Supreme Court Opinions: October 2004 Term

CRS Report for Congress
Supreme Court Opinions: October 2004 Term
July 27, 2005
George Costello
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2004 Term
This report contains synopses of Supreme Court decisions issued from the
beginning of the October 2004 Term through the end of the Term on June 27, 2005.
Included in this listing are all cases decided by signed opinion and selected cases
decided per curiam. In addition to the summary, the date of decision is indicated,
and cites to United States Law Week and West’s Supreme Court Reporter are
provided. Following each synopsis the vote on the Court’s holding is indicated in
bold typeface, and authors of the Court’s opinion and of any concurring and
dissenting opinions, along with the Justices who joined those opinions, are identified.
Cases are listed alphabetically, and a subject index is appended. These synopses are
prepared throughout the Term and can be accessed through the CRS Home Page
([]), which also provides
links from the synopses to the full texts of the Court’s opinions.

Supreme Court Opinions: October 2004 Term.......................1
Index ......................................................47

Supreme Court Opinions: October 2004
Supreme Court Opinions: October 2004 Term
Alaska v. United States 125 S. Ct. 2137, 73 USLW 4441 (6-6-05)
Submerged lands, Alaska Statehood Act: A special master correctly determined
that the United States owns two disputed areas of submerged lands in southeast
Alaska. Waters of the Alexander Archipelago do not qualify as “inland waters,” and
hence lands underlying those waters are not “submerged lands” that could have
passed to Alaska at statehood. Alaska’s claim that these waters are “historic” inland
waters over which the United States has denied the ships of other nations the right
of “innocent passage” is rejected. At best, Alaska’s submissions establish that over
the years the United States made one official statement consistent with such an
assertion and seized one foreign vessel, but “[t]hese incidents are insufficient to
demonstrate the continuous assertion of exclusive authority . . . necessary to support
an historic inland waters claim.” Juridical bays constitute inland waters, but the
Archipelago cannot be divided into two distinct juridical bays. Glacier Bay, on the
other hand, “is a textbook example of a juridical bay.” The United States can rebut
the presumption that lands underlying inland waters passed to the state at statehood
by establishing that it set aside the lands prior to statehood and demonstrated a clear
intent to retain title. The United States created Glacier Bay National Monument prior
to statehood, and included in the Monument the submerged lands under the Bay.
Congress expressed an intent to retain title to the entire Monument in section 6(e) of
the Alaska Statehood Act. That provision conveyed to Alaska “all real and personal
property” used for fish and wildlife protection under three specified laws, and
provided that “such transfer shall not include lands withdrawn or otherwise set apart
as refuges or reservations for the protection of wildlife.” The Antiquities Act, the
authority under which the Monument was created, was not one of the three specified
laws, but the proviso “is best read . . . as expressing an independent and general rule
uncoupled from the initial clause.”

9-0 (Alexander Archipelago); 6-3 (Glacier Bay). Opinion of Court by Kennedy,

unanimous in part, and joined in separate part by Stevens, O’Connor, Souter,
Ginsburg, and Breyer. Opinion concurring in part and dissenting in part by
Scalia, joined by Rehnquist and Thomas.
American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n 125 S. Ct. 2419, 73
USLW 4532 (6-20-05)
Commerce Clause, state hauling fee: Michigan’s flat $100 annual fee imposed on
trucks engaged in intrastate hauling does not discriminate against interstate
commerce in violation of the “dormant” Commerce Clause. The fee “applies
evenhandedly to all carriers that make domestic journeys,” and does not tax activity
that takes place outside the state. There is no precedent for holding such “a neutral,

locally focused fee” to be inconsistent with the dormant Commerce Clause. Nothing
in the record indicates that the fee imposes “any significant practical burden on
interstate trade.” Levying the fee on a per-truck rather than per-mile basis is fairly
related to the services provided, given the objectives of defraying costs of
administering size and weight, insurance, and safety requirements. The 1987
Scheiner case, invalidating a flat fee a state imposed on all trucks using its roads, is
distinguished; Michigan’s fee on in-state hauling “does not tax an interstate truck’s
entry into the State nor does it tax transactions spanning multiple States.” The
“internal consistency” test, which requires consideration of what would happen if all
states imposed a similar tax, is not offended. Any such cumulative fees would be
imposed only because a carrier engages in local business in multiple states, not
because the carrier engages in interstate commerce in multiple states.

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

Kennedy, Souter, and Ginsburg. Concurring opinions by Scalia and by Thomas.
Arthur Andersen LLP v. United States 125 S. Ct. 2129, 73 USLW 4393 (5-31-05)
Statutory interpretation, knowingly corrupt persuasion: Jury instructions failed
to convey the requisite consciousness of wrongdoing embodied in a provision making
it a crime to “knowingly use[ ] intimidation or physical force, threaten[ ], or
corruptly persuade[ ]” another person to withhold or destroy documents for use in
an official proceeding. The restraint that is “traditionally exercised” in determining
the scope of a federal criminal statute “is particularly appropriate . . . where the act
underlying the conviction — ‘persuas[ion]’ — is by itself innocent.” The most
“natural” reading of the statute is that “knowingly” modifies “corruptly persuades”
as well as the other listed actions. This most natural grammatical reading is to be
preferred even though the statutory formulation is “inelegant.” Only persons
conscious of wrongdoing can be said to “knowingly corruptly persuade.” The jury
was instructed, however, that it could convict if it found that the petitioner intended
to “subvert, undermine, or impede” government factfinding, and that the petitioner
could be found guilty even if it “honestly and sincerely believed that its conduct was
lawful.” By excluding the requirement of “dishonest” action, and by adding the term
“impede” to the phrase “subvert or undermine” contained in the Pattern Jury
Instruction, the district court’s instruction swept in innocent persuasion, and departed
from the statute’s requirement that punishable persuasion be “knowingly . . .
corrupt.” The instruction also failed to require a nexus between the persuasion to
shred documents and any particular proceeding. A proceeding need not be pending
when the persuasion takes place, “but it is quite another [thing] to say a proceeding
need not even be foreseen.” The jury charge was an inadequate basis, therefore, for
finding that the petitioner accounting company violated the law when it directed
employees to destroy files, pursuant to its “document retention policy,” relating to its
audits of Enron Corporation.

9-0. Opinion for unanimous Court by Rehnquist.

Ballard v. Commissioner 125 S. Ct. 1270, 73 USLW 4194 (3-7-05)
Tax Court, report of special trial judges: The Tax Court may not exclude from the
record on appeal reports submitted by special trial judges under Tax Court Rule 183.

The rule provides that the Tax Court judge to whom a case is assigned after
submission of a special trial judge’s report may adopt that report, may modify or
reject it in whole or in part, or may seek further evidence or briefs. The rule further
provides that the special trial judge’s findings of fact “shall be presumed to be
correct,” and that “due regard” must be given to the fact the special trial judge had
the opportunity to evaluate the credibility of witnesses. Changes to the rules adopted
in 1983 eliminated a requirement that parties be served with a copy of the special trial
judge’s report and be allowed to file exceptions for consideration by the Tax Court
judge, but did not change the requirement that “due regard” be paid to the special
trial judge’s findings of fact. The Tax Court implemented these changes by treating
the special trial judge’s report “essentially as an in-house draft to be worked over
collaboratively by the [Tax Court] judge and the special trial judge.” At the
conclusion of this collaboration the Tax Court judge issues a decision in all cases
“agree[ing] with and adopt[ing]” the opinion of the special trial judge. The extent
to which the final, collaborative opinion departs from the original report of the
special trial judge is not disclosed. “The Tax Court, like all other decisionmaking
tribunals, is obliged to follow its own Rules,” which do not authorize such
procedures. “The Tax Court’s practice of not disclosing the special trial judge’s
original report, and of obscuring the Tax Court judge’s mode of reviewing that
report, impeded fully informed appellate review of the Tax Court’s decision.”
Concealment of the special trial judge’s report runs counter to the “generally
prevailing practice” under which reports of hearing officers, magistrates, and the like
are made part of the record on appeal. An analogy to the practice of omitting a single
Tax Court judge’s opinion from the record when full court review occurs is
misplaced; that procedure is authorized by statute, and full Tax Court review is
designed for resolution of legal issues, not factual issues.

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

Kennedy, Souter, and Breyer. Concurring opinion by Kennedy, joined by Scalia.
Dissenting opinion by Rehnquist, joined by Thomas.
Bates v. Dow Agrosciences LLC 125 S. Ct. 1788, 73 USLW 4311 (4-27-05)
Preemption, FIFRA, common law actions: The Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) does not preempt all state common law suits for damages
resulting from pesticide application. FIFRA prohibits States from imposing “any
requirements for labeling or packaging in addition to or different from [federal
requirements].” Although “the term ‘requirements’ . . . reaches beyond positive
enactments, such as statutes and regulations, to embrace common-law duties,” the
provision sets two limits on the scope of preemption. The requirement must be “for
labeling or packaging,” and must be “in addition to or different from” federal labeling
and packaging requirements. There are many common law claims, e.g., those for
defective design, defective manufacture, negligent testing, and breach of express
warranty, that do not impose labeling or packaging requirements. The fact that a
finding of liability on any of these claims might induce a manufacturer to change its
label does not turn it into a labeling requirement. “A requirement is a rule of law that
must be obeyed; an event, such as a jury verdict, that motivates an optional decision
is not a requirement.” The petitioners’ fraud and negligent-failure-to-warn claims are
premised on common law rules that qualify as “requirements for labeling and
packaging.” The case is remanded, however, for consideration of whether these

claims are “in addition to or different from” FIFRA’s misbranding standards, or
whether they merely provide a remedy for violation of the federal standards. The
state requirements for which the damage remedy is provided need not be identical to
the federal requirements; it suffices if they are “genuinely equivalent.” The
presumption against preemption in areas of traditional state regulation strengthens
the interpretation allowing states to provide additional remedies. “If Congress had
intended to [eliminate] a long available form of compensation, it surely would have
expressed that intent more clearly.” FIFRA does not impose uniform regulation, but
rather “authorizes a relatively decentralized scheme”; “[p]rivate remedies that
enforce federal misbranding requirements would seem to aid, rather than hinder, the
functioning of FIFRA.”
9-0 (design, manufacture, testing, fraud, and negligence claims); 7-2 (breach of
warranty claims). Opinion of Court by Stevens, joined by Rehnquist, O’Connor,
Kennedy, Souter, Ginsburg, and Breyer. Concurring and dissenting opinion by
Thomas, joined by Scalia.
Bell v. Cone 125 S. Ct. 847, 73 USLW 3432 (1-24-05)
Habeas corpus, deference to state courts: The Sixth Circuit’s conclusion that the
Tennessee Supreme Court failed to cure the constitutional deficiency in a statutory
“aggravating circumstance” justifying imposition of the death penalty failed to
comport with the deference required by 28 U.S.C. § 2254(d). The Sixth Circuit
based its decision overturning the respondent’s death penalty on the State’s reliance
on the unconstitutionally vague “especially heinous, atrocious, or cruel” aggravating
circumstance, which is unconstitutional without a narrowing construction. Although
the Tennessee Supreme Court did not mention a narrowing construction, it is clear
that it applied one. Because the state court had previously construed the “heinous,
atrocious, or cruel” circumstance narrowly “and had followed that precedent
numerous times, we must presume that it did the same thing here.” Even without the
presumption, however, it is clear that the court applied the narrower construction.
The facts on which the court relied to describe the brutal beating murder of an elderly
couple were sufficient to satisfy “the torture prong” of the narrowed construction,
which requires evidence that the defendant inflicted torture on the victim before his
death. The narrowing construction itself was not unconstitutionally vague.

9-0. Per curiam. Concurring opinion by Ginsburg, joined by Souter and Breyer.

Bell v. Thompson 125 S. Ct. 2825, 73 USLW 4624 (6-27-05)
Appeals, habeas corpus: The Sixth Circuit Court of Appeals abused its discretion
in a state prisoner’s habeas corpus case by staying its mandate and issuing an
amended opinion six months after the Supreme Court denied certiorari and five
months after it denied a rehearing. “The consequence of delay for the State’s
criminal justice system was compounded by the [appeals court’s] failure to . . . give
notice to the parties that [it] was reconsidering its earlier opinion.” This holding
assumes arguendo that Federal Rule of Appellate Procedure 41 authorizes a stay of
a mandate following denial of certiorari. The Sixth Circuit acted on the basis of a
psychologist’s report, negligently omitted from the original appeal in the federal
habeas case, finding that the petitioner had been suffering from “severe mental

illness” at the time of his capital offense. Even if that psychologist’s report had been
included in the initial record reviewed by the appeals court, however, the respondent
“would have faced an uphill battle” in obtaining federal habeas relief based on
constitutionally inadequate representation by counsel. The psychologist’s report had
been prepared 13 years after the crime, and was contradicted by evaluations of two
court-appointed experts. This evidence “would not come close to satisfying the
miscarriage of justice standard” that would have applied had the appeals court
recalled its mandate, and it did not justify the court’s decision to withhold the
mandate without notice to the parties. “Federalism concerns” relating to “finality and
comity” are also implicated. The state “expended considerable time and resources”
in scheduling and preparing for the respondent’s execution, and the Sixth Circuit “did
not accord the appropriate level of respect” to the state’s judgment that the
respondent’s crimes merited “the ultimate punishment.”
5-4. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and
Thomas. Dissenting opinion by Breyer, joined by Stevens, Souter, and Ginsburg.
Bradshaw v. Stumpf 125 S. Ct. 2398, 73 USLW 4463 (6-13-05)
Due Process, guilty plea, defendant’s awareness of charges: There is no
requirement that the judge himself must inform the defendant of the elements of each
charge before accepting a guilty plea. Rather, the constitutional prerequisites for a
valid guilty plea — that it be done voluntarily, knowingly, and intelligently — can
be met if the record shows that “the nature of the charge and the elements of the
offense were explained to the defendant by his own, competent counsel.” In this case
the defendant’s guilty plea to aggravated murder is not inconsistent with his claim
that it was his accomplice and not he who shot the victim, since Ohio law provides
that aiders and abettors may be convicted of the offense. The defendant could have
had the requisite intent to kill without having fired the gun that killed the victim. Nor
is the guilty plea inconsistent with the defendant’s desire to introduce evidence as to
his role in the murder, since the judge had explained that the defense would have the
opportunity to introduce mitigating evidence at the sentencing phase of his trial. The
fact that the plea may, in retrospect, have been a poor bargain for the defendant is not
a basis for invalidation. The prosecution’s inconsistent identification of the
triggerman in its case against the defendant and its case against his accomplice is not
a basis for invalidating the defendant’s guilty plea, but may have a bearing on the
validity of the death sentence. The case is remanded for consideration of this
sentencing issue.
9-0. Opinion for unanimous Court by O’Connor. Concurring opinions by
Souter, joined by Ginsburg; and by Thomas, joined by Scalia.
Brosseau v. Haugen 125 S. Ct. 596, 73 USLW 3350 (12-13-04)
Fourth Amendment, qualified immunity of police officer: A police officer sued
for using excessive force in seizing a suspect is entitled to qualified immunity if her
understanding of the law governing seizure of the suspect, even though erroneous,
was “reasonable” under the circumstances she confronted. An officer’s
misunderstanding of the law is reasonable if the law at the time did not “clearly
establish” that the officer’s conduct would violate the Constitution. Cases dealing

with the shooting of a suspect who is fleeing in a car and who presents a risk to
others are very fact-specific, and create “a hazy border between excessive and
acceptable force.” The officer’s conduct in this case — shooting a suspect who was
attempting to flee in a vehicle after having ignored the officer’s order to get out of the
vehicle, and after the officer had used force in an effort to prevent him from starting
the vehicle — was not clearly violative of the Fourth Amendment.

8-1. Per curiam. Concurring opinion by Breyer, joined by Scalia and Ginsburg.

Dissenting opinion by Stevens.
Brown v. Payton 125 S. Ct. 1432, 73 USLW 4223 (3-22-05)
Habeas corpus, deference to state courts: The California Supreme Court’s decision
that there was no reasonable likelihood that a capital sentencing jury believed that it
was required to ignore mitigating evidence was not “contrary to,” or an
“unreasonable application of” clearly established federal law, the standard set by the
Antiterrorism and Effective Death Penalty Act for limiting federal habeas corpus
relief for state prisoners. The Ninth Circuit, therefore, should not have granted
habeas relief in this case. During the sentencing phase of his trial the defendant had
introduced evidence of his post-crime religious conversion and work with a prison
ministry. The jury instruction at issue, “factor (k),” directed the jury to consider “any
other circumstance which extenuates the gravity of the crime.” The prosecutor
erroneously told jurors that factor (k) limited them to consideration of conduct that
pre-dated the crime, and did not allow consideration of the defendant’s evidence of
post-crime conversion. The trial judge, despite the defense counsel’s request, did not
correct this erroneous assertion. The jury recommended death and the trial judge
imposed that sentence. The California Supreme Court, upholding the sentence, relied
on its reading of the U.S. Supreme Court’s decision in Boyde v. California (1990),
which held that factor (k) does not limit the jury’s consideration to circumstances of
the crime, but rather allows consideration of a defendant’s background and character.
In light of Boyde, the California court did not act unreasonably in declining to
distinguish between pre-crime and post-crime mitigating evidence. Considering “the
whole context of the trial,” as required by Boyde, it was not unreasonable for the
court to conclude that the jurors did not likely believe they were required to disregard
the defendant’s mitigating evidence. The defendant presented two days of testimony
about his post-crime conversion, the prosecutor devoted substantial attention to
discounting its importance, and the court did not instruct the jurors to disregard the
5-3. Opinion of Court by Kennedy, joined by O’Connor, Scalia, Thomas, and
Breyer. Concurring opinions by Scalia, joined by Thomas; and by Breyer.
Dissenting opinion by Souter, joined by Stevens and Ginsburg. Rehnquist did
not participate.
Cherokee Nation of Okla. v. Leavitt 125 S. Ct. 1172, 73 USLW 4177 (3-1-05)
Government contracts: The Federal Government is legally bound to pay “contract
support costs” incurred by two Indian tribes pursuant to a contract by which the tribes
agreed to supply health services and other services normally provided by the
Government, in exchange for the Government’s reimbursement of the tribes’costs

and administrative expenses. The contracts were authorized by the Indian
Self-Determination and Education Assistance Act (Act), which specifies that
“contract support costs” are a component of reimbursable administrative expenses.
The Government did not deny its promise to pay these costs, or its failure to do so.
Rather, the Government argued that its debts were not legally binding because
Congress had failed to appropriate sufficient funds for paying the obligation. In each
year at issue, however, Congress had enacted a lump-sum appropriation “to carry
out” the act, and the amount of the appropriation was “far more” than the amounts
at issue. The appropriations, being lump sum, “contained no relevant statutory
restriction” on payment of the debts. A proviso stating that funding is “subject to the
availability of appropriations” does not vest the Secretary with authority to disregard
contractual obligations in favor of other spending. The act does not create a special
contract that immunizes the Government from liability; a provision that a special
services contract shall not be construed to be a procurement contract seems designed
to avoid “technical burdens that often accompany procurement, not to weaken a
contract’s binding nature.” Nor is the Government saved by a proviso that the
Secretary need not reduce funds available to one tribe in order to provide for another
tribe. The appropriations contained other unrestricted funds sufficient to pay the
claims at issue, and the Government may not avoid a debt by obligating unrestricted
funds for another purpose. A later-enacted statute restricting use of funds for
contract support costs is open to the interpretation that it bars payment on claims
arising under the reimbursement contracts, but that interpretation is rejected because
of its questionable constitutionality.
8-0. Opinion of Court by Breyer, joined by all Justices except Rehnquist, who
did not participate.
City of Rancho Palos Verdes v. Abrams 125 S. Ct. 1453, 73 USLW 4217 (3-22-05)
Telecommunications Act of 1996; 42 USC § 1983: An individual may not use 42
U.S.C. § 1983 to enforce limitations on local zoning authority imposed by the
Communications Act of 1934 (Act), as amended by the Telecommunications Act of
1996 (TCA). Section 332(c)(7) of the act, which creates a cause of action against
state and local governments that fail to comply, is the exclusive remedy. Although
section 1983 authorizes suits to enforce individual rights created by federal statutes,
not all statutory rights are enforceable under section 1983. The issue is one of
congressional intent. Provision of an express private right of action in a statute “is
ordinarily an indication that Congress did not intend to leave open a more expansive
remedy under § 1983.” There is no indication that Congress intended the TCA
remedy to complement rather than supplant § 1983. Section 332(c)(7) “limits relief
in ways that § 1983 does not”: judicial review under § 332(c)(7) must be sought
within 30 days of final zoning action, it is unclear whether relief may include
damages, and there is no provision for recovery of attorney’s fees. The TCA’s
“saving clause,” providing that TCA amendments shall not be construed to “impair”
existing federal law, does not reflect congressional intent to allow §1983 actions.
Section 332(c)(7) does not “impair” the operation of § 1983, but rather “has no effect
on § 1983 whatsoever.” The rights created by 332(c)(7) did not exist before the
passage of the TCA, and the claims enforceable under § 1983 prior to enactment of
the TCA continue to be available after its enactment.

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

Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Breyer, joined
by O’Connor, Souter, and Ginsburg. Concurring opinion by Stevens.
City of San Diego v. Roe 125 S. Ct. 521, 73 USLW 3334 (12-6-04)
Public employment, freedom of expression: A police department that fired an
officer for refusing to stop selling sexually explicit videos on the Internet auction site
eBay did not violate the officer’s First Amendment right to freedom of speech. One
video showed the officer stripping off a police uniform and masturbating; the officer
also offered to sell official uniforms of his department, and identified himself on his
user profile as employed in law enforcement. The Ninth Circuit’s reliance on United
States v. National Treasury Employees Union (1995) (NTEU) is misplaced. The
Court in NTEU protected public employees’ speech that was unrelated to
employment and that had no effect on the mission and purpose of the employer. Here
the respondent “took deliberate steps to link his videos and other wares to his police
work, all in a way injurious to his employer.” The case is governed instead by
Pickering v. Board of Education (1968), which adopted a balancing test for speech
of public employees upon “matters of public concern.” But because the respondent’s
expression “does not qualify as a matter of public concern under any view of the
public concern test,” Pickering balancing “does not come into play.” The
respondent’s expression “did nothing to inform the public about any aspect of [the
police department’s] functioning or operation,” was “designed to exploit his
employer’s image,” and “was detrimental to the mission and functions of the

9-0. Per curiam.

City of Sherrill v. Oneida Indian Nation of N.Y. 125 S. Ct. 1478, 73 USLW 4242 (3-


Native Americans, reservation land, state taxation: Land originally held by the
Oneida Nation as part of its reservation but sold to non-Indians in 1807 and not
repurchased by the Nation until 1997 is not immune from taxation by the State of
New York. The parcels of land at issue are now within the city of Sherrill, and the
Oneida Nation uses them to operate a gas station, a convenience store, and a textile
facility. Although the Nation “acquired the land in the open market and does not
seek to uproot current property owners,” recognition of sovereign control would have
some of the same “disruptive practical consequences” that dispossession would have.
A “checkerboard of alternating state and tribal jurisdiction . . . would seriously
burden the administration of state and local governments.” A statute authorizing the
Secretary of the Interior to acquire land in trust for Indians after considering the
impact on state and local tax rolls “provides the proper avenue for [the Nation] to
reestablish sovereign authority” over territory once held. “[T]he distance from 1805
to the present day, the Oneidas’ long delay in seeking equitable relief against New
York or its local units, and developments in the city of Sherrill spanning several
generations, evoke the doctrines of laches, acquiescence, and impossibility, and
render inequitable the piecemeal shift in governance this suit seeks unilaterally to

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

Kennedy, Souter, Thomas, and Breyer. Concurring opinion by Souter.
Dissenting opinion by Stevens.
Clark v. Martinez 125 S. Ct. 716, 73 USLW 4100 (1-12-05)
Immigration, detention of alien pending removal: The authority granted to the
Secretary of Homeland Security by 8 U.S.C. § 1231(a)(6) to detain a removable alien
beyond the removal period applies to inadmissible aliens in the same manner that the
Court held it to apply to admitted aliens in Zadvydas v. Davis (2001). The provision
permits detention for a period “reasonably necessary” to effectuate removal, but does
not permit detention once removal is no longer reasonably foreseeable. The
Zadvydas Court prescribed a six-month presumptive detention period for aliens
already admitted, and that period applies to inadmissible aliens as well. By its terms,
the language of § 1231(a)(6) applies to “an alien ordered removed who is
inadmissible under section 1182.” The provision’s operative language “applies
without differentiation to all three categories of aliens that are its subject,” and to
give the words a different meaning for each category “would be to invent a statute
rather than interpret one.” Although there may be different concerns present in the
case of inadmissible aliens, there is no basis for interpreting the same language
differently. “It is not at all unusual to give a statute’s ambiguous language a limiting
construction called for by one of [its] applications”; in such instances “the lowest
common denominator, as it were, must govern.” Reliance on the constitutional doubt
canon, as the Court did in Zadvydas, is not designed to allow litigants to invoke the
constitutional rights of others or to allow courts to apply statutes until they approach
constitutional limits. Rather, the canon is a tool for choosing between competing
plausible interpretations of a statutory text.

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

Ginsburg, and Breyer. Concurring opinion by O’Connor. Dissenting opinion by
Thomas, joined in part by Rehnquist.
Clingman v. Beaver 125 S. Ct. 2029, 73 USLW 4359 (5-23-05)
First Amendment, elections, semi-closed primary: Oklahoma’s semi-closed
primary system, under which a political party may allow only its own members and
voters registered as Independents, but not those voters registered with other political
parties, to vote in its party primary election, does not violate the First Amendment.
The Libertarian Party’s challenge to the Oklahoma law is rejected. Tashjian v.
Republican Party of Connecticut (1986), applying strict scrutiny to void a law that
limited primary voting to party members, is not controlling, and strict scrutiny is not
required in this case. Strict scrutiny is required “only if the burden [on associational
rights] is severe,” and the burden imposed by Oklahoma’s law is less substantial than
that imposed by Connecticut’s. The Connecticut law required voters to affiliate
publicly with a party in order to vote in its primary; here independents need not
register as Libertarians to vote in that party’s primary, but need only declare
themselves Independents. Election laws that do not place a heavy burden on
associational rights can be justified by “important” state regulatory interests, and
Oklahoma’s law advances several such interests. Oklahoma asserts an interest in
preserving political parties as “viable and identifiable interest groups,” so that

candidates who emerge from primary elections represent that party’s interests, and
so that the general voting population may rely on party labels to draw inferences
about candidates’ ideologies. Oklahoma also asserts interests in aiding parties’
electioneering and party-building planning by promoting stability, and in preventing
party raiding and “sore loser” candidacies.

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

Kennedy, and Breyer. Separate part of Thomas opinion joined by Rehnquist,
O’Connor, and Scalia. Concurring opinion by O’Connor, joined by Breyer.
Dissenting opinion by Stevens, joined by Ginsburg, and joined in part by Souter.
Commissioner v. Banks 125 S. Ct. 826, 73 USLW 4117 (1-24-05)
Income Tax, contingent fees: The portion of a money judgment or settlement paid
to an attorney under a contingent fee agreement is income to the client under the
Internal Revenue Code. The Code defines “gross income” as “income from whatever
source derived.” A taxpayer cannot exclude an economic gain from gross income by
assigning the gain in advance to someone else. A contingent fee agreement should
be viewed as an anticipatory assignment to the attorney of a portion of the client’s
income, and, as such, it is taxable to the client. In general, attribution of income is
resolved by determining whether a taxpayer exercises “dominion” over the income
in question. In litigation the income-generating asset is the cause of action, and “the
plaintiff retains dominion over this asset throughout the litigation.” The fact that the
value of the claim is speculative does not limit application of the assignment
doctrine. The attorney-client relationship is not a business partnership or joint
venture for tax purposes; instead, it is “a quintessential principal-agent relationship.”
When a principal relies on an agent to realize an economic gain, that gain is treated
as income to the principal. While it is possible that state laws could alter this
principal-agent relationship, none appear to convert the attorney from an agent to a
partner. These cases arose prior to enactment of, and hence are not covered by, the
American Jobs Creation Act of 2004, which allows a taxpayer to deduct certain
attorneys fees from gross income.
8-0. Opinion of Court by Kennedy, joined by all Justices except Rehnquist, who
did not participate.
Cooper Industries v. Aviall Servs. 125 S. Ct. 577, 73 USLW 4041 (12-13-04)
Superfund, contribution, statutory construction: Section 113(f)(1) of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, or Superfund Act) does not authorize persons who have incurred
response costs while undertaking voluntary cleanup activities to seek contribution
from other potentially responsible parties. That paragraph specifies that a party “may
seek contribution . . . during or following” any CERCLA action under section 106
or 107(a). It does not authorize contribution outside the context of such actions. The
word “may” is not used permissively to nullify the reference to section 106 and 107
actions. Rather, the “natural meaning of ‘may’ in the context of the enabling clause
is that it authorizes certain contribution actions . . . and no others.” A contrary
reading would render the restriction “superfluous.” A saving clause, providing that
“nothing in this subsection shall diminish the right of any person to bring an action

for contribution in the absence of a civil action under [section 106 or 107],” does not
change the interpretation. The saving clause does not itself create a cause of action;
its “sole function” is to clarify that the subsection does nothing to diminish any right
of contribution that may exist independently of 113(f)(1). The “whole” of section
113 reinforces interpretation of paragraph (f)(1). The section provides one other
avenue for contribution following certain approved settlements, and then provides
two separate limitations periods for seeking contribution: one following judgments
and one following settlements. Absence of a limitation period applicable when
neither a judgment nor a settlement has occurred, as is the case with a voluntary
cleanup, suggests that paragraph (f)(1) does not authorize contribution following
voluntary cleanup. Arguments based on the general purposes of CERCLA are
rejected. “Given the clear meaning of the text, there is no need . . . to consult the
purpose of CERCLA at all.”

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

Kennedy, Souter, and Breyer. Dissenting opinion by Ginsburg, joined by
Cutter v. Wilkinson 125 S. Ct. 2113, 73 USLW 4397 (5-31-05)
Establishment Clause, RLUIPA: Section 3 of the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), which provides that governments
may not impose “a substantial burden on the religious exercise” of an
institutionalized person unless the burden furthers “a compelling governmental
interest,” does not violate the Establishment Clause. The Court has recognized that
there is “room for play in the joints” between the Establishment Clause and the Free
Exercise Clause, and section 3 of RLUIPA “fits within the corridor” between the two
clauses. The provision is “compatible with the Establishment Clause because it
alleviates exceptional government-created burdens on private religious exercise.”
Moreover, RLUIPA does not run afoul of earlier decisions that require government
to take account of burdens imposed on non-beneficiaries, and that require neutrality
among different religions. This does not mean, however, that government must offer
the same accommodations to secular entities that it extends to religious practitioners
in order to facilitate their religious observances. Also, RLUIPA does not “elevate
accommodation of religious observances over an institution’s need to maintain order
and safety.” “Prison security is a compelling state interest, and . . . deference is due
to institutional officials’ expertise in this area.” Rejection of this facial challenge
does not preclude later as-applied challenges.

9-0. Opinion for unanimous Court by Ginsburg. Concurring opinion by Thomas.

Deck v. Missouri 125 S. Ct. 2007, 73 USLW 4370 (5-23-05)
Due Process, physical restraint of defendant during trial: The routine shackling
of a defendant during the penalty phase of capital trial by jury violates his due
process rights. The law has long prohibited routine use of visible shackles during the
guilt phase of a criminal trial, and the same rule should apply to the penalty phase.
The rationales underlying the guilt-phase rule apply with similar force at the penalty
phase. The use of physical restraints impairs the right to counsel by interfering with
an accused’s right to communicate with his attorney. Maintaining a dignified

process that includes the respectful treatment of defendants underscores the
seriousness and importance of the proceedings. Use of physical restraints
undermines the presumption of innocence that is accorded each defendant. While the
presumption of innocence no longer applies at sentencing, “related concerns” are
implicated. The decision between life and death “is no less important than the
decision about guilt.” Presence of the convicted defendant in shackles can be “a
thumb on death’s side of the scale” for two important sentencing considerations: the
jury’s perception of the defendant’s character, and of the danger to the community
that the defendant presents. Although the ban against shackling is not absolute, and
shackling may be imposed when justified by “an essential state interest” specific to
the defendant, Missouri’s claim that the shackling was justified in this case is
rejected. The claim that the jury was unaware of the shackles is not supported by the
record. Also lacking is evidence that the trial judge exercised discretion by finding
exceptional circumstances warranting the use of shackles. Finally, because shackling
is “inherently prejudicial,” the defendant need not demonstrate that actual prejudice

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

Kennedy, Souter, and Ginsburg. Dissenting opinion by Thomas, joined by
Devenpeck v. Alford 125 S. Ct. 588, 73 USLW 4038 (12-13-04)
Fourth Amendment, arrest, probable cause: A warrantless arrest is valid under the
Fourth Amendment whether or not the criminal offense for which there is probable
cause to arrest is “closely related” to the offense stated by the officer at the time of
arrest. The Ninth Circuit erred in invalidating an arrest on the basis that the offenses
for which probable cause existed (impersonating an officer and obstructing an
officer) were not “closely related” to the offense invoked by the officer in arresting
the suspect (taping roadside conversations with police officers in alleged violation
of a state privacy law). Existence of probable cause depends upon “the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” As the Court held in Whren v. United States (1996), an officer’s reasons for
making an arrest are irrelevant; the issue is “whether the circumstances, viewed
objectively, justify that action.” The Ninth Circuit’s “closely related” rule makes the
lawfulness of arrest turn on the officer’s motivation, and, in addition, is “condemned
by its perverse consequences.” There is no constitutional requirement that officers
inform a person of the reason for his arrest at the time he is taken into custody, and
making the validity of arrest turn on what the officer tells the arrestee might cause
officers to cease giving any reason at all.

8-0. Opinion of Court by Scalia. Rehnquist did not participate.

Dodd v. United States 125 S. Ct. 2478, 73 USLW 4516 (6-20-05)
Habeas corpus, limitations period, start date: A one-year limitation period for a
federal prisoner’s filing of a habeas corpus petition begins to run on the date the
Supreme Court initially recognized the right asserted by the prisoner, not on the date
on which the right was made retroactive for purposes of habeas review. 28 U.S.C.
§ 2855 provides that the applicable limitation period begins to run on “the date on

which the right asserted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.” The text of this provision is “clear,” and “settles this
dispute.” “It unequivocally identifies one, and only one, date from which the 1-year
limitation period is measured.” That date is the “the date on which the right asserted
was initially recognized.” The petitioner’s reliance on the second clause is
“misplaced.” The second clause “imposes a condition on the applicability” of the
first. The date established in the first clause “does not apply at all if the conditions
in the second clause . . . have not been met.” There is “the potential for harsh
results,” since the Court “rarely decides that a new rule is retroactively applicable
within one year of initially recognizing that right,” but it is for Congress and not the
Court to “rewrite the statute.” The disposition required in this case, “though strict,
is not absurd.” The petitioner’s claim is barred because he filed it more than a year
after the Supreme Court decided the Richardson case on which he sought to rely. It
does not matter that he filed his claim less than a year after an appellate court had
held Richardson applicable to cases on collateral review.
5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Dissenting opinions by Stevens, joined in part by Souter, Ginsburg, and
Breyer; and by Ginsburg, joined by Breyer.
Dura Pharmaceuticals, Inc. v. Broudo 125 S. Ct. 1627, 73 USLW 4283 (4-19-05)
Securities, fraud, proof of loss: An allegation that the price paid for a security was
inflated because of misrepresentations is inadequate to state a cause of action for
securities fraud. The complaint must also allege that the misrepresentation
proximately caused economic loss. “As a matter of pure logic,” the purchaser does
not suffer loss at the time of purchase. The purchaser may be able to sell the shares
quickly without a loss “before the relevant truth begins to leak out,” or, if a
significant amount of time elapses before resale, subsequent events may control the
shares’ value. A purchase price inflated by misrepresentations may prove to be “a
necessary condition of any [future] loss,” but it is not the cause of such a loss. The
Ninth Circuit’s conclusion that proof of actual economic loss is unnecessary lacks
support in precedent. The common law of deceit and misrepresentation on which the
law of securities fraud is based requires proof of loss, and other courts of appeals
have required it in securities fraud cases. In this case the complaint alleged that the
petitioner drug company misrepresented the likelihood of FDA approval of a
particular device and that the purchase price for shares was artificially inflated, but
did not allege that the price fell significantly after the truth became known. The
complaint was “legally insufficient” because it failed to give the petitioner/defendant
adequate notice of the nature of the alleged loss and the causal connection to the
misrepres entations.

9-0. Opinion for unanimous Court by Breyer.

Exxon Mobil Corp. v. Allapattah Servs., Inc. 125 S. Ct. 2611, 73 USLW 4574 (6-23-


Federal courts, supplemental jurisdiction: If one plaintiff meets the amount-in-
controversy and other jurisdictional requirements of federal diversity jurisdiction, the

court may exercise supplemental jurisdiction over other plaintiffs who do not meet
the amount-in-controversy requirements. The supplemental jurisdiction statute,
enacted in 1990, superseded Zahn v. International Paper Co. (1973), in which the
Court had held that any diversity plaintiff not satisfying the amount-in-controversy
requirement must be dismissed. The statute provides that, with certain listed
exceptions, “in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are
so related . . . that they form part of the same case or controversy.” This is a “broad
grant of supplemental jurisdiction.” A diversity case in which the claims of some but
not all plaintiffs satisfy the amount-in-controversy requirement presents “a civil
action of which the district courts have original jurisdiction,” and the court therefore
may exercise supplemental jurisdiction over other claims in the action unless one of
the exceptions applies. In this case none does. The argument that the court must
have original jurisdiction over every claim in the complaint rests on one of two
untenable theories. The “indivisibility” theory is “inconsistent with the whole notion
of supplemental jurisdiction,” and the “contamination” theory, appropriate in the
diversity context, “makes little sense with respect to the amount-in-controversy
requirement.” The supplemental jurisdiction statute is “closely analogous” to the
removal statute, which has been interpreted to allow removal of state law claims
along with the federal claim over which the district court has jurisdiction. There is
no need to resort to legislative history because the supplemental jurisdiction statute
is not ambiguous. Moreover, the legislative history is not only “murky” and
inconclusive, but reveals a “post-hoc attempt” in the House Report to contradict what
was acknowledged to be the provision’s plain text.
5-4. Opinion of Court by Kennedy, joined by Rehnquist, Scalia, Souter, and
Thomas. Dissenting opinions by Stevens, joined by Breyer; and by Ginsburg,
joined by Stevens, O’Connor, and Breyer.
Exxon Mobil Corp. v. Saudi Basic Industries Corp. 125 S. Ct. 1517, 73 USLW 4266
Federal-state court relations: The Rooker-Feldman doctrine, which bars losing
state court litigants from obtaining federal district court review of the state court
ruling, has no application when federal court proceedings have been initiated prior
to state court judgment. Rooker-Feldman reflects the fact that federal district courts
lack appellate jurisdiction over state court judgments. Such federal review authority
is conferred solely on the Supreme Court. There is no interference with the Supreme
Court’s appellate jurisdiction, however, if a district court’s subject-matter jurisdiction
is properly invoked prior to entry of judgment in a parallel state court action. That
situation is governed by preclusion law. The Full Faith and Credit Act requires a
federal court to “give the same preclusive effect to a state-court judgment as another
court of that State would give.” In parallel litigation, therefore, the federal court may
be required to recognize the preclusive effect of a state court judgment, “but federal
jurisdiction over an issue does not terminate automatically on the entry of judgment
in the state court.” In this case, Exxon Mobil “plainly has not repaired to federal
court in order to undo the Delaware judgment in its favor,” but apparently sought “to
protect itself in the event it lost in state court on grounds (such as the state statute of
limitations) that might not preclude relief in the federal venue.”

9-0. Opinion for unanimous Court by Ginsburg.

Florida v. Nixon 125 S. Ct. 551, 73 USLW 4047 (12-13-04)
Assistance of counsel, constitutional adequacy: A defense counsel’s decision, in
the absence of express consent by his client, to concede his client’s guilt in a capital
case and to concentrate on building a case to spare his client’s life does not
necessarily amount to prejudicial and ineffective assistance of counsel. The
adequacy of a counsel’s performance, after consultation with his client yields neither
consent nor objection to his proposed trial strategy, should be measured by the
general reasonableness standard set forth in Strickland v. Washington (1984), and not
by the presumption of prejudice created by United States v. Cronic (1984) for cases
in which counsel fails meaningfully to oppose the prosecution’s case. “A
presumption of prejudice is not in order based solely on a defendant’s failure to
provide express consent to a tenable strategy counsel has adequately disclosed to and
discussed with the defendant.” Although a client’s explicit consent must be obtained
before certain basic trial decisions may be made, e.g., whether to plead guilty or
waive a jury trial, what was done in this case is not the functional equivalent.
Although the attorney conceded his client’s guilt, the prosecution was still required
to present competent, admissible evidence establishing the essential elements of the
charged offense, and consequently there was no “truncated” proceeding. “Attorneys
representing capital defendants face daunting challenges,” and in some instances
evidence of guilt may be so overwhelming that saving the client from execution may
be “the best and only realistic result possible.” In such cases “counsel cannot be
deemed ineffective for attempting to impress the jury with his candor and his
unwillingness to engage in ‘a useless charade.’”

8-0. Opinion of Court by Ginsburg. Rehnquist did not participate.

Gonzales v. Raich 125 S. Ct. 2195, 73 USLW 4407 (6-6-05)
Commerce power; necessary and proper legislation: The Controlled Substances
Act’s (CSA’s) categorical prohibition of the manufacture and possession of
marijuana, is valid as applied to the intrastate cultivation, possession, and use of
marijuana for medicinal purposes in compliance with California law. Congress,
pursuant to its commerce and necessary and proper powers, may regulate “purely
local activities that are part of an economic ‘class of activities’ that have a substantial
effect on interstate commerce.” Congress’ regulation of intrastate activities may
cover activities that are not themselves commercial if failure to regulate would
undercut the regulation of the interstate market in that commodity. The case is
“striking[ly] similar” to Wickard v. Filburn (1942), in which the Court upheld a
restriction on production of wheat for home consumption. Just as Congress had a
rational basis for believing that, in the aggregate, unregulated home-grown wheat
would affect the market price of wheat, “here too, Congress had a rational basis for
concluding that leaving home-consumed marijuana outside federal control would
similarly affect price and market conditions.” Congress could rationally have been
concerned about enforcement difficulties in distinguishing between marijuana
cultivated locally and that cultivated elsewhere, and about diversion from the home-
consumption market into the commercial market. “[T]he absence of particularized
findings [about the need to regulate medical marijuana use] does not call into

question Congress’ authority to legislate.” The Court’s decisions in United States v.
Lopez (1995) and United States v. Morrison (2000) are not on point. Neither the
Gun-Free School Zones Act, invalidated in Lopez, nor the Violence Against Women
Act, invalidated in Morrison, regulated economic activity, while “the activities
regulated by the CSA are quintessentially economic.” Also, the CSA is “at the
opposite end of the regulatory spectrum” from the Gun-Free School Zones Act
because the latter was a “discrete prohibition,” while the marijuana prohibition in the
CSA is “merely one of many ‘essential part[s]’ of a larger regulation of economic
activity.” The CSA makes no exception for use of marijuana for medical purposes
on the advice of a physician. By classifying marijuana as a Schedule I drug,
Congress itself determined that marijuana has no acceptable medical uses.
6-3. Opinion of Court by Stevens, joined by Kennedy, Souter, Ginsburg, and
Breyer. Concurring opinion by Scalia. Dissenting opinions by O’Connor, joined
by Rehnquist and joined in part by Thomas; and by Thomas.
Gonzalez v. Crosby 125 S. Ct. 2641, 73 USLW 4568 (6-23-05)
Habeas corpus, motion for relief from judgment: A motion filed under Federal
Rule of Civil Procedure 60(b) challenging the federal district court’s ruling on the
statute of limitations applicable to the movant’s initial habeas corpus petition is not
the equivalent of a successive habeas petition, and can be ruled upon by the district
court without precertification by the appeals court. Rule 60(b) authorizes motions
for relief from operation of a judgment. The rule was not expressly circumscribed
by the Antiterrorism and Effective Death Penalty Act (AEDPA), but federal rules
apply only to the extent that they are not “inconsistent” with the habeas statutes as
amended by AEDPA. AEDPA’s precertification and other requirements apply if the
motion amounts to a “habeas corpus application” An “application” for habeas relief
is a filing that contains one or more “claims.” In the habeas context, a “claim” is “an
asserted federal basis for relief from a state court’s judgment of conviction.” In this
case the Rule 60(b) motion does not present a “claim” because it does not attack “the
substance of the federal court’s resolution of a claim on the merits,” but rather attacks
a “defect in the integrity of the federal habeas proceedings.” The motion, therefore,
“is not the equivalent of a successive habeas petition.” The appeals court was
nonetheless correct in denying the petitioner’s motion. The alleged defect — an
incorrect ruling as to whether AEDPA’s limitations period was tolled during the
pendency of a state habeas petition — is not an “extraordinary circumstance” that
merits relief under Rule 60(b)(6).

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

Thomas, Ginsburg, and Breyer. Concurring opinion by Breyer. Dissenting
opinion by Stevens, joined by Souter.
Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg. 125 S. Ct. 2363, 73
USLW 4501 (6-13-05)
Federal courts, removal: Existence of a federal cause of action is not a prerequisite
to removal of a case from state to federal court on the basis of federal question
jurisdiction. “In certain cases federal question jurisdiction will lie over state-law
claims that implicate significant federal issues.” Federal jurisdiction is permissible

if there is a national interest in providing a federal forum for resolution of the federal
issues, and if doing so would not distort the division of labor Congress has created
between federal and state courts. In this case, in which the principal issue involves
the type of notice a federal statute requires the IRS to give before seizing property to
satisfy a tax delinquency, a state quiet title action may be removed. The Government
has a “strong interest” in the collection of taxes, and “a direct interest in the
availability of a federal forum to vindicate its own administrative action.” This result
is not inconsistent with the 1986 Merrell Dow case, which rejected federal
jurisdiction in a state tort action involving an issue of federal misbranding. The
Court in Merrell Dow “disclaimed the adoption of any bright-line rule,” and treated
the absence of a federal cause of action “as evidence relevant to, but not dispositive
of, the sensitive judgments about congressional intent that [the federal question
provision] requires.” Federal jurisdiction was rejected because accepting it “would
have attracted a horde of original filings and removal cases raising other state claims
with embedded federal issues.” Here, by contrast, “because it will be the rare state
title case that raises a contested matter of federal law, federal jurisdiction to resolve
[this issue] will portend only a microscopic effect on the federal-state division of

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

Graham County Soil & Water Conserv. Dist. v. United States ex rel. Wilson 125 S.
Ct. 2444, 73 USLW 4544 (6-20-05)
False Claims Act, limitation period, retaliation actions: The False Claims Act’s
six-year statute of limitations, applicable to “a civil action under section 3730,” does
not apply to a retaliation action brought under section 3730(h). “Statutory language
has meaning only in context,” and in context the limitations language of section
3731(b)(1) “is ambiguous rather than clear” as to whether § 3730(h) retaliation
actions are civil actions under section 3730. “Another reasonable reading” is that
only § 3730(a) actions brought by the Attorney General to remedy violations of §

3729 [the False Claims Act’s basic prohibition on filing false claims] and § 3730(b)

qui tam actions brought by private persons in the government’s name to remedy
violations are “civil action[s] under section 3730.” The start of the limitations period
is keyed to “the date on which the violation of section 3729 is committed,” i.e., the
date on which the false claim was submitted. A retaliation plaintiff does not need to
prove that a false claim was submitted, but only that his employer retaliated against
him for alleging that it was. Two considerations argue in favor of resolving the
ambiguity by reading the six-year limitations period as applicable only to 3730(a) and
(b) actions, and not to 3730(h) retaliation actions. First, the very next subsection uses
“action brought under section 3730” in a context that can refer only to (a) and (b)
actions. The provision requires the United States to prove all elements of a § 3730
cause of action by a preponderance of the evidence, but the United States does not
normally participate in a retaliation action. Second, statutes of limitations normally
begin to run when the cause of action accrues. Section 3731(b), which begins to run
when the false claim is filed, does not fit this “default rule” if applied to retaliation
claims. There is even the possibility that a retaliation action could be time barred
before it accrues if the employer learns of the employee’s role in aiding an
investigation more than six years after the alleged violation. Because there is no
federal limitations period applicable to retaliation actions, the case is remanded for

consideration of which state limitations period should be applied as most closely
7-2. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy, and joined in part by Souter. Concurring opinion by Stevens.
Dissenting opinion by Breyer, joined by Ginsburg.
Granholm v. Heald 125 S. Ct. 1885, 73 USLW 4321 (5-16-05)
Commerce Clause, Twenty-first Amendment: Michigan and New York laws that
allow in-state wineries to sell wine directly to consumers but prohibit or discourage
out-of-state wineries from doing so discriminate against interstate commerce in
violation of the Commerce Clause, and are not authorized by the Twenty-first
Amendment. The Court has long held that state laws violate the Commerce Clause
if they mandate differential treatment of in-state and out-of-state economic interests
in a manner that benefits the former and burdens the latter. The restrictions on direct
sale by out-of-state wineries constitute such prohibited discrimination. Section 2 of
the Twenty-first Amendment, which prohibits the “transportation or importation into
any State . . . for delivery or use therein of intoxicating liquors, in violation of the
laws thereof,” “does not allow States to regulate the direct shipment of wine on terms
that discriminate in favor of in-state producers.” The Twenty-first Amendment
repealed the Eighteenth Amendment, which had imposed nationwide Prohibition, and
restored to the states the powers they had prior to Prohibition. Those powers were
shaped by the Wilson Act, which authorized states to regulate imported liquor on the
same terms that they regulate domestic liquor, and the Webb-Kenyon Act, which
closed a loophole that had left states powerless to regulate direct imports for personal
use. Although some of the early cases interpreting the Twenty-first Amendment did
not take account of this history, modern cases have recognized that “state regulation
of alcohol is limited by the nondiscrimination principle of the Commerce Clause.”
Discrimination can be upheld if the state “advances a legitimate local purpose that
cannot be adequately served by reasonable nondiscriminatory alternatives,” but
neither Michigan nor New York has done so. The states’ assertion that direct
shipping of wine is likely to increase alcohol consumption by minors is
“unsupported,” and in any event does not justify a distinction between direct
shipments from in-state producers and direct shipments from out-of-state producers.
A “tax collection justification is also insufficient.” Michigan does not rely on
wholesalers to collect its taxes on imported wines, and New York could protect itself
by requiring a permit for direct shipping. Objectives underlying other asserted
rationales could “also be achieved through the alternative of an evenhanded licensing
5-4. Opinion of Court by Kennedy, joined by Scalia, Souter, Ginsburg, and
Breyer. Dissenting opinions by Stevens, joined by O’Connor; and by Thomas,
joined by Rehnquist, Stevens, and O’Connor.
Halbert v. Michigan 125 S. Ct. 2582, 73 USLW 4600 (6-23-05)
Assistance of counsel, appeal following guilty plea: Indigent criminal defendants
who plead nolo contendere or guilty in Michigan courts are entitled to the
appointment of counsel to seek “first-tier review” in the Michigan Court of Appeals.

In Douglas v. California (1963), the court held that states must appoint counsel to
represent indigents in first appeals as of right. Under Ross v. Moffitt (1974),
however, indigents are not entitled to appointment of counsel for subsequent
discretionary appeals to the state’s highest court or to the U.S. Supreme Court.
Although first-tier review for Michigan defendants who plead guilty or nolo
contendere is discretionary with the court and not by right, Douglas and not Ross
“provides the controlling instruction.” Michigan has a two-tier appellate system
under which the first tier, like California’s first-tier review at issue in Douglas, serves
an error-correction function. Indigent defendants seeking first-tier review “are
generally ill equipped to represent themselves” in such proceedings. A pro se litigant
will lack a record that has been reviewed by appellate counsel and will have no
attorney’s brief or appellate court opinion to help him identify and sharpen issues.
In addition, persons like the respondent, who have mental impairment, learning
disabilities, and little education, “are particularly handicapped as self-
represent at i v es.”

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

Souter, and Breyer. Dissenting opinion by Thomas, joined by Scalia, and joined
in part by Rehnquist.
Illinois v. Caballes 125 S. Ct. 834, 73 USLW 4111 (1-24-05)
Fourth Amendment, dog sniff at traffic stop: A dog sniff for drugs conducted
around the perimeter of a car following a legitimate traffic stop does not violate the
Fourth Amendment if the duration of the stop is justified by the traffic offense.
Police need not have any reasonable, articulable suspicion of drug activity before
using trained narcotics detection dogs to sniff for drugs at traffic stops. Official
conduct that does not compromise any legitimate interest in privacy is not a search
subject to the Fourth Amendment, and there is no legitimate privacy interest in
possessing contraband. Properly conducted dog sniffs with properly trained dogs
“are generally likely to reveal only the presence of contraband,” and “generally do[
] not implicate legitimate privacy interests.” A 2001 decision (Kyllo v. United States)
invalidating the use of a thermal imaging device to detect activity within a home is
distinguished; the thermal imaging device was capable of detecting lawful activity
and thus infringed reasonable expectations of privacy in the home.

6-2. Opinion of Court by Stevens, joined by O’Connor, Scalia, Kennedy,

Thomas, and Breyer. Dissenting opinions by Souter; and by Ginsburg, joined by
Souter. Rehnquist did not participate.
Jackson v. Birmingham Bd. of Educ. 125 S. Ct. 1497, 73 USLW 4233 (3-29-05)
Title IX, retaliation as sex discrimination: The private right of action implied by
Title IX encompasses claims of retaliation, and consequently a male high school
girls’ basketball coach relieved of his duties after complaining of unequal treatment
of his team may maintain a Title IX suit. The Court has previously held that Title
IX’s prohibition against discrimination “on the basis of sex” by any educational
program or activity receiving federal financial assistance extends to intentional
discrimination, and retaliation against a person who has complained of sex
discrimination is a form of intentional sex discrimination. The fact that Title IX

makes no mention of retaliation does not limit its application; the term
“discrimination” covers a wide range of treatment. Nor is the scope of Title IX
limited by contrast with Title VII, which explicitly prohibits retaliation. Title VII
spells out a number of practices that constitute prohibited discrimination. “Because
Congress did not list any specific discriminatory practices when it wrote Title IX, its
failure to mention one such practice does not tell us anything about whether it
intended that practice to be covered.” Moreover, the Court “presume[s]” that
Congress, when it enacted Title IX, was “thoroughly familiar” with a decision three
years earlier in which the Court had interpreted a civil rights statute as authorizing
suit by a white person expelled from a recreational association for leasing his share
to a non-white. A recent decision that restricted the scope of Title VI private actions
by contrasting broad regulatory and narrower statutory prohibitions is distinguished;
here the Court does not rely on regulations “because the statute itself contains the
necessary prohibition.” Title IX retaliation actions may be brought by persons who
were not the victims of the original complaint; Title IX does not limit its application,
as some other civil rights provisions do, to discrimination on the basis of “such
individual’s” characteristics. Because Title IX was an exercise of Congress’
spending power, private damage actions may be recognized only if the recipients of
federal funding had adequate notice that they could be liable for the conduct at issue.
Here there was adequate notice. Funding recipients have long been on notice that
they could be subjected to private suits for intentional sex discrimination, and that
courts have consistently interpreted Title IX’s private right of action broadly to
encompass diverse forms of intentional sex discrimination. Regulations prohibiting
retaliation have been on the books for nearly 30 years, and, prior to the conduct at
issue in this case, appeals courts had interpreted Title IX to prohibit retaliation.
5-4. Opinion of Court by O’Connor, joined by Stevens, Souter, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Rehnquist, Scalia, and
Jama v. Immigration and Customs Enforcement 125 S. Ct. 694, 73 USLW 4090 (1-12-


Statutory interpretation; Immigration, removal of alien: The provision of
immigration law that governs selection of the country to which an alien is to be
removed from the United States, 8 U.S.C. § 1231(b)(2), does not require the explicit,
advance consent of that country’s government when the alien is ordered removed to
his country of birth pursuant to § 1231(b)(2)(E)(iv). The statute provides a series of
removal options. The last option, clause (vii) of subparagraph (E), provides that if
the preceding options are “impracticable, inadvisable, or impossible,” the alien shall
be removed to “another country whose government will accept the alien into that
country.” No such acceptance requirement appears in clauses (i) through (vi). The
fact that effects are attached to non-acceptance throughout the rest of paragraph (2)
makes the failure to specify any such effect in most of subparagraph (E)
“conspicuous” and “more likely intentional.” Use of the word “another” in clause
(vii) does not import the acceptance requirement into clauses (i) through (vi). That
construction would run contrary to the rule of the last antecedent and to the structure
of subparagraph (E), under which “each clause is distinct and ends with a period.”
Nor does the structure of paragraph (2) as a whole manifest a uniform acceptance
requirement; the fact that the Attorney General “may disregard” an alien’s selection

under paragraph (A) when a country has not consented suggests discretion to proceed
without advance consent. To infer an acceptance requirement when Congress has not
clearly created one “would run counter to [the Court’s] customary deference to the
President in matters of foreign affairs.” There was no settled interpretation that
would warrant the conclusion that Congress’ 1996 amendments ratified that
interpretation. Neither of the two requirements for such “reenactment” were present:
the provisions on removal were not reenacted without change (the removal provision
combined what had been the two separate procedures of deportation and exclusion),
and the presumed judicial consensus was not “so broad that we must presume
Congress knew of and endorsed it.”
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Dissenting opinion by Souter, joined by Stevens, Ginsburg, and Breyer.
Johanns v. Livestock Marketing Ass’n 125 S. Ct. 2055, 73 USLW 4350 (5-23-05)
First Amendment, compelled speech, government speech: A mandatory
assessment of beef producers to promote advertising of beef and beef products does
not compel them to subsidize speech in violation of the First Amendment. The beef
promotions are government speech that the government may support through
assessments. Although in general individuals may not be compelled to subsidize
private speech with which they disagree, compelled support of government through
taxes and assessments is “perfectly constitutional,” and support of government can
entail support of government speech. United States v. United Foods (2001),
invalidating an assessment for mushroom advertising, is distinguished as based on
the assumption that the advertising was private speech, not government speech. The
Beef Promotion and Research Act of 1985 announces a federal policy of promoting
the marketing and consumption of beef and beef products, and directs the Secretary
of Agriculture to implement the policy by creating a Beef Board composed of beef
producers and importers, and by imposing an assessment to fund promotional
campaigns. Although the Beef Board and its operating committee play a role in
developing the promotional campaigns, the content of the promotions “is effectively
controlled by the Federal Government itself.” The act requires that the promotional
campaign include advertising “to advance the image and desirability” of beef
products, requires that the campaign take into account different types of beef
products, and prohibits reference to brand and trade names. Details of the advertising
are developed by the Beef Board, but the Secretary of Agriculture must approve
“every word that is disseminated.” This degree of government supervision and
control makes reliance on the government speech doctrine appropriate. The fact that
the advertising is funded by a targeted assessment rather than by general tax revenues
has no bearing on whether the speech is government speech or private speech, and
does not change the compelled-subsidy analysis. Crediting the advertising to
“America’s Beef Producers” does not affect the validity of the facial challenge to the
compelled subsidy, and an as-applied challenge to individual ads is not sufficiently
supported in the record.
6-3. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Thomas, and
Breyer. Concurring opinions by Thomas, by Breyer, and by Ginsburg.
Dissenting opinions by Kennedy; and by Souter, joined by Stevens and Kennedy.

Johnson v. California 125 S. Ct. 1141, 73 USLW 4137 (2-23-05)
Equal protection, racial segregation in prisons: Strict scrutiny is the proper
standard of review for judging the validity of the California Department of
Corrections’ unwritten policy of racially segregating prisoners in double cells for a
60-day period after they enter a new correctional facility. The Court has previously
stated that reviewing courts must analyze under strict scrutiny “all racial
classifications” imposed by government, and in Brown v. Board of Education (1954)
rejected the idea that “separate” can ever be “equal.” Strict scrutiny “is no less
important” in the prison context. The CDC’s invitation to apply the deferential
standard of Turner v. Safley (1987), applicable to prison regulations generally, is
rejected. Turner has not been applied to racial classifications, and the right to be free
from racial discrimination “is not susceptible to the logic of Turner.” The necessities
of prison security and discipline “are a compelling government interest,” but that
interest justifies “only those uses of race that are narrowly tailored to address those
5-3. Opinion of Court by O’Connor, joined by Kennedy, Souter, Ginsburg, and
Breyer. Concurring opinion by Ginsburg, joined by Souter and Breyer.
Dissenting opinions by Stevens; and by Thomas, joined by Scalia. Rehnquist did
not participate.
Johnson v. California 125 S. Ct. 2410, 73 USLW 4460 (6-13-05)
Jury selection, racial discrimination: California courts erred in requiring a
defendant, in order to establish a prima facie case of racial discrimination in jury
selection, to show that it is “more likely than not” that the prosecutor’s peremptory
challenges were based on racial grounds. The “more likely than not” standard “is an
inappropriate yardstick by which to measure the sufficiency of a prima facie case”
under Batson v. Kentucky (1986). Batson held that a prima facie case of
discrimination can be established through “a wide variety of evidence, so long as the
sum of the proffered facts gives rise to an inference of discriminatory purpose.” The
function of a prima facie case is not to persuade the judge that racial discrimination
occurred, but merely to create an inference and to shift the burden to the state to offer
permissible race-neutral reasons for its peremptory challenges. It is the third stage
of the process, after the defendant has presented a prima facie case and the state has
offered its justification, when the judge weighs the likelihood that racial
discrimination occurred. In this case, as in Batson, the prosecution struck all black
persons on the venire and the trial judge failed to demand an explanation from the
prosecution “despite the fact that the [defendant’s] evidence supported an inference
of discrimination.”

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

Kennedy, Souter, Ginsburg, and Breyer. Concurring opinion by Breyer.
Dissenting opinion by Thomas.
Johnson v. United States 125 S. Ct. 1571, 73 USLW 4270 (4-4-05)
AEDPA, limitations period: When a prisoner brings a habeas corpus petition
challenging his federal sentence on the basis that a state conviction used to enhance
his federal sentence has been vacated, the one-year statute of limitations imposed by

the Antiterrorism and Effective Death Penalty Act (AEDPA) begins to run when the
prisoner receives notice of the order vacating his state sentence. AEDPA provides
that the one-year period begins to run on “the date on which the facts supporting the
claim . . . could have been discovered through the exercise of due diligence.” The
state court vacatur order is the “fact[ ] supporting the claim” for purposes of this rule.
There is still the problem, however, of how to implement the “due diligence”
requirement when it is the petitioner’s own actions that initiate the state vacatur
proceedings. “Diligence can be shown by prompt action [by] the petitioner as soon
as he is in a position to realize that he has an interest in challenging the prior
conviction with its potential to enhance the later sentence.” The diligence
requirement is best activated on the date of federal judgment, not the date of the
federal indictment or the date the judgment becomes final. In this case the petitioner
waited more that three years after entry of judgment in his federal case before filing
his state petition. The petitioner pointed to the fact that he had been acting pro se and
lacked knowledge of the procedure, but his delay “fell far short of reasonable
diligence in challenging the state conviction.”
9-0 (vacatur as fact starting limitation period); 5-4 (due diligence). Opinion of
Court by Souter, joined by Rehnquist, O’Connor, Thomas, and Breyer.
Dissenting opinion by Kennedy, joined by Stevens, Scalia, and Ginsburg.
Kansas v. Colorado 125 S. Ct. 526, 73 USLW 4021 (12-7-04)
Arkansas River Compact, water allocation: Kansas’ objections to the special
master’s report recommending resolution of remaining disputes over allocation of
Arkansas River water under the Arkansas River Compact are overruled. Kansas’
request for appointment of a river master is denied. The special master has not
requested appointment of a river master, future issues may be resolvable by
arbitration, and questions that may arise about assumptions underlying the complex
hydrologic computer model used to estimate river flow may call for “highly
judgmental decisionmaking” more related to the parties’ basic legal claims than to
the kinds of factual issues ordinarily handled by river masters. The special master’s
determination to calculate prejudgment interest only on damages incurred from 1985
onward, and not for earlier periods, was implicitly approved in prior litigation, and
Kansas’ objection that prejudgment interest should be based upon earlier damages
is overruled. The State’s objections to the methodology for applying the computer
model, arguing that a one-year measurement period rather than a 10-year period
should be used, are also rejected. The compact’s language does not resolve the issue,
and “practical considerations” favor the 10-year approach. The special master’s
allocation to the Colorado Water Court of initial responsibility for determining the
amounts of replacement credits to be applied to Colorado’s compact obligations is
permissible, given Kansas’ right to seek review in the Supreme Court. The special
master’s decision to postpone decision on other matters is also justified.
9-0, 8-1. Opinion of Court by Breyer, unanimous in part, and joined in separate
parts by Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Ginsburg.
Concurring opinion by Thomas. Concurring and dissenting opinion by Stevens
(dissenting as to basis for calculating prejudgment interest).

Kelo v. City of New London 125 S. Ct. 2655, 73 USLW 4552 (6-23-05)
Taking of property, “public use”: The city’s condemnation of private property for
an economic development project meets the “public use” requirement of the Fifth
Amendment’s Takings Clause. The city’s plan, designed to create jobs, increase tax
revenues, and revitalize an economically distressed downtown and waterfront area,
authorizes private and commercial development, including a conference hotel,
restaurants and shopping, new residences, and a marina. Although the “public use”
restriction prevents the government from taking the property of one private entity for
the sole purpose of transferring it to another private entity, there is no requirement
that condemned property be made available for use by the general public. Rather, the
Court has long “embraced the broader and more natural interpretation of public use
as ‘public purpose,’” and has construed the term “public purpose” “broadly,
reflecting [a] longstanding policy of deference to legislative judgments.” Economic
development qualifies as a public purpose. Even though New London was not faced
with the need to remove “blight” from the redevelopment area, and consequently
Berman v. Parker (1954) is not directly on point, the city’s “determination that the
area was sufficiently distressed to justify a program of economic rejuvenation is
entitled to . . . deference.” A public purpose “may be as well or better served through
an agency of private enterprise than through a department of government,” and the
fact that the revitalization will benefit certain private parties does not require its
invalidation. There is no requirement of “reasonable certainty” that public benefits
will accrue from a condemnation; judicial inquiry ends “when the legislature’s
purpose is legitimate and its means are not irrational.” So too, courts will not
“second-guess [government’s] determinations as to what lands it needs to acquire.”
5-4. Opinion of Court by Stevens, joined by Kennedy, Souter, Ginsburg, and
Breyer. Concurring opinion by Kennedy. Dissenting opinions by O’Connor,
joined by Rehnquist, Scalia, and Thomas; and by Thomas.
Koons Buick Pontiac GMC, Inc. v. Nigh 125 S. Ct. 460, 73 USLW 4013 (11-30-04)
Truth in Lending Act, statutory construction: 1995 amendments to the Truth in
Lending Act did not alter the liability limits applicable to loans secured by personal
property. The civil liability limits are contained in 15 U.S.C. § 1640(a)(2)(A). Prior
to amendment in 1995 that subparagraph contained two clauses, the first of which
(clause i) authorized damages of twice the finance charge for actions on secured
loans, and the second of which (clause ii), applicable to consumer leases, capped
damages at not less than $100 nor more that $1000 for “liability under this
subparagraph.” Appellate courts had interpreted the limit in clause (ii) as applicable
to loan actions covered by clause (i). Congress in 1995 amended the subparagraph
by adding a third clause (iii), raising the cap to the $200-2,000 range for a category
of transactions formerly covered by clause (i) — closed-end loans secured by real
property. Congress did not alter the language of the liability limitation in clause (ii).
The “conventional meaning of ‘subparagraph’” suggests applicability to (i) as well
as (ii), and the “statutory history” resolves any ambiguities created by the odd
placement of the limitation within the second of three clauses. If Congress had
intended to “repeal the longstanding” understanding that this liability limitation
applied to actions covered by (i) as well as those covered by (ii), it “likely would
have flagged that substantial change” or at least would have amended the language
to apply to “liability under this clause.” The evident intent was to increase possible

recovery for loans secured by real property, not to change the cap for loans secured
by personal property.

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

Kennedy, Souter, and Breyer. Concurring opinions by Stevens, joined by
Breyer; by Kennedy, joined by Rehnquist; and by Thomas. Dissenting opinion
by Scalia.
Kowalski v. Tesmer 125 S. Ct. 564, 73 USLW 4033 (12-13-04)
Third-party standing: Attorneys lack third-party standing to assert the rights of
indigents denied appointed appellate counsel after pleading guilty in Michigan state
courts. As a general rule, a litigant must assert his own legal rights, and may not rest
his claim to relief on the legal rights of third parties. Narrow exceptions are
recognized, however, if the party asserting the right has a “close relationship” to the
person who possesses the right, or if there is a “hindrance” to assertion of the right
by the person possessing it. Unlike an existing attorney-client relationship, a possible
“future attorney-client relationship with as yet unascertained Michigan criminal
defendants” does not qualify as a “close relationship” on which third-party standing
can be built. And, while an attorney “would be valuable,” the lack of an attorney is
not “the type of hindrance necessary to allow another to assert the indigent
defendants’ rights.” The attorneys here could have attended state court to assist the
indigent defendants there. Also, the three indigent defendants who were originally
plaintiffs in this federal action under 42 U.S.C. § 1983 were appropriately dismissed
under Younger v. Harris because they had ongoing state criminal proceedings that
afforded them ample opportunity to raise their constitutional challenge.

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

Thomas, and Breyer. Concurring opinion by Thomas. Dissenting opinion by
Ginsburg, joined by Stevens and Souter.
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. 125 S. Ct. 542, 73 USLW

4028 (12-8-04)

Trademarks, infringement, fair use defense: A party raising the statutory
affirmative defense of fair use to a claim of trademark infringement does not have the
burden of demonstrating that the complained-of practice is unlikely to confuse
consumers about the origin of the goods or services affected. A plaintiff claiming
infringement of an incontestable mark under the Lanham Act must show likelihood
of consumer confusion as part of the prima facie case “[T]he defendant has no
independent burden to negate the likelihood of any confusion in raising the
affirmative defense that a term is used descriptively, not as a mark, fairly, and in
good faith.” The fact that Congress made consumer confusion an explicit part of the
plaintiff’s case and omitted any mention of it in describing the affirmative defense
raises a presumption that the omission was intentional. The fair use concept does not
incorporate the likelihood-of-confusion test. Under the Lanham Act and under
common law, “some possibility of consumer confusion [is] compatible with fair use.”
Trademark law is not designed “to deprive commercial speakers of the ordinary
utility of descriptive words,” and for that reason descriptive terms can qualify for
trademark protection “only after taking on secondary meaning as distinctive of the

applicant’s goods.” Moreover, placing the burden on the defendant to establish
“nonconfusion” would create statutory “incoherence.” The function of an affirmative
defense is not to rebut the plaintiff’s case, but instead to raise a bar to relief even if
the prima facie case is sound. “[I]t is only when a plaintiff has shown likely
confusion by a preponderance of the evidence that a defendant could have any need
of an affirmative defense.”

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

Kennedy, Thomas, and Ginsburg; and joined in part by Scalia, and in separate
part by Breyer.
Leocal v. Ashcroft 125 S. Ct. 377, 73 USLW 4001 (11-9-04)
Immigration, deportation for “crime of violence”: The Florida crime of driving
under the influence [DUI] and causing serious bodily injury is not a “crime of
violence” for which a lawful permanent resident alien may be deported. Under the
Immigration and Nationality Act [INA], an alien convicted of an “aggravated felony”
may be deported, and aggravated felony is defined to include “a crime of violence”
as defined in 18 U.S.C. § 16. That provision, in turn, defines “crime of violence” to
mean (a) an offense that has as an element the use of force against the person or
property of another, or (b) any other felony that, “by its nature, involves a substantial
risk that physical force . . . may be used in the course of committing the offense.”
Primary focus on the word “use” is too narrow; instead, the word should be construed
“in light of the terms surrounding it.” Because the “ordinary or natural” meaning of
using physical force against someone suggests a higher degree of intent than
negligent or accidental conduct, the DUI offense is not a crime of violence under (a).
And, while (b) “sweeps more broadly,” it “does not thereby encompass all negligent
misconduct.” That provision simply covers offenses, such as burglary, that, by their
nature, involve the risk that the use of physical force may become necessary in
completing the crime. This interpretation is reinforced by another provision of the
INA that renders inadmissible certain aliens who have previously committed “any
crime of violence . . . or any [DUI offense].” If possible, each part of a statute must
be given meaning, and the separate provision for DUI offenses would be rendered
superfluous if such offenses were encompassed within the definition of “crime of
violence.” The fact that Congress enacted the two separate INA references to “crime
of violence” just nine months apart strengthens the argument that they should be
interpreted similarly.

9-0. Opinion for unanimous Court by Rehnquist.

Lingle v. Chevron U.S.A. Inc. 125 S. Ct. 2074, 73 USLW 4343 (5-23-05)
Fifth Amendment, regulatory taking of property: The Agins v. Tiburon test for
whether government regulation of private property constitutes a taking for which
compensation is required by the Fifth Amendment is not a valid method for
identifying regulatory takings. The Agins test, which finds a taking if the regulation
“does not substantially advance legitimate state interests,” derives from due process
analysis, and “has no proper place in . . . takings jurisprudence.” The “paradigmatic
taking” is a government appropriation of property. The three principal categories of
regulatory actions that have been found to be the “functional equivalent” of

government appropriation — a permanent physical invasion of property, however
small; deprivation of all economically beneficial use of property; and interference
with “legitimate property interests” in violation of the Penn Central test — all focus
on “the severity of the burden” imposed on the property owner. The Agins
“substantially advances” test instead “probes the regulation’s underlying validity” by
focusing on whether the regulation is effective in achieving some legitimate purpose.
This approach “reveals nothing about the magnitude or character of the burden
[imposed] upon private property rights,” or about “how any regulatory burden is
distributed among property owners.” The legitimacy of a regulation may be an
appropriate due process inquiry, “but is logically prior to and distinct from” a takings
inquiry. The Takings Clause presupposes that the government has acted in pursuit
of a valid public purpose, and inquires whether that legitimate regulation has taken
private property for public use. In tailoring its claim to Agins, Chevron has not
alleged “that it has been singled out to bear any particularly severe regulatory
burden,” and thus has not alleged a takings violation. Consequently, Chevron should
not have been granted summary judgment on its challenge to Hawaii’s limitation on
the rent that oil companies may charge dealers who lease company-owned service
9-0. Opinion for unanimous Court by O’Connor. Concurring opinion by
Mayle v. Felix 125 S. Ct. 2562, 73 USLW 4590 (6-23-05)
Habeas corpus, limitations period, amendment of petition: An amendment of a
habeas corpus petition does not relate back to the original filing when it asserts a new
ground of relief supported by facts that differ in both time and type from those the
original pleading set forth. Such an amendment, therefore, must be filed within the
one-year limitations period prescribed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). The petitioner’s self-incrimination claim, based on allegedly
coerced and inculpatory statements made during police interrogation, cannot relate
back to his initial petition, which raised a confrontation issue stemming from the
prosecution’s use of a videotaped recording of a witness. The habeas statute allows
amendment of pleadings as provided in the rules of procedure, and Federal Rule of
Civil Procedure 15(c)(2) provides that amendments relate back to the date of the
original pleading if they arise out of “the conduct, transaction, or occurrence set forth
. . . in the original pleading.” The “key” words “conduct, transaction, or occurrence”
refer to the “a common core of operative facts,” not to the same trial, conviction, or
sentence. Interpretation is guided by the fact that requirements are more stringent for
an original habeas petition than for a civil complaint. Habeas Corpus Rule 2(c)
requires that a petition “specify all the grounds for relief” and “state the facts
supporting each ground.” The fact that the petitioner’s confrontation and self-
incrimination claims would have to be pleaded discretely as an initial matter suggests
that “[e]ach separate congeries of facts supporting the grounds for relief . . . would
delineate an ‘occurrence’” for purposes of amendment. If claims asserted after
AEDPA’s one year period has run could relate back to an initial filing simply because
they relate to the same conviction, trial, or sentence, the limitation period “would
have slim significance,” and Congress’s purpose of advancing the finality of criminal
convictions could be thwarted.

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

Kennedy, Thomas, and Breyer. Dissenting opinion by Souter, joined by Stevens.
McCreary County v. ACLU of Kentucky 125 S. Ct. 2722, 73 USLW 4639 (6-27-05)
Establishment Clause, displays of Ten Commandments: Displays of the Ten
Commandments in the courthouses of two Kentucky counties violate the
Establishment Clause. A determination of the counties’ purpose in erecting the
displays is a proper basis for evaluating the Establishment Clause issue. The Lemon
v. Kurtzman test of whether a governmental action has a secular legislative purpose
“serves an important function.” The First Amendment requires neutrality among
religions, and between religion and nonreligion, and when government acts with the
purpose of advancing religion, it violates the “central Establishment Clause value of
official religious neutrality.” “By showing a purpose to favor religion, the
government ‘sends the . . . message to nonadherents “that they are outsiders, not full
members of the political community.”’” Examination of legislative purpose is “a
staple of statutory interpretation,” and need not be abandoned as impractical;
legislative purpose can sometimes be gleaned “from readily discoverable fact.”
Although courts will often accept a governmental statement of secular purpose, the
secular purpose must be genuine, not a sham, and courts may look behind the
asserted purpose. Evaluation of the counties’ claim of secular purpose for the current
displays may take into account the evolution of the displays. “The same
governmental action may be constitutional if taken in the first instance and
unconstitutional if it has a sectarian heritage.” The counties’ original displays had
“two obvious similarities” to the classroom display invalidated in Stone v. Graham
(1980): they set out the text of the Ten Commandments, “an unmistakably religious
statement,” and they displayed that religious text in isolation, not in a context that
included nonreligious messages. Subsequent modifications of the displays did not
change their religious purpose; an “indisputable” religious purpose was evident in the
resolutions authorizing the second display, and statements of purpose accompanying
authorization of the third displays “were presented only as a litigating position.”
There is “ample support for the District Court’s finding of a predominantly religious
purpose behind the Counties’ third display.”
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Concurring opinion by O’Connor. Dissenting opinion by Scalia, joined
by Rehnquist and Thomas, and joined in part by Kennedy.
Merck KGaA v. Integra Lifesciences I, Ltd. 125 S. Ct. 2372, 73 USLW 4468 (6-13-05)
Patents, infringement, preclinical studies: Use of patented inventions in preclinical
drug studies is exempted from infringement so long as there is reasonable basis to
believe that the compound tested could be the subject of an FDA submission and that
the experiments will produce the types of information that are relevant to an
application to investigate or market a new drug. The relevant statute, 35 U.S.C. §
271(e)(1), provides that “it shall not be an act of infringement” to use a patented
invention “solely for uses reasonably related to the development and submission of
information under a Federal law which regulates the manufacture, use, or sale of
drugs.” The Federal Food, Drug, and Cosmetic Act (FDCA) is such a law. The
language provides a “wide berth,” extending the exemption to “all uses of patented

drugs that are reasonably related to the development and submission of any
information under the FDCA.” “This necessarily includes preclinical studies of
patented compounds that are appropriate for submission to the FDA in the regulatory
process.” The exemption can apply to all types of preclinical data, including that
related to a drug’s efficacy, and is not limited to data relating to the safety of a drug
in humans. Also, the exemption can cover experimentation on drugs that are not
ultimately the subject of an FDA submission, and can cover the use of patented
compounds in experiments that are not ultimately submitted to the FDA. This means
that the exemption is not limited to “activities necessary to seek approval of a generic
drug.” The test is whether the experimental uses are “reasonably related to the
process of developing information for submission.” The exemption’s breadth thus
accommodates the fact that “scientific testing is a process of trial and error.”

9-0. Opinion for unanimous Court by Scalia.

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 125 S. Ct. 2764, 73 USLW 4675
Copyright, liability for secondary infringement: One who distributes a device with
the object of promoting its use to infringe copyright, as shown by clear expression
or other affirmative steps taken to foster infringement, is liable for the resulting acts
of infringement by third parties. The respondents Grokster and StreamCast, who
distributed free software products that allow computer users to share electronic files
through peer-to-peer networks, may be held liable under this principle for copyright
violations by users who share copyrighted music and video files. The case is not
controlled by Sony Corp. v. Universal City Studios (1984), in which the Court held
that there was no secondary infringement in the sale of VCRs; even though VCRs
could be used for infringement, the Court found that their principal use was for time-
shifting, a fair use. Sony did not displace all theories of secondary infringement, and
did not involve active encouragement of infringement beyond the mere fact of
distribution. The patent law rule on inducement of infringement is also appropriate
for copyright. Active encouragement of direct infringement by others, through
advertisements or other action, can support liability for infringement. Evidence
showed that nearly 90% of the files available for download through Grokster’s
FastTrack system were copyrighted works, and both respondents conceded that most
uses of their products were infringing. Both companies attempted to satisfy a
“known source of demand for copyright infringement” by soliciting former users of
Napster, “a notorious file-sharing service” that had been sued for infringement.
Neither company attempted to develop filtering tools or other methods to diminish
infringing activity by users. Moreover, the respondents’ revenues, derived
exclusively from sale of advertising directed to users’ computers, were dependent on
the high-volume, infringing uses. In addition to the evidence of intent to bring about
infringement, there was undisputed evidence of actual infringement “on a gigantic

9-0. Opinion for unanimous Court by Souter. Concurring opinions by Ginsburg,

joined by Rehnquist and Kennedy; and by Breyer, joined by Stevens and

Mid-Con Freight Systems v. Michigan Pub. Serv. Comm’n 125 S. Ct. 2427, 73 USLW

4535 (6-20-05)

Preemption, state registration of trucks: Michigan’s $100 fee imposed on
Michigan-licensed trucks operating entirely in interstate commerce is not a “State
registration requirement” that is preempted by the federal statute that creates a single-
state registration system (SSRS). The SSRS statute replaced a “bingo-card” system
under which carriers had to register with each state, and allows an interstate carrier
to register with a single “base” state by proving that it has secured a federal permit
for operation of an interstate truck. The statute provides that a state “requirement”
that an interstate carrier must “register with the state” is not an unreasonable burden
on transportation when it is completed in accordance with federal standards, and that
an unreasonable burden is created “when a State registration requirement imposes
obligations in excess of [federal] standards.” The prohibition of “state registration
requirement[s]” in excess of federal standards does not apply to every state
registration requirement, but rather applies only to those requirements that concern
SSRS registration. The “statutory language makes clear that the federal provision
reaches no further.” The reference in the first sentence to registration in compliance
with federal requirements means compliance with the SSRS obligations imposed by
the statute, and “the same words in the second sentence” cannot refer to “something
totally different.” There is no language elsewhere in the statute suggesting a broader
meaning for “State registration requirement”; the whole focus of the statute is on
SSRS standards. Nor is a broader reading suggested by anything in “the statute’s
basic purposes or objectives.” Michigan’s $100 fee on interstate trucks does not
concern SSRS registration, and therefore is not preempted by the provision. The
Michigan statute imposing the fee makes no reference to a federal permit or to other
SSRS matters, Michigan imposed the fee before SSRS existed, and a carrier can
comply with the SSRS requirements without paying the Michigan fee.
6-3. Opinion of Court by Breyer, joined by Stevens, Scalia, Souter, Thomas, and
Ginsburg. Dissenting opinion by Kennedy, joined by Rehnquist and O’Connor.
Miller-El v. Dretke 125 S. Ct. 2317, 73 USLW 4479 (6-13-05)
Jury selection, racial discrimination: The petitioner should prevail on his claim
that the prosecutor’s purposeful exclusion of blacks from his jury deprived him of
equal protection. Batson v. Kentucky (1986) set the framework for analysis of such
claims. A defendant can establish a prima facie case of discriminatory jury selection
from the totality of the relevant facts about a prosecutor’s actions, and the state can
rebut this case by establishing a neutral explanation for its actions. The trial judge
then determines whether the defendant has proved purposeful racial discrimination.
In this case, “the numbers describing the prosecution’s use of [peremptory
challenges] are remarkable.” Only one of the 20 black members of the venire panel
was selected; nine were excused for cause, but ten were peremptorily struck. The one
black juror who served was accepted late in the selection process when the prosecutor
was running low on peremptories and had to save them for remaining panelists
known to oppose the death penalty. Even “more powerful” is a comparison of some
of the black panelists who were struck with white panelists who were allowed to
serve; the prosecution’s reasons for striking these black panelists “appeared equally
on point as to some white jurors who served.” Broader patterns of discriminatory
practices are also apparent. The prosecution used a “jury shuffling” procedure,

rearranging the order in which members of the panel are seated and questioned, when
a number of blacks were at the front of the line, and requested another shuffle when
blacks again appeared at the front. The prosecutor also used contrasting voir dire
questions for blacks and whites, describing capital punishment in general terms when
questioning whites as to their views, but using a “graphic script” for blacks; and
depriving blacks of information, provided to whites, that would have enabled them
to avoid for-cause disqualification. Finally, there was evidence that Dallas County
prosecutors had long followed “a specific policy of systematically excluding blacks
from juries.”

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

Ginsburg, and Breyer. Concurring opinion by Breyer. Dissenting opinion by
Thomas, joined by Rehnquist and Scalia.
Muehler v. Mena 125 S. Ct. 1465, 73 USLW 4211 (3-22-05)
Fourth Amendment, detention during search: While conducting a search of a
house pursuant to a warrant to search for weapons and evidence of gang activity,
officers may detain occupants in handcuffs. It is well established that officers
executing a warrant to search premises may detain the occupants during the search.
Officers may use reasonable force to effectuate such a detention. In this case — “no
ordinary search” because it entailed a search for weapons in a house in which a
wanted gang member resided — use of handcuffs was reasonable, and the 2- to 3-
hour duration of handcuffed detention was also reasonable. Questioning the
handcuffed detainee about her immigration status did not violate her Fourth
Amendment rights. Because there was no finding that the detention was prolonged
by the questioning, the questioning did not constitute an additional seizure, and the
officers did not need reasonable suspicion to inquire as to the detainee’s name, date
and place of birth, and immigration status.
9-0. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinions by Kennedy; and by Stevens, joined by Souter,
Ginsburg, and Breyer.
National Cable & Telecomms. Ass’n v. Brand X Internet Servs. 125 S. Ct. 2688, 73
USLW 4659 (6-27-05)
Telecommunications, regulation of broadband Internet providers: The FCC’s
determination that cable companies that sell broadband Internet service do not
provide “telecommunications service” and hence are exempt from mandatory
common-carrier regulation under the Communications Act of 1934, is a lawful
construction that is entitled to deference under the principles of Chevron U.S.A. v.
NRDC (1984). The appeals court’s refusal to apply Chevron because the
Commission’s interpretation conflicted with an earlier decision by that court was in
error. The appeals court’s earlier decision had determined the “best” reading of the
statute, not that its reading was the only permissible one. Under Chevron, courts
should defer to reasonable agency interpretations of statutes they administer unless
the statute speaks directly to the issue and requires a different interpretation. The
Commission’s determination that provision of cable modem service is not an
“offering” of a “telecommunications service” is a “permissible” reading of the

statute. The act distinguishes between “telecommunications service” and
“information service,” and the commission determined that cable modem service is
an “information service,” not an “telecommunications service.” The term
“telecommunications” is defined as the transmission of information without change
in its form or content, but cable modem service provides users with the information-
processing capabilities of Internet access. From the consumer’s and the
Commission’s point of view, cable modem service has an “integrated character,” and
the transmission of information is “a necessary component of Internet access.” The
term “offer” is ambiguous. “Offering” of telecommunications service “can
reasonably be read to mean a ‘stand-alone’ offering” not bundled with information
services. Cable companies that provide Internet service “offer” an information
service “via telecommunications,” but that does not necessarily mean that they
“offer” telecommunications service. The distinction between telecommunications
and information services “substantially incorporated” the Commission’s traditional
distinction between “basic” and “enhanced” service. The Commission’s
interpretation was “a reasonable policy choice.” The Commission provided a
“reasoned explanation” for its different treatment of cable modem service and DSL

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

Kennedy, and Breyer. Concurring opinions by Stevens and by Breyer.
Dissenting opinion by Scalia, joined in part by Souter and Ginsburg.
Norfolk Southern Ry. v. James N. Kirby, Pty Ltd. 125 S. Ct. 385, 73 USLW 4005 (11-


Maritime law, “through” bill of lading, liability limit: Federal maritime law
governs liability for container goods shipped by sea from Australia to the United
States, and damaged in a train wreck while being transported from the port of
Savannah, Georgia, to their final destination in Huntsville, Alabama. The “through”
bill of lading by which the Australian manufacturer Kirby contracted with an
intermediary company to arrange for transportation to Huntsville contained a liability
limitation as well as a “Himalaya Clause” extending the liability limitation to
downstream parties. The intermediary company hired a German shipping company
to transport the goods to the United States, and included the same liability limitation,
made applicable to inland carriers. The shipping company in turn hired the petitioner
railroad to transport the containers on the final leg from Savannah to Huntsville. The
railroad is entitled to the protection of the liability limitations in both bills of lading
(that between the manufacturer and the intermediary, and that between the
intermediary and the shipper). The contracts are maritime contracts because their
primary purpose is to transport goods by sea from Australia to the United States. The
fact that the final leg of transportation was to be over land does not alter the
“essentially maritime nature of the contracts.” The maritime contracts are not
“inherently local,” and should be governed by uniform federal law. Protecting the
uniformity of federal maritime law reinforces the liability regime that Congress
established in the Carriage of Goods by Sea Act. Ordinary principles of contract law
govern the issue of whether the railroad can take advantage of the liability
limitations, and it is clear from the general language of the Himalaya Clause that the
railroad was an intended beneficiary of the intermediary’s contract with the
manufacturer even though the railroad was not in “privity” with the intermediary

when that bill was issued. The intermediary’s contract with the shipper presents a
“more difficult” question, but the issue is resolved by a default rule that a cargo
owner’s recovery against a carrier is limited by the liability limitations that the
intermediary negotiates with downstream carriers. While the intermediary is not the
cargo owner’s agent for all purposes, it is for the purpose of limiting liability. This
limited agency rule “tracks industry practices,” and produces an “equitable result.”

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

Orff v. United States 125 S. Ct. 2606, 73 USLW 4588 (6-23-05)
Sovereign Immunity, waiver: The limited waiver of sovereign immunity in the
Reclamation Reform Act does not extend to a suit against the United States brought
by third-party beneficiaries of a water supply contract between the Bureau of
Reclamation and a state water district. The provision grants “consent to join the
United States as a necessary party defendant in any suit to adjudicate . . . contractual
rights [under a reclamation contract].” This language “is best interpreted to grant
consent to join the United States in an action between other parties,” and not to
“permit a plaintiff to sue the United States alone.” The traditional concept of joinder,
reflected in Federal Rule of Civil Procedure 19(a), supports interpreting the language
to permit joinder of the United States rather than initiation of a suit against the United
States. This interpretation is strengthened by the contrast with broader language
contained in other statutes that waive immunity from suits against the United States;
these provisions confer jurisdiction over “any claim,” or any “civil action or claim”
against the United States.

9-0. Opinion for unanimous Court by Thomas.

Pace v. DiGuglielmo 125 S. Ct. 1807, 73 USLW 4304 (4-27-05)
Habeas corpus, AEDPA, tolling of limitations period: A state habeas corpus
petition that is ultimately rejected by the state court as untimely is not “properly
filed” for purposes of the provision of the Antiterrorism and Effective Death Penalty
Act (AEDPA) that tolls the one-year limitations period for filing a federal habeas
corpus claim while a “properly filed application for State . . . review . . . is pending.”
“When a postconviction petition is untimely under state law, that is the end of the
matter for purposes of [AEDPA].” The Court had previously stated that compliance
with time limits is a condition to proper filing, but had reserved the issue of whether
the existence of exceptions to a timely filing requirement can prevent a late
application from being considered improperly filed. There are “no grounds” for so
holding. “[A] petition filed after a time limit, and which does not fit within any
exception to that limit, is no more ‘properly filed’ than a petition filed after a time
limit that permits no exception.” “Time limits, no matter their form, are ‘filing’
conditions.” “Fairness” does not require a different interpretation; petitioners
required by AEDPA to exhaust state remedies can file a protective petition in federal
court and ask the federal court to “stay and abey” its proceedings until state remedies
are exhausted. The petitioner is not entitled to equitable tolling for the time during
which his state petition was pending because he did not establish the requisite
diligence. The petitioner waited for years before raising his state claim of ineffective

counsel, and waited five months after the state proceedings became final before filing
in federal court.
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Dissenting opinion by Stevens, joined by Souter, Ginsburg, and Breyer.
Pasquantino v. United States 125 S. Ct. 1766, 73 USLW 4287 (4-26-05)
Statutory interpretation, wire fraud: A plot to defraud a foreign government of tax
revenue violates the wire fraud statute, which prohibits the use of interstate wires to
effect “any scheme or artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses. . . .” In this case the petitioners while in New
York ordered liquor by phone from Maryland stores, and then smuggled the liquor
into Canada without paying Canada’s excise taxes. This conduct “falls within the
literal terms of the wire fraud statute.” By representing to Canadian officials that
their drivers had no goods to declare, the petitioners engaged in “a scheme or artifice
to defraud,” and the object of their fraud was money or property in the victim’s
hands. Canada’s right to uncollected excise taxes on the liquor smuggled into the
country is “property.” This latter interpretation is consistent with the common law
of fraud, which covered schemes to deprive a victim of his money. The fact that the
victim “happens to be the Government” is irrelevant. A case holding that fraud in
obtaining a video poker license did not deprive the Government of property is
distinguished; there the Government’s interest was “purely regulatory” rather than
economic. Application of the wire fraud statute to the conduct at issue does not
derogate from the common law “revenue rule,” which generally bars courts from
enforcing the tax laws of foreign countries. The prosecution is one to punish
domestic criminal conduct, not to collect taxes owed to Canada. In 1952 when
Congress enacted the wire fraud statute there was no common law precedent barring
such enforcement of domestic criminal law. Restitution to Canada of its lost tax
revenue, required by the Mandatory Victims Restitution Act of 1996, is not designed
to collect a foreign tax, but instead “to mete out appropriate criminal punishment.”
Because the wire fraud statute is being used to punish domestic conduct, the
presumption against extraterritorial effect presumption against inapplicable of
statutes is inapplicable. Petitioners “used U.S. interstate wires” to further their
scheme to defraud, and their offense was complete the moment they did so.
5-4. Opinion of Court by Thomas, joined by Rehnquist, Stevens, O’Connor, and
Kennedy. Dissenting opinion by Ginsburg, joined by Breyer, and joined in part
by Scalia and Souter.
Rhines v. Weber 125 S. Ct. 1528, 73 USLW 4263 (3-30-05)
Habeas corpus, stay and abeyance: When a habeas corpus petitioner presents a
federal district court with a “mixed” petition that contains some claims that have
been exhausted in state courts and some that have not been exhausted, the district
court may stay the petition and hold it in abeyance while the petitioner presents his
unexhausted claims to the state court. This “stay-and-abeyance” procedure allows
the petitioner to return to federal court without having his federal claims barred by
the one-year statute of limitations imposed in 1996 by the Antiterrorism and
Effective Death Penalty Act (AEDPA). The limitations period is tolled while a

properly filed application is pending in state court. Two principle purposes of
AEDPA reflected in the one-year limitations period and the tolling requirement were
to reduce delays in capital cases and to encourage petitioners to seek relief from state
courts before coming to federal court. Because frequent use of stay and abeyance
“has the potential to undermine these twin policies,” the discretion of district courts
in issuing such stays is circumscribed. Stay and abeyance may be used only “when
the district court determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court,” and may not be used when the unexhausted
claims are “plainly meritless.” Also, because “capital petitioners might deliberately
engage in dilatory tactics to prolong their incarceration and avoid execution,” district
courts “should place reasonable time limits on a petitioner’s trip to state court and

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

Kennedy, Thomas, Ginsburg, and Breyer. Concurring opinions by Stevens,
joined by Ginsburg and Breyer; and by Souter, joined by Ginsburg and Breyer.
Rompilla v. Beard 125 S. Ct. 2456, 73 USLW 4522 (6-20-05)
Counsel, adequacy of representation in capital sentencing: Even when a capital
defendant’s family members and the defendant himself have suggested that no
mitigating evidence is available, his lawyers are bound to make reasonable efforts to
obtain and review material that they know the prosecution will probably rely on as
evidence of aggravation at the sentencing phase of trial. In this case counsels’ failure
to examine the court file on the defendant’s prior rape and assault conviction fell
below the level of reasonable performance required by the Sixth Amendment in
Strickland v. Washington (1984). Counsel knew that the prosecution intended to
argue for the death penalty by relying, in part, on the aggravating factor that the
defendant had a history of prior felony convictions indicating the use or threat of
violence, and that the prosecution would introduce a transcript of the defendant’s
prior rape and assault trial in order to establish his violent character. Under those
circumstances, defense counsel “had a duty to make all reasonable efforts to learn
what they could about the offense.” The duty was “particularly pressing” in this case
due to the similarity of the violent prior offense to the crime charged, and in view of
the defense strategy of stressing residual doubt. The requirement that defense
counsel obtain information that the prosecution has and will use against the defendant
is a basic principle embodied in the ABA Standards for Criminal Justice. The
Pennsylvania courts’ conclusion that the defense counsels’ efforts to find mitigating
evidence by other means excused them from looking at the file from the earlier trial
was an “objectively unreasonable conclusion” within the meaning of the habeas
corpus statute. Moreover, the petitioner has shown “beyond any doubt that counsel’s
lapse was prejudicial.” It is “uncontested” that the file would have opened up “a
range of mitigation leads” that no other source revealed, relating to the defendant’s
childhood, mental health, and alcohol dependence.
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Concurring opinion by O’Connor. Dissenting opinion by Kennedy,
joined by Rehnquist, Scalia, and Thomas.

Roper v. Simmons 125 S. Ct. 1183, 73 USLW 4153 (3-1-05)
Death penalty for juveniles: The Eighth Amendment’s prohibition against cruel and
unusual punishment prevents imposition of the death penalty on persons who were
under age 18 at the time they committed their offense. Missouri’s law setting the
minimum age at 16 for persons eligible for the death penalty is therefore
unconstitutional as applied to persons who were under 18 at the time they committed
their offense. A national consensus against execution of juveniles has developed
since the Court held in 1989, in Stanford v. Kentucky, that execution of juveniles over
age 15 was not cruel and unusual punishment. Stanford is “no longer controlling.”
The situation is now similar to that found by the Court in Atkins v. Virginia (2002)
to merit the conclusion that there was a “consensus” against execution of the
mentally retarded. Thirty states prohibit execution of juveniles: 12 that prohibit the
death penalty altogether, and 18 that exclude juveniles from its reach. Only three
states have executed juveniles in the last 10 years. Since Stanford, five states have
eliminated authority for executing juveniles, and no states that formerly prohibited
it have reinstated the authority. These “objective indicia of consensus” “provide
sufficient evidence that today our society views juveniles . . . as ‘categorically less
culpable than the average criminal.’” The Court’s own judgment is also “brought to
bear.” The Eighth Amendment limits imposition of the death penalty “to those
offenders who commit ‘a narrow category of the most serious crimes’ and whose
extreme culpability makes them ‘the most deserving of execution.’” Three general
differences between juveniles and adults render juveniles less culpable. Because
juveniles lack maturity and have an underdeveloped sense of responsibility, they
often engage in “impetuous and ill-considered actions and decisions.” Juveniles are
also more susceptible than adults to “negative influences” and peer pressure. Finally,
the character of juveniles is not as well formed, and their personality traits are “more
transitory, less fixed.” For these reasons, irresponsible conduct by juveniles “is not
as morally reprehensible,” they have “a greater claim than adults to be forgiven,” and
“a greater possibility exists that a minor’s character deficiencies will be reformed.”
Because of the diminished culpability of juveniles, the penological objectives of
retribution and deterrence do not provide adequate justification for imposition of the
death penalty. A categorical rule is necessary rather than individualized assessment
of each offender’s maturity; “[t]he differences between juvenile and adult offenders
are too marked and well understood to risk allowing a youthful person to receive the
death penalty despite insufficient culpability.” Although “not controlling,” “the
overwhelming weight of international opinion against the juvenile death penalty”
lends “confirmation” to the Court’s conclusion.
5-4. Opinion of Court by Kennedy, joined by Stevens, Souter, Ginsburg, and
Breyer. Concurring opinion by Stevens, joined by Ginsburg. Dissenting
opinions by O’Connor; and by Scalia, joined by Rehnquist and Thomas.
Rousey v. Jacoway 125 S. Ct. 1561, 73 USLW 4277 (4-4-05)
Bankruptcy, IRAs as exempt assets: Debtors may exempt assets in their Individual
Retirement Accounts (IRAs) from the bankruptcy estate pursuant to 11 U.S.C. §
522(d)(10)(E). That provision authorizes the debtor in some circumstances to
exempt from the bankruptcy estate the right to receive payment “under a stock bonus,
pension, profit-sharing, annuity, or similar plan or contract on account of . . . age.”
The provision’s two requirements at issue are met: petitioners’ IRAs give them the

right to receive payment “on account of age,” and the IRAs are “similar” to the listed
plans. The ordinary meaning of “on account of” is “because of,” and there is no
reason to believe that Congress intended to depart from that ordinary meaning.
Although the IRAs provide a right to payment on demand, a 10% penalty applies if
that right is exercised before the account holder has reached age 59½. This penalty
“substantially deters early withdrawals” and “effectively prevents access” to the
entire account balance. Because this restraint is removed when the account holder
reaches age 59½, the right to receive payment is “on account of age.” IRA accounts
are “similar” to stock bonus, pension, profitsharing, and annuity plans. “The
common feature of all of these plans is that they provide income that substitutes for
wages earned as salary or hourly compensation.” The income that the petitioners will
receive from their IRAs “is likewise income that substitutes for wages.” A variety
of incentives, e.g., deferred taxation and penalties for early withdrawal, are designed
to make IRAs “income substitutes for wages lost upon retirement,” and “distinguish
IRAs from typical savings accounts.” The narrow exceptions to the early withdrawal
penalty do not make IRAs more like savings accounts; “early withdrawal without
penalty remains the exception, rather than the rule.”

9-0. Opinion for unanimous Court by Thomas.

San Remo Hotel, L.P. v. City and County of San Francisco 125 S. Ct. 2491, 73 USLW

4507 (6-20-05)

Taking of property, full faith and credit statute: Federal courts should not carve
out an exception to the full faith and credit statute for claims brought under the
Takings Clause of the Fifth Amendment. The statute, 28 U.S.C. § 1738, which
requires federal as well as state courts to give full faith and credit to the decisions of
state courts, encompasses the doctrines of res judicata and collateral estoppel.
England v. Louisiana Board of Medical Examiners (1964), authorizing federal courts
to reserve decision of federal constitutional issues while state courts resolve
antecedent issues of state law, does not mean that federal courts can reserve judgment
on the very issues to be litigated in state courts. Federal court abstention under
England operates when the antecedent state issue is distinct from the reserved federal
issue and resolution of the state issue may moot the federal issue, but has no
application when the state and federal issues are identical. Here the issues are
identical. There is no exception from ordinary preclusion rules when a takings claim
is forced into state court by application of the ripeness rule of Williamson County
(1985). The request for an exception is premised on the belief that plaintiffs have a
right to vindicate their federal claims in a federal forum, but the Court has repeatedly
held that there is no such right. If federal issues have been litigated in state court,
there is no general right to have them relitigated in federal court. Also rejected is the
assumption “that courts may simply create exceptions to [the full faith and credit
statute] whenever courts deem them appropriate.” Exceptions can be justified “only
if plainly stated by Congress,” and Congress has not expressed any intent to exempt
takings claims from operation of the statute. Litigation of takings claims in state
courts is common, and “state courts are fully competent to adjudicate constitutional
challenges to local land-use decisions.”

9-0. Opinion of Court by Stevens, joined by Scalia, Souter, Ginsburg, and
Breyer. Concurring opinion by Rehnquist, joined by O’Connor, Kennedy, and
Shepard v. United States 125 S. Ct. 1254, 73 USLW 4186 (3-7-05)
Armed Career Criminal Act, prior burglary convictions: In determining whether
a prior guilty plea under a state burglary statute that defines burglary broadly
constituted a conviction for burglary within the narrower “generic” definition of
burglary used for purposes of sentence enhancement under the federal Armed Career
Criminal Act, a court should not look to a police report submitted to the state trial
court. Rather, the court should look to more conclusive records relied upon in
adjudicating guilt. In pleaded cases such records may be found in “the statement of
factual basis for the charge . . . shown by a transcript of the plea colloquy or by
written plea agreement presented to the court, or by a record of comparable findings
of fact adopted by the defendant upon entering the plea.” These formal records are
the closest analogs to the indicia held permissible in Taylor v. United States (1990)
for assessing convictions that resulted from jury verdicts: statutory elements,
charging documents, and jury instructions. The Government’s position “amounts to
a call to ease away from the Taylor conclusion, that respect for congressional intent
and avoidance of collateral trials require that evidence of generic conviction [for
burglary as defined for federal purposes] be confined to records of the convicting
court approaching the certainty of the record of conviction in a generic crime State.”
There is not “sufficient justification” for upsetting precedent; “considerations of stare
decisis have special force in the area of statutory interpretation, for . . . Congress
remains free to alter what we have done.” Nearly 15 years have passed since Taylor,
and Congress has not modified the statute.
5-3. Opinion of Court by Souter, joined by Stevens, Scalia, Ginsburg, and
Thomas. Separate part of Souter opinion joined by Stevens, Scalia, and
Ginsburg. Opinion by Thomas concurring in part. Dissenting opinion by
O’Connor, joined by Kennedy and Breyer. Rehnquist did not participate.
Small v. United States 125 S. Ct. 1752, 73 USLW 4298 (4-26-05)
Statutory interpretation, firearm possession by felon: The prohibition on
possession of a firearm by anyone who has been “convicted in any court” of a crime
punishable by a prison term exceeding one year does not apply to persons who have
been convicted in a foreign court. “The word ‘any’ considered alone cannot answer
[the] question” of whether the prohibition covers foreign convictions; “any” means
different things in different contexts. Although the presumption against
extraterritorial application of statutes “does not apply directly in this case,” Congress
nonetheless “generally legislates with domestic concerns in mind.” This
“assumption” about the domestic reach of “domestically oriented statutes” can be
overcome by contrary “statutory language, context, history, or purpose,” but here
there is no such “convincing” contrary indication. If the provision were interpreted
to apply to foreign convictions, other provisions would create “anomalies.” For
example, an exception that allows gun possession despite a prior conviction under
“Federal or State” antitrust laws would mean that persons with foreign antitrust
convictions would be banned from possessing guns while persons with domestic

convictions would not. Other provisions extend the prohibition to persons convicted
of certain misdemeanor offenses also described by reference to federal and state law;
the “anomaly” here is that the prohibition would apply to persons with such domestic
convictions but not to persons with similar foreign convictions. The statute’s
“lengthy legislative history confirms the fact that Congress did not consider” whether
foreign convictions should serve as predicates. References to federal and state crimes
were removed during bill consideration, but without any mention of foreign
convictions. While the statute’s purpose of keeping guns out of the hands of
dangerous people would be served by including persons convicted in foreign courts,
the force of this argument is “weakened significantly” by the fact that “there have
probably been no more than 10 to a dozen” prosecutions that relied on a foreign
conviction as a predicate. Given the statute’s total silence and “no reason to believe
that Congress considered the added enforcement advantages flowing from inclusion
of foreign crimes,” the assumption against “extraterritorial coverage” stands.
5-3. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Dissenting opinion by Thomas, joined by Scalia and Kennedy.
Rehnquist did not participate.
Smith v. City of Jackson 125 S. Ct. 1536, 73 USLW 4251 (3-30-05)
ADEA, disparate impact: The disparate impact theory of recovery that has been
held available under Title VII of the Civil Rights Act also applies to actions brought
under the Age Discrimination in Employment Act (ADEA). The prohibition in the
ADEA uses identical language to that of Title VII, except for the substitution of the
word “age” for the words “race, color, religion, sex, or national origin.” Two textual
differences between the ADEA and Title VII, however, “make it clear that . . . the
scope of disparate-impact liability under the ADEA is narrower than under Title VII.”
One difference is that the ADEA allows employers to take an otherwise prohibited
action “where the differentiation is based on reasonable factors other than age
discrimination.” The second is that 1991 amendments to Title VII, designed to
modify the Supreme Court’s Wards Cove decision narrowly construing disparate-
impact liability, have no application to the ADEA. The “reasonable factors other
than age” qualification reflects the fact that “age, unlike race or other classifications
protected by Title VII, not uncommonly has relevance to an individual’s capacity to
engage in certain types of employment.” The petitioners in this case, police officers
who challenged a pay plan giving officers with less than five years of tenure a higher
percentage raise than those with more seniority, failed to satisfy the Wards Cove
requirement that they identify the specific employment practices allegedly
responsible for the observed statistical disparities. It is also “clear from the record
that the City’s plan was based on reasonable factors other than age.” The city based
raises on seniority and position, and attempted to make salaries competitive with
those of comparable communities in the Southeast.
8-0 (judgment); 5-3 (disparate impact). Opinion of Court by Stevens, joined by
Scalia, Souter, Ginsburg, and Breyer. Separate part of Stevens opinion joined by
Souter, Ginsburg, and Breyer. Concurring opinion by Scalia. Opinion by
O’Connor, joined by Kennedy and Thomas, concurring only in the judgment.
Rehnquist did not participate.

Smith v. Massachusetts 125 S. Ct. 1129, 73 USLW 4125 (2-22-05)
Double jeopardy, midtrial acquittal: The trial judge’s granting of a motion
requesting a finding of not guilty on one of three counts constituted an acquittal for
purposes of double jeopardy, and the judge’s later submission of that count to the
jury was barred by the Double Jeopardy Clause. The court’s finding, which occurred
after the prosecution rested its case, constituted an acquittal despite the fact that
Massachusetts characterizes the finding as a purely legal matter, and despite the fact
that the jury had no role. The finding was final, and could not be reconsidered later
in the trial. As a general matter, a state may prescribe that a judge’s midtrial
determination of the sufficiency of the prosecution’s proof may be reconsidered.
Massachusetts has done so, however, only with respect to clerical and other minor
errors, and has not adopted any rule of non-finality applicable to acquittals on the
merits. Also, “the possibility of prejudice arises” when, as in this case, the acquittal
precedes the defendant’s presentation of his case. Interpretation of the Double
Jeopardy Clause “cannot be allowed to become a potential snare for those who
reasonably rely upon it.” The fact that the judge’s acquittal ruling was based on an
erroneous interpretation of precedent does not defeat application of double jeopardy;
“the bar will attach to a pre-verdict acquittal that is patently wrong in law.” Courts
can protect themselves from such mistakes by deferring consideration of a motion
until after the verdict, and prosecutors can protect themselves by asking for a
continuance or for reconsideration before the trial is allowed to proceed.
5-4. Opinion of Court by Scalia, joined by Stevens, O’Connor, Souter, and
Thomas. Dissenting opinion by Ginsburg, joined by Rehnquist, Kennedy, and
Smith v. Texas 125 S. Ct. 400, 73 USLW 3294 (11-15-04)
Death penalty, mitigating evidence: Texas courts erred in requiring that the
defendant establish a nexus between his crime and mitigating evidence relating to his
troubled childhood and his limited mental capacity. The Court rejected this threshold
test in Tennard v. Dretke (2004), ruling that the jury must be allowed to consider
evidence of low intelligence as mitigating evidence whether or not a nexus to the
crime is established. The constitutional infirmity was not cured in this case by an
oral “nullification instruction” allowing the jury to give effect to the mitigating
evidence by negating what would otherwise be affirmative responses to two special
issues on a verdict form that dealt with deliberateness and future dangerousness, and
that made no mention of mitigation. The mandatory language in the oral nullification
instruction, telling jurors to return a false answer to a mandatory written instruction
in order to defeat a death sentence, “could possibly have intensified the dilemma
faced by ethical jurors.”

9-0. Per curiam.

Spector v. Norwegian Cruise Line Ltd. 125 S. Ct. 2169, 73 USLW 4429 (6-6-05)
ADA, foreign flag cruise ships: Title III of the Americans with Disabilities Act of
1990 (ADA), which prohibits discrimination against the disabled in the enjoyment
of public accommodations and public transportation services, applies to foreign-flag
cruise ships in United States waters. Although the definitions of public

accommodations and public transportation services do not expressly mention cruise
ships, “there can be no serious doubt” that cruise ships “fall within both definitions
under conventional principles of interpretation.” There is no broad clear-statement
rule requiring a clear expression of congressional intent before a federal statute may
be applied to any facet of the business and operations of foreign-flag ships. A clear
statement of intent is required, however, before statutes may be applied in a manner
that interferes with at least some aspects of a cruise ship’s “internal order.”
Application of federal law to foreign-flag cruise ships is barred if compliance would
interfere with international legal obligations. By its terms, Title III requires barrier
removal that is “readily achievable,” defined as “easily accomplishable and able to
be carried out without much difficulty or expense.” A barrier removal requirement
that would bring a vessel into noncompliance with the Safety of Life at Sea
Convention or some other international legal obligation would not be “readily
achievable.” Similarly, structural modifications are not “readily achievable” if they
“would pose a direct threat to the health or safety of others.”
6-3 (Title III can apply to foreign-flag cruise ships). Opinion of Court by
Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer. Separate parts of
Kennedy opinion joined by Stevens and Souter, and by Stevens, Souter, and
Thomas. Concurring opinion by Ginsburg, joined by Breyer. Concurring and
dissenting opinion by Thomas. Dissenting opinion by Scalia, joined by
Rehnquist and O’Connor, and joined in part by Thomas.
Stewart v. Dutra Constr. Co. 125 S. Ct. 1118, 73 USLW 4130 (2-22-05)
Maritime law, dredge as “vessel”: The Super Scoop, a dredge used to dig a tunnel
in Boston Harbor, is a “vessel” for purposes of the Longshore and Harbor Workers’
Compensation Act (LHWCA). The term “vessel” is not defined in the LHWCA, so
the general definition from the Rules of Construction Act, 1 U.S.C. § 3, governs.
That provision, derived from the Revised Statutes and reflective of general maritime
law, defines a “vessel” as “every description of watercraft . . . used, or capable of
being used, as a means of transportation on water.” Cases long ago established that
dredges as commonly used are “vessels.” Although dredges are typically transported
from job to job by towing, while being used for dredging they are moved for short
distances by a system of anchors, windlass, and rope, and in the process they
transport machinery, equipment, and crew over water. The respondent misreads
cases holding a floating drydock and a wharfboat not to be vessels. The drydock had
been moored in one place for 20 years, and the wharfboat was secured to land by
cables, and also had water, electricity, and phone lines connected. The distinction is
between watercraft “temporarily stationed” in a particular location and those
“permanently affixed” to shore or ocean floor. The appeals court erred in relying on
a case that turned on the “primary purpose” of a watercraft. Section 3 does not
require that a watercraft be used primarily for water transportation, and neither is the
test a “snapshot” to determine whether the vessel was actually being used for
transportation at the time of the event giving rise to the claim. Rather, the only test
is whether the craft is capable of being used for transportation, and whether that
capability is a “practical,” not merely “theoretical,” possibility.
8-0. Opinion of Court by Thomas, joined by all Justices except Rehnquist, who
did not participate.

Tenet v. Doe 125 S. Ct. 1230, 73 USLW 4182 (3-2-05)
Judicial review, enforcement of espionage agreement: The respondents’ suit
against the Director of Central Intelligence, asserting estoppel and due process claims
for the CIA’s alleged failure to honor an agreement to provide financial assistance
in return for espionage services, is barred under the doctrine of Totten v. United
States (1876). In Totten, the Court held that public policy barred a suit by a Civil
War spy to enforce obligations arising from his agreement with the Government. The
service stipulated by the espionage contract was a secret service, and the Totten Court
found it “entirely incompatible with the nature of such a contract that a former spy
could bring suit to enforce it.” Totten was not a narrow contract rule inapplicable to
claims based on estoppel or due process. Rather, the Totten Court declared that
“public policy forbids the maintenance of any suit . . . , the trial of which would
inevitably lead to the disclosure of matters which the law itself regards as
confidential.” United States v. Reynolds (1953), involving the state secrets privilege
in the context of a wrongful-death action, did not represent a retreat from Totten’s
broader holding that lawsuits premised on alleged espionage agreements are
altogether forbidden. Cases brought by covert CIA employees are also distinguished
as not implicating “Totten’s core concern [of] preventing the [spy’s] relationship with
the Government from being revealed.” The Court “adhere[s] to Totten.” “The state
secrets privilege and the more frequent use of in camera judicial proceedings simply
cannot provide the absolute protection we found necessary in enunciating the Totten
9-0. Opinion for unanimous Court by Rehnquist. Concurring opinions by
Stevens, joined by Ginsburg; and by Scalia.
Tory v. Cochran 125 S. Ct. 2108, 73 USLW 4404 (5-31-05)
Mootness; First Amendment, prior restraint: The petitioner’s challenge to an
injunction restraining him from picketing the respondent attorney, and from uttering
public statements about the respondent or his law practice, is not moot even though
the respondent has died. The injunction is permanent, and, under California law, it
is not clear that the injunction can become legally void before a court so rules.
“Given the uncertainty of California law, [the Court] take[s] it as a given that the
injunction . . . continues significantly to restrain petitioners’ speech, presenting an
ongoing federal controversy.” The respondent’s death, however, “makes it
unnecessary, indeed unwarranted,” to explore petitioners’ First Amendment claims.
The injunction has “lost its underlying rationale” of restraining defamatory activity
designed to coerce payment of money, and “now amounts to an overly broad prior
restraint upon speech, lacking plausible justification.”

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

Kennedy, Souter, and Ginsburg. Dissenting opinion by Thomas, joined by
Town of Castle Rock v. Gonzales 125 S. Ct. 2796, 73 USLW 4611 (6-27-05)
Due Process, enforcement of domestic violence restraining order: A person who
has obtained a state-law domestic violence restraining order does not have a
constitutionally protected property interest in having the police enforce the

restraining order when they have probable cause to believe it has been broken. The
respondent’s suit alleging a due process violation by the town must therefore be
dismissed. Deference to the 10th Circuit’s determination that Colorado law has
created a property interest is “inappropriate.” Colorado law, providing that a peace
officer “shall use every reasonable means to enforce a restraining order,” and “shall
arrest . . . or seek a warrant for the arrest of a restrained person” when the officer has
probable cause to believe a violation has occurred, has not “truly made enforcement
of restraining orders mandatory.” A “true mandate of police action would require
some stronger indication,” given that “a well established tradition of police discretion
has long coexisted with apparently mandatory arrest statutes.” Even in the domestic
violence context, it is “unclear” how a mandatory-arrest requirement would apply in
cases such as this, when the offender is not present to be arrested. Moreover, the
statute does not confer an “entitlement” to enforcement on persons protected by a
restraining order. Although the statute confers a right to initiate civil contempt
proceedings, it merely confers a right to “request” initiation of criminal contempt
proceedings, and is silent about any power to request or demand an arrest. And even
if there were an entitlement, “it is by no means clear that [such] an entitlement . . .
could constitute a ‘property’ interest for purposes of the Due Process Clause.” The
Court has held that there is no property interest in indirect benefits, i.e., in
“government action that is directed against a third party and affects the citizen only
indirectly or incidentally.”

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

Souter, Thomas, and Breyer. Concurring opinion by Souter, joined by Breyer.
Dissenting opinion by Stevens, joined by Ginsburg.
United States v. Booker 125 S. Ct. 738, 73 USLW 4056 (1-12-05)
Sentencing Reform Act, Sentencing Guidelines, right to jury trial: The Sixth
Amendment right to jury trial in criminal cases limits the sentences that courts may
impose pursuant to the federal Sentencing Guidelines. Under principles applied in
Apprendi v. New Jersey (2000), Ring v. Arizona (2002), and Blakely v. Washington
(2004), “[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt.” The Guidelines direct a judge in some instances to enhance
sentences in a manner that violates this principle; a judge who makes certain factual
findings supported by a preponderance of the evidence must enhance the sentence
beyond the range otherwise authorized by the jury’s verdict or the defendant’s
admissions. The fact that the Guidelines were developed by the Sentencing
Commission rather than by Congress “lacks constitutional significance.” Application
of Blakely to the Guidelines is not precluded by recent cases dealing with other
issues. A separation of powers argument is precluded by the Court’s decision in
Mistretta v. United States (1989). The remedy for this constitutional defect that can
arise in application of the Guidelines is to hold unconstitutional two provisions of the
Sentencing Reform Act: one that makes the Guidelines mandatory, and one that sets
forth standards of review for appeals of departures from the mandatory Guidelines.
The remainder of the act is constitutional, can function independently, and is
consistent with Congress’ basic objectives in enacting the act. “Without the
‘mandatory’ provision, the act still requires judges to take account of the Guidelines

together with other sentencing goals.” And excision of the appellate review
provision “does not pose a critical problem for handling of appeals.” The alternative
of “maintaining all provisions of the act and engraft[ing] [the jury trial requirement]
onto that statutory scheme” is “less consistent with Congress’ likely intent” in
enacting the act than is the excision of the two provisions and the preservation of the
remaining provisions.
5-4 (application of Sixth Amendment), 5-4 (remedy). Opinion of Court (Sixth
Amendment) by Stevens, joined by Scalia, Souter, Thomas, and Ginsburg.
Opinion of Court (remedy) by Breyer, joined by Rehnquist, O’Connor, Kennedy,
and Ginsburg. Opinion dissenting in part by Stevens, joined by Souter, and
joined in part by Scalia. Opinions dissenting in part by Scalia, and by Thomas.
Opinion dissenting in part by Breyer, joined by Rehnquist, O’Connor, and
Van Orden v. Perry 125 S. Ct. 2854, 73 USLW 4690 (6-27-05)
Establishment Clause, displays of Ten Commandments: The Establishment
Clause is not violated by the presence on the grounds of the Texas State Capitol of
a monument inscribed with the Ten Commandments. Although the text of the Ten
Commandments is undeniably religious, the context of the display communicates not
simply a religious message, but a secular message as well. The monument is one of
17 monuments and 21 historical markers on the Capitol grounds; it was paid for by
a private, civic, and primarily secular organization; and it has been in place,
unchallenged, for 40 years. Under the circumstances, it is unlikely that the
monument will be understood to represent an attempt by government to favor

5-4. No opinion of Court. Opinion by Rehnquist announcing the judgment,

joined by Scalia, Kennedy, and Thomas. Concurring opinions by Scalia; by
Thomas, and by Breyer. Dissenting opinions by Stevens, joined by Ginsburg; by
O’Connor; and by Souter, joined by Stevens and Ginsburg.
Whitfield v. United States 125 S. Ct. 687, 73 USLW 4053 (1-11-05)
Conspiracy, money laundering; statutory interpretation: Conviction under 18
U.S.C. § 1956(h) for conspiracy to commit money laundering does not require proof
of an overt act in furtherance of the conspiracy. Subsection (h) provides that anyone
who conspires to commit a referenced money laundering offense shall be subject to
the same penalties that apply to the offense that was the object of the conspiracy, and
makes no mention of an overt act. In United States v. Shabani (1994), the Court held
that “nearly identical language” of the drug conspiracy statute does not require proof
of an overt act. Shabani relied on earlier cases establishing the general rule that
courts will not read an overt act requirement into a conspiracy statute if Congress has
not included one. Common law conspiracy did not require an overt act, and, absent
contrary indication, courts presume that Congress intends to adopt the common law
definition of statutory terms. Moreover, the general conspiracy statute, 18 U.S.C. §

371, superseded the common law by expressly including an overt act requirement.

Congress thus had a “formulary” when it enacted the money laundering conspiracy
provision: it could model its text on section 371 and impose an overt act requirement,
or it could dispense with an overt act requirement by modeling its text on other laws

held not to contain one. “Congress has included an overt act requirement in at least
22 other current conspiracy statutes, clearly demonstrating that it knows how to
impose such a requirement when it wishes to do so.” The argument that subsection
(h) does not create a new conspiracy offense is rejected. The statute is so plain that
the legislative history on which the argument is based need not be consulted, but even
if it is, it is unpersuasive. “Congress is presumed to have knowledge of the
governing rule described in Shabani.”

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

Wilkinson v. Austin 125 S. Ct. 2384, 73 USLW 4473 (6-13-05)
Due Process, procedures for assignment to “Supermax” prison: Ohio prisoners
have a due process liberty interest in not being confined to the Ohio State
Penitentiary (OSP), a “Supermax” prison that isolates the most dangerous prisoners
from the general prison population and from each other. The test for whether a
liberty interest is implicated by a change in conditions of confinement, set forth in
Sandin v. Connor (1995), is whether an assignment “imposes atypical and significant
hardships on the inmate in relation to the ordinary incidents of prison life.” Sandin
held that 30 days’ segregated confinement did not meet that test. Confinement at the
OSP does. At the OSP almost all human contact is prohibited. Inmates are kept in
solitary cells 23 hours a day, conversation between cells is prevented, exercise is
allowed for only one hour a day in a small room, a cell light is kept on continuously,
the inmate’s status is reviewed only once annually, and placement in OSP
disqualifies an otherwise eligible inmate for parole consideration. The district court
erred, however, in imposing additional procedural requirements for assignment to
OSP and in requiring more frequent review of status. The Ohio procedures strike “a
constitutionally permissible balance” under the framework established in Mathews
v. Eldridge (1976). The inmate’s interest in avoiding erroneous placement in OSP,
while sufficient to constitute a due process liberty interest, must be evaluated “within
the context of the prison system and its attendant curtailment of liberties.” Ohio’s
procedures, though informal and non-adversarial, protect against erroneous
placement by providing the inmate with notice of the factual basis for assignment and
a fair opportunity for rebuttal, and by providing multiple levels of review that can
reverse OSP assignment but cannot overturn a decision against OSP placement. The
state’s interest in prison security is “a dominant consideration.”

9-0. Opinion for unanimous Court by Kennedy.

Wilkinson v. Dotson 125 S. Ct. 1242, 73 USLW 4204 (3-7-05)
Section 1983 actions, relation to habeas actions: State prisoners may sue under 42
U.S.C. § 1983 to challenge the constitutionality of state parole procedures, and are
not limited to seeking relief under the federal habeas corpus statutes. The general
rule, set forth in Preiser v. Rodriguez (1973), is that section 1983 may not be used
for actions that lie “within the core of habeas corpus,” defined as actions challenging
the fact or duration of confinement. This bar applies whether actions seek to
invalidate the duration of imprisonment directly, e.g., through an injunction
compelling speedier release, or indirectly, e.g., “through a judicial determination that
necessarily implies the unlawfulness of the State’s custody.” The challenges in these

two consolidated cases are to parole-eligibility proceedings and parole-suitability
proceedings, and success will not necessarily result in immediate release from prison
or in a shortening of the term of confinement. In the one case, success “means at
most new [parole] eligibility review,” and in the other case “means at most a new
parole hearing at which [state] authorities may, in their discretion, decline to shorten
[the prisoner’s] term.”

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

Scalia, Souter, Thomas, and Ginsburg. Concurring opinion by Scalia, joined by
Thomas. Dissenting opinion by Kennedy.

Administrative law
deference to administrative interpretation..........................31
Age Discrimination in Employment Act
disparate impact actions........................................39
Alaska Statehood Act
federal retention of submerged lands...............................1
Americans with Disabilities Act
foreign-flag cruise ships........................................40
Antiterrorism and Effective Death Penalty Act
clearly established federal law standard.............................6
limitations period, amendment of petition..........................27
limitations period, start date.....................................22
limitations period, stay and abeyance.............................34
scope, habeas corpus “application”...............................16
tolling of limitations period.....................................33
authority of appeals court to withhold mandate and amend opinion.......4
record on review, Tax Court proceedings...........................3
right to counsel for appeal following guilty plea.....................18
lump sum, payment of contract debts..............................7
Arkansas River Compact
allocation of river water between states............................23
Armed Career Criminal Act
prior burglary convictions......................................38
Associational rights
elections, semi-closed primary....................................9
Attorney’s fees
contingent fees taxable to client..................................10
IRAs as exempt assets.........................................36
Bills of lading
maritime law, coverage........................................32
Civil rights, § 1983 actions
relation to habeas corpus.......................................45
Commerce Clause
dormant commerce, state fee for intrastate hauling....................1
prohibition on medical marijuana use.............................15
state discrimination against sales by out-of-state wineries.............18
money laundering, no need for overt act...........................44
scope of right under Superfund law...............................10
liability for secondary infringement, software for file sharing..........29
Counsel, assistance of
adequacy, capital sentencing, duty to examine file on priors............35
adequacy, decision not to contest guilt in capital case.................15

appointment of counsel for appeal following guilty plea...............18
Criminal statutes
knowingly inducing wrongful conduct.............................2
Death penalty
adequacy of representation, decision to focus on sentencing............15
juveniles ....................................................36
mitigating evidence, nexus to crime..............................40
narrowing of “especially heinous [or] cruel” jury charge...............4
sentencing, adequacy of representation, investigation.................35
shackling of defendant during penalty phase........................11
Disparate impact
age discrimination actions......................................39
Domestic violence
no due process right to enforce restraining order.....................42
Double jeopardy
mid-trial acquittal, one count....................................40
drug-sniffing dogs, Fourth Amendment............................19
medical marijuana, federal prohibition............................15
preclinical studies, use of patented drugs...........................28
Due Process
considerations not appropriate in taking analysis....................26
enforcement of domestic violence restraining order..................42
guilty plea, awareness of charges..................................5
procedures for assignment to “Supermax” prison....................45
shackling of defendant during penalty phase of capital trial............11
not deportable “crime of violence” under Immigration law............26
Oklahoma’s semi-closed primary.................................9
Equal protection
racial segregation, prisons......................................22
strict scrutiny review..........................................22
Espionage contract
unenforceable by courts........................................42
Establishment Clause
display of Ten Commandments on grounds of Texas State Capitol......44
displays of the Ten Commandments in county courthouses............28
False Claims Act
limitation period, retaliation actions..............................17
Federal courts
habeas, stay and abeyance pending state proceedings.................34
jurisdiction, parallel state court proceedings........................14
removal, significant federal interest...............................16
supplemental jurisdiction, amount in controversy....................13
firearm possession, foreign conviction............................38
Fourth Amendment
drug-sniffing dogs at traffic stop.................................19
handcuffed detention during search...............................31

probable cause, reason stated by officer............................12
qualified immunity, police officer, shooting of fleeing suspect...........5
Full faith and credit statute
federal courts, takings decisions of state courts......................37
Government contracts
obligation to pay debts, availability of appropriation..................6
Guilty plea
defendant’s awareness of charges.................................5
Habeas corpus
AEDPA, deference to state courts.................................6
AEDPA, limitations period..................................22, 35
AEDPA, tolling of limitations period.............................33
limitations period, amendment of petition..........................27
limitations period, start date.....................................12
motion for relief from judgment not barred as “application”...........16
relation to § 1983 actions.......................................45
stay and abeyance, AEDPA.....................................34
country to which alien can be removed............................20
detention of inadmissible alien pending removal.....................9
Immunity from suit
police officers, use of excessive force..............................5
waiver of sovereign immunity, reclamation law.....................33
Indian Self-Determination and Education Assistance Act
contract support costs...........................................7
Judicial review
espionage agreement..........................................42
statutory right of action, relation to § 1983..........................7
Jury selection
racial discrimination by prosecutor............................22, 30
Jury trial
right to, constitutionality of Sentencing Guidelines...................43
death penalty prohibited........................................36
Limitations period
AEDPA, federal petitions, start date..............................23
AEDPA, federal petitions, tolling, stay and abeyance.................35
False Claims Act retaliation actions..............................17
habeas corpus, “properly filed” state application.....................33
Longshore and Harbor Workers’ Compensation Act
definition of “vessel”..........................................41
medical uses, prohibition.......................................15
Maritime law
dredge as “vessel”............................................41
inland transportation, “through” bill of lading.......................32
Money laundering
conspiracy, no need for overt act.................................44
challenge to permanent injunction................................42

Native Americans
acquired land, state taxation......................................8
service contracts with Govt......................................6
Necessary and Proper Clause
marijuana prohibition..........................................15
infringement, preclinical drug studies.............................28
California medical marijuana law................................15
FIFRA, common law actions.....................................3
state registration of trucks......................................30
conduct of foreign affairs, deference by courts......................21
procedures for assignment to “Supermax” prison, due process..........45
racial segregation of inmates, strict scrutiny review..................22
security, compelling state interest................................11
Public employment
freedom of expression by employees...............................8
Public use
taking of property for economic development.......................24
Racial discrimination
prosecutor’s peremptory challenges............................22, 30
segregation in prisons..........................................22
Reclamation Reform Act
water supply contracts, suits by beneficiaries.......................33
display of Ten Commandments on pubic property................28, 44
Establishment Clause, RLUIPA..................................11
fraud action, proof of loss......................................13
Sentencing Guidelines
constitutionality, continuing status...............................43
Sex discrimination
Title IX retaliation action.......................................19
use on defendant during trial....................................12
Sovereign immunity
limited waiver, Reclamation Reform Act..........................33
compelled subsidy............................................21
freedom of expression, public employees...........................8
government speech............................................21
prior restraint, injunction.......................................42
Spending power
notice to recipient of potential liability............................20
Standing to sue
third-party standing, attorneys suing on behalf of indigents............25
Statutes, interpretation
clear statement rule, foreign-flag ships............................41

clear text trumps reliance on purpose.............................11
common law meaning, presumption Congress has adopted............44
Congress knows how to say (and hasn’t here).......................45
congressional intent, private right of action..........................7
constitutional doubt canon.......................................9
different language implies different interpretation................20, 39
different language, same interpretation............................20
domestic reach of “domestically oriented statutes”...................38
extraterritorial effect, presumption against inapplicable............34, 38
grammatical reading, preference for...............................2
last antecedent rule............................................20
legislative history inconclusive and unreliable......................14
legislative history, no record issue considered.......................39
leniency in interpreting criminal statutes............................2
longstanding interpretation, no indication of intent to change...........24
meaning of “subparagraph”.....................................24
ordinary meaning..........................................26, 37
parallel construction of language for every applicable category..........9
plain meaning................................................13
preemption, presumption against..................................4
proviso not limited by associated clause............................1
ratification by reenactment......................................21
Rules of Construction Act......................................41
saving clause..............................................7, 10
stare decisis.................................................38
statutory context...........................................17, 26
term used in one part of statute, omitted in another...................25
word “may” in context of authorization of actions...................10
word “any” context dependent...................................38
Submerged lands
transfer to states at statehood.....................................1
right to contribution, voluntarily incurred response costs..............10
Taking of property
state court judgments, full faith and credit statute....................37
test, regulatory taking..........................................26
Tax Court
report of special trial judges......................................2
Taxation, Federal
contingent fees as income to client...............................10
Taxation, State
land acquired by Indian tribe.....................................8
FCC regulation of broadband Internet providers.....................31
Telecommunications Act of 1996
relation to 42 USC § 1983.......................................7
Ten Commandments
display on public property...................................28, 44
infringement, fair use affirmative defense..........................25

Truth in Lending Act
liability limits, loans secured by personal property...................24
Twenty-first Amendment
limited by non-discrimination principle of Commerce Clause..........18
Unconstitutional federal laws
Sentencing Reform Act........................................43
Unconstitutional state laws
Michigan and New York laws on direct sale of wine.................18
Michigan law denying appellate counsel...........................18
Missouri law authorizing death penalty for juveniles.................36
Water allocation
Arkansas River Compact.......................................23
interstate sales, protection from discriminatory state laws.............18
Wire fraud
use of U.S. phones to defraud Canada.............................34