t provi des an al t ernat i v e t o t h e
unsatisfactory options that federal j udges would otherwise face in determining
w h ether t he retain jurisdiction over s upplemental claims that might bec o m e
time-ba r r e d i n s tate court, and b ecause it eliminates a s erious impediment to
access t o federal court s by pl ai nt i ffs pur s u i n g f e d eral and s t at e cl ai m s t h at
derive from a common nucleus of operative fact . P rinciples of s tate sovereignty
do not prevent § 1367(d) from b eing a “proper” ex ercise of power; t he provision
does not fall into the cat egory o f s t a t e “procedure” that is immune from
congressional regulation. If there i s a valid “substance/procedure d ichotomy, ”
the t olling of a limitations period falls on the s ubstance s ide of t he line. Section

1367(d) validly applies to claims brou gh t against a s tate’s political subdivisions;

a cl ear st at em ent rul e for such cases woul d b e i nconsi s t ent wi t h Monell v. New
Y o rk C i t y Depart ment o f Soci a l S ervi ces (1978), holding that municipalities are
subject to suit as “persons” under 4 2 U.S.C. § 1983.

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

Fo u rth Amen d men t, arrest, con f essi on : The petitioner, a 17-year old, was
arrested and s ei zed within the m eaning of t he Fourth Amendment when police
officers, who had been denied a warrant to take the petitioner i nto custody for
questioning, awoke him i n his bedroom at 3 a.m. by s hining a flashlight in his
eyes, t old h im “we n eed to go and t alk,” handcuffed h im, took him t o t he patrol
car in his underwear, t ransported h im to the s cene o f a crime, and then took him
to the s tation house and questioned him. The p etit i o n e r ’ s “ O .K.” in response
to “we n eed to go and t alk” w a s “ no showing o f consent under t he
ci rcum st ances,” but was m erel y a “subm i ssion to a claim of lawful authority.”
Because the p etitioner was unlawfully a r r e s t ed before he was questioned, his
confession during t hat questioning must be suppressed unless t he confession
was “an act of free will suffici ent t o rem ove the primary taint of t he unlawful
invasion.” A Miranda warning alone is insuffici ent t o break the t ai nt.


Kentucky Ass’n of Health Plans, Inc. v. Miller 123 S. Ct. 1471, 71 USLW 4259 (4-2 -


E RIS A, p reemp ti o n , state l aw s regu l ati n g i n s u ran ce: K ent u cky’s “any
willing provider” (AWP) s tatutes, which prohibit health insurers from
discriminating against any provider willing t o m eet the i nsurer’s terms and
conditions forparticipation, are“law[s] ...which regulateinsurance”within
t h e m eani n g o f E R IS A . T hi s m eans t hat t he AW P s t a t u t es are t h ereby s aved
from ERISA’s broad preem ption of all stat e l aws t hat “relate to any employee
heal t h benefi t p l an.” General l y, l aws s peci fi cal l y di rect ed t o ward t h e i nsurance
pract i ces of i n surance com pani es are h el d t o b e l a w s “whi ch regul at e
i n surance.” T he fact t h at t h e AW P st at ut es’ regul at i o n o f i nsurance com p ani es
also affects p roviders does not take the statutes outside the s cope of the s avings
clause. S tate laws need not control t he terms of i nsurance policies i n order to
qualify for the ex ception, but m u s t s u b s tantially affect the risk pooling
arrangem ent b et ween t h e i nsurer and i nsured. AW P l aws do so by al t eri ng t h e
scope of perm i ssi bl e b argai n s b et ween i n surers and i nsureds; t h e effect i s t h at
i n surers can n o l onger offer l ower prem i u m s i n ex change for accept ance o f a
closed network o f p roviders. R eliance on cas es interpreting t he McCarran-
Ferguson Act , whi ch regul at es “t he busi n ess o f i nsurance,” i s m i s pl aced. T he
two s tatutes use substantially different language, and t h e M c C arran-Ferguson
Act t ests were developed i n cases that a ddressed conduct b y p rivate actors rather

9-0. Opinion for unanimous Court by Scalia.

L a w r ence v. T exas 123 S. Ct. 2472, 71 USLW 4574 (6-26-03)
Due Process, privacy, sodomy: A Tex as s tatute mak i ng it a crime for t wo
people o f t he same sex t o engage i n s odom y v iolates t he Due P rocess C lause o f
the Fourteenth Amendment. The right to liberty protect ed by the Due Proces s
C l ause i n cl udes t he ri gh t o f t wo adul t s , “wi t h ful l and m ut ual consent from each
ot he r , [ t o] engag[ e] i n sex u al pract i ces com m o n t o a hom osex ual l i fest yl e.”
Bowers v. Hardwick (1986), upholding application o f a Georgi a s odomy l aw on
the b asis that there i s n o fundamental righ t o f homosex uals t o e n gage in
sodomy, i s o v e rruled. The Bowers Court “misapprehended t he claim o f
liberty.” The s odomy l aws, althou gh d i r ected at a p articular sex u al act, h ave
“m ore far-reachi n g consequences ,..andseektocontrolapersonalrelationship

liberty of persons to choose without being p u n i s h ed as criminals.” The
“historical premises” relied upon by the Bowers Court are questionable. “There
is no l o ngstanding history i n t his country of laws directed at homosex ual
conduct as a distinct matter.” General sodomy l aws “do not seem to have been
enforced against consenting adults acting i n p rivate,” but rather for t he most part
have been enforced in cases involving mi nors, assault victims, or animals. The
Bowers precedent h as been undermined by later d ecisions of the C ourt, and its
reasoni ng has b een rej ect ed by st at e and foreign courts. The doctrine o f stare
deci si s is not controlling; “t here has been no individual or s ocietal reliance on
Bowers of the s ort t hat could counsel against overturning its holding.”
6-3. Opinion of Court by K ennedy, j oine d by Stevens, Souter, Ginsburg, and
Breyer. Concurring opinion by O’Connor. Dissenting opi nions by Scalia, j oined
by Rehnquist and T homas; a nd by T homas.
L o ckyer v. Andrade 123 S. Ct. 1166, 71 USLW 4161 (3-5 -03)
H a b eas corp u s , “ th ree-stri k es” l a w : Imposition o n a 37-year-old of two
consecutive 25-year-to-life s e n tences under C alifornia’s t hree strikes l aw on
conviction for two “petty thefts with a prior conviction” is not contrary to, and
does not involve an unreasonable application o f, clearly established federal law
as determined by the S upreme C ourt. Th e s t andard fo r h abeas corpus rel i ef
from a stat e s ent e nce established by t he Antiterrorism and Effective Deat h
Penalty Act, 28 U.S.C. § 2254, is t h e r e f o r e not met. The S upreme C ourt’s
precedent s i n t h e ar e a “have not been a m odel o f cl ari t y.” W h i l e a “gross
disproportionality” principle derived from t he Eigh th Amendment’s C ruel and
Unusual P unishments C lause i s applicab l e t o sent ences for t erm s of years, t h e
precise contours o f t he principle are unclear. The California C ourt o f Appeal’s
decision was not “contrary to” clearl y e s tablished l aw. It was permissible for
t h at court t o rel y o n Rummel v. E s t e lle (1980), i n which the C ourt rejected a
challenge, based o n gross disproportionality, t o a sentence of life imprisonment
with possibility o f p a ro l e after 10 t o 12 years. The fact s i n t his case fel l “in
between” t hose o f Rumm e l and t hose of Sol em v. Hel m (1983), i n which the
Court granted relief from a sentence of life imprisonment without possibility of
parole. Nor are t he consecutive s entences an “unreasonable application” of
clearly established p recedent. To fail under t his t est t he state court’s application
must be “objectively unreasonable.” “He r e , however, t he governing l egal
princi ple gives legi slat ures broad discretion t o fas hion a s entence t hat fits within
the s cope of the proportionality principle,” and the s entencing was not
objectively unreasonable.
5-4. Opinion of Court by O’Connor, j oine d by Rehnquist, Scalia, K ennedy, a nd
T homas. Dissenting opinion by Souter, j oined by Stevens, Ginsburg, and Breyer.
Massaro v. United States 123 S. Ct. 1690, 71 USLW 4310 (4-23-03)
Habeas co rpus, ineffective assistance of counsel: Ineffect i v e assi st ance of
counsel claims that were not raised on di rect appeal may b e b rought in habeas
corpus proceedings even if the p etitioner could h ave raised t he claim o n d irect
appeal. In this case t he petitioner had been represented by new counsel on
appeal, and his t rial counsel’s ineffectiv eness was evident from t he trial record.
T h e general rul e t h at cl ai m s not rai s ed on di rect appeal m ay not be r a i s e d o n
collateral review unles s t he petitioner s hows cause and prejudice is inapplicable
to claims of ineffective counsel. R equiring such claims to be brought on direct

rule – conserving judici al resources and promoting finality of judgments. The
trial record is not developed for the purpose of litigating a cl ai m of i neffective
assista n ce of counsel, and may b e i ncomplete for that purpose. Appellate
counsel could feel compelled t o raise the i ssue o n d irect appeal before it is fully
developed, might feel pressured t o b ring the claim regardless of merit i n order
to prevent waiver and avoid a claim o f ineffective appellate counsel, and might
be hampered in obtaining trial counsel’s assistance in the appeal. “Few” such
cl aims would be capable of resolution o n d i r ect appeal , and appellate courts
“would waste time and resources” attempting t o resolve the variou s i ssues.
Allowing ineffective assistance claims to be litigat ed on collateral review m eans
that they can be litigat ed in the first instance in district courts, “the forum best
suited t o d evel oping the fact s necessary to determining t he adequacy of

9-0. Opinion for unanimous Court by K ennedy.

Meyer v. Hol l ey 123 S. Ct. 824, 71 USLW 4081 (1-22-03)
Fair Housing Act, racial d iscri mi nation, vicarious liability:TheFair
Housing Act imposes vicarious liability on a corporation, but not upon
corporat e officers or owners , for t he raci ally discriminat ory act s of corporat e
em ployees . The Act prohibits raci al discrimination i n real es tate transactions,
but is silent about vicarious liability. The established rule i s t hat when C ongress
creates a t ort action, as it did i n t he Fair Housing Act, i t i ncorpora t e s t h e
ordinary t o rt rules of vicarious liability unles s i t s peci fies a different intent.
Congress has done so in several contex ts, e.g., t he an titrust and food an d d rug
laws, but said nothing in the Fair Housing Act or its legi slative his t o r y a bout
ex tending vicarious liability beyond traditi onal principles. Traditional v icarious
liability rules m ake employers liable for act s of t heir agents or em ployees in the
scope of their employm ent, but treat the corporation – not its owner o r o fficer
– as t he em pl oyer. A corporat e o ffi cer’s ri gh t t o cont rol an em p l o yee’s act i ons
is insuffici en t b y itsel f t o establish t he em ployer/employee rel ationship.
Moreover, the C ourt d efers t o an administering agency’s reasonable
interpretations of a s tatute, and views a HUD regulation governing
administrative complaints as adopti n g t h e traditional v icarious liability rules.
The Act does not create a non-delegable dut y t hat t rumps t raditional v icarious
liability p r i n ci p l es . C h a ract eri z i n g t h e A c t ’ s o b j ect i v e a s a n “ o v e rri d i n g s o ci et al
priority” does not change the liability rules.

9-0. Opinion for unanimous Court by Breye r.

Miller-El v. Cockr el l 123 S. Ct. 1029, 71 USLW 4095 (2-25-03)
Habeas corpus, certif icate o f a p p ealability : A habeas corpus petitioner
seeking permission in the form of a certificat e of appeal ability (COA) to initiate
appellate review of dismissal of his petition need o n l y m ake “a substantial
showing of t he denial of a constitutional right.” A petitioner satis fi es this
standard by demonstrating t hat j urists of reas on could disagree with the district
court’s rej ection of his cl aims or could conclude that t h e i ssues are worthy o f
further considera t i o n . In t h is case t he appeals court erred i n d enyi ng a C OA.
The petitioner m ade a “substantial s howing” of raci al discrimination i n j ury
sel ect i o n at h i s st at e court t ri al , as m eas ured by a “threshold” application o f t he
three-part test set forth in Batson v. Kentucky (1986). S tatistical evidence alone
rai s ed “som e d ebat e” as t o race-based m o t i v es: t he prosecut o rs used perem p t o ry

ex cluded only 4 of the 3 1 o ther prospective j urors. The m anner i n which
potential j urors were questioned v aried b y r a c e, p rosecutors used a “jury
shuffling” practice t o reduce t he number o f African Amer i c a n s l i k ely t o b e
questioned during voi r di re, and there was a h istory in the county o f a f o r m al
policy o f ex cluding minorities f r o m j ury s ervice. Although t he prosecutors
proffered race-neut ral ex p l anat i ons for t hei r act i ons, “a fai r i nt erpret at i o n o f t he
record...isthattheprosecutors designedtheirquestions to elicit responses that
w o uld j ustify t he removal o f African-Americans from t he venire.” Also , t h e
stat e courts made no mention of t he jury shuffling o r t he history o f purposeful
discrimination. Whet her or not the petitioner can prevai l on t he merits by “cl ear
and convincing evidence,” t he issue i s at l east “debatable, ” and that is all t hat
is necessary for a C OA.

8-1. Opinion of Court by Kennedy, j oined by Rehnquist, Stevens, O’Connor,

Scalia, Souter, Ginsburg, and Breyer. Concurring opinion by Scalia. Dissenting
opinion by T homas.
Moseley v. V Secret Catalogue, Inc. 123 S. Ct. 1115, 71 USLW 4126 (3-4 -03)
Fed eral T rad ema rk Di l u ti on Act: Trad e m a r k dilution, prohibited by t he
Federal Trademark Dilution Act (FTDA) , requires objective p roof o f a ctual
injury t o the capacity of a famous mark to identify and distingu ish a product,
and i s not satisfied by a m ere p resumption o f h arm embodied in a “likelihood
of dilution” standard. T h e FT D A provides relief against the use of a fam ous
mark if th a t use “causes dilution of t he distinctive quality” of t he mark. This
language “unambiguousl y r e q u ires a s howing o f actual d ilution, rather than a
likelihood of dilution.” Language in the definition of t he term “dilution” reveals
contrasting usage that “fortifie[s]” this conclusion. Dilution i s defined as “t he
lessening of t h e cap acity” of a famous mark to identify and distinguish a
product, regardl e s s o f the p resence o r absence of “likelihood of confusion.”
Mental association o f a junior user’s mark with a fam ous mark is not suffici ent
to es tablish dilution. Neither blurring nor tarnishing is a necessary consequence
of m ent al associ at i on. In t h i s case, t h ere was “a com p l et e absence o f any
evidence” that use of t he name “Victor’s Little Secret ” by a retail store caused
“any l esseni ng of t h e capaci t y of t h e VIC TORIA’S S ECRET m ark t o i dentify
and d istingu ish goods or services sold in Vi ctoria’s Secret stores or advertised
in its cat al ogs.”
9-0. Opinion of Court by Stevens, unanimous in part, and j oined in separate part
by R e hnquist, O’Connor, K ennedy, Souter , T homas, Ginsburg, and Breyer.
Concurring opinion by K e nnedy.
N a t i onal Park Hospita lity Ass’n v. Department of t he Interior 123 S. Ct. 2026, 7 1
USLW 4399 (5-27-03)
Ad ministrative law, ripeness: T he faci al chal l enge t o a Nat i onal P ark S ervi ce
regu lation p roviding that the C ontrac t D i sputes Act (CDA) does not apply t o
cont ract s b et ween t h e N at i onal P ark S ervi ce and concessi oners i n t h e n at i onal
parks i s not ripe for adjudication. Ripeness of administrative action for judici al
review is evaluated t hrough t wo inquiries : whether the i ssues are fit for j udicial
decision and whether withholding review would create h ardship for the p arties.
As a general matter, a regulation i s n o t ri p e for review until its application
harm s o r t hreat ens t o h arm a part y. The N at i onal P ark S ervi ce has n o d el egat ed
rulemaking authority under the CDA, and the challenged portion of its
regulation i s “nothing more than a general stat em ent of policy” informing t h e

no effect s o f a st ri ct l y l egal k i nd, and does not adversely affect a concessioner’s
“primary” conduct. T h e f a c t that concessioners may wish t o t ake C DA
applicability into account when bidding on contracts m erely ref lects possible
uncertainty not amounting t o h ardship. Although t he issue raised i s “a purely
legal o n e ” t hat i s “final” for purposes of the Administrative P rocedure Act ,
further fact ual devel opment would enhance a court’s ability to deal with those
issues, and consequently judicial reso lution “sho uld awai t a concrete dispute
about a p articular concession contract.”

7-2. Opinion of Court by T homas, j oined b y Rehnquist, Scalia, K ennedy, Souter,

and Ginsburg. Concurring opinion by St evens. Dissenting opinion by Breyer,
j oined by O’Connor.
Nevada Dep’t o f Human Resources v. Hibbs 123 S. Ct. 1972, 71 USLW 4375 (5-27-


Fa mily and Medical Leave Act, state i mmunity : The Family an d M ed ical
Leave A ct of 1993 (FMLA) is a valid ex erci se of congressional power under
section 5 of t he Fourteenth Amendment. T he FMLA entitles eligible
employees, i ncluding empl oyees of state governments, to take up to 12 weeks
annu ally of unpaid leave t o care for a family member with a s erious health
condition, and authoriz es suits for i njunctive relief and money damages “against
any em p l o yer (i n cl udi ng a publ i c agency)” t h at i n t erferes w i t h ex erci se of
FM LA ri gh t s . T h i s authoriz ation o f recovery of money d amages from s tate
employers i s v alid. C ongress may, pursuant t o a valid ex ercise of power under
section 5 of t he Fourteenth Amendment, abrogate stat e immunity from s uit i n
federal court. Under s ection 5 , C ongress may enact “prophylactic legi slation
that proscribes facially constitutiona l conduct, in order t o p revent and d eter
unconstitutional conduct.” The FM LA “aims to protect the right to be free from
gender-based discrimination i n t he wor kplace,” and Congress had evidence o f
a p attern of gender-based discriminatio n b y s tates t hat was “weigh ty enough t o
justify t he enac t m e n t of prophylactic §5 legi slation.” The Kimel and Garrett
deci sions are distinguished by t he fact that age and disability discrimination are
not subj ect ed t o t h e h ei gh t ened l evel of scrutiny t hat a p p lies t o gender
discrimination; heightened scrutiny o f s tate action m ade i t “easier for Congress
to show a pattern of stat e constitutional violations.” The FMLA ’ s r emedy,
“creating an across-the-board , r outine employm ent benefit for all eligible
em ployees ” r ather t han s imply prohibiting gender discrimination i n t he
provision of leave b enefits, i s “ c o n g ru ent and proportional” to the t argeted
violation. This approach “attacks t he form erl y st at e-sanct i oned s tereotyp e t hat
only women are responsible for family ca r egi ving,” and reduces employers’
incentiv e t o discriminat e i n t he hiring and promotion of women. The
limitations placed on leave availability (e.g., l eave i s unpaid, employees must
work for a year before qualif yi n g ) h elp t o ensure t hat t he means are
“proportionate” t o ends that are l egitimate under s ection 5 .
6-3. Opinion of Court by Re hnquist, j oined by O’Connor, Souter, Ginsburg, and
Breyer. Concurring opinions by Stevens; and by Souter, j oined by Ginsburg a nd
Breyer. Dissenting opinions by Scal i a ; a n d b y K e nnedy, j oined by Scalia and
Nguyen v. United States 123 S. Ct. 2130, 71 USLW 4428 (6-9 -03)
Appeals courts, design ation of d istrict judges : J udges of the District C ourt
for t he Northern Mariana Islands ar e not “district j udges ” who may s it by

applicable statute, 28 U.S.C. § 292(a), w hich authoriz es a circuit’s chief judge
to assign “one or more district judges w i t h i n t h e circuit” to sit o n t he appeals
court , t h e t erm “di st ri ct j udges” refers t o j udges of Article III courts , n o t to
judges of territorial “Art i c l e IV” courts. S everal provisions of title 28, read
together, require this conclusion. The t erm “district court” as used in title 28 is
defined as a “court of t he United S tates” that is constituted pursuant t o chapter
five of the title. C hapter five lists al l s uch courts, but the District C ourt for the
Northern Mariana Islands is not so listed. Moreover, although chapter five
provides t hat d istrict j u d g e s hold o ffi ce “during good behavior,” another
provision directs t hat d istrict j udges for t he Marianas are appointed for a term
of years, and are rem ovabl e b y t he P resi d ent for cause. C ase l aw precedent al s o
supports the conclusion that the t erm “Un ited S tates district court,” as u sed i n
title 28, “ordinarily ex cl udes Article IV territorial courts.” Arguments t hat t he
appellate panel’s j udgment should re m a i n undisturbed even t hough t he panel
was improperly constituted are reject ed . The “d e fact o o fficer doctrine” has
been applied when t here were merely technical defect s of s tat utory authority,
but should not apply t o contravene Congress’s “weighty” decision to maintain
the Article III charact er of the appeal s c o u r ts. C oncern for the validity of the
appeals court’s composition also counsels against deciding the case o n t he basis
of an assessment o f t he fairness o f the p etitioners’ convictions. The presence
of a quorum of two qualified j udges on th e p anel is also insufficient t o
overcome t he defect.
5-4. Opin i o n of Court by Steve ns, j oi ned by O’Connor, K ennedy, Souter, a nd
Thomas. Dissenting opinion by Re hnquist, j oined by Scalia, Ginsburg, and
N o rf ol k & West ern R y. v. Ayers 123 S. Ct. 1210, 71 USLW 4197 (3-10-03)
Federal E mp loyers’ L iability Act, d amages f or mental anguish : A railroad
worker suffering fro m a s b e s t o sis caused i n p art b y on-the-job ex posure t o
asbestos may recover d amages under t he Federal Em p l o ye r s ’ Liability Act
(FELA) for p ain and suffer i n g due to fear of developing cancer. C ase l aw
precedents under t he FELA have recogn iz ed two categories o f emoti o n al
distress claims: “stand-alone” claims not provoked b y any physical injury, for
which recovery is sharply circumscribed; and claims brought on by a physical
injury, for which pai n and suffering recovery is permitted. Asbestosis is a
cogn i z able injury under t he FE LA, and fear that cancer will develop i s an
em otional disturbance that can be tied t o t he inj u ry an d t h a t can gi ve rise to
recovery. Although i t i s asbestos ex posure rather t han asbestosis itself t hat can
result in cancer, once t here has b een bodily harm in the form o f asbestosis t he
responsible parties t raditionally can be held liable for emotional distress
“res ulting from ...theconduct which causes [ the bodily harm] . ” “There i s an
undisputed relationship b etween ex p o sure to asbestos sufficient t o cause
asbestosis, and asbestos-r e l a t e d cancer .” Claimants m ust, however, establish
that their alleged fears are “genuine and s erious.” The FELA does not authoriz e
apportionment o f d amages between railr oad and non-railroad causes. Rather,
the FELA p rovides t hat, if an injury has result e d “in whole o r i n p art” from a
railroad’snegligence, that railroadis“liableindamages ...forsuch injury.”
This means t hat t he railroad i s j ointly and s everally liable for full damages even
if the i njuries were caused i n part by negligence of third parties. Narrowing this
employer liability without tex t ual warrant w o u l d “ r u n counter to a century of
FELA jurisprudence,” and woul d complicate adjudications.

5-4 (recovery for f ear of cancer) 9-0 (j oi n t a n d several liability). Opinion of
Court by Ginsburg, unanimous in part, and j oined in sep a r a t e part by Stevens,
Scalia, Souter, a nd T homas. Concurring and dissenting opinion by K e nnedy,
j oined by Rehnquist, O’Connor, a nd Breyer . Concurring and dissenting opinion
Over ton v. Bazzetta 123 S. Ct. 2162, 71 USLW 4445 (6-16-03)
D u e p rocess, restri cti on s o n p ri son v i s i tati o n : P rison visitation polici e s
implemented by the M ichigan Depar tment of Corrections in 1995 are not
invalid as depriving i nmates of associa tional o r due process rights, and d o not
constitute cruel and unusual punishment. The right of association “is among the
righ ts least compatible w i t h incarceration.” Each challenged policy “bears a
reasonable rel ationship t o a legitimate penological interest.” Res t ri ctions on
visitation by children bear a rational rel ation t o t he interest in maintaining
internal security and protecting children from ex posure t o sexual or other inmate
misconduct. Ex cluding unrelated children o r children as t o whom the i nmate’s
parental righ ts have been terminated is a p ermissible m ea n s o f reducing t he
overall number of child visitors. Banning al l v i s i t s for a t w o-year peri od, ex cept
those by l awyers and clergy, for i nmat es who commit multiple substance abuse
violations is “a proper and even necessary management technique” not shown
to be unconstitutionally severe in application. Inmates h ave available t he
alternative m eans o f l etters and t elephone calls to ex ercise the rights t hey assert;
t h ese al t ernat i v es “need not be i d eal , [ but ] n eed onl y b e avai l abl e.” P ri soners
have not poi nt ed t o a regul at ory al t ernat i v e t hat accom m odat es t he i r a s s e rt ed
rights while imposing only de minimis cost to valid penological objectives; o n
t h e c o n t r a r y, accom m odat i n g t he pri s oners’ d em ands woul d requi re a
“significant reallocation” of prison res o u r ces and would impai r t he ability of
correct i ons offi cers t o p r o t ect vi si t o rs and i nm at es. T he rest ri ct i ons for
substance-abuse v iolators do not cons titute cruel and unusual punishment, but
a d ifferent case would b e p resented “if t he withdrawal of al l visitation privileges
were permanent o r for a m uch l onger peri od, or if it were applied i n an arbitrary
manner t o a particular inmate.”

9-0. Opinion of Court by K e n n e d y, j oi ned by Rehnquist, Steve ns, O’Connor,

Souter, Ginsburg, and Breyer. Concurring opinions by Stevens, j oined by Souter,
Ginsburg, and Breye r; and by T homas, j oined by Scalia.

Ri peness, arbitration : A federal d istrict court s hould h ave granted a m otion t o
compel arbitration o f claims arising under R IC O, even though t he parties’
arbitration agreem ents may be construed t o limit the arbitrat or’s authority to
award t reble d amages under R IC O. The d is trict court ruled that the respondents
could not obtai n “meaningful relief” o n thei r R IC O claims in an arbitration
forum, but it was unclear how arbitrat ors might rule. The arbitration agreem ents
speci fied that arbitrat ors have no authority to award “ punitive or ex emplary”
dam ages. The C ourt h as recogn i z ed, however, t hat R IC O ’ s t r e b l e-dam ages
provision serves a “remedial function,” and i t i s “in doubt” whether arbitrators
would consider such damages to be punitive within the meaning of the
8-0. Opinion of Court by Scalia, j oined by a ll J ustices except T homas, who did
Pharmaceutical Research and Mfrs. of America v. Walsh 123 S. Ct. 1855, 71 USLW


Med i cai d , b u rd en o n commerce, p reemp t i o n : The Maine R x P rogram, under
whi ch t he st at e n egot i at es rebat es w ith drug manufacturers i n o rder to provide
discounted prescription d r u gs t o Maine citizens, does not impose an
unconstitutional burden on interstate commerce by requiring drug manufact urers
who d o not ent er i nt o a rebat e agreem ent t o obtain p rior authoriz ation t o qualify
a doctor’s pres cription for Medicai d reimbursement. C as es invalidating price
affi rm at i o n l aws t hat h ad t h e effect of regu l at i n g p ri ces of sal es i n o t h er st at es
are i nappl i cabl e because “t he Mai n e Act does not regu l at e t h e p ri ce of any out -
of-state transaction.” Nor does t he Maine l aw benefit i n-state companies at the
ex pense of out-of-state companies. The petitioner did not ca rry i t s burden of
establishing a likelihood of success o n t he m eri t s on i t s cl ai m t hat t he Mai n e
program i s p reem pt ed by t h e M edi cai d A ct , and consequently the district court
should not have issued a p reliminary i njunction.

9-0 (burden on commerce); 6-3 (pree mption). Opinion of Court by Steve ns,

j oined by Rehnquist, O’Connor, K enn e dy, Souter, Ginsburg, and Breye r.
Separate parts of Stevens opinion j oined by Souter, Ginsburg, and Breyer; and
by Souter and G i n s b u r g. Concurring opinions by Breyer, by Scalia, a nd by
T homas. Concurring and dissenting opinion by O’Connor, j oined by Rehnquist
Pierce County v. Guillen 123 S. Ct. 720, 71 USLW 4035 (1-14-03)
Commerce p o w er, h i gh w a y h azard s , evi d en ti a ry p ri v i l ege: 23 U.S.C. § 409,
which p rovides t hat “data compiled o r collected for t he purpose o f i dentifyi ng,
eval uat i n g, or pl anni ng t h e s afet y enhancem ent o f pot ent i al [ hi gh way] acci dent
sites...shall not be subject to discoveryor admitted i nto evidence i n a Federal
or S t at e court p roceedi n g ...inanyactionfordamages”arising froman
acci dent at any s uch s i t e, i s a val i d ex erci se of C ongress’s aut hori t y t o regu l at e
interstate commerce. The C ourt h as jurisdiction under 28 U . S . C . § 1257 to
revi ew as “fi n al ” t h e S uprem e C ourt o f W ashington’s ruling requiring
disclosure of certain documents und er t h e s tate’s public disclosure law. The
Court l acks j urisdiction, however, over a parallel t ort actio n t h a t i s not yet
“final.” S e ction 409's p rivilege applies t o d ata t hat federal law (23 U.S.C. §
152) requires s tates t o collect and compile for a road haz a r d e limination
program. Section 409 is co rrect l y interpreted as applyi ng to information
compiled or collect ed for s ection 152 purposes , but not to information origi nally

has s ince been collected for s ection 152 purposes. S ection 409 was adopted as
a response t o t he reluctance of states to comply fully with section 152 for fear
t h at t h e assem b l ed d at a coul d m ake t hem easi er t arget s of negl i g ence act i ons.
“C ongress could reas onably believe that adoptin g a m e as ure eliminating an
unforeseen sideeffect oftheinformation-gatheringrequirement ...wouldresult
in more diligent efforts t o collect the rel evant i nfo r m a t i o n, more candid
discussions of haz a r d ous locations, b etter i nformed decision-making, and,
ultimately, greater safety on our Nation’s roads.” Section 409, therefore, “can
be viewed as legi slation aimed at improving safety in the channels of commerce
and i ncreas ing protection for the i nstrumentalities of i nterstat e commerce.”

9-0. Opinion for unanimous Court by T homas.

Price v. Vincent 123 S. Ct. 1848, 71 USLW 4351 (5-19-03)
Habeas corpus, sta tutory limits: Federal court s erred i n grant i n g h abeas
corpus relief t o a state p risoner who alleged t hat h is prosecution for first-degree
murder constituted double j eopardy b ecause it came aft e r the t rial judge h ad
indi c a t e d that second-degree murder was t he “appropriate charge.” Habeas
relief i s b arred b y 2 8 U.S.C. § 2254(d) bec a u s e t h e s tate court d ecisions
upholding the first-degree m urder convic tion were n either “contrary to” nor an
“unreasonabl e appl i cat i o n o f, cl earl y est abl i s hed Federal l aw, as det erm i n ed by
the S upreme C ourt.” The Michigan Supreme C ourt’s d ecisio n w a s n ot
“cont rary t o ” cl earl y est abl i s hed l aw, but i n st ead fol l o wed p recedent from t he
U.S. Supreme C ourt. Moreover, the M ichigan court’s conclusion that the t rial
judge’s comments “simply were not suffici ently final as t o t erminat e j eopardy”
was not an “unreasonabl e appl i cat i on” of precedent , but i n st ead was consi s t ent
with deci sions of other courts requiring some formal indication of finality, s uch
as a s igned order or a j ury i nstruction. Even if such an in terpretation i s
i n correct , “i t was at l east reasonabl e for t he s tate court t o conclude otherwise.”

9-0. Opinion for unanimous Court by Rehnquist.

Roel l v. Withrow 123 S. Ct. 1696, 71 USLW 4336 (4-29-03)
Magistrate judges, litigants’ consent to use: C onse n t t o t rial before a
magi strat e j u d g e m ay be implied from a party’s conduct i n s ubmitting t o
litigation before t he magi strate. The Federal M agistrat e Act authorizes
magi strate judges to conduct civil t r i a l s i f t h ey are s pecially design ated by a
district court and are acting “upon th e consent o f t he parties . ” A l t h ough t he
procedures es tablished by s tatute and rules envision consent i n writing, the t ex t
and s tructure of the s ection as a whole s uggest that a party’s failure to comply
with the p rocedures does not deprive a m agis trat e of j urisdiction. Recognizing
implied consent when parties have submitted t o litigation before a m agistrat e
judge without filing written consent i s t he better s olution t o m eeting t he dual
congressional objectives of relieving c ourt congestion and thereby improving
acces s f or ci vil litigants, while keeping resort t o m agistrat e j udges purel y
voluntary. The “virtue” o f i n s istence o n ex press consent i s “simply the val ue
of any b righ t line” – h ere assuring that use o f a ma gi s t r a t e judge i s voluntary.
Bu t i nsistence o n ex p ress consent would create t he risk of “wasting” a “full and
com p l i cat ed t ri al ” before a m agi s t rat e j udge, and o f al l o wi ng “gam esm anshi p”
by parties who await t he outcome of the trial before objecting t o t he magi strate
judge’s authority.

Breyer. Dissenting opinion by T homas, j oined by Steve ns, Scalia, a nd K e nnedy.
Sattazahn v. Pennsylvania 123 S. Ct. 732, 71 USLW 4027 (1-14-03)
Double Jeopard y, death eligibility on retri al: P ennsyl vania was not barred
from s eeking t he deat h penalty at the defendant’s second trial. At his first trial,
t h e d efendant had b een sent enced t o l i fe imprisonment b y operation o f a statute
aut hori z i n g t he j udge t o d i s charge a capi t al s ent enci n g j ury t hat i s d eadl o cked,
and requiring the j udge i n such circumstances to impose a life senten ce. The
mere imposition o f a life s entence does not raise a double j eopardy b ar. R ather,
jeopardy attaches only i f t here is an “acquittal at a trial-like s entencing phase.”
Normally, t heref o r e , a retrial following a “hung” j ury does not violate t he
Double J eopardy C lause. Here as well, th e j ury’s d eadlock (9-to-3 i n favor of
a life s entence) “cannot fairly be called an acquittal ‘based o n findings s ufficient
to es tablish l egal entitlement to the life s entence.’” N o r can the court’s
mandated entry of the life s entence be considered an acquittal; the j udge “makes
no findings and resolves no factual m atter.” There is no merit t o a separate due
process claim; the Due Process C lause does not provide “ g r e ater double-
jeopardy p rotection t han does t he Double J eopardy C lause.”
5-4. Opinion of Court by Scalia, j oine d by Rehnquist, O’Connor, K ennedy, a nd
T homas. Separate part of Scalia opinion j oined by Rehnquis t a n d T h o mas.
Concurring opinion by O’ Connor. Dissenting opinion by G i n s burg, j oined by
Stevens, Souter, a nd Br eyer.
Scheidler v. N OW 123 S. Ct. 1057, 71 USLW 4116 (2-26-03)
Hob b s Act, RICO, a b o rtion p ro t ests : Abortion protesters did not commit
“ex tortion” within the m eaning o f t he Hobbs Act b y u sing violence and t hreats
to attempt t o shut down abortion clinics, and cons eq uently there were no
“predi cat e act s” of “racket eeri n g” on whi ch a R IC O vi ol at i o n coul d b e b ased.
The Hobbs Act d e f i n e s ex tortion as “the obtaining of property from another,
wi t h hi s consent , obt ai ned b y wro n g f u l u se of act ual o r t hreat ened force,
violence, or fear, o r under color of offici al righ t.” The allegations, however, are
not that the petitioners used violence, threat s, or fear to obtain property, but that
they used s u c h devices to cause the respondents t o give up property rights
(ri gh t s t o seek and t o p rovi de m edi cal servi ces). The Ho bbs Act l angu age i s
consistent with common l aw interpretations, and is based o n t he Penal C ode of
New York and the Field Code, both o f which include d a c q u i s i tion as well as
deprivation of property within the m ean i n g o f “obtaining of property. ”
Similarly, the Hobbs Act h as b een interpreted t o require acquisition.
Eliminating t he requirement that property be “obtai ned” to constitute ex tortion
would eliminat e t he distinction bet ween ex tortion a n d t h e s eparat e crime of
coercion, which i nvolves t he use o f force to restrict another’s freedom of action,
and which “more accurately describes t he nature of petitioners’ actio n s .”
Congress was aware of the distinction bet ween ex tortion and coerci on when it
adopted the Hobbs A c t . Although R IC O d efines “racketeering activity” t o
include“anyact orthreat of...extortion...which is chargeableunder S tate
law,” t his has been interpreted t o apply “a generic definition of ex t ortion” that
requires obtai ning or seeking t o obtai n property. Similarly, the alleged
violations of the Travel Act , which prohibits ex tortion i n violation of s tate law,
cannot constitute predicate acts for purposes of RICO because the alleged acts
are not ex tortionate.

Souter, T homas, Ginsburg, and Breyer. Concurring opinion by Ginsburg, j oined
by Breyer. Dissenting opinion by Stevens.
Sell v. United States 123 S. Ct. 2174, 71 USLW 4456 (6-16-03)
Du e p rocess, f o rced med i cati on to stan d tri al ; a p p eal s : An i ndividual h as a
constitutionally protect ed liberty i n t e rest in avoiding the unwanted
administration of antipsychotic drugs. Although t he C o n s titution allows the
Government to forcibly administer antipsychotic drugs t o a mental l y ill
criminal defendant in order t o render t hat defendant compet ent t o s tand trial for
a s erious crime, t he requisite findings were not made in this cas e. The t reatment
must be “m edically appropriate, . . . s ubstantially unlikel y t o have s ide effect s
that may undermine t he fairness of the t ri al, and taking account of less intrusive
alternatives,... necessary significantly to further important governmental trial-
related i nteres ts.” Whet her a suffici ently important governmental interest is at
stake will depend upon the facts o f t he individual case, including the potential
for future confinement. Ordinarily, b efore a court a pproves forced
administration of drugs for purposes of rendering a d efendant competent t o
stand t rial, i t s hould d eterm i n e whether the Government seeks, or has s ought,
permission to administer t he drugs for purposes of rendering the i ndividual not
dangerous to himsel f or others. In this cas e, in which t he lower courts held that
a m agistrate’s finding of dangerousness was erroneous, i t was error t o approve
forced medication s olel y t o render t he petitioner competent to stand t rial . The
a p p e a l s court h ad jurisdiction t o h ear the appeal in this case even t hough t he
district court’s d ecision was not “final” within the m eaning of 28 U.S.C. § 1291.
The case falls under t he ex ception for “c o l l a teral” orders that are “effectively
unreviewable o n a p p eal from a final judgment.” By the time of trial t he
defendant would h ave undergone forced medication – “t h e v ery h arm t hat h e
seeks t o avoid,” and h e could not have undone the h arm even i f acquitted.

6-3. Opinion of Court b y B r e ye r, j oined by Rehnquist, Steve ns, K ennedy,

Souter, a nd Ginsburg. Dissenting opi n i o n by Scalia, j oined by O’Connor and
Smith v. Doe 123 S. Ct. 1140, 71 USLW 4182 (3-5 -03)
E x Po st Fa cto Cl a u s e, “Megan ’s L a w ”: Alaska’s S ex Offender R egistration
Act, a “Megan’s Law” which requires p ersons convicted of sex o ffenses prior
to the Act ’s enactment to regi ster with law enforcem ent authorities, and which
also requires publ i c n o tification, does not impose retroactive punishment
prohibited b y t he Ex Post Facto C lause o f Article I, § 10, cl.1 . Ex post facto
anal ys is requires a d e t e rmination of whether a l aw is ci vil or punitive i n
purpose. If the l egislature’s purpose was to en act a civil regulatory scheme,
then the l aw is ex post fact only i f t here is “t he cl eares t proof” of punitive effect .
Here the p rimary purpose was that of pub lic safety – “protecting t he public from
s e x o ffenders.” Although t his i s also a go al of criminal laws, t hat fact al o n e
does not make the objective punitive. Several fact ors provide “guideposts” for
anal ys is. R egistration and public notification of s ex offenders are o f r ecent
origin, a n d a re not viewed as a “traditional m eans o f punishment.” These
requirements d o not closely resemble punishments o f public disgrace imposed
in colonial times; the s tigma of Megan’s Law results not from public shaming
but from t he dissemination o f i nf o r m ation about a criminal record, m ost o f
which i s already public. The Act does not su b j ect t h e registrants to an
“affirmative disability or restraint”; t here is no physical restraint or occupational

supervision of living conditions. Although t he A c t might help to deter future
crimes, this is consistent with a non-punitive regulatory objective. There i s a
rational connection t o t he non-punitive purpose o f p rotecting public safety; t he
statute n eed not be narrowly t a i l o r e d for that purpose. Nor i s t he act
“ex cessi ve” i n rel at i o n t o i t s regu l at o ry purpose. R at h er, “t h e m eans chosen are
reasonable i n light of the nonpunitive obj ect i v e.” Unlike i nvoluntary civil
commitment, where the “magnitude of restraint [ makes] individual assessment
appropriate,” the s tate may m ake “reas onable categorical judgments,” and need
not provide individualiz ed determinations of dangerousness.
6-3. Opinion of Court by K ennedy, j oi ned by Rehnquist, O’Connor, Scalia, a nd
T homas. Concurring opinions by T homas and by Souter. Dissenting opinions
by Stevens; and by Ginsburg, j oined by Br eyer.
Sprietsma v. Mercury Marine 123 S. Ct. 518, 71 USLW 4009 (12-3-02)
Preemp ti o n , Fed eral B oat S a f ety Act: T h e Federal Boat S afety Act of 1971
does not preempt a s tate common l aw to r t action for damages from t he
manufacturer of an outboard motor not e q u i p p ed with a p ropeller guard. The
Act cont ai ns an ex press p reem pt i o n cl a use t hat p rohibits states from adopting
orenforcing“alaworregulation... not identical to aregulationprescribed
under [ the Act] . ” No federal regu lation r equires p ropeller guards o n outboard
m o tors; t he Coast Guard studied the m atter and decided not to issue a
regulation. The statute’s p r eem ption l anguage “is best read as not
encompassing common-law claims.” Use of t h e article “a” before “l aw or
regu lation” “implies a di screteness – which is embodied in statutes and
regu l a t i o n s – t hat i s not present i n t he common l aw.” Also, u se of the words
“law” and “regulation” together suggests t hat “ l a w ” s h o u ld not be read so
broadly as t o encompass “regulation” and t hereby render s uperfluous inclusion
of t h e l at t er word. A n arrower readi n g o f “l aw” as ex cl udi ng “regul at i on”
could also ex clude “ c o m m on law.” The Act’s s aving clause, providing that
compliance with the federal standards or regulations “does not relieve a p erson
from liability at common l aw” “buttresses t his conclusion.” The common l aw
cl ai m i s not implicitly preem pted by the C oast Guard’s deci sion not to require
propeller guards. That decision was not prem i s ed on a federal pol i cy agai n st
propeller guards, and t h e Coast Guard does not view its refusal t o regulate as
having any p reemptive effect. Nor doe s t he “statutory scheme as a whole”
preem pt t h e c o m m o n l aw cl ai m . The Act “di d not so com p l et el y occupy t h e
fi el d o f s afet y regul at i o n o f recreat i onal boat s as t o forecl ose s t at e com m on-l aw

9-0. Opinion f or unanimous Court by Steve ns.

Du e Process, puniti ve damages : Utah’s aw a r d of $145 million i n punitive
damages following an award of $1 million i n compensat ory dam ages was an
irrational and ar b i t r ary deprivation of property i n violation of t he Fourteenth
Am endm ent ’s Due P r o cess C l ause. Th e “guideposts” governing appellate
review of punitive dam ages awards were set forth in BMW v. Gore (1996). The
first guidepost i s t he degree of repreh ensibility of the d efendant’s conduct.
While Stat e Farm’s han d l ing of t he cl aims in this case “merits no prai se,” the
stat e’s “legitimate objectives ” could have been satisfied by “a more mod e s t
punishment.” In stead, t he case was used as a “platform” t o ex pose and punish
State Farm for its nationwide policies , e v e n though m uch o f t he out-of-state
conduct was lawful where i t o ccurred, and a state m ay not punish a d efendant
“for conduct t hat m ay have been lawful where i t o ccurred.” More important, t he
Utah courts awarded punitive d amages to punish and d eter conduct t hat bore n o
relati o n t o the plaintiffs’ harm. The s econd Gore guidepost ex amines the
disparity between the harm s uffered by t he plai ntiff and the punitive dam ages
award. “Few awards ex ceedi n g a si ngl e-di gi t rat io... will satisfydue
proce s s . ” W hen compensatory d amages are s ubstantial, as they were in this
case, “t hen a l esser rat i o , p erhaps onl y equal t o compensatory d amages,” can be
upheld. Here t he harm was economic, rather t han physical, and a component
of the punitive award was likely duplicated in the compensatory award. The
third Gore guidepost, the disparity between t h e p unitive award and civil
penalties authorized or imposed in comparable cases , reveal s t hat t he most
relevant civil s anction – a $10,000 fine fo r an act of fraud – i s “dwarfed” by the
punitive dam ages award. Application of t he Gore gu ideposts, t herefore, “likel y
would j ustify a punitive d amages award at o r n ear the amount of compensatory

6-3. Opinion of Court by K ennedy, j oi ned by Rehnquist, Steve ns, O’Connor,

Souter, a nd Breyer. Dissenting opi nions by Scalia, T homas, a nd Ginsburg.
Stogner v. C alifornia 123 S. Ct. 2446, 71 USLW 4588 (6-26-03)
Ex Post Facto Clause, revival of limitations peri od : A California statute that
permits resurrection o f an o therwise time-barred criminal prosecution for sexual
abuse of a child, and that w a s i t s el f enact ed after t he pre-ex isting limitations
period had ex p ired for t he crimes at i ssue, vi ol at es t h e E x P ost Fact o C l ause o f
Art. I, § 10, cl. 1 . The statute t hreatens t he kinds of harms t o fairness t hat t he
Clause seeks t o avoid. Moreover, the s tatute falls literally within one of the four
cat egori es o f ex post fact o l aws d escri b ed by J u st i ce C h a s e i n C a l d er v. Bul l
(1798) – t hose l aws t hat “aggravate a crime or make it greater than it was, when
committed,” e.g., t hose l aws t hat “inflict punishment, where the p arty was not,
by law, liable t o any punishment.” The p e titioner i n t his case was not “liable t o
any punishment” after California’s t hree-year statute o f limitations had run on
his allege d c r i m es, alleged t o h ave t aken place between 1955 and 1973.
California’s 1993 law authoriz ed prosecu tion for those alleged crimes however,
and prosecution was initiated 22 years after the origi nal limitations period had
run. Commentators and courts have long believed i t s et t l ed that the C lause
f o rbids resurrection o f a time-barred p rosecutions. C ourts that have upheld
ex tensions of unex pired stat utes of limitations have been careful to distinguish
those s ituatio n s in which limitations periods have ex pired, suggesting t hat
resurrection rat her t han ex t ension would be unconstitutional. To al l o w
prosecut i o n years aft er t h e s t at e has, i n effect , grant ed an am nest y and t o l d t h e
accused t hat h e n eed not preserve evidence of innocence, is unfair.

5-4 . Opinion of Court b y Breyer, joined by Stevens, O’Connor, S outer,

and Ginsburg. Dissenting opinion by Kennedy, j oined b y R ehnquist,
Scalia, and Thomas.
Sygenta C rop Protection, Inc. v. Henson 123 S. Ct. 366, 71 USLW 4001 (11-5-02)
Removal jurisdiction, All Writs Act: The All W rit s A ct does not furnish
jurisdiction for removal of an action from s tate to federal court. The governing
statute, 28 U.S.C. § 1441, authoriz es removal o f “any civil action b rought in a
Stat e court of which the district c o u rts of the United S tates have origi nal
jurisdiction.” The All W rits Act does not provide such original jurisdiction, but
instead authorizes federal courts to “i ssue all writs necessary or appropriate in
ai d of t heir respective j urisdicti ons.” Li kewise, t he All W rits Act i n
combination with the doctrine of ancillary enforcem ent j urisdiction does not
confer the o rigi nal j urisdiction o n which removal m ust b e p redicated.
Invocation of ancillary jurisdiction does not eliminat e “the need for compliance
with statutory requirements” for removal.
9-0. Opin i o n f o r u nanimous Court b y Rehnquist. Concurring opinion by
United States v. American L ibrary Ass’n 123 S. Ct. 2297, 71 USLW 4465 (6-23-03)
Fi rst A men d men t, sp en d i n g p o w er, i n tern et f i l t ers : The Children’s Internet
P rot ect i o n A ct (C IP A), w h i ch condi t i ons cert ai n In t ernet -rel at ed federal
assistance to public libraries on the lib raries ’ i nstallation of filters that block
In ternet access t o images t hat constitute obscenity or child pornography, o r t hat
are harmful to minors, is not unconstitutional o n its face. CIPA provides t hat
public libraries may disable the blocking filters at the request of a pat ron, and
t h ereby al l o w “access t o any speech t h at i s const i t u t i o n a l l y prot ect ed wi t h
respect to that patron.” If some libraries lack the capacity to unblock a specific
Web site or to disable t he filter altogether, t hen t here is the possibility of an as-
applied challenge. Because, however, t h e respondents failed t o s how that the
ability of adult p atrons to access Internet m aterial “is burdened i n any sign ificant
degree,” t he faci al chal l enge i s rej ect ed.
6-3. N o o p i n i o n of Court. Opinion a nnouncing t he Court’s j udgme nt by
Rehnq u i s t , j oined by O’Connor, Scalia, a nd T homas. Concurring opinions by
K e nnedy and by Breye r. Dissenting opini ons by Stevens; and by Souter, j oined
United States v. Bean 123 S. Ct. 584, 71 USLW 4017 (12-10-02)
Judicial review, in action on petition to remove firearms d isability : A federal
district court l acks authority under 1 8 U.S .C. § 925(c) to grant relief t o s omeone
whose application t o t he Bureau of Al cohol, T obacco, and Firearms (ATF) t o
remove his prohibition on possessing a firearm was returned unprocessed i n
accordance with a p rohibition i n t he ATF’s appropriation l aw. S ection 925(c)
p rovides t hat “[ a] n y p erson whose application for relief from d isabilit i e s i s
denied by the S ecret ary m ay file a petition [ in federal district court] for review
of such denial.” ATF’s failure to act “does not amount to a ‘denial’ within the
meaning o f § 925(c) .... Anactual decisionbyATFonanapplicationisa
prerequisite for j udicial review.” The phrase “denied by the S ecre t ary”
refer e n ces t h e S ecret ary’s d et erm i n at i ons as t o whet her t he appl i cant w i l l be
able to act in a m anner not dangerous to public safety and as t o whether relief
would be contrary to the public interest . Both o f t hese standards “point to ATF

broad d i s cret i o n conferred o n t he S ecret ary al s o s uggest t h e n eed for an act ual
adverse action o n an application. Fi nally, t he admission of additional evidence
i n di st ri ct court p roceedi n gs i s cont em pl at ed onl y i n ex cept i onal ci rcum s t ances.
O rdinarily, t he district court’s det ermination m ust rel y heavily on the r eco rd
compiled b y ATF, but there i s n o s uch record for t he court t o rely o n when t he
application h as been returned unprocessed.

9-0. Opinion for unanimous Court by T homas.

United States v. Jimenez Reci o 123 S. Ct. 819, 71 USLW 4076 (1-21-03)
Con s p i racy, termi n ati o n : A conspiracy does not terminate automatically when
the object of the conspiracy b e c o m e s i m possible t o achieve. The Ninth
Circuit’s v iew t hat i t does i s rejected by “almost all courts and commentators.”
Thus, a conspiracy to dis t r i b u t e i llegal d rugs did not end when government
agents seized the drugs in question; persons caught i n a sting operation s et up
after t he drug seiz ure can be convict ed of c onspiracy. T he essence o f a
conspiracy is an agreem ent t o commit an unlawful act , and the agreem ent i s a
distinct evil that ex ists regardless of whet her t he substantive crime ensues . A
c o nspiracy poses a t hreat to the public “over and above” t he threat o f t h e
com m i ssi on of t h e p l anned cri m e because t h e com bi nat i o n m akes i t m o re l i k el y
that the conspirators will continue thei r criminal ways and commit other crimes.
This additional t hreat persists when c o n s p i rators continue to pursue t heir
obj ect i v e, unaware t h at pol i ce h ave frust rat ed i t s accom p l i s hm ent .

9-0 (merits); 8-1 (procedure). Opinion of Court b y Breye r, j oined by Rehnquist,

O’Connor, Scalia, K en n e dy, Souter, T homas, a nd Ginsburg. Opinion by
Stevens, concurring in part and dissenting i n part.
United States v. N avajo N ation 123 S. Ct. 1079, 71 USLW 4146 (3-4 -03)
In d i an T u ck er Act; In d i an Mi n eral L easi n g Act: The Tribe’s c laim for
compensation from t he United S tates for breach of trust i n connection with the
Secretary o f t he In terior’s approval o f coal l ease amendments negotiated by t he
Tribe and Peabody Coal Company after alleged p ressure brought to bear on the
Tri b e b y t he S ecret ary m ust b e rej ect ed because t h e cl ai m does not deri ve from
any liability-imposing provision of the Indian Mineral Leas ing A ct (IMLA).
The Indian Tucker Act grant s t he Court o f Federal Claims jurisdiction over
tribal cl aims agai nst t he United S tates, but is not itsel f a source of substantive
righ ts. Ex i sting p recedent requires a tribal plaintiff t o i nvoke a rights-creating
l aw t hat “can fai rl y be i n t erpret ed as m andat i n g com pensat i o n b y t he Federal
Government for t he damages s ustained.” The IMLA i s not such a l aw. R ather
than imposing a “detailed fiduciary re sponsibility” o n t he Secretary t o m anage
l easi n g and m i n eral resources i n t h e b e s t i n t erest s of t h e t ri be, t he IM LA
“ s i m p ly requires S ecretarial approval before coal mining l eas es negotiated
bet w een Tri b es and t hi rd part i es b ecom e effect i v e.” In t hi s respect , t he IM LA
resembles t he General Allotment Act, held not to gi ve rise to a dam ages action
for b reach o f t r u s t i n m anagi n g al l o t t ed l ands, and m ay b e d i s t i n gu i s hed from
“a net w ork o f o t h er st at ut es and regul at i o n s ” l at er hel d t o i m pose “ful l
responsibility to manage Indian resources and l and for the b enefit of the
Indians.” M oreover, interpreting t he IM LA to impose f i d u c iary duties giving
rise to compensable claims would counter one of the IMLA’s p rincipal purposes
– t hat of e n h a n c i n g t ribal s el f-det ermination by giving t ribes t he lead role in
negotiating mineral leases.

6-3. Op i n i o n o f Court by Ginsburg, j oined by Rehnquist, Scalia, K ennedy,

T homas, a nd Breyer. Disse n t i n g opini on by Souter, j oined by Steve ns and
United States v. White Mountain Apache Tribe 123 S. Ct. 1126, 71 USLW 4139 (3-4 -


Indian Tuck er Act, management of trust lands : A 1960 law under which the
former Fo rt Apache M ilitary Reservation i s h eld i n t rust for t he White Mountain
Apache Tribe, s ubject to a p roviso granting t he Unit ed States the right to use
any p art o f t he land and improvements for administrative o r s chool purpos e s ,
triggered compensable trustee res ponsibilities over property u sed u nder t he
proviso. The Indian Tucker Act allows damage actions against t he U n i t ed
S t at es onl y i f t he st at ut e conferri ng subst ant i v e ri ght s “can fai rl y be i n t erpret ed
as mandating compensation.” The t wo Mitchell cases repre s e n t t he t w o
categories o f fiduciary duties – a “bare trust” under t he General Allotment Act
the b reach of which i s not compensable, and “elaborate control” under timber
management statutes the b reach of which i s compensable. “The 1960 Act goes
beyond a bare t rust and permits a fai r i nference that the Government is subject
to duties as a trustee and liable i n d amages for b reach.” Although t he Act does
not ex pressly s ubject the Government to duties o f m anagement and
conservation, it does s ubject the p ropert y t o a trust, and t he Government’s use
of the property, involving daily supervision and daily occupation, creates a “fair
inference [ of] an obligat i o n t o p reserve t he property improvements.” The
Government’s defenses are reje c t e d . P roperty u sed under t he proviso is not
carved out of t h e t rust . S peci fi c l angu age o n d am ages i s not neede d i f t h e
r e q u i si t e “fai r i nference” can be drawn from t he t rust obl i gat i on. A d a m a g e s
remedy i s n o t “inappropriate” for a failure of maintenance even t hough
injunctive relief m ay repres ent t he economic “equivalent.”
5-4. Opinion of Court by Souter, j oined b y Steve ns, O’Connor, Ginsburg, and
Breyer. Concurring opinion by Ginsburg, j oined by Breyer. Dissenting opinion
by T homas, j oined by Rehnquist, Scalia, a nd K e nnedy.
Virginia v. Black 123 S. Ct. 1536, 71 USLW 4263 (4-7 -03)
First Amendmen t, cross burning: A stat e, consistent w i t h the First
Amendment, may p rohibit cross burning carried out with the i ntent t o
intimidat e. Intimidation can be a t ype of t rue t hreat that is not protect ed by the
Fi r s t A m e n d ment. Given the h istory of cross burnings i n t his country, s ome
cross burnings fit within this cat egory of i ntimidat i n g e x p ression. Virginia’s
law does not run afoul of R. A. V. v. St. Paul (1992), i n which the C ourt
i nval i d at ed as cont ent -based an o rd i n a n c e that prohibited cross burnings t hat
c o nstituted “figh ting words” only i f t hey o ffended o n t he basis o f race, co l o r ,
creed, religion o r gender. “Virgi nia’s s tatute does not single out for opprobrium
onl y t hat s peech di rect ed t o ward ‘one of t h e s peci fi ed di sfavored t opi cs.’” Not
al l content discrimination i s prohibited, however. “Instead of prohibiting all
intimidating m essages, Virginia m a y c h o ose to regulate this subset of
intimidating m essages i n light of cross burning’s long and pernici ous history as
a s ignal of impending violence.” As a general m atter, content discrimination i s
perm i ssi bl e i f i t i s “based o n t he very reasons why t he part i cul ar cl ass o f s peech
at issue...isproscribable.” However,the Virginiastatute’sprima f acie
evidence provision, stating t hat a cross burning “shall be prima f acie evi d ence
of an intent to intimidat e,” i s unconstitutional.

j oined by Rehnquist, Steve ns, Scalia, a nd Br e ye r . Separate part of O’Connor
opinion j oined by Rehnquist, Steve ns , a nd Breyer. Concurring opinion by
Stevens. Concurring and dissenting opi nions by Souter, j oined by K ennedy and
Ginsburg; and by Scalia, j oined i n part by T homas. Diss e nting opinion by
Vi rgi n i a v. Hi cks 123 S. Ct. 2191, 71 USLW 4441 (6-16-03)
Fi rst A men d men t, overb read th : The Richmond Redevelopment and Housing
Authority’s trespass policy i s not faci ally invalid under t he Fi rst Amendment’s
overbreadth doctrine. Under t he tres pass policy, the Au t hority may ban from
streets within the d evelopment any person who i s not a resident o r employee and
who “cannot demonstrate a l egitimate business o r s ocial purpose for being o n
the p remises.” The respondent was arrested for t respass after having received
written notice barring him from t he development. The Virgi nia S uprem e C ourt
held that the o rdinance was unconstitutionally overbroad because it granted t he
propert y m anager di scret i o n t hat coul d b e u sed t o p rohi bi t s peech prot ect ed by
the First Amendment; persons wishing t o hand out leaflets in the devel opment’s
property would b e required t o obt a i n t he manager’s permission. Under t he
overbreadth doctrine, a l aw with legitimate applications can be invalidat ed if it
punishes a s ubstantial amount of protect ed free s peech, but only i f application
t o prot ect ed speech i s subst a n t i al not j u st i n an absol u t e sense, but al so i n
relation t o t he scope of the l aw’s plai nly l egitimate applications. “Rarely, i f
ever, w i l l an overbreadt h chal l enge s ucceed agai nst a l aw ...thatisnot
specifically addressed t o s peech.” T h e t r espass policy i s addressed t o non-
ex pressive conduct. “Neither the b asis for t he bar m e n t s anction (the p rior
trespass) nor its purpose (preventing future t respasses) has anything t o d o with
the First Amendment.” M ore important, t he policy applies t o all persons who
enter t he development’s s treets, not just to those p ersons who s eek to engage in
ex pression. The respondent failed t o s how that the policy would b e u sed t o b ar
anyone from engaging i n constitutionally protected speech , o r even t hat
protected speech falls outside the “legitimate business o r s ocial purposes” t hat
permit entry t o t he development.

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

Wa shington State Dep’t of Soc. and Health Servs. v. Guardianship Estate o f K effeler

123 S. Ct. 1017, 71 USLW 4110 (2-25-03)

S o ci al S ecu ri ty : The Stat e’s use of foster children’s s ocial s ecurity benefits to
reimburse itself for ex penditures related to foster c a re i s not prohibited b y a
provision of the S ocial S ecurity Act (42 U.S.C. § 407(a)) t hat p rotects b enefits
from “ex ecut i on, l evy, at t achm ent , ga r n i s h m e n t , o r o t h er l egal p rocess.” T he
S t at e S u p rem e C ourt general i z ed from t he tex t to conclude that it prohibits
“creditor-type act s,” and determined that the S tat e ’s reimbursement scheme
violat es that princi ple. Neither the s tatute nor the regulation s , however, “say
anyt hing about ‘creditors. ’” Because the reimbursement does not involve
“ex ecution, levy, attachment, o r garnishment,” the case boils down t o t he
meaning o f “other l egal process.” T he interpretive canons noscitur a sociis and
ej usdem g eneri s requi re t h at t h e gener a l phrase b e i nt erpret ed t o em brace
object s s imilar i n nat ure t o t he enumerat ed object s. The processes of ex ecution,
levy, attachment, and garnishment require us e o f “some judicial or quasi-
j udi ci al m echani s m . . . b y w hi ch cont ro l over p roperty p asses from one person
to anotherinorderto discharge...[a] liability.” Neither charact erist i c i s

benefits are already i n its possession and control. The S tate Supreme C ourt’s
reliance o n t wo precedents was misplaced , s ince both i nvolved forms of legal
process ex p ressly p rohibited b y § 407(a) . R eliance o n t he “best i nterest o f t he
benefi ci ary fost er chi l d ” was al so m i s pl aced; h ere t oo, t h e s t at e court s hould
have deferred t o t he Commissioner’s interpretat i on, under which the
benefi ci ar y’s b est i nt erest i s s een as havi ng her b asi c needs t aken care o f b y a
represent at i v e p ayee.

9-0. Opinion for unanimous Court by Souter.

Wi ggins v. Smith 123 S. Ct. 2527, 71 USLW 4560 (6-26-03)
H a b eas corp u s , i n ef f ecti v e a ssi stan ce of cou n s el : The petitioner’s attorneys’
failure to pursue i nvestigat i o n o f p etitioner’s personal h istory an d t o p resent
important mitigating evidence at his capital s entencing constituted i neffective
assistance of couns el , a nd the state court’s rej ection of his cl ai m i nvolved an
“unreas onable application” of clearly established federal law within the m eaning
of 2 8 U . S . C. § 2254. The p etitioner, ther efore, was entitled t o federal habeas
relief. The governing l aw was estab lished b y Strickland v. Wa shington (1984),
holding that an ineffective assistan ce of counsel claim m ust b e b ased on a
showing of deficient attorney performance that falls below an objective s tandard
of reasonableness, and t hat r e s u l t ed i n p rejudice to the d efense. Under
Strickland, a defense attorney’s strategi c j udgment made after l ess t han
complete investigation i s reasonable “preci sely to the ex t ent t hat rea s o n a b l e
professional j udgments s upport t he limitations on investigat i o n.” Here the
attorneys’ decision not to ex pand thei r i nvestigation i nto t h e i r client’s
background fell short o f p rofessional s tandards t hen governing, and was
unreasonable i n light of the i nformation actually discovered. They abandoned
the i nvestigation after having acquired “only rudimentary knowledge” of their
client’s history, but after h aving a c q u i red i nformation t hat “any reasonably
com p et ent at t o rney woul d h ave real i z ed [ was necessary t o pursue i n] m aki ng an
i n form ed choi ce am ong possi bl e d efenses.” Under t he ci rcum st ances, t he st at e
court ’s d eference t o t h e at t o rneys’ “st rat egi c deci si on” not t o p r esent t he
background mitigat i n g e v i d e n c e w as o b j ect i v el y u n r easonable. Actual prejudice
t o t h e petitioner’s case was established. The available mitigating evidence,
taken as a whole, “ m i g h t w e l l have influenced the j ury’s appraisal o f [ the
petitioner’s] m oral culpability.”

7-2. Opinion of Court by O’Connor, j oine d by Rehnquist, Steve ns, K enned y,

Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, j oined by T homas.

Habeas corpus, cases “pending” on AEDPA effective d ate: For purposes of
applyi ng the rule announced in Lindh v. Murphy (1997) that amendments made
by the Antiterrorism and Effective Deat h P enalty Act (AEDPA) do not apply t o
cases pending on AEDPA’s effective d at e, a case does not become “pending”
until an act u a l petition for habeas relief i s filed i n federal court. Neither the
filing of a motion for appointment of a federal habeas counsel nor the
application for a s tay o f ex ecution s uffices to make a case “pending.” AEDPA
pl aces heavy em phasi s o n t he s t a n dards governi n g revi ew o f t he m eri t s of a
habeas application, and t he meaning o f “pending” s hould reflect that emphasis.
The i ssue, t h erefore, i s whet her o n A EDP A ’s effect i v e d at e t he st at e p ri soner
“had before a federal court an appl i c a t i o n for habeas rel i ef s eeki n g an
adjudication o n t he merits of the p etitioner’s claims.” Tex t ual s upport for the
c o nclusion that an application i s re quired i s found in 28 U.S.C. § 2254(e ) ( 1 ) ,
which p r o v i des t hat a presumption o f t he correctness of the s tate court’s
determination o f factual i s s u e s s h a l l apply “in a p roceeding i nstituted b y an
application for a writ o f h abeas corpus.” If a p roceeding could b e “instituted”
by a request for an a t t o rn ey o r for a stay of ex ecution, then the presumption
would be i napplicable in such cas es . Also, the filing of a habeas petition i s t he
functional equivalent of the filing of a complaint i n a ci vil action, an d a ci vil
action i s commenced by the filing of a complaint.
6-3. Opinio n o f C ourt by T homas, j oined by Rehnquist, Stevens, Scalia, and
K e nnedy. Conc u r r i ng opinion by O’Connor . Dissenting opinion by Souter,
j oined by Ginsburg a nd Breyer.
Woodford v. Visciotti 123 S. Ct. 357, 71 USLW 3315 (11-4-02)
H a b eas corp u s , i n ef f ecti v e a ssi stan ce of cou n s el : The Ninth C ircuit erred i n
affirming t he grant of habeas corpus relief t o a p e t itioner whose claim was
b arred b y operation o f 2 8 U.S.C. § 2254(d). That federal statute a l l o w s a
federal court t o g rant habeas relief t o a state p risoner whose claim was
a d j u d i cat ed on t h e m eri t s i n st at e court only i f t he state d ecision was contrar y
to, o r i nvolved an unreasonable application o f, clearly established federal law,
or i f t h e s t at e deci si on was b ased on an unreasonabl e d et erm i n at i o n o f t he fact s.
The C alifornia S upreme C ourt’s d ec i s i o n was not “contrary to” t he Supreme
Court’s decision in Strickland v. Wa shington (1984), which required a
“reasonable p robability” t hat, but for counsel’s error, the outcome of t h e case
woul d h ave b e e n di fferent . T he C al i forni a court ’s “occasi onal s hort h and
reference” to the Strickland standard did n o t es tablish error. Nor did the
Cal i f o r n i a court unreasonably apply Strickland. A n i ncorrect appl i cat i o n o f
federal l aw is not necessarily an “unreasonabl e ” a pplication under s ection
2254(d). Although during t he sentencing phase of the t rial the d efense counsel
had m ade m ultiple concessions as to the effect s of t he defendant’s brai n i njury,
and had failed to i nt roduce mitigating evidence about the defendant’s
background, the s tate courts could reasona b l y h a v e concluded t hat t his
mitigating evidence was outweighed by “severe” aggravating fact ors.

9-0. Per c uriam.

Def eren ce to agen cy i n terp retati o n , mo tor carri er regu l ati o n : The Interstate
Commerce C ommission’s (ICC’s) implementat i o n of t he Intermodal S urface
Transportation E fficiency Act o f 1991 (ISTEA) t o require that states consider
fees charged under reciprocity agreements when complying with the s tatut e’s
mandate that regi stration fees under t he new S ingl e-State Insurance Registration
s ys t e m be “equal t o” fees “collected or charged” under t he old s ys tem as o f
November 15, 1991, is entitled t o d ef erence under p rinciples established i n
C h evron v. N R DC (1984). The s t a t u t e i s ambiguous, and the ICC’s
interpretation i s “permissible” and “reasonable.” “IS TEA’s fee-cap provision
does not foreclose t he ICC’s d etermination t hat fees charged under S tates’ pre-
ex i s t i n g reci proci t y agreem ent s were, i n effect , froz en b y t he new [ syst em ] . ”
The w ords “‘col l ect ed or charged’ can qui t e nat u ral l y be read t o m ean fees t h at
a S t at e act ual l y col l ect ed or charged,” and d o not i n st ead refer t o a “fee syst em .”
Congre s s made an ex press d elegation o f authority to the ICC to promulgate
standards t o implement the n ew regi stration system, and “it was t hus for t hat
agency to resolve any am biguities and fill in any holes in the s tatutory scheme.”

9-0. Opinion of Court by O’Connor, j oine d by Rehnquist, Scalia, K ennedy,

Souter, T homas, Ginsburg, and Breyer. Concurring opinion by Stevens.

protests not "ex t ortion" for purposes of Hobbs Act, RICO .............31
Administrative l aw
deferencetoagencyinterpretation, HUDregulation ..................24
deferencetoagencyinterpretation, ICCregulation ...................41
deferencetoagencyinterpretation, TreasuryRegulation ................3
judicial reviewofregulation,ripeness .............................25
actionagainst manufacturers ....................................12
not authorityforremovalofcases fromstatetofederalcourt ...........35
Americans with Disabilities Act
coverage, definition of "em ployee" ................................8
habeas petitioner, certificat e of appeal ability ........................24
prohibition on ex penditure, effect on administrative action ............35
applyi ng time limit is issue for arbitrat or, not judge ..................19
broad applicability of Federal Arbitration Act ........................7
classarbitration, interpretationofagreement ........................18
possibility of "m eaningful relief" .................................29
FC C m ay not revoke license for d ebtor's failure to pay ................14
settlement debt as "debt for money obtai ned by fraud" .................1
ban o n corporat e cont ri but i ons, advocacy group .....................15
Charitable solicitations
state anti-fraud laws, First Amendment limitations ...................20
section 1983, Indian tribe not "p erson" who m ay sue .................20
Title VII, proof in "mix ed-motive" cas es ...........................11
wetlands,"deepripping"plowing .................................4
Coal Industry R etiree Health Benefit Act
deadlineforassigningretirees to companies .........................2
evidentiaryprivilege,highwayhazardinformation ...................29
Federal Arbitration Act, s cope of "i nvolving commerce" ...............7
C o m m erce, st at e regul at i o n
congressionalauthorizationforburden,clearstatementreq'mt ..........19
Maine d iscount drug program not burden o n i nterstate commerce .......29
Congressional redistricting
substitution of federal court plan for stat e court plan ..................4

noautomaticterminationwhenobject becomesimpossible ............36
different objectives ofcopyrightlaw,LanhamAct ...................10
Counsel, assistance of
habeas corpus,"clearlyestablishedfederal law" .....................40
ineffectivenessclaim,noprocedural default ........................23
ineffectiveness,capitalsentencing,federalhabeas corpus .............39
prohibition,consistencywithFirstAmendment .....................37
Cruel and unusual punishment
prisondiscipline,restrictiononvisitation ..........................28
proportionality, C aliforni a "three-strikes" law .......................14
effect ofagencyactionafterstatutorydeadline .......................2
Delegation of l egislative power
submission of ordinance t o referendum vote not invalid ................7
deat h eligibility, ret rial after m andatory life s entence .................31
"Megan's Law,"noright tohearingondangerousness .................9
delay i n h earing, auto impoundment fee ............................8
det ent i o n o f al i en duri n g rem oval p roceedi n gs ......................11
elements of crime at time of conviction .............................6
forcedanti-psychoticmedicationtostandtrial ......................32
interrogationbypoliceasviolationofsubstantivedueprocess ...........6
punitive dam ages , s ize of award .................................34
relationship t o double j eopardy ..................................31
restrictions onprisonvisitation ..................................28
submission of ordinance t o referendum vote .........................7
Tex as s odomy l aw, liberty interest in adult, consensual sex ............22
affirmativeaction, collegeadmissions .............................17
affirmative action, law s chool admissions ..........................18
Elect ricity regulation
preemption,"filedrate"doctrine .................................14
raci al discrimination, college admissions ..........................17
racial discrimination, law s chool admissions ........................18
referendum on low-income housing o rdinance .......................7
statetaxation, classifications,rationalbasis ........................15
deferencetotreatingphysician not requiredforbenefitplans ............3
preem ption, insurance l aw ex ception, "any willing provider" laws .......22
Ex P o st Fact o C l ause
Megan's l aw not punitive .......................................32
stat ute of limitations for crime, res urrection after ex piration ...........34
Hobbs Act d efinition, abortion p rotests ............................31
vicarious liability .............................................24
Fair Labor Standards Act

qui tamsuits againstlocal governments ............................9
Federal Arbitration Act
broad s cope, "involving commerce" ...............................7
Federal Boat S afet y A ct
no preemptionofcommonlawtort claim ..........................33
appealscourts,designationofdistrictjudges ........................27
removaljurisdiction,AllWrits Act ...............................35
removalnot prohibitedbyFairLaborStandardsAct ...................5
Federal Employers’ Liability Act
joint and several liability .......................................28
recoveryformentalanguish,fearofcancer .........................27
Federal Trademark Dilution Act
requiredproofofactualinjury ...................................25
application o f anti-fraud stat ute t o charitable s olicitation ..............20
cam pai gn fi n ance, ban o n cont ri but i ons, advocacy corporat i o n .........15
cross burning with intent to intimidat e ............................37
federal funding conditioned o n libraries using Internet filters ...........35
overbreadth, housing auth's t respass policy .........................38
rightofassociation, restrictiononprisonvisits ......................28
Foreign rel ations
statelawinconsistent with federalpolicyinexec. agreements ...........1
Foreign S overeign Immunities Act
"i nstrumentality" of forei gn stat e, corporat e s ubsidiary ................12
Fourteenth Amendment
enforcem ent power, Family and M edical Leave Act ..................26
invalid arrest, s uppression of confession ...........................22
state anti-fraud laws, applica tion t o charitable s olicitation .............20
Full Faith and C redit
sovereignimmunity,onestateinanotherstate's courts ................16
cases "pending"onAEDPAeffectivedate .........................40
clearlyestablishedfederal law--coercionofjury ....................12
clearly established federal law -- double j eopardy ....................30
ineffective assistance of counsel claims ............................23
ineffective assistance of c ounsel, capital s entencing ..................39
limitation on claims by stat e prisoners -- 8th Amendment .............23
limitation on claims by state prisoners -- ineffective counsel ...........40
limitations period when no petition for cert. filed .....................4
no unreasonable application o f p recedent -- double j eopardy ...........30
showing required for certificat e of appeal ability .....................24
hazard information, evidentiaryprivilege,commercepower ...........29
abortionprotestsnot "extortion" .................................31
det ent i o n o f al i ens pendi ng rem oval p roceedi n gs ....................11

Indi an Mi neral Leasi n g Act
not basis for suit under Indian Tucker Act ..........................36
Fort Apache M ilitary Reservation, government as trustee ..............37
IndianMineralLeasingAct not basisforsuit .......................36
noloss toclients,no"justcompensation"due ........................5
inaction on petition t o rem ove firearms disability ....................35
limited preclusion under Immigration and Nationality Act .............11
coerci on by court t o reach verdi ct ................................12
raci al discrimination i n j ury s el ection .............................25
false i .d. of "o rigi n o f goods" not copyrigh t p rotection ................10
Limitations period
habeas corpus, no petition for cert. filed ............................8
resurrectionafterexpirationforcrimesatissue,ex postfacto ..........34
tolling o f s tate period for federal supplemental claims ................21
implied consent by litigants .....................................30
Maine d iscount drug program ...................................29
forced administration of anti-psychotic drugs on criminal def. ..........32
Megan’s Law
nodueprocessright tohearingondangerousness .....................9
no violationofEx PostFactoClause ..............................32
taintofinvalid arrest not overcomeby ............................22
preemptionofstateusuryactions,removaljurisdiction ................3
Fort Apache M ilitary Reservation, government as trustee ..............37
Indian MineralLeasingAct creates "baretrust" .....................36

supplemental j urisdiction, tolling of s tate limitations period............21
Overrul ed d eci si ons
Bo wers v. Hardwick (1986) .....................................22
CaliforniaHolocaust Victim InsuranceReliefAct ....................1
electricityregulation,"filedrate"doctrine ..........................14
ERISA,exceptionforlaws regulatinginsurance .....................22
FederalBoatSafetyAct ........................................33
MaineRx program not preempted byMedicaidAct ..................29
NationalBankAct,state-lawusuryactions ..........................3
cross burning as prima faci e evidence of i ntent t o i ntimidat e ...........38
sex u al conduct i n t he home, Tex as s odomy l aw .....................22
Privileges and Immunities
no requirement of ex plicit discriminat ory l anguage i n s tatute ...........19
characterizationofRICOtrebledamages ..........................29
due process limit on size of award ................................34
Raci al discrimination
affirmativeaction, collegeadmissions .............................17
affirmative action, law s chool admissions ..........................18
Fair Housing Act , vicarious liability ..............................24
jury selection, "s ubstantial s howing" of discrimination ................25
VotingRightsAct,statelegisredistricting,retrogression ..............17
low-income housing o rdinance, equal p rotection, due process ...........7
action "arising under" National Bank Act ...........................3
AllWrits Actinsufficientbasis for ...............................35
FLSAdoesnot barremovalofcases fromstatetofederalcourt ..........5
abortionprotests, absenceof"predicateacts" .......................31
treble damages, remedial vs. punitive nat ure ........................29
challengetoregulation, absenceofharmthroughapplication ...........25
possibility of "m eaningful relief" through arbitration .................29
no violationwhennoevidenceintroduced ..........................6
protectionofbenefits fromgarnishment,otherlegalprocesses ..........38
Tex as p rohibition o n homosex ual s odomy, due process ...............22
Sovereign immunity
full faith andcredit, immunityin anotherstate's courts ................16
Indian tribe not "p erson" who m ay sue under s ec. 1983 ...............20
condition t hat libraries use Internet filters, 1st Amendment ............35
legislativeredistricting, VotingRightsAct .........................17

ambiguous word not ex press p rohibition ............................5
avoidingconflictwith anotherstatute .............................10
broad l anguage not limited by s tatute's narrower primary purpose .......10
congressionalawareness ofdistinctionbetweentechnical terms ........31
contrastingusageinsamestatute .................................25
deadlineforagencyaction, validityoftardyaction ....................2
departurefrom"unequivocal"heightenedprooflanguage ..............11
departurefrompracticeof"clearandexpress"exceptions .............14
dictionary definitions relied upon ................................10
different statutorypurposes,different implementingrules ..............3
expresspreemptionlanguage ....................................33
False C laims Act definition of "person" incl udes m unici pality ...........9
historyand purposeoflaw,relianceon ............................10
interpretive canons noscitur a sociis and ejusdem generis ..............39
norepeal byimplication,redistrictinglaw ...........................5
plainmeaningderivedfrompresent tense ..........................12
plain m eaning, "unambiguous" t ex t ...............................11
presumption against superfluous words .............................5
presumption t hat C ongress intends conformity to S. Ct. p recedent ........9
presumptionthatidentical wordshavesamemeaning, exception ........21
purposeofstatuteas guidetomeaning ............................21
relianceoncongressionalpurposes,readingtextasawhole ............30
repealsbyimplication .........................................10
resort to common l aw to provide definition ..........................8
savingclause,effect oninterpretation .............................33
statutorysilence,presumptionthatordinaryrules apply ...............24
superfluous meaning o f word avoided .............................33
Taking of property
IOLTA accounts, use for charitable purposes ........................5
Tax ation, Federal
DISCs, R&Dexpenses ..........................................3
classification,equalprotectionchallenge ..........................15
j u d g e s n o t A r t . III, c a nnot serve o n U.S. appeals court ................27
Three-st ri kes l aw
challengeonhabeas,"clearlyestablished"law ......................23
sentence for s tealing golf clubs not "cruel and unusual" ...............14
housing authority's policy, Fi rst Amendment .......................38

California l aw reviving time-barred prosecution .....................34
Tex as s odomy s tatute ..........................................22
Virginia cross burning law, pres umption of i ntent t o i ntimidat e .........38
preclearance,state-orderedcongressionalredistricting .................4
statelegislativeredistricting, retrogression .........................17