Supreme Court Opinions: October 2000 Term

Supreme Court Opinions: October 2000 Term

Order Code RL31060
CRS Report for Congress
Received through the CRS Web
Supreme Court Opinions:
October 2000 Term
July 17, 2001
name redacted
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2000 Term
Summary
This report contains synopses of Supreme Court decisions issued from the
beginning of the October 2000 Term through the end of the Term on June 28, 2001.
The purpose is to provide a quick reference guide for identification of cases of
interest. These synopses are created throughout the Term and entered into the CRS
Home Page on the Internet (http://www.crs.gov/reference/topics/law/00_term.shtml),
which also provides links from the synopses to the full text of the Court’s opinions.
The report supersedes an earlier cumulation issued as a general distribution
memorandum dated March 7, 2001. Included are all cases decided by signed opinion
and selected cases decided per curiam. Not included are other cases receiving
summary disposition and the many cases in which the Court denied review. Each
synopsis contains a summary of the Court's holding, and most contain a brief
statement of the Court's rationale. In addition, the date of decision is indicated, and
cites to United States Law Week and West's Supreme Court Reporter are provided.
Following each synopsis the vote on the Court's holding is indicated in bold typeface,
and authors of the Court's opinion and of any concurring and dissenting opinions,
along with the Justices who joined those opinions, are identified. Cases are listed
alphabetically, and a subject index is appended.

Supreme Court Opinions: October 2000
Term
Alabama v. Bozeman 121 S. Ct. 2079, 69 USLW 4465 (6-11-01)
Interstate Agreement on Detainers: The “antishuttling” provision of the
Interstate Agreement on Detainers requires dismissal of receiving-state charges
against a prisoner who was transported to the receiving state for a single day for
purpose of arraignment and who was then returned immediately to his original
place of imprisonment prior to trial. The language of the provision, Article
IV(e), is “absolute,” providing that “[I]f trial is not had . . . prior to the
prisoner’s being returned to the original place of imprisonment . . . , such
[charges] shall not be of any further force or effect, and the court shall enter an
order dismissing the same with prejudice.” Even if the Agreement were
interpreted to exempt violations that are deemed to be de minimis in relation to
the Agreement’s purpose, the purpose of the “no return” provision cannot be
simply to prevent interruption of rehabilitation in the sending state. Preventing
return of the prisoner prior to trial necessarily decreases the time the prisoner
will spend in the sending state. By requiring the receiving state to pay for the
prisoner’s incarceration, the Agreement provides the receiving state with an
incentive to shorten the pretrial period. Alternatively, the Agreement’s drafters
may have believed that the “shuttling” itself adds to uncertainties that impede
rehabilitation. Viewed against either of these purposes, the one-day violation at
issue cannot be said to be “de minimis, technical, or harmless.”
9-0. Opinion of Court by Breyer, unanimous in part, and joined by Rehnquist,
Stevens, O’Connor, Kennedy, and Souter in separate part.
Alexander v. Sandoval 121 S. Ct. 1511, 69 USLW 4250 (4-24-01)
Civil Rights Act Title VI, implied private right of action: There is no implied
private right of action to enforce disparate-impact regulations promulgated under
Title VI of the Civil Rights Act of 1964. Section 601 of the Act prohibits
discrimination on the basis of race, ethnicity, or national origin by recipients of
federal financial assistance, and section 602 authorizes federal agencies to
“effectuate the provisions” of section 601 by promulgating regulations. Three
aspects of Title VI are well established and “must be taken as given”: first,
private individuals may sue to enforce section 601; second, section 601 prevents
only intentional discrimination, not disparate-impact discrimination; and third,
regulations promulgated under section 602 that proscribe disparate-impact
discrimination are valid even though such discrimination is not proscribed by
section 601. It does not follow, however, that private individuals may sue to
enforce the disparate-impact regulations. Because the disparate-impact
regulations “do not simply apply § 601,” but go beyond it, the private right of
action to enforce § 601 does not include a private right to enforce the
regulations. “That right must come, if at all, from the independent force of
§ 602.” Statutory text is the starting point – and in this case the ending point –

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for ascertaining whether Congress has created a private right of action. The
“rights-creating language” present in section 601 “is completely absent from
§ 602,” which instead is directed at federal agencies that distribute public funds.
Moreover, section 602's express provision for agency enforcement of section
602 through termination of funding and other means suggests that Congress
intended to preclude remedies not expressly authorized. The regulations
themselves cannot be read to create a right that Congress has not created. The
Rehabilitation Act Amendments of 1986, which abrogated states’ Eleventh
Amendment immunity from actions brought under Title VI, did not ratify
decisions finding a private right of action to enforce disparate-impact
regulations. The cases relied on did not so hold, and the 1986 amendment by its
terms applied only to suits “for a violation of a statute,” not to suits for violation
of a regulation.
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Dissenting opinion by Stevens, joined by Souter, Ginsburg, and Breyer.
Arkansas v. Sullivan 121 S. Ct. 1876, 69 USLW 3746 (5-29-01)
Fourth Amendment, pretextual arrest: The Arkansas Supreme Court erred
in ruling that an arrest of a motorist who had committed a traffic violation was
invalid because it was made for the purpose of searching the motorist’s car. As
the Court determined in Whren v. United States (1996), an officer’s subjective
motivation for making a traffic stop plays no part in probable cause analysis, and
the same principle applies to a custodial arrest. The Arkansas court also erred
in its alternative holding that it may interpret the United States Constitution to
provide greater protection than does the United States Supreme Court. That
position was refuted in Oregon v. Hass (1975). A state is free under its own law
– not under the federal Constitution – to impose greater restrictions on police
activity.
9-0. Per curiam. Concurring opinion by Ginsburg, joined by Stevens, O’Connor,
and Breyer.
Artuz v. Bennett 121 S. Ct. 361, 69 USLW 4001 (11-7-00)
Habeas corpus, AEDPA: An application for state post-conviction relief
containing claims that are procedurally barred can be “properly filed” within the
meaning of 28 U.S.C. § 2244(d)(2). That provision of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) tolls an applicable limitations
period for the time during which a “properly filed” application for state post-
conviction relief is pending. An application is “filed” when it is delivered to, and
accepted by, the appropriate court officer. An application is “properly filed”
when its delivery and acceptance are “in compliance with the applicable laws and
rules governing filings.” Whether an application has been “properly filed” is thus
“quite separate from the question whether the claims contained in the application
are meritorious and free of procedural bar.” It is only individual claims, and not
the application containing those claims, that can be procedurally barred.
9-0. Opinion for unanimous Court by Scalia.

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Atkinson Trading Co. v. Shirley 121 S. Ct. 1825, 69 USLW 4363 (5-29-01)
Native Americans, taxation: The Navajo Nation’s imposition of a hotel
occupancy tax on persons who are not tribal members and who operate a hotel
on non-Indian fee land within the Navajo Reservation is invalid. In Montana v.
United States (1981), the Court held that, as a general matter, the inherent
sovereignty of Indian tribes is limited to their members and their territory.
Neither of the exceptions to the general rule recognized by the Court in Montana
is applicable here. A tribe may tax or regulate consensual commercial
relationships with the tribe or its members, but operation of the hotel is not such
a relationship. The generalized availability of police, fire, and emergency
medical services provided by the tribe “is patently insufficient” to sustain the
tribe’s assertion of civil authority over nonmembers on non-Indian fee land, and
the petitioner’s status as an “Indian trader” cannot by itself support the
imposition of the hotel occupancy tax. The second exception, recognizing tribal
jurisdiction over an operation that “threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of the tribe,”
is also inapplicable. Operation of the hotel “does not endanger the Navajo
Nation’s political integrity.”
9-0. Opinion for unanimous Court by Rehnquist. Concurring opinion by Souter,
joined by Kennedy and Thomas.
Atwater v. City of Lago Vista 121 S. Ct. 1536, 69 USLW 4262 (4-24-01)
Fourth Amendment, arrest for minor offense: The Fourth Amendment does
not prohibit a warrantless arrest for a minor offense, such as a misdemeanor
seatbelt violation punishable only by a fine. In reading the Fourth Amendment,
the Court is “guided by the traditional protections against unreasonable searches
and seizures afforded by the common law at the time of the [Constitution’s]
framing.” There was no uniform rule at common law that prohibited peace
officers from making warrantless misdemeanor arrests except in cases involving
a breach of the peace. Commentators were divided as to the English rule, and,
in any event, there were numerous statutory exceptions. There is no indication
that the Constitution’s framers intended such a limitation, the statutes of the
colonies and states authorized arrest for various misdemeanors not involving a
breach of the peace, and the historical record that has unfolded since the framing
is also inconsistent with any such limitation. Today, the laws of all 50 states, the
District of Columbia, and the Federal Government permit some misdemeanor
arrests without a breach of the peace. The petitioner’s request that the Court
mint a new rule of constitutional law based on contemporary standards of
reasonableness is rejected. “A responsible Fourth Amendment balance is not
well served by standards requiring sensitive, case-by-case determinations.” The
proposed rules, distinguishing between “jailable” and “fine-only” offenses, for
example, would be difficult for officers to administer, and would require some
exceptions. Such rules are better devised by statute, as some states have done.
The “upshot” is that there is “a dearth of horribles demanding redress.” The
petitioner’s arrest in this case was constitutional. Although the arrest was
“humiliating” and “inconvenient” and subjected her to “pointless indignity and
confinement,” it was no more harmful to privacy or physical interests than the
normal custodial arrest, and therefore was “not so extraordinary as to violate the
Fourth Amendment.” Because the police officer in this case had probable cause
to believe that the petitioner had committed a crime in his presence by not

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wearing a seatbelt and by not securing her children in seatbelts, the officer “was
accordingly authorized . . . to make a custodial arrest” rather than issue a
citation, and to do so “without balancing costs and benefits or determining
whether or not [petitioner’s] arrest was in some sense necessary.”
5-4. Opinion of Court by Souter, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Dissenting opinion by O’Connor, joined by Stevens, Ginsburg, and
Breyer.
Bartnicki v. Vopper 121 S. Ct. 1753, 69 USLW 4323 (5-21-01)
First Amendment, disclosure of illegally intercepted communication: A
federal prohibition on disclosure of the contents of an illegally intercepted
electronic communication (18 U.S.C. § 2511(c)), and a parallel Pennsylvania
law, violate the First Amendment as applied in this case. The defendants, a talk
show host and a community activist, played no part in the illegal interception,
and obtained the tapes lawfully. The subject matter of the disclosed
conversation, involving a threat of violence in a labor dispute, was “a matter of
public concern.” Ordinarily, government may not punish the publication of
truthful information about a matter of public significance. The government has
identified two interests alleged to be furthered by the disclosure prohibition –
that of deterring unlawful conduct and that of protecting privacy. The
government’s interest in deterring unlawful conduct is not well served by the
prohibition. The normal method of deterrence is to punish the person who
engages in the unlawful conduct; it is “quite remarkable” to suppress speech by
a law-abiding possessor of information in order to deter unlawful conduct by
someone else. Also, there is no empirical evidence that supports the
effectiveness of the disclosure prohibition. The government’s “important”
interest in protecting private communication is well served by the prohibition,
however, and requires a balancing against the free speech interests that are
impaired. In this case, “privacy concerns give way when balanced against the
interest in publishing matters of public importance.” There is “a profound
national commitment to the principle that debate on public issues should be
uninhibited, robust and wide-open.” Application of this principle “requires the
conclusion that a stranger’s illegal conduct does not suffice to remove the First
Amendment shield from speech about a matter of public concern.”
6-3. Opinion of Court by Stevens, joined by O’Connor, Kennedy, Souter,
Ginsburg, and Breyer. Concurring opinion by Breyer, joined by O’Connor.
Dissenting opinion by Rehnquist, joined by Scalia and Thomas.
Becker v. Montgomery 121 S. Ct. 1801, 69 USLW 4390 (5-29-01)
Appeals, required signature on notice: When a party files a timely notice of
appeal in federal district court, the failure to sign the notice does not require the
court of appeals to dismiss the appeal. Civil Rule 11(a), made applicable to
notices of appeal by the appellate rules, “unquestionably” requires that notices
of appeal be signed, and this means a handwritten name or a hand-placed mark.
Rule 11(a) also provides, however, that the omission of a signature may be
“corrected promptly after being called to the attention of the attorney or party,”
either by signing the copy that is on file or by submitting a duplicate, signed
copy. The rule “was formulated and should be applied as a cohesive whole”;
there is no basis for distinguishing notices of appeal from other written filings,
or for applying a harsher rule to filings by pro se litigants than applies to parties

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represented by attorneys. The Sixth Circuit erred in not accepting the
petitioner’s corrected notice as perfecting his appeal.
9-0. Opinion for unanimous Court by Ginsburg.
Board of Trustees of Univ. of Ala. v. Garrett 121 S. Ct. 955, 69 USLW 4105 (2-21-
01)
Eleventh Amendment; Fourteenth Amendment enforcement; ADA:
Congress exceeded its constitutional power by subjecting states to suits brought
by state employees in federal courts to collect money damages for the state’s
failure to comply with Title I of the Americans with Disabilities Act of 1990
(ADA). Such actions are barred by the Eleventh Amendment. Congress may,
through valid exercise of its Fourteenth Amendment power to enforce that
Amendment’s guarantees by “appropriate legislation,” abrogate the states’
Eleventh Amendment immunity from federal court suits for damages. The first
step in determining whether Congress has validly exercised its Fourteenth
Amendment enforcement power is “to identify with some precision the scope of
the constitutional right” that is being enforced. The Court determined in
Cleburne v. Cleburne Living Center (1985) that legislative classifications
governing the mentally retarded should be measured by rational basis review,
and the same test applies for other categories of the disabled. “States are not
required by the Fourteenth Amendment to make special accommodations for the
disabled, so long as their actions towards such individuals are rational.” The
next step is to determine “whether Congress identified a history and pattern of
unconstitutional employment discrimination by the States against the disabled.”
The legislative record of the ADA, however, fails to show that Congress did in
fact identify a pattern of irrational state employment discrimination against the
disabled. The great majority of discriminatory incidents identified by Congress
do not involve states, and the half dozen or so that do “taken together fall far
short of even suggesting the pattern of unconstitutional discrimination on which
§ 5 must be based.” Congress failed to mention states in its legislative findings
addressing discrimination in employment. And even if a pattern of discrimination
by states were found, the ADA’s remedies would run afoul of the “congruence
and proportionality” limitation. The requirement of reasonable accommodation,
even with the exception for undue hardship, “far exceeds what is constitutionally
required in that it makes unlawful a range of alternate responses that would be
reasonable.”
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinion by Kennedy, joined by O’Connor. Dissenting
opinion by Breyer, joined by Stevens, Souter, and Ginsburg.
Booth v. Churner 121 S. Ct. 1819, 69 USLW 4387 (5-29-01)
Prison Litigation Reform Act, exhaustion of administrative remedies: The
Prison Litigation Reform Act, which provides that prison inmates must exhaust
“such administrative remedies as are available” before suing over prison
conditions, requires an inmate seeking only money damages to complete a prison
administrative process that could provide only non-monetary relief. Neither
“pragmatism” nor plain meaning resolves the case. While the odds of keeping
an inmate out of court are slim if the relief he seeks is unavailable in
administrative proceedings, there is some chance that “being heard” will “mollify

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passions” or that administrative proceedings will weed out frivolous claims.
“Available” can mean either having sufficient power to achieve an end, or
whatever is offered. “Remedy” can mean either specific relief that is available,
or the process itself that leads to relief. Two additional considerations provide
“clearer pointers” to the provision’s meaning. One is the “broader statutory
context.” “[T]he word ‘exhausted’ has a decidedly procedural emphasis,” since
“one ‘exhausts’ processes, not forms of relief.” “Statutory history” is the second
indicator. Prior to amendment in 1995, the section at issue required exhaustion
of administrative remedies “only if those remedies were plain, speedy, and
effective.” Congress’s removal of this language, especially after the Supreme
Court had emphasized it in ruling that exhaustion was not required if money
damages were sought but unavailable administratively, “confirms the suggestion
that Congress meant to require procedural exhaustion regardless of the fit
between a prisoner’s prayer for relief and the administrative remedies possible.”
9-0. Opinion for unanimous Court by Souter.
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n 121 S. Ct. 924, 69
USLW 4085 (2-20-01)
Fourteenth Amendment, state action: The regulatory activity of the Tennessee
Secondary School Athletic Association, a statewide body incorporated to
regulate interscholastic athletic competition among public and private secondary
schools, should be treated as state action. The “nominally private character of
the Association is overborne by the pervasive entwinement of public institutions
and public officials in its composition and workings, and there is no substantial
reason to claim unfairness in applying constitutional standards to it.” Whether
actions may fairly be attributed to the state is a “necessarily fact-bound inquiry.”
Interscholastic athletics plays an integral part in public education in Tennessee,
and the Association is the entity relied upon to regulate competition. The
Association is “overwhelmingly” composed of public school officials, 84% of its
members are public schools, and the principal part of its funding derives from
gate receipts from member schools. This “entwinement” of public school
officials “from the bottom up” is complemented by “entwinement from the top
down.” Representatives of the State Board of Education sit on the Association’s
committees as non-voting members, the State Board’s rules are enforced by the
Association, the State Board allows students to satisfy its physical education
requirements by participating in interscholastic athletics sponsored by the
Association, and the Association’s employees are covered by the State’s
retirement system. The pervasive entwinement present in this case requires a
finding of state action regardless of whether alternative tests for state action are
satisfied. The Association did not establish that countervailing values should
outweigh a finding of state action.
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Rehnquist, Scalia, and Kennedy.
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of HHR 121 S. Ct. 1835,
69 USLW 4350 (5-29-01)
Attorney’s fees, “catalyst theory”: The “catalyst theory” is not a permissible
basis for the award of attorney’s fees under the Fair Housing Act or the
Americans with Disabilities Act, both of which authorize award of attorney’s

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fees to the “prevailing party.” The catalyst theory would allow recovery of fees
by a party who has failed to secure either a judgment on the merits or a court-
ordered consent decree, but who has nonetheless achieved the desired result
because the lawsuit brought about a voluntary change in the defendant’s
conduct. The Court’s prior holdings interpret “prevailing party” to mean “one
who has been awarded some relief by the court,” as is the case with a judgment
on the merits or a settlement agreement enforced through a consent decree. The
“catalyst theory” falls on the other side of the line by allowing an award where
there is “no judicially sanctioned change in the legal relationship of the parties.”
Circuit court precedent and dicta in Supreme Court decisions cannot overcome
the plain language of the statute and the Court’s prior holdings. Legislative
history of the Civil Rights Attorney’s Fees Awards Act, which also authorizes
awards to a “prevailing party,” is “at best ambiguous.” The argument that the
catalyst theory is necessary to prevent defendants from unilaterally mooting an
action before judgment in order to avoid paying attorney’s fees is speculative
and unsupported by evidence. Moreover, the catalyst theory “is clearly not a
formula for ready administrability.”
5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinion by Scalia, joined by Thomas. Dissenting opinion
by Ginsburg, joined by Stevens, Souter, and Breyer.
Buckman Co. v. Plaintiffs’ Legal Comm. 121 S. Ct. 1012, 69 USLW 4101 (2-21-01)
Preemption, Medical Device Amendments, state tort law: A state tort law
action based on fraud on the FDA in falsely identifying the intended use for a
medical device in an application under section 510(k) for approval of the device
as substantially equivalent to a grandfathered “predicate device” is preempted by
the Medical Device Amendments to the Food, Drug, and Cosmetic Act.
Policing fraud against federal agencies is not a field which the states have
traditionally occupied, and consequently no presumption against preemption
applies. The comprehensive federal statutory scheme “amply empowers the
FDA to punish and deter fraud against the agency,” and grants the agency
flexibility in achieving “a somewhat delicate balance” among the statute’s
objectives. Regulatory flexibility is especially important, given the “accepted and
necessary” practice of “off-label” usage of medical devices. “Complying with
the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes
[would] dramatically increase the burdens facing potential applicants” in a
manner not contemplated by Congress.
9-0. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,
Souter, Ginsburg, and Breyer. Concurring opinion by Stevens, joined by Thomas.
Buford v. United States 121 S. Ct. 1276, 69 USLW 4182 (3-20-01)
Appeals, standard of review, sentencing guidelines: A court of appeals should
apply deferential review – not de novo review – to a district court’s
determination as to whether an offender’s prior convictions were consolidated,
hence “related,” for purposes of sentencing. Prior felony convictions that are
“related” to one another are treated as a single prior conviction for purposes of
calculating whether an offender has at least two prior felony convictions and
should therefore be sentenced as a “career offender.” Trial courts are in a better
position than appellate courts to decide “whether a particular set of individual

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circumstances demonstrates ‘functional consolidation.’” This issue “grows out
of, and is bounded by, case-specific detailed factual circumstances” that are
appropriately addressed by the trial court. The legal issue is “minor, detailed,
[and] interstitial,” and not a “generally recurring, purely legal matter” for which
an appellate court can provide clear guidance.
9-0. Opinion for unanimous Court by Breyer.
Bush v. Gore 121 S. Ct. 525, 69 USLW 4029 (12-12-00)
Presidential election, recount, equal protection: The Florida Supreme Court’s
order directing a partial manual recount of the vote for Presidential electors
violates the Equal Protection Clause by allowing arbitrary and disparate
treatment of members of the electorate. When a state legislature confers on its
citizens the right to vote for Presidential electors, that right to vote is
“fundamental,” and equal protection applies to “the manner of its exercise.” In
this case the equal protection violation “inheres in the absence of specific
standards to ensure . . . equal application” of the “intent of the voter” standard
applied by the Florida court. There were “various respects” in which unequal
treatment could result from implementation of the Florida court’s order. The
standard for accepting or rejecting contested ballots “might vary not only from
county to county but indeed within a single county from one recount team to
another.” One county changed its evaluative standards during the counting
process. A manual recount does not treat “overvotes” in the same manner as
“undervotes.” The court “certified” a “partial total” from one county. And the
order “did not specify who would recount the ballots.” Because “the problem
of equal protection in election processes generally presents many complexities,”
this decision is “limited to the present circumstances,” in which “a state court
with the power to assure uniformity” has failed to provide “minimal procedural
safeguards.” Because “it is obvious” that a recount that complies with these
constitutional requirements could not be conducted “without substantial
additional work,” and because there is no time left to do so and still comply with
the requirement of Florida law that election contests be completed by December
12 (the date specified in 3 U.S.C. § 5), the judgment of the Florida Supreme
Court ordering a recount to proceed is reversed.
5-4 (remedy); 7-2 (equal protection violation). Per curiam. Concurring opinion
by Rehnquist, joined by Scalia and Thomas. Dissenting opinions by Stevens,
joined by Ginsburg and Breyer; by Souter, joined by Breyer and joined in part by
Stevens and Ginsburg; and by Ginsburg, joined by Stevens, and joined in part by
Souter and Breyer.
Bush v. Palm Beach County Canvassing Bd. 121 S. Ct. 471, 69 USLW 4020 (12-4-
00)
Presidential election, remand to Florida Supreme Court: The Supreme Court
declines to review the federal questions presented by the petitioner, who
challenges the Florida Supreme Court’s decision that extended the deadline
under Florida law for submission of county election returns to the Secretary of
State, and thereby allowed time for manual recounts authorized by Florida law.
The judgment of the Florida Supreme Court is vacated, and the case is remanded
so that the Florida court can clarify the extent to which it relied on the Florida
Constitution as “circumscribing the [Florida] legislature’s authority under Article

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II, § 1, cl. 2" of the United States Constitution, and can clarify the consideration
it gave to 3 U.S.C. § 5.
9-0. Per curiam.
C & I Enterprises v. Citizen Band Potawatomi Tribe 121 S. Ct. 1589, 69 USLW 4290
(4-30-01)
Native Americans, tribal immunity, waiver: The tribe waived its immunity
from suit in state court when it proposed and signed a construction contract
containing a standard arbitration clause. A tribe’s waiver of immunity from suit
must be “clear,” and in this case the tribe has waived its immunity “with the
requisite clarity.” The contract’s arbitration clause provides for contract-related
disputes to be resolved by binding arbitration, and for awards to be reduced to
judgment in accordance with the applicable law “in any court having
jurisdiction.” The contract’s choice-of-law clause, which provides that the law
of the place where the project is located shall govern, makes it plain that the
Oklahoma state court in which the suit was filed had jurisdiction to enforce the
award, and that the parties “effectively agreed” to confirmation of the award in
accordance with the Oklahoma Uniform Arbitration Act. That act authorizes
state courts to enter judgment on an arbitration award. The tribe’s effort to
interpret the arbitration clause narrowly as merely waiving the right to a court
trial of contractual disputes is unavailing. The arbitration regime “has a real
world end,” and the contract specifically authorizes judicial enforcement of the
arbitral award. The tribe’s argument that clear waiver cannot be established by
a “form contract” is also rejected. The contract is not ambiguous, and, in any
event, the tribe itself “proposed and prepared” it.
9-0. Opinion for unanimous Court by Ginsburg.
Calcano-Martinez v. INS 121 S. Ct. 2268, 69 USLW 4526
Immigration, judicial review, habeas corpus: The Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) expressly precludes the courts of
appeals from exercising jurisdiction to review a final order of removal against an
alien who is removable by reason of conviction for any aggravated felony.
Because elimination of all judicial review of such claims would raise “serious
constitutional questions,” the situation “can best be alleviated” by application of
the Court’s decision in INS v. St. Cyr, infra, construing IIRIRA’s jurisdiction-
stripping provisions as not precluding such aliens from pursuing habeas corpus
relief under 28 U.S.C. § 2241.
5-4. Opinion of Court by Stevens, joined by Kennedy, Souter, Ginsburg, and
Breyer. Dissenting opinions by O’Connor; and by Scalia, joined by Rehnquist and
Thomas.
Cedric Kushner Promotions, Ltd. v. King 121 S. Ct. 2087, 69 USLW 4468 (6-11-01)
RICO, “enterprise” distinct from “person”: The Racketeer Influenced and
Corrupt Organizations Act (RICO) makes it unlawful for “any person” employed
by or associated with an “enterprise” to conduct such enterprise’s affairs through
the commission of two or more statutorily defined crimes. This language
envisions two distinct entities, a “person” and an “enterprise.” The need for the
two distinct entities is satisfied “when a corporate employee unlawfully conducts
the affairs of the corporation of which he is the sole owner – whether he

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conducts those affairs within the scope, or beyond the scope, of corporate
authority.” Legally and linguistically, the corporate owner/employee is distinct
from the corporation itself. To apply RICO in these circumstances is “consistent
with the statute’s basic purposes,” which include “protecting the public from
those who would unlawfully use an ‘enterprise’ (whether legitimate or
illegitimate) as a ‘vehicle’” to conduct unlawful activity. There is no exception
for employees acting within the scope of their employment in an illegitimate
criminal enterprise.
9-0. Opinion for unanimous Court by Breyer.
Central Green Co. v. United States 121 S. Ct. 1005, 69 USLW 4126 (2-21-01)
Flood Control Act, scope of immunity: The grant of immunity to the United
States “for any damage from or by floods or flood waters at any place” (33
U.S.C. § 702(c)) does not apply to all water that flows through a multi-purpose
federal project operated only in part for flood control. The appropriate focus is
on “the character of the waters that cause the relevant damage” and the purpose
of their release, rather than on the overall project purposes. “[T]o characterize
every drop of water that flows through [an] immense [federal] project as ‘flood
water’ simply because flood control is among the purposes served by the project
unnecessarily dilutes the language of the statute.” The Ninth Circuit erred,
therefore, in ruling that the plaintiff’s action for damages resulting from
operation of an irrigation canal that is part of the Central Valley Project should
be dismissed because flood control is one of the purposes of that project.
9-0. Opinion for unanimous Court by Stevens.
Circuit City Stores, Inc. v. Adams 121 S. Ct. 1302, 69 USLW 4195 (3-21-01)
Federal Arbitration Act, scope of exclusion from coverage: Section 1of the
Federal Arbitration Act, which excludes from the Act’s coverage “contracts of
employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce,” excludes contracts of employment
of transportation workers, but not employment contracts of other workers
engaged in interstate or foreign commerce. The words “any other class of
workers engaged in . . . commerce” constitute a “residual phrase” that follows
explicit reference to “seamen” and “railroad employees.” This wording calls for
application of the ejusdem generis canon of construction, which provides that
general words following specific words in a statutory enumeration should be
construed to embrace only objects similar in nature to the specifically
enumerated objects. Application of the canon is supported by other “sound
considerations.” The phrase “engaged in commerce” has been interpreted to be
more limited than other possible formulations, e.g., “affecting commerce” and
“involving commerce.” The fact that the commerce power was construed
narrowly when the FAA was enacted in 1925 does not mean that Congress used
the phrase “engaged in commerce” in order to regulate to the full extent of its
power, and the Court refuses to treat the phrase as “a variable standard” that can
expand as interpretation of the power expands. The congressional decision to
exempt workers over whom the commerce power was most apparent was not
irrational; by 1925 Congress had created special dispute resolution procedures
for seamen and was in the process of doing so for railway workers, and might
well have preferred to address the needs of other categories of transportation

CRS-11
workers in similar manner. There is no need to assess the legislative history of
the exclusion provision.
5-4. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and
Thomas. Dissenting opinions by Stevens, joined by Ginsburg and Breyer, and
joined in part by Souter; and by Souter, joined by Stevens, Ginsburg, and Breyer.
City News & Novelty, Inc. v. City of Waukesha 121 S. Ct. 743, 69 USLW 4081 (1-17-
01)
Mootness: The issue of whether an applicant denied a license to operate an adult
business is entitled to a prompt judicial determination on the merits, or merely
to prompt access to judicial review, is not properly before the Court. When the
city granted a license to a competitor, the petitioner withdrew its renewal
application and ceased to operate as an adult business. This situation is different
from that presented in Erie v. Pap’s A.M. There the entity that terminated its
adult business had prevailed in the lower court, and a dismissal based on
mootness would have left the defendant city with the “ongoing injury” of an
invalidated ordinance. Here the adult business has left the fray a loser, and
dismissal does not leave the city under the “weight of an adverse judgment.”
Also, an applicant denied a renewal application is not in the same position as an
applicant for an initial license. The typical concern of a renewal applicant is not
the speed of court proceedings on the merits, but rather the availability of a stay
of adverse action during the pendency of those proceedings.
9-0. Opinion for unanimous Court by Ginsburg.
City of Indianapolis v. Edmond 121 S. Ct. 447, 69 USLW 4009 (11-28-00)
Fourth Amendment, drug checkpoints: The city’s program of vehicle
checkpoints on roads, designed to interdict unlawful drugs, violates the Fourth
Amendment. A search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing. The Court has never approved a
checkpoint program “whose primary purpose was to detect evidence of ordinary
criminal wrongdoing.” Although the Court has recognized limited exceptions
to the individualized suspicion requirement for checkpoints set up to police the
borders or promote highway safety, the Indianapolis program does not fall within
either of these exceptions. While each of these excepted programs had a law
enforcement component, law enforcement was not the primary purpose of either.
Expanding the exceptions to cover roadblocks designed primarily to serve the
general interest in crime control “would do little to prevent such intrusions from
becoming a routine part of American life.” The Court “cannot sanction stops
justified only by the generalized and ever-present possibility that interrogation
and inspection may reveal that any given motorist has committed some crime.”
6-3. Opinion of Court by O’Connor, joined by Stevens, Kennedy, Souter,
Ginsburg, and Breyer. Dissenting opinions by Rehnquist, joined by Thomas, and
joined in part by Scalia; and by Thomas.
Clark County Sch. Dist. v. Breeden 121 S. Ct. 1508, 69 USLW 3684 (4-23-01)
Civil rights, Title VII, retaliation claim: The Ninth Circuit erred in reversing
the district court’s summary judgment ruling in favor of the school board on the
respondent’s claim that the school board had retaliated against her for actions
protected by Title VII. The respondent could not reasonably have believed that

CRS-12
the incident she alleged – that a co-member of a job application review panel
made an offensive remark – violated Title VII. The Court’s precedents establish
that sexual harassment is actionable under Title VII only if it is so severe or
pervasive as to alter the conditions of employment and create an abusive
working environment. This one isolated incident “cannot remotely be considered
‘extremely serious.’” Besides alleging that she was punished for complaining
about the alleged sexual harassment, the respondent also claimed that she was
punished for filing charges with state and federal authorities. This second claim
rested solely on temporal proximity between the protected action and the alleged
retaliatory action. Causality can be established by temporal proximity only if the
events are “very close” in time, yet the 20-month period in this case “suggests,
by itself, no causality at all.”
9-0. Per curiam.
Cleveland v. United States 121 S. Ct. 365, 69 USLW 4003 (11-7-00)
Mail fraud, false statements, victim’s property interest: The federal mail
fraud statute, 18 U.S.C. § 1341, does not reach false statements made in an
application for a state license. The statute proscribes use of the mails to obtain
“property” by false representations. The thing obtained must be “property” in
the hands of the victim, yet state and municipal licenses in general, and
Louisiana’s video poker licenses in particular, are not “property” in the hands of
the official licensor. The State’s concern in issuing, renewing, and revoking
video poker licenses is regulatory. The Government does not allege that the
petitioner defrauded the State of any money, and the fact that the State has a
substantial economic stake in the licenses does not convert the State’s regulatory
interest into a property interest. The Government’s reading of the provision
invites “a sweeping expansion of federal criminal jurisdiction in the absence of
a clear statement by Congress.” Any ambiguity in the meaning of “property”
should be resolved in favor of lenity.
9-0. Opinion for unanimous Court by Ginsburg.
Cook v. Gralike 121 S. Ct. 1029, 69 USLW 4150 (2-28-01)
Elections, ballot identification of candidates not supporting term limits:
Provisions of the Missouri Constitution requiring identification on primary and
general election ballots of congressional candidates who failed to support term
limits in the prescribed manner are unconstitutional. The label “disregarded
voters’ instruction on term limits” was to be placed adjacent to the name of any
incumbent candidate who had failed to take specified actions, and the label
“declined to pledge to support term limits” was to be placed next to the name of
any non-incumbent candidate who had declined to pledge to take those actions.
States do not have power reserved by the Tenth Amendment to give binding
instructions to their congressional representatives. The First Congress rejected
a proposal to insert into what became the First Amendment a right of states “to
instruct their representatives.” The Court determined in U.S. Term Limits, Inc.
v. Thornton (1995) that congressional offices arise from the Constitution, and
that consequently no authority to regulate election to these offices could have
preceded the Constitution and been “reserved” by the states. Any state power
to regulate congressional elections had to be delegated, and the only source for
such power is the “Elections Clause” of Article I, section 4, giving states power

CRS-13
to regulate the “times, places, and manner” of holding congressional elections.
The Missouri ballot requirements do not relate to “times” or “places,” and are
not valid regulations of the “manner” of holding elections. “Manner” in this
context refers to procedural regulations, yet Missouri’s adverse ballot labels, like
a “Scarlet Letter,” are designed to “handicap candidates at the most crucial stage
of the election process.” Such attempts to influence electoral outcomes are not
authorized by the Elections Clause.
9-0. Opinion of Court by Stevens, joined by Scalia, Kennedy, Ginsburg, and
Breyer; joined in part by Souter; and joined in separate part by Thomas.
Concurring opinions by Kennedy; by Thomas; and by Rehnquist, joined by
O’Connor.
Cooper Industries, Inc. v. Leatherman Tool Group, Inc. 121 S. Ct. 1678, 69 USLW
4299 (5-14-01)
Appeals, standard of review, punitive damages awards: A court of appeals
should apply a de novo standard, not an abuse of discretion standard, when
reviewing the constitutionality of a punitive damages award. A de novo standard
is applied in “analogous cases” involving excessive fines, cruel and unusual
punishments, reasonable suspicion, and probable cause, and is appropriate as
well for reviewing constitutional challenges to punitive damages. Because the
jury’s award of punitive damages does not constitute a finding of fact, appellate
review of the district court’s determination that an award is constitutional does
not implicate the Seventh Amendment. In this case, involving violations of the
Lanham Act, de novo review of the district court’s rejection of the petitioner’s
due process objections to the award might well have led the appeals court to
reach a different result.
8-1. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,
Souter, Thomas, and Breyer. Concurring opinions by Scalia and by Thomas.
Dissenting opinion by Ginsburg.
Daniels v. United States 121 S. Ct. 1578, 69 USLW 4279 (4-25-01)
Sentencing, motion to vacate, challenge to previous convictions: A defendant
who has received the mandatory minimum 15-year sentence under the Armed
Career Criminal Act (ACCA) as a felon who possessed a firearm and who had
three previous convictions for a violent felony or serious drug offense, cannot
have that sentence set aside under 28 U.S.C. § 2255 on the ground that the
previous convictions were unconstitutional. The considerations underlying the
Court’s decision in Custis v. United States (1994) that there was no right to
collaterally attack the prior convictions during the course of the ACCA
sentencing proceeding apply as well in a § 2255 motion to vacate, set aside, or
correct the sentence. As evidenced by this case, in which the transcript from the
defendant’s 1978 trial is missing, the district court may lack access to state court
records necessary to evaluate claims arising from “long-past proceedings.” Even
after the defendant has served his complete sentence under a previous
conviction, the state maintains “a strong interest in preserving the convictions it
has obtained” so that it may impose disabilities on convicted felons and enhanced
sentences on recidivist offenders. “The premise underlying the petitioner’s
argument – that defendants may challenge their convictions for constitutional
infirmity – is quite correct.” The “numerous opportunities” to do so, however,
“are not available indefinitely and without limitation.” If a prior conviction used

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to enhance a federal sentence under the ACCA “is no longer open to direct or
collateral attack in its own right because the defendant failed to pursue those
remedies . . . or did so unsuccessfully, then that defendant is without recourse”
under section 2255.
5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Separate aspect of O’Connor opinion joined only by Rehnquist,
Kennedy, and Thomas. Concurring opinion by Scalia. Dissenting opinions by
Souter, joined by Stevens and Ginsburg; and by Breyer.
Department of Interior v. Klamath Water Users Protective Ass’n 121 S. Ct. 1060, 69
USLW 4166 (3-5-01)
FOIA, no “Indian trust” exemption: Documents prepared by Indian tribes for
the Department of the Interior are not exempt from disclosure under Exemption
5 of the Freedom of Information Act (FOIA). Exemption 5 protects from
disclosure “inter-agency or intra-agency memorandums or letters” which would
be privileged against discovery in a civil action. The communications between
the Indian tribes and the Interior Department do not qualify as “inter-agency” or
“intra-agency.” Although some appeals courts have held that documents
prepared outside the government by consultants can qualify as “intra-agency” for
purposes of the FOIA exemption, the analogy does not hold for the tribes’
communications. A consultant represents the agency’s interests, not its own.
The tribes, on the other hand, “necessarily communicate . . . with their own . .
. interests in mind.” Rights to scarce water resources underlie the current
litigation, and the tribes’ interests are “necessarily adverse to the interests of
competitors” such as the respondent. The Department’s traditional fiduciary
relationship to Indian tribes does not justify creation of an “Indian trust”
exemption from the FOIA. Such an exemption is “out of the question,” given
the FOIA’s dominant objective favoring disclosure over secrecy, and given the
fact that there is “simply no support for the exemption in the statutory text.”
9-0. Opinion for unanimous Court by Souter.
Director of Revenue of Mo. v. CoBank, ACB 121 S. Ct. 941, 69 USLW 4093 (2-20-
01)
Taxation, State; banks for farm cooperatives: Although Congress has
designated banks for farm cooperatives as “instrumentalities of the United
States,” implied immunity of federal instrumentalities from state taxation
becomes an issue only when Congress has failed to address the matter.
Beginning with the creation of banks for cooperatives by the Farm Credit Act
of 1933, Congress has addressed the issue of state taxation, providing that the
banks were subject to state income taxation unless the United States held stock
in them. Although language in the governing section (12 U.S.C. § 2134)
providing that the tax exemption “shall not apply” after stock held by the United
States has been retired was deleted in 1985 by a technical correction occasioned
by the fact that the United States was no longer authorized to invest in the
banks, there was no intent to make a “radical” change in the law that would
prevent states from taxing these banks. “[I]t would be surprising if Congress
had eliminated this important [authority] sub silentio.” The structure of the
Farm Credit Act confirms that banks for cooperatives are subject to state
taxation. The current “silence” of Congress with respect to state taxation of
banks for cooperatives contrasts with explicit language conferring more

CRS-15
comprehensive exemption for farm credit banks and federal land bank
associations.
9-0. Opinion for unanimous Court by Thomas.
Duncan v. Walker 121 S. Ct. 2120, 69 USLW 4473 (6-18-01)
Habeas corpus, AEDPA, tolling of limitations period: A federal habeas
corpus petition is not an “application for State post-conviction or other collateral
review” within the meaning of 28 U.S.C. § 2242(d)(2), and therefore did not toll
the limitations period under the Antiterrorism and Effective Death Penalty Act
(AEDPA). The word “State” applies to the entire phrase “post-conviction or
other collateral review.” In contrast with several other provisions of AEDPA,
which refer to “State or Federal” post-conviction proceedings, Congress did not
insert the word “federal” into § 2242(d)(2). If Congress includes particular
language in one section of a statute but omits it in another, it is generally
presumed that Congress intended the disparate treatment. There is “no likely
explanation” for Congress’s omission of the word “federal” other than that
Congress did not intend for petitions for federal review to toll the limitation
period. To read the provision as applying to federal petitions “would render the
word ‘State’ insignificant, if not wholly superfluous.” On the other hand, the
phrase “other collateral review” need not refer to federal collateral review in
order to have independent meaning; operative effect can be given to the phrase
if it is limited to state collateral review. There are forms of “collateral” review,
e.g., challenges to the validity of civil commitment or civil contempt orders, that
are not criminal in nature and hence are not forms of “post-conviction” review.
Also, states employ “diverse terminology” to refer to forms of collateral review
that are available. Finally, interpreting § 2242(d)(2) as inapplicable to federal
petitions is consistent with AEDPA’s purposes of promoting “comity, finality,
and federalism.”
7-2. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,
Souter, and Thomas. Concurring opinions by Stevens, joined by Souter; and by
Souter. Dissenting opinion by Breyer, joined by Ginsburg.
Eastern Associated Coal Corp. v. UMW, District 17 121 S. Ct. 462, 69 USLW 4016
(11-28-00)
Arbitration: Public policy considerations do not require courts to refuse to
enforce an arbitration award ordering an employer to reinstate an employee
truck driver who twice tested positive for marijuana. In this case, the award
suspended the driver for three months and required further substance-abuse
treatment and testing prior to reinstatement. The employer asked a federal
district court to vacate the arbitrator’s award, arguing that the award
contravened a public policy against operation of dangerous machinery by
workers who test positive for drugs. The award implemented the governing
collective bargaining agreement, so the award must be treated as if it were part
of the agreement. Collective bargaining agreements that are contrary to public
policy are unenforceable, but any such public policy must be well established and
clearly ascertainable in laws or legal precedents. Here the applicable law is the
“detailed regulatory regime” of the Omnibus Transportation Employee Testing
Act of 1991 and DOT’s implementing regulations. That regulatory regime
reflects “complex” remedial aims that not only disfavor employee drug use and

CRS-16
favor drug testing, but also promote rehabilitation of employees who use drugs.
The arbitration award, therefore, is “not contrary to these several policies, taken
together.” “Neither Congress nor the [DOT] Secretary has seen fit to mandate
the discharge of a worker who twice tests positive for drugs,” and the Court is
hesitant “to infer a public policy . . . that goes beyond the careful and detailed
[regulatory] scheme.”
9-0. Opinion of Court by Breyer, joined by Rehnquist, Stevens, O’Connor,
Kennedy, Souter, and Ginsburg. Concurring opinion by Scalia, joined by Thomas.
Egelhoff v. Egelhoff 121 S. Ct. 1322, 69 USLW 4206 (3-21-01)
ERISA, preemption: A Washington State statute providing that the
designation of a spouse as the beneficiary of a non-probate asset is revoked
automatically upon divorce is preempted by ERISA to the extent that it applies
to employee benefit plans. ERISA expressly preempts state laws that “relate to
any employee benefit plan,” and the Court has restated this to mean any state law
that “has a connection with or reference to such a plan.” The Court looks both
to the objectives of ERISA and to “the nature of the effect” of the state law on
ERISA plans. Here there is “an impermissible connection” because the
Washington statute purports to govern the payment of benefits, an “area of core
ERISA concern,” and also “interferes with nationally uniform plan
administration.” Moreover, the Washington statute is expressly preempted by
ERISA. ERISA directs the fiduciary to administer the plan “in accordance with
the documents and instruments governing the plan,” and to make payments to
a beneficiary “designated by a participant” or by the terms of the plan. While the
Washington law contains an opt-out provision, the burden on plan administration
would be “hardly trivial,” since plan administrators in effect would have to
maintain familiarity with the laws of all 50 states. The presumption against
federal preemption of state family and probate law is overcome because
“Congress has made clear its desire for pre-emption.”
7-2. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, and Ginsburg. Concurring opinion by Scalia. Dissenting
opinion by Breyer, joined by Stevens.
FEC v. Colorado Republican Fed. Campaign Comm. 121 S. Ct. 2351, 69 USLW 4553
First Amendment, campaign finance, coordinated expenditures: The party
expenditure provision of the Federal Election Campaign Act is not facially
invalid under the First Amendment insofar as it limits the amount of money that
a national or state committee of a political party may spend in coordination with
its own candidate for the Senate or House of Representatives. Beginning with
Buckley v. Valeo (1976), the Court has distinguished between limits on political
contributions, which have been upheld, and limits on political expenditures,
which require closer scrutiny. In Colorado I (1996), the Court invalidated limits
on independent expenditures by political parties. Campaign spending that is
coordinated with a candidate, however, can closely resemble a contribution to
that candidate’s campaign. The limitation on coordinated spending, applicable
to individuals and non-parties, does not impose such a unique burden on parties
that a constitutional exception is required. The Government’s argument that
coordinated expenditures provide a means of circumventing the contribution
limits outweighs the party’s argument that coordinated expenditures are essential

CRS-17
to the party’s principal mission of electing its candidates. The party’s argument
that a party is so “joined at the hip” with its candidates that its spending must
necessarily be coordinated with candidates is “at odds with the history of nearly
30 years under the Act.” There is little evidence to suggest that limits on
coordinated spending have frustrated the ability of political parties to support
their candidates. Moreover, in addition to electing candidates, parties “act as
agents” for PACs and others “who seek to produce obligated officeholders.”
The same test applicable to contributions therefore applies, and there is adequate
evidence to sustain the limit as being “closely drawn” to match the important
government interest in combating political corruption. Under the Act a
contributor is limited to $2,000 in contributions to one candidate, but may give
$20,000 to a national party committee supporting the candidate. Absent the
requirement that most of the party’s spending on a candidate’s behalf be done
independently, “the inducement to circumvent would almost certainly intensify.”
“Coordinated expenditures of money donated to a party are tailor-made to
undermine contribution limits.”
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Scalia and Kennedy, and joined
in part by Rehnquist.
Ferguson v. City of Charleston 121 S. Ct. 1281, 69 USLW 4184 (3-21-01)
Fourth Amendment, prenatal drug testing: A state hospital’s performance of
a diagnostic test to obtain evidence of a patient’s criminal conduct for law
enforcement purposes is an unreasonable search if the patient has not consented
to the procedure. In this case, a city-run hospital in Charleston, South Carolina,
working in conjunction with police and prosecutors, developed a program under
which hospital employees performed urine drug screening on pregnant patients
suspected of cocaine use, and turned over positive results to the police. These
tests were performed without the informed consent of the patients. This case
differs from previous cases in which the Court has recognized an exception to
the warrant requirement for drug testing justified by “special needs” divorced
from a state’s general interest in law enforcement. The “critical difference” lies
in the nature of the “special need” asserted as justification. In this case “the
central and indispensable feature of the policy from its inception was the use of
law enforcement to coerce the patients into substance abuse treatment.” The
“beneficent” purpose does not justify a “special needs” exception when the
immediate objective is to generate evidence for law enforcement purposes.
Because law enforcement “always serves some broader social purpose,” virtually
all suspicionless searches could be justified under the special needs doctrine were
it tied to ultimate rather than immediate objective. Moreover, principles of
knowing waiver require that state employees who seek to obtain evidence from
patients for the purpose of incriminating them make sure that the patients are
fully informed about their constitutional rights.
6-3. Opinion of Court by Stevens, joined by O’Connor, Souter, Ginsburg, and
Breyer. Concurring opinion by Kennedy. Dissenting opinion by Scalia, joined by
Rehnquist, and joined in part by Thomas.
Fiore v. White 121 S. Ct. 712, 69 USLW 4066 (1-9-01)
Due Process, failure to prove element of crime: Pennsylvania deprived the
defendant of due process by convicting him of the crime of operating a

CRS-18
hazardous waste facility without a permit, but in failing to prove that in fact the
defendant did not possess a permit. Failure to possess a permit is a basic
element of the crime, and conviction without proving each element beyond a
reasonable doubt violates due process. The state conceded that the defendant
did possess a permit, but argued that he had deviated so dramatically from the
permit’s terms that he had thereby violated the statute. The Pennsylvania
Supreme Court, in response to the U.S. Supreme Court’s certification of the
question, clarified that a person who possesses a permit but deviates from its
terms does not violate the statute. The conviction for conduct that the criminal
statute, properly interpreted, does not prohibit, thus violates due process.
9-0. Per curiam.
Florida v. Thomas 121 S. Ct. 1905, 69 USLW 4400 (6-4-01)
Supreme Court, jurisdiction: The Supreme Court lacks jurisdiction to review
the decision of the Florida Supreme Court holding that the bright-line rule of
New York v. Belton did not justify a search of a vehicle incident to an arrest
when the police initiated contact with the person after the person had exited his
vehicle. The Florida Supreme Court had remanded the case to the trial court
for further factfinding, and for a determination of whether the vehicle search was
justified under Chimel v. California. Although in some circumstances the Court
will review a state court decision even though further proceedings must take
place in state courts, none of the four exceptions to the “finality” rule is
applicable. The need for further factfinding and for a Chimel determination
eliminate two of the exceptions; the state would not necessarily have to go to
trial without the suppressed evidence, since a final determination on suppression
has not been made; and the State can make “no claim [that] serious erosion of
federal policy” will result from denying immediate review.
9-0. Opinion for unanimous Court by Rehnquist.
Gitlitz v. Commissioner 121 S. Ct. 701, 69 USLW 4060 (1-9-01)
Taxation, Federal, subchapter S shareholders: A subchapter S corporation’s
excluded discharged debt is an “item of income” within the meaning of I.R.C. §
1366(a)(1), and as such it passes through to the corporation’s shareholders and
increases their bases in the corporation’s stock. Section 108(a)’s exclusion of
discharged indebtedness from “gross income” does not affect the status as an
“item of income.” The pass-through occurs before, not after, the reduction of
the S corporation’s tax “attributes” pursuant to section 108(b). This
“sequencing” issue is addressed by section 108(b)(4)(A), which provides that
attribute reductions “shall be made after the determination of the tax imposed by
this chapter.” The tax is imposed on the shareholder, and the shareholder must
adjust his basis and pass through all items of income and loss in order to
determine the amount of the tax. Consequently, the attribute reduction must be
made after the basis adjustment and pass-through.
8-1. Opinion of Court by Thomas, joined by Rehnquist, Stevens, O’Connor,
Scalia, Kennedy, Souter, and Ginsburg. Dissenting opinion by Breyer.

CRS-19
Glover v. United States 121 S. Ct. 696, 69 USLW 4058 (1-9-01)
Ineffective assistance of counsel, showing of prejudice: The Seventh Circuit
erred in ruling that an increase of 6 to 21 months in a defendant’s sentence,
allegedly resulting from inadequate representation, was not significant enough
to amount to “prejudice” for purposes of applying the test for ineffective
assistance of counsel set forth in Strickland v. Washington (1984). Such a rule
is not mandated by the Court’s decision in Lockhart v. Fretwell (1993), holding
that a mere difference in outcome does not always establish prejudice. To the
contrary, “any amount of actual jail time has Sixth Amendment significance.”
An additional difficulty with the Seventh Circuit’s rule is that there is “no
obvious dividing line by which to measure” how long a sentence increase must
be in order to constitute substantial prejudice.
9-0. Opinion for unanimous Court by Kennedy.
Good News Club v. Milford Central School 121 S. Ct. 2093, 69 USLW 4451 (6-11-
01)
First Amendment: viewpoint discrimination, Establishment Clause: Milford
Central School’s exclusion of the Good News Club from meeting after hours at
the school constituted viewpoint discrimination in violation of the Free Speech
Clause of the First Amendment, and was not justified as a means of avoiding
violation of the Establishment Clause. The school’s community use policy
authorized after-hours use of the school for social, civic, and recreational
purposes, but prohibited use for religious purposes. The Good News Club is a
private Christian organization that requested use of the school for “singing
songs, hearing a Bible lesson and memorizing scripture.” The parties agreed that
the community use policy created a limited public forum. Although a limited
public forum may be restricted to certain groups or topics, viewpoint
discrimination is impermissible. Teaching children morals and character
development is a permissible purpose under Milford’s policy, and it is clear that
the Good News Club teaches morals and character development to children.
The Court’s decisions in Lamb’s Chapel and Rosenberger control. Speech
addressing “otherwise permissible subjects cannot be excluded from a limited
public forum on the ground that the subject is discussed from a religious
viewpoint.” Practices that are “quintessentially religious” or “decidedly religious
in nature [can] also be characterized as the teaching of morals and character
development from a particular viewpoint.” There is “no logical difference in
kind between the invocation of Christianity and the invocation of teamwork,
loyalty, or patriotism . . . to provide a foundation for their lessons.” There
would be no Establishment Clause violation in allowing the Club access. The
“neutrality” principle would not be offended, since the Club “seeks nothing more
than to be treated neutrally.” The meetings were to be held after school hours,
were not sponsored by the school, were open to any student who obtained
parental consent, and were to take place in a forum available to other groups.
The argument is unpersuasive that elementary school children might feel coerced
or might believe that the school is endorsing the Club. Since parental consent
is required, the relevant community is the parents, not the children. Cases
finding Establishment Clause violations in introduction of religious content at
obligatory graduation exercises or in the school curriculum are inapposite. The
danger that children would misperceive an endorsement of religion “is no greater

CRS-20
than the danger that they would perceive a hostility toward the religious
viewpoint if the Club were excluded.”
6-3. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy, and joined in part by Breyer. Concurring opinions by Scalia and by
Breyer. Dissenting opinions by Stevens; and by Souter, joined by Ginsburg.
Green Tree Financial Corp.-Ala. v. Randolph 121 S. Ct. 513, 69 USLW 4023 (12-11-
00)
Arbitration, appeals, final decision: A federal district court’s order compelling
arbitration and dismissing a party’s other claims with prejudice is immediately
appealable as a “final decision with respect to an arbitration” within the meaning
of section 16 the Federal Arbitration Act. The consistent and longstanding
interpretation of the term “final decision” includes a decision that ends litigation
and leaves nothing for the court to do but execute the judgment. At the time of
section 16's enactment, the distinction between finality in “embedded”
proceedings and finality in “independent” proceedings was not firmly established,
and was not incorporated in the statute. Failure of an arbitration agreement to
mention arbitration costs and fees does not render the agreement unenforceable.
A party seeking to invalidate an arbitration agreement on the ground that
arbitration would be prohibitively expensive bears the burden of showing the
likelihood of incurring such costs, and the respondent in this case did not meet
that burden.
9-0 (“final decision”); 5-4 (costs). Opinion of Court by Rehnquist, unanimous in
part, and joined in separate part by O’Connor, Scalia, Kennedy, and Thomas.
Opinion by Ginsburg, concurring and dissenting, joined by Stevens and Souter,
and joined in part by Breyer.
Hunt v. Cromartie* 121 S. Ct. 1452, 69 USLW 4234 (4-18-01) *to be changed to
Easley v. Cromartie
Equal Protection, Congressional districting, reliance on race: The three-
judge district court erred in holding that the North Carolina Legislature used
race as the predominant factor in redrawing the boundaries of the 12th
Congressional District in 1997. The district court conducted a 3-day trial after
the Supreme Court had reversed the district court’s previous ruling on summary
judgment and remanded for clarification of the factual record. The district
court’s finding that the legislature’s motive was predominantly racial rather than
political is not adequately supported. The legislature’s aim of protecting
incumbents was “a legitimate political goal.” The court’s finding that race
predominated was based in part on data showing that the legislature had
excluded mostly white precincts with high Democratic Party registration in order
to include heavily African-American precincts with equivalent or lower
Democratic registration. Registration figures, however, do not accurately
predict voting behavior. White voters registered as Democrats “cross over” to
vote for a Republican candidate more often than do African-Americans, who
register and vote Democratic between 95% and 97% of the time. None of the
excluded white precincts were as reliably Democratic as the included African-
American precincts. Testimony by a legislative leader that the redistricting plan
overall “provides for a fair, geographic, racial, and partisan balance” does not
establish that race played a predominant role. While an e-mail from a legislative

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staff member explaining that he had moved the “Greensboro Black community
into the 12th” provides some support for the district court’s conclusion, the
record, taken as a whole, does not show that racial considerations predominated
in the creation of district 12's boundaries.
5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Dissenting opinion by Thomas, joined by Rehnquist, Scalia, and
Kennedy.
Idaho v. United States 121 S. Ct. 2135, 69 USLW 4500 (6-18-01)
Submerged lands, title: Submerged lands lying beneath those portions of Lake
Coeur d’Alene that are within the reservation of lands set aside for the Coeur
d’Alene Tribe did not pass to the State of Idaho at statehood; rather, title to the
submerged lands remained in the Federal Government in trust for the Tribe. The
“default rule” is that title to land beneath navigable waters passes from the
United States to a newly admitted State. If there is a claim that submerged lands
have been reserved by the United States prior to statehood, then “congressional
intent” controls. The first inquiry is whether Congress intended to include
submerged lands in a pre-statehood reservation, and the second issue is whether
Congress intended to defeat the future state’s title to the submerged lands. In
this case the intent to include submerged lands within the reservation for the
Coeur d’Alene Tribe is conceded, and the issue is whether Congress recognized
the reservation in a way that demonstrated an intent to defeat state title.
Agreements to include a portion of the Lake within the boundaries of the
reservation were concluded prior to statehood, but were not ratified by Congress
until after statehood. Nonetheless, congressional intent to retain title to the
submerged lands for benefit of the Tribe is evidenced by the history of
congressionally authorized negotiations with the Tribe. Congress’s objectives
were to extinguish “aboriginal title” in lands outside the reservation, but “to
obtain tribal interests only by tribal consent.” “The intent . . . was that anything
not consensually ceded by the Tribe would remain for the Tribe’s benefit.”
Passage of the bill confirming the reservation was delayed past enactment of the
statehood bill only because of a need to conform House and Senate bills, and not
due to uncertainty over the scope of the reservation. Congressional actions after
statehood reinforced this understanding that the submerged lands had not been
bestowed on Idaho at statehood.
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Dissenting opinion by Rehnquist, joined by Scalia, Kennedy, and Thomas.
Illinois v. McArthur 121 S. Ct. 946, 69 USLW 4096 (2-20-01)
Fourth Amendment, “securing” the premises: Police with probable cause to
believe that the respondent had hidden marijuana in his home did not violate his
Fourth Amendment rights by preventing him from reentering his home,
unaccompanied by a police officer, for a period of two hours while they obtained
a search warrant. Under the circumstances, the warrantless “seizure” of the
premises was reasonable. The officers had probable cause to believe that the
respondent’s trailer home contained evidence of a crime and contraband. The
officers also had good reason to believe that the respondent, unless restrained,
would destroy the drugs before officers could return with a warrant. By merely
“impounding” the home without entering and searching the premises and without

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arresting the respondent, the officers imposed a “significantly less restrictive
restraint,” and did so for a limited period of time. This action was consistent
with other decisions in which the Court has upheld temporary restraints
necessary to preserve evidence until a warrant can be obtained.
8-1. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, Thomas, and Ginsburg. Concurring opinion by Souter.
Dissenting opinion by Stevens.
INS v. St. Cyr 121 S. Ct. 2271, 69 USLW 4510
Habeas corpus, Suspension Clause, deportation, retroactivity: Neither the
Antiterrorism and Effective Death Penalty Act (AEDPA) nor the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) eliminated a
federal court’s habeas corpus jurisdiction under 28 U.S.C. § 2241 to determine
whether the Attorney General retained authority under former section 212(c) of
the Immigration and Nationality Act to waive deportation of certain resident
aliens. The absence of an alternative forum for resolution of the issue, coupled
with “the lack of a clear, unambiguous, and express statement of congressional
intent to preclude judicial consideration on habeas of such an important question
of law, strongly counsels against adopting a construction that would raise
serious constitutional questions” under the Suspension Clause. At a minimum,
the Suspension Clause protects the writ as it existed in 1789, and use of the writ
to review the legality of executive detention was at the writ’s “historical core.”
On the merits, IIRIRA does not evidence a clear congressional intent to apply
retroactively its repeal of the Attorney General’s section 212(c) waiver authority
to aliens who, like the respondent, had entered a plea agreement before
enactment of IIRIRA, at a time when they would have been eligible for a waiver.
Neither the statute’s general effective date nor a “saving provision” declaring the
amendments’ inapplicability to deportation proceedings begun before the
effective date provides unmistakable clarity as to congressional intent with
respect to deportation proceedings begun after the effective date. Given the
frequency with which waivers were granted prior to IIRIRA’s enactment, aliens
like the respondent had a “significant likelihood” of receiving a waiver and
entered plea agreements with that understanding. Consequently, the potential
unfairness of retroactive application of the waiver repeal is “significant and
manifest.”
5-4. Opinion of Court by Stevens, joined by Kennedy, Souter, Ginsburg, and
Breyer. Dissenting opinions by O’Connor; and by Scalia, joined by Rehnquist and
Thomas, and joined in part by O’Connor.
Kansas v. Colorado 121 S. Ct. 2023, 69 USLW 4424 (6-11-01)
Interstate compacts, damages, Eleventh Amendment: A damages award
recommended by the special master in a suit by Kansas alleging violations of the
Arkansas River Compact by Colorado does not violate the Eleventh
Amendment. The Eleventh Amendment by its terms applies only to suits against
a state brought by citizens, and Kansas has “unquestionably” established that it
is not merely suing on behalf of some of its citizen farmers, but has “a direct
interest of its own.” The unliquidated nature of the damages does not preclude
an award of prejudgment interest. The special master acted properly in awarding
only as much prejudgment interest as was required by a balancing of the equities.
In this case the equities do not support an award of interest from the date of the

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first violation of the Compact or the date that Colorado knew or should have
known that it was violating the Compact, but rather support accrual from the
date the complaint was filed. The special master properly determined the value
of crop losses attributed to Colorado’s compact violations.
9-0 (Eleventh Amendment; value of crops); 6-3 (prejudgment interest). Opinion
of Court by Stevens, unanimous in part, and joined in separate part by Rehnquist,
Kennedy, Souter, Ginsburg, and Breyer. Opinion by O’Connor, concurring in part
and dissenting in part, joined by Scalia and Thomas.
Kyllo v. United States 121 S. Ct. 2038, 69 USLW 4431 (6-11-01)
Fourth Amendment, thermal imaging: Use by police of a thermal imaging
device aimed at a private home from a public street to detect relative amounts
of heat within the home constitutes a “search” within the meaning of the Fourth
Amendment, and is presumptively unreasonable without a warrant. Although
(unaided) visual observation is not a search at all, the power of advancing
technology to “shrink the realm of guaranteed privacy” requires a rule designed
to preserve “that degree of privacy that existed when the Fourth Amendment
was adopted.” The rule is that “obtaining by sense-enhancing technology any
information regarding the interior of the home that could not otherwise have
been obtained without physical ‘intrusion into a constitutionally protected area’
. . . constitutes a search – at least where (as here) the technology in question is
not in general public use.” The Government’s attempted distinction between
“off-the-wall” observations and “through-the-wall” surveillance is untenable; the
Court rejected this “mechanical” approach in Katz v. United States (1967),
disallowing warrantless use of an electronic listening device placed on the
outside of a phone booth. The Government’s assertion that the surveillance was
permissible because it did not detect “private activities” occurring within the
home is also untenable. “In the home, . . . all details are intimate details, because
the entire area is held safe from prying government eyes.” Limiting the
prohibition to the recovery of “intimate details” would also be impractical, since
“there is no necessary connection between the sophistication of the surveillance
equipment and the ‘intimacy’ of the details that it observes.”
5-4. Opinion of Court by Scalia, joined by Souter, Thomas, Ginsburg, and
Breyer. Dissenting opinion by Stevens, joined by Rehnquist, O’Connor, and
Kennedy.
Lackawanna County District Attorney v. Coss 121 S. Ct. 1567, 69 USLW 4285 (4-25-
01)
Habeas corpus, challenge to previous convictions used to enhance current
sentence: Federal post-conviction relief under 28 U.S.C. § 2254 is unavailable
to a prisoner challenging a current sentence on the ground that it was enhanced
based on an allegedly unconstitutional prior conviction for which the prisoner is
no longer in custody. The principles applied in Daniels v. United States, supra,
to § 2255 motions are equally applicable to § 2254 habeas petitions. The “most
compelling interest is in the finality of convictions,” and “ease of administration”
is “an additional concern.” There is an exception to the general rule, applicable
in § 2254 as well as § 2255 cases, if the current sentence was enhanced on the
basis of a prior conviction that was obtained after “a failure to appoint counsel
[for an indigent] in violation of the Sixth Amendment.”

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5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Separate parts of O’Connor opinion joined by Rehnquist, Kennedy, and
Thomas; and by Rehnquist and Kennedy. Dissenting opinions by Souter, joined
by Stevens and Ginsburg; and by Breyer.
Legal Services Corp. v. Velazquez 121 S. Ct. 1043, 69 USLW 4157 (2-28-01)
First Amendment, funding restriction, challenges to welfare laws: A
restriction in the Legal Services Corporation Act that prohibits funding for any
organization that participates in litigation that challenges a federal or state
welfare law constitutes viewpoint discrimination in violation of the First
Amendment. Rust v. Sullivan (1991), in which the Court upheld a restriction on
abortion counseling by doctors employed at federally funded family planning
clinics, is distinguished. Rust involved the government’s use of private speakers
to transmit information about the government’s program, and abortion was
outside the scope of that program. The Legal Services Corporation (LSC)
program, on the other hand, “was designed to facilitate private speech, not to
promote a governmental message.” The government’s message in litigation is
delivered by a government attorney, while the LSC lawyer speaks on behalf of
his or her private, indigent client. Moreover, the restrictions on LSC advocacy
“distort [the] usual functioning” of the judiciary, and are “inconsistent with
accepted separation-of-powers principles.” “An informed, independent judiciary
presumes an informed, independent bar,” yet the restriction “prohibits speech
and expression on which courts must depend for the proper exercise of judicial
power.” The restriction operates as “an attempt to exclude from litigation those
arguments and theories Congress finds unacceptable,” since the likely effect of
a LSC attorney’s withdrawal from a case is to leave the indigent client unable to
procure other counsel, and hence unable to challenge the validity of the welfare
laws. This illustrates another contrast with Rust: the patient in Rust was not
required to forfeit the Government-funded advice if she also received abortion
counseling through other channels.
5-4. Opinion of Court by Kennedy, joined by Stevens, Souter, Ginsburg, and
Breyer. Dissenting opinion by Scalia, joined by Rehnquist, O’Connor, and
Thomas.
Lewis v. Lewis & Clark Marine, Inc. 121 S. Ct. 993, 69 USLW 4129 (2-21-01)
Admiralty, saving to suitors, limitation of liability: The “tension” that exists
between the saving to suitors clause (28 U.S.C. § 1333(1)), which preserves
common law remedies, and the Limitation of Liability Act (46 U.S.C. § 181 et
seq.), which limits a shipowner’s liability to the value of the vessel and its cargo
after an accident, is resolved by allowing state courts to adjudicate claims against
vessel owners so long as the vessel owner’s right to seek limitation of liability
is protected. The Limitation Act “is directed at misfortunes at sea where the
losses incurred exceed the value of the vessel and the pending freight.” If the
value of the vessel and freight exceeds the claims, however, “there is no
necessity for the maintenance of the [limitation] action in federal court.” In this
case, where there was only one claimant, and that claimant stipulated that his
claim did not exceed the limitation fund, the federal district court acted properly
in lifting the injunction against the state court proceeding, and, “out of an
abundance of caution” stayed the limitation proceedings so that it could act if the

CRS-25
state court proceeding jeopardized the vessel owner’s rights under the Limitation
Act.
9-0. Opinion for unanimous Court by O’Connor.
Lopez v. Davis 121 S. Ct. 714, 69 USLW 4067 (1-10-01)
Administrative law, deference to agency interpretation: The Bureau of
Prisons’ regulation that denies early release to prisoners whose current offense
is a felony that involved the carrying, possession, or use of a firearm is a
permissible exercise of the discretion conferred by 18 U.S.C. § 3621(e)(2)(B).
Section 3621 directs the Bureau to offer appropriate substance abuse treatment
to prisoners who have a treatable substance abuse condition, and in subsection
(e)(2)(B) also provides that the period of incarceration of “a prisoner convicted
of a nonviolent offense . . . may be reduced by the Bureau” if that prisoner has
successfully completed a treatment program. The regulation, as amended in
1997, does not purport to define the term “prisoner convicted of a nonviolent
offense,” but instead relies upon the discretion conferred on the Bureau to
exclude enumerated categories of inmates. Congress’ use of the permissive
“may” rather than the mandatory “shall” means that the Bureau has the authority,
but not the duty, to grant early release to a nonviolent offender who has
completed the drug treatment program. Chevron analysis applies. Congress has
not spoken directly to the precise question, and the Bureau’s interpretation is
“reasonable both in taking account of pre-conviction conduct and in making
categorical exclusions.” Congress has manifested concern for pre-conviction
behavior by denying eligibility to violent offenders, and the Bureau may
“reasonably” consider other pre-conviction behavior. Nor has Congress limited
the Bureau to case-by-case assessments; the Bureau may resolve issues of
general applicability through rulemaking. Finally, the Bureau reasonably
concluded that an inmate’s “prior involvement with firearms” while committing
a felony suggests a “readiness” to resort to violence that makes early release
inappropriate.
6-3. Opinion of Court by Ginsburg, joined by O’Connor, Scalia, Souter, Thomas,
and Breyer. Dissenting opinion by Stevens, joined by Rehnquist and Kennedy.
Lorillard Tobacco Co. v. Reilly 121 S. Ct. 2404, 69 USLW 4582 (6-28-01)
Regulation of tobacco advertising, preemption, First Amendment:
Massachusetts’ restrictions on outdoor advertising and point-of-sale advertising
of cigarettes are preempted by the Federal Cigarette Labeling and Advertising
Act (FCLAA). The Massachusetts regulations prohibit outdoor advertising
within 1,000 feet of a school, park, or playground, and prohibit “point-of-sale”
advertising placed lower than five feet above the floor of retail establishments.
The FCLAA is a “comprehensive” regulation of the advertising and promotion
of cigarettes. In addition to providing that no “statement” other than that
mandated by the FCLAA shall be required on any cigarette package, it also
provides that “no requirement or prohibition based on smoking and health shall
be imposed under State law with respect to the advertising or promotion of any
cigarettes.” The Massachusetts regulations, targeted at youth exposure to
cigarette advertising, are “based on smoking and health” within the meaning of
the FCLAA; concern about youth exposure is “intertwined” with concern about
smoking and health. The fact that the regulations govern location rather than

CRS-26
content of advertising does not remove them from the preemption language,
which covers all state “requirements and prohibitions.” Similar Massachusetts
restrictions applicable to advertising of smokeless tobacco and cigar products are
not preempted; FCLAA’s preemption provision applies only to cigarettes.
However, these outdoor advertising and point-of-sale restrictions applicable to
smokeless tobacco and cigars violate the First Amendment because they do not
satisfy the fourth step of the Central Hudson test for regulation of commercial
speech. That step requires a “reasonable fit” between the means and ends of a
regulation, yet the regulations are not “narrowly tailored” to achieve such a fit.
The 1,000 foot restriction on outdoor advertising sweeps broadly and imposes
“particularly onerous burdens” in some instances. It would result in “nearly a
complete ban” in urban areas, and applies regardless of the size and degree of
visibility of the sign. The point-of-sale restriction on signs appearing below a
height of five feet does not advance the State’s goal of limiting youth exposure
to advertising, and does not constitute a “reasonable fit,” since not all children
are less than five feet tall, and “those who are certainly have the ability to look
up and take in their surroundings.” Still other regulations that restrict sales
practices by cigarette, smokeless tobacco, and cigar merchants by barring the use
of self-service displays and prohibiting sampling or promotional giveaways,
withstand First Amendment scrutiny. These restrictions regulate conduct for
reasons unrelated to the communication of ideas, serve the state’s interest in age
verification, and leave open ample channels of communication.
5-4 (preemption; First Amendment/outdoor advertising); 6-3 (point-of-sale height
restriction); 9-0 (sales practices). Opinion of Court by O’Connor, unanimous in
part, joined in part by Scalia, Kennedy, Souter, and Thomas; joined in separate
part by Rehnquist, Stevens, Souter, Ginsburg, and Breyer; and joined in still
separate part by Rehnquist, Scalia, Kennedy, and Thomas. Concurring opinions
by Kennedy, joined by Scalia; and by Thomas. Opinion by Souter, concurring in
part and dissenting in part. Opinion by Stevens, concurring in part and dissenting
in part, joined by Ginsburg and Breyer, and joined in part by Souter.
Lujan v. G & G Fire Sprinklers, Inc. 121 S. Ct. 1446, 69 USLW 4222 (4-17-01)
Due Process, public contracts: Provisions of the California Labor Code
authorizing the withholding of payment to a subcontractor on a public works
project if the subcontractor has failed to pay a specified wage to its employees
do not deprive the subcontractor of due process. There is no due process
requirement that the enforcement agency provide notice and hearing to the
subcontractor before directing the contract-awarding agency to withhold
payment. Rather, it suffices that the subcontractor can litigate the dispute in an
ordinary breach-of-contract action for damages. The Court has held that due
process requires pre-deprivation notice and hearing only in situations like
forfeiture, posing an immediate threat to property ownership, or wage
garnishment, posing an immediate threat to the right to gainful employment.
Unlike the claimants in those cases, the claimant here “has not been denied any
present entitlement.”
9-0. Opinion for unanimous Court by Rehnquist.

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Major League Baseball Players Ass’n v. Garvey 121 S. Ct. 1724, 69 USLW 3725 (5-
14-01)
Arbitration, review, appropriate remedy: The Ninth Circuit Court of Appeals
erred in reversing the district court’s remand to an arbitrator and instead
ordering entry of judgment in favor of the respondent. The appeals court had
found that the arbitrator’s ruling was “inexplicable” and “bordered on the
irrational.” Judicial review of arbitration awards entered pursuant to collective
bargaining agreements is “very limited.” If the arbitrator is construing a contract
and acting within the scope of his authority, “even serious error” does not justify
a reversal on the merits. “Even when the arbitrator’s award may properly be
vacated, the appropriate remedy is to remand the case for further arbitration
proceedings.”
8-1. Per curiam. Concurring opinion by Ginsburg. Dissenting opinion by
Stevens.
Nevada v. Hicks 121 S. Ct. 2304, 69 USLW 4528
Native Americans, tribal court jurisdiction: The Fallon Pauite-Shoshone
Tribal Court lacks jurisdiction over civil claims brought against state officials
who entered tribal land to execute a search warrant against a tribal member
suspected of having violated state law off the reservation. As a general matter,
a tribe’s adjudicative jurisdiction over non-members does not exceed its
legislative jurisdiction, and the tribe’s legislative jurisdiction in this case does not
extend to regulation of state wardens executing a search warrant for evidence
of off-reservation crime. Tribal jurisdiction over non-members is limited to
“what is necessary to protect tribal self-government or to control internal
relations.” Essentials of self-government include such things as the power to
tax, to punish tribal offenders, to regulate domestic relations among members,
and to prescribe rules of inheritance for members, but do not exclude all state
regulatory authority on the reservation. When state interests outside the
reservation are implicated – as is the case with crimes committed off reservation
by tribal members – states may regulate the activities even of tribal members on
tribal land. Recognition of state authority to serve process on reservations is
necessary to prevent these areas from becoming asylums for fugitives. Although
Congress has the authority to strip the state of jurisdiction, it has not done so in
this case. Tribal courts are not courts of general jurisdiction that may entertain
suits under 42 U.S.C. § 1983. To recognize such jurisdiction would create an
“anomaly” under the removal statute, which authorizes removal of section 1983
actions from state to federal courts, but makes no provision for removal from
tribal courts. Finally, since it is clear that tribal courts lack jurisdiction over state
officials for causes of action relating to their official duties, requiring exhaustion
of remedies in tribal court would serve no purpose.
9-0. Opinion of Court by Scalia, joined by Rehnquist, Kennedy, Souter, Thomas,
and Ginsburg. Concurring opinions by Souter, joined by Kennedy and Thomas;
by Ginsburg; by O’Connor, joined by Stevens and Breyer; and by Stevens, joined
by Breyer.
New Hampshire v. Maine 121 S. Ct. 1808, 69 USLW 4393 (5-29-01)
State boundaries: New Hampshire is estopped from asserting that its boundary
with Maine along the inland stretch of the Piscataqua River runs along the Maine
shore. New Hampshire agreed, in a 1977 consent judgment entered by the

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Supreme Court and establishing the marine lateral boundary, that the “Middle
of the River” boundary established by earlier decree means the middle of the
river’s main channel of navigation. The rule of judicial estoppel prevents a party
from prevailing in one phase of litigation on one theory and then relying on a
contradictory argument to prevail in a later phase. Several factors in this case
“tip the balance of equities” in favor of judicial estoppel. New Hampshire’s
claim that the river boundary runs along the Maine shore is “clearly inconsistent”
with its earlier interpretation of “Middle of the River.” The Supreme Court
accepted this earlier interpretation, and New Hampshire benefited from that
interpretation. New Hampshire’s 1977 position was not based on “inadvertence
or mistake,” nor did the state lack opportunity or incentive in 1977 to locate the
river boundary at Maine’s shore. Rather, New Hampshire’s 1977 position was
based on a “searching historical inquiry.”
8-0. Opinion of Court by Ginsburg joined by all Justices except Souter, who did
not participate.
New York Times Co. v. Tasini 121 S. Ct. 2381, 69 USLW 4567
Copyright, electronic distribution of print articles: Section 201(c) of the
Copyright Act does not authorize newspaper and other print publishers, without
the authors’ consent, to provide to electronic databases copies of articles written
by freelance authors. When an author contributes an article to a “collective
work” such as a newspaper or magazine, the Act recognizes two distinct
copyrights, one in “each separate contribution,” and one in “the collective work
as a whole.” Section 201(c) provides that the owner of a copyright in a
collective work “is presumed to have acquired only the privilege of reproducing
and distributing the contribution as part of that particular collective work, any
revision of that collective work, and any later collective work in the same
series.” The publishers’ contention that reproducing and distributing the articles
in the electronic databases is a “revision” of the original collective work is
“unacceptable.” As presented to database users, the articles are “clear” of their
original contexts, and an article is not presented as “a part of” either the original
edition or a “revision” of that edition. A “revision” is a “new version” of
something, and the electronic databases “are not recognizable” as a new version
of each small article that they contain. Analogy to microforms is inapt. Unlike
microforms, the databases “do not perceptibly reproduce articles as part of the
collective work to which the author contributed or as part of any ‘revision’
thereof.”
7-2. Opinion of Court by Ginsburg, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, and Thomas. Dissenting opinion by Stevens, joined by Breyer.
Nguyen v. INS 121 S. Ct. 2053, 69 USLW 4438 (6-11-01)
Due Process, Equal Protection, gender-based classification: The statute (8
U.S.C. § 1409) that provides different rules for attainment of citizenship by
children born abroad and out of wedlock to one United States citizen parent and
one non-citizen parent, depending upon whether the one citizen parent is the
mother or the father, does not violate the equal protection component of due
process. If the mother of the out-of-wedlock child is the citizen parent, then the
child acquires U.S. citizenship at birth. If, on the other hand, the father but not
the mother is the citizen parent, a “blood relationship” must be established and

CRS-29
the child must be legitimated or acknowledged by the father before the child’s
18th birthday. A gender-based classification can survive equal protection
challenge if it serves “important” governmental objectives and if the means
employed are “substantially related to the achievement of those objectives.”
Section 1409 satisfies this standard. The first important governmental interest
served by the provision is “the importance of assuring that a biological parent-
child relationship exists.” The mother’s relation is verified at birth. It is a
“reasonable conclusion” by Congress that satisfaction of one of the alternatives
will establish the father’s blood relationship. The second governmental interest
is ensuring that the child and the citizen parent “have some demonstrated
opportunity” to develop a relationship “that consists of the real, everyday ties
that provide a connection between child and citizen parent and, in turn, the
United States.” In the case of a citizen mother, “the opportunity for a
meaningful relationship” with the child “inheres in the very event of birth.” In
the case of the unwed father, “the same opportunity does not result from the
event of birth, as a matter of biological inevitability.” There is “no assurance that
the father and his biological child will ever meet.”
5-4. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, Scalia, and
Thomas. Concurring opinion by Scalia, joined by Thomas. Dissenting opinion
by O’Connor, joined by Souter, Ginsburg, and Breyer.
NLRB v. Kentucky River Community Care, Inc. 121 S. Ct. 1861, 69 USLW 4380 (5-
29-01)
Labor, “supervisor”: The National Labor Relations Board’s rule for allocating
the burden of proof in determining whether an employee is an excepted
“supervisor” within the meaning of the National Labor Relations Act is
reasonable and consistent with the Act, and is entitled to deference. Under the
Board’s rule, the burden is borne by the party asserting that the exception
applies, and that the employee is a supervisor not properly included in a
collective bargaining unit. In this case the burden to establish the excepted
status of employees should have remained on the employer during an unfair labor
practice proceeding. The Board’s interpretation of one element of the statute’s
three-part test for determining supervisory status was unlawful, however. The
statute defines a supervisor as someone who exercises any of 12 listed
supervisory functions in a manner that is not merely routine or clerical, but
instead “requires the use of independent judgment.” The Board’s interpretation
of this language to mean that employees do not use independent judgment when
they exercise “ordinary professional or technical judgment in directing less-
skilled employees” “would insert a startling categorical exclusion into statutory
language that does not suggest its existence.” The breadth of this limitation
“would virtually eliminate ‘supervisors’ from the Act,” and is also unjustified
because it applies to just one of the twelve listed supervisory functions. The
Board’s interpretation would contradict as well the Court’s prior determination
that the test for supervisory status “applies no differently to professionals than
to other employees.”
9-0 (burden of proof); 5-4 (exercise of “independent judgment”). Opinion of Court
by Scalia, unanimous in part, and joined in separate part by Rehnquist, O’Connor,
Kennedy, and Thomas. Opinion by Stevens, joined by Souter, Ginsburg, and
Breyer, concurring in part and dissenting in part.

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Norfolk Shipbuilding & Drydock Co. v. Garris 121 S. Ct. 1927, 69 USLW 4410 (6-4-
01)
Admiralty, wrongful death negligence action: The maritime cause of action
recognized in Moragne v. States Marine Lines (1970) for death caused by
violation of the duty of seaworthiness is equally applicable to death resulting
from negligent breach of a general duty of care. It is already settled that the
general maritime law imposes duties to avoid unseaworthiness and negligence,
that nonfatal injuries caused by the breach of either duty are compensable, and
that death caused by breach of the duty of seaworthiness is also compensable.
Moragne announced a general rule that death caused by violation of a maritime
duty is actionable, but was limited by its facts and holding to the duty of
seaworthiness. There is “no rational basis . . . for distinguishing negligence
from seaworthiness” in this regard. While accommodation of state remedial
statutes is “constitutionally permissible,” to defer to state wrongful death statutes
and thus deny a federal remedy for death while providing a remedy for injury not
resulting in death would create a “choice-of-law anomaly.” Judge-made
maritime law is superseded by applicable federal statutes, but none of the three
“relevant” statutes governs this case, which involves injuries to a non-seaman in
state waters. The Jones Act applies only to seamen, the Death on the High Seas
Act applies only to deaths beyond a marine league from the shore of any state,
and the Longshore and Harbor Workers Compensation Act (LHWCA) allows
claims against employers and vessels, but not against the petitioner in this case,
a “third party” for LHWCA purposes.
9-0. Opinion of Court by Scalia, unanimous in part, and joined in separate part
by Rehnquist, Stevens, O’Connor, Kennedy, and Thomas. Concurring opinion by
Ginsburg, joined by Souter and Breyer.
Ohio v. Reiner 121 S. Ct. 1252, 69 USLW 3616 (3-19-01)
Self-Incrimination: The Ohio Supreme Court erred in holding that the privilege
against self-incrimination is unavailable to those who claim innocence. One of
the “basic functions” of the privilege is “to protect innocent [people] who
otherwise might be ensnared by ambiguous circumstances.” The babysitter of
a child who died of “shaken baby syndrome” had reasonable cause to apprehend
danger from her answers if questioned at the trial of the child’s father, even
though she asserted under immunity that she had not shaken the baby and had
nothing to do with the baby’s injuries. The babysitter had spent extended
periods of time alone with the child in the weeks immediately preceding
discovery of the injuries, and had also been alone with the child during part of
the time during which the fatal trauma could have occurred. In this context the
sitter had a valid Fifth Amendment privilege against self-incrimination.
9-0. Per curiam.
Palazzolo v. Rhode Island 121 S. Ct. 2448, 69 USLW 4605 (6-28-01)
Taking of property, restriction on wetlands development: The petitioner’s
inverse condemnation action, alleging a taking of property resulting from the
State’s denial of permission to fill and develop wetland property, was ripe for
adjudication. Ripeness principles set forth in the Williamson County case (1985)
require the landowner to obtain a final decision that informs a court as to the
extent of permitted development. Because it is clear, due to “the unequivocal

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nature” of Rhode Island’s wetlands regulations and their application by the
administering agency, that the landowner will not be permitted to fill and develop
the wetlands portions of his property “for any likely or foreseeable use,” the
takings claim is ripe. The Rhode Island Supreme Court’s holding that the
petitioner has no right to challenge the wetlands regulations that were in effect
when he succeeded to legal ownership of the property in 1978 is erroneous.
“[A] regulation that otherwise would be unconstitutional absent compensation
is not transformed into a [binding] background principle of the State’s law by
mere virtue of the passage of title.” The state court was correct, however, in
ruling that the petitioner had not been deprived of all economically beneficial use
of his property, it being “undisputed” that the parcel retained significant value
for construction of a residence on an upland portion. The case is remanded for
consideration of the claim in light of principles set forth in the Court’s 1978
decision in Penn Central Transp. Co. v. New York City.
6-3 (ripeness); 5-4 (merits). Opinion of Court by Kennedy, joined by Rehnquist,
O’Connor, Scalia, and Thomas, and joined in part by Stevens. Concurring
opinions by O’Connor and Scalia. Opinion by Stevens concurring in part and
dissenting in part. Dissenting opinions by Ginsburg, joined by Souter and Breyer;
and by Breyer.
Penry v. Johnson 121 S. Ct. 1910, 69 USLW 4402 (6-4-01)
Death penalty, consideration of retardation; self-incrimination: Jury
instructions did not give the jury in the defendant’s second trial a vehicle for
giving effect to its reasoned moral response to evidence of the defendant’s
mental retardation and childhood abuse, as required by the Court’s decision in
Penry v. Lynaugh (Penry I) (1989), following the defendant’s first trial. The
sentencing jury was told to answer the same three “special issues” found in
Penry I to provide constitutionally inadequate guidance – whether the killing
was deliberate, whether the defendant would present a continuing threat to
society, and whether the killing was an unreasonable response to any
provocation – and was further told that an affirmative answer to all three
questions would result in imposition of the death penalty. A “supplemental
instruction,” however, directed consideration of mitigating circumstances,
including any aspect of the defendant’s character or record. If the jury
determined that the mitigating evidence made a life sentence more appropriate
than a death sentence, then the jury was to give “a negative finding” to one of
the three “special issues.” This supplemental instruction “made the jury charge
as a whole internally contradictory, and placed law-abiding jurors in an
impossible situation.” Jurors could give effect to the supplemental instruction
only by changing a truthful “yes” answer to one of the three special issues to an
untruthful “no” answer, and by doing so they would violate their oath to render
a “true verdict.” This “ineffective and illogical” mechanism for consideration of
mitigating evidence was thus no improvement on that found constitutionally
inadequate in Penry I. The defendant’s privilege against self-incrimination was
not violated by introduction during the sentencing phase of the conclusion of a
psychiatric report that the defendant would be dangerous to others if released.
The decision by state courts to allow the evidence was not contrary to, nor did
it involve an unreasonable application of, clearly established federal law. The
Court’s 1981 decision in Estelle v. Smith is distinguishable, and, even if it were

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controlling, it is doubtful that the defendant could establish that admission of the
evidence had a substantial effect on the jury’s verdict.
6-3 (mitigating evidence); 9-0 (self-incrimination). Opinion of Court by
O’Connor, unanimous in part, and joined in separate part by Stevens, Kennedy,
Souter, Ginsburg, and Breyer. Opinion by Thomas, concurring in part and
dissenting in part, joined by Rehnquist and Scalia.
PGA Tour, Inc. v. Martin 121 S. Ct. 1879, 69 USLW 4367 (5-29-01)
Americans with Disabilities Act, use of a cart in PGA events: The Americans
with Disabilities Act of 1990 (ADA) requires the PGA Tour to allow a disabled
golfer to use a golf cart while participating in PGA golf tournaments. Title III
of the ADA prohibits discrimination against any individual “on the basis of
disability in the full and equal enjoyment of the . . . privileges of any place of
public accommodation,” and the PGA tour and qualifying rounds “fit
comfortably within” Title III’s coverage. The ADA’s definition of “public
accommodation” expressly includes a “golf course,” and among the “privileges”
offered by the Tour are those of competing in the qualifying rounds and playing
in Tour-sponsored tournaments. The argument that Title III is inapplicable
because it applies only to clients and customers seeking services, and not to
those providing the services, is rejected. Even assuming that Title III is so
limited, it is appropriate to consider golfers who pay to compete in the qualifying
rounds, and, if successful, participate in tour events, as clients or customers of
the Tour. Such competition is a “privilege” that the Tour makes available to
members of the general public. Prohibited discrimination under Title III is
defined as failure to make “reasonable modifications” necessary to afford
privileges to disabled “individuals” unless making such modifications “would
fundamentally alter the nature of such privileges.” A golf cart is a reasonable
modification that is necessary if the respondent is to play in golf tournaments.
Allowing the respondent to use a golf cart would not “fundamentally alter” the
nature of the events. “Use of carts is not itself inconsistent with the fundamental
character of the game of golf.” The “essence of the game” is “shot-making,” and
there is nothing in the Rules of Golf that forbids the use of carts or penalizes a
golfer who uses one. Nor is the Tour’s walking rule an indispensable part of
tournament golf; the Tour itself permits carts in its first two qualifying rounds,
and also in its Seniors tournaments. The purpose of the walking rule is said to
be to inject the element of fatigue into the game. But even if the rule is effective
in that regard, the ADA mandates an “individualized inquiry.” Because the
walking rule “is at best peripheral to the nature” of the game, it may be waived
in individual cases without working a fundamental alteration. Because the
district court found that the respondent endures greater fatigue when using a cart
than able-bodied competitors do by walking, the rule may be waived in his case
without impairing the rule’s purpose.
7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,
Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Thomas.
Pollard v. E. I. DuPont de Nemours & Co. 121 S. Ct. 1946, 69 USLW 4419 (6-4-01)
Civil Rights Act, compensatory damages, “front pay”: Front pay is not an
element of compensatory damages that can be awarded in employment
discrimination cases pursuant to 42 U.S.C. § 1981, and hence is not subject to
the cap on compensatory damages that is imposed by 42 U.S.C. § 1981a(b)(3).

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Front pay – pay awarded for lost compensation during the period between
judgment and reinstatement, or in lieu of reinstatement – might ordinarily be
considered compensation for future pecuniary losses. The statutory context,
however, indicates that front pay is excluded from compensatory damages
subject to the cap. Before Congress in 1991 expressly authorized the award of
compensatory and punitive damages in employment discrimination cases based
on sex, religion, or disability, section 706(g) of the Civil Rights Act authorized
courts to order reinstatement “with or without back pay.” This language was
patterned on section 10(c) of the National Labor Relations Act, which had been
interpreted to allow awards of “backpay” up to the date of reinstatement. This
form of “backpay,” to the extent that it occurs after the date of judgment, is
known today as “front pay.” The 1991 law provided for recovery of
compensatory and punitive damages “in addition to any relief authorized by
section 706(g),” and further provided that compensatory damages “shall not
include backpay . . . or any other type of relief authorized under section 706(g).”
Because front pay was a type of relief authorized under section 706(g), it is
excluded from the meaning of compensatory damages under section 1981.
There is “no logical difference” between front pay in lieu of reinstatement and
front pay prior to reinstatement, and both are excluded from compensatory
damages and from operation of the cap.
8-0. Opinion of Court by Thomas, joined by all other Justices except O’Connor,
who did not participate.
Rogers v. Tennessee 121 S. Ct. 1693, 69 USLW 4307 (5-14-01)
Due Process, retroactive abrogation of common law rule by court: The
Tennessee Supreme Court’s retroactive application to a criminal defendant of its
decision abolishing the common law “year and a day rule” did not deprive the
defendant of due process. Under the year and a day rule, a defendant could not
be convicted of murder unless his victim had died by the defendant’s act within
a year and a day of that act. Legislative abrogation of the rule could have
violated the Ex Post Facto Clause, but that Clause “does not apply to courts.”
The specific prohibitions of the Ex Post Facto Clause are not incorporated into
the Fourteenth Amendment’s Due Process Clause, which does apply to judicial
decisions. Under the Court’s decision in Bouie v. City of Columbia (1964),
retroactive application of judicial interpretations of criminal statutes violates due
process only if the application is “unexpected and indefensible” by reference to
the law in effect when the prohibited conduct took place. Here the Tennessee’
court’s abolition of the year and a day rule was not unexpected or indefensible.
The rule was “widely viewed as an outdated relic of the common law,” and “had
only the most tenuous foothold” in Tennessee. The rule had never served as the
ground of decision in a Tennessee murder case, and had been mentioned in only
three cases, each time as dictum. Abrogation of the rule in the defendant’s case
was therefore “a routine exercise of common law decisionmaking in which the
court brought the law into conformity with reason and common sense.”
5-4. Opinion of Court by O’Connor, joined by Rehnquist, Kennedy, Souter, and
Ginsburg. Dissenting opinions by Scalia, joined by Stevens and Thomas, and
joined in part by Breyer; and by Breyer.

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Saucier v. Katz 121 S. Ct. 2151, 69 USLW 4481 (6-18-01)
Qualified immunity, arrest, claim of excessive force: The issues of whether
a police officer used excessive force in arresting a suspect, and whether that
officer is entitled to avoid going to trial through operation of the doctrine of
qualified immunity, are separate and distinct inquiries. The Court’s decision in
Graham v. Connor (1989) directs that the issue of excessive force should be
measured by the Fourth Amendment’s objective reasonableness standard –
basically whether the officer’s on-the-scene judgment was reasonable. The
qualified immunity inquiry “has a further dimension” that allows the officer to
make a “reasonable mistake” in his assessment of what the law requires.
Assuming that a constitutional violation (use of excessive force) occurred in this
case, the officer was entitled to qualified immunity. The issue for immunity
purposes is whether a “clearly established” right was violated so that it would
have been clear to a reasonable officer that his conduct was unlawful in the
situation he faced. There was no contravention of a clearly established right.
Under the circumstances (a protest at a military base with the Vice-President in
attendance), there were “substantial grounds for the officer to have concluded
that he had legitimate justification under the law for acting as he did” in dragging
a protester away from the protest scene and shoving him (without injuring him)
into a police van.
9-0 (judgment); 5-3-1 (disposition of qualified immunity claim). Opinion of Court
by Kennedy, joined by Rehnquist, O’Connor, Scalia, and Thomas, and joined in
part by Souter. Concurring opinion by Ginsburg, joined by Stevens and Breyer.
Opinion by Souter, concurring in part and dissenting in part.
Seling v. Young 121 S. Ct. 727, 69 USLW 4073 (1-17-01)
Double Jeopardy, Ex post facto: For purposes of double jeopardy and ex post
facto analysis, a statute determined to be civil and not punitive in nature cannot
be deemed punitive “as applied” to a single individual. Washington’s
Community Protection Act of 1990, which authorizes the civil commitment of
“sexually violent predators,” is very similar to the Kansas law held to be non-
punitive in Kansas v. Hendricks (1997). The Washington Supreme Court has
held that the Community Protection Act is civil in nature, and that status is
assumed for purposes of this case. An “as-applied” analysis of a law already
held to be civil would prove “unworkable.” Such an analysis could not be
conclusive, since “confinement is not a fixed event,” and conditions of
confinement can change over time. Moreover, permitting an as-applied
challenge “would invite an end run around the Washington Supreme Court’s
decision.” Other remedies are available to persons confined as sexual predators.
They may sue under state law to secure their statutory right to adequate care and
independent treatment, they may challenge conditions of confinement under due
process, or they may bring an action under 42 U.S.C. § 1983.
8-1. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,
Souter, Ginsburg, and Breyer. Concurring opinions by Scalia, joined by Souter;
and by Thomas. Dissenting opinion by Stevens.
Semtek Int’l Inc. v. Lockheed Martin Corp. 121 S. Ct. 1021, 69 USLW 4147 (2-27-
01)
Civil procedure, claim preclusion: The claim-preclusive effect in state court
of a dismissal “on the merits” of a federal diversity action is dictated neither by

CRS-35
the Court’s decision in Dupasseur v. Rochereau (1875) nor by Federal Rule of
Civil Procedure 41(b). Dupasseur interpreted and applied the Conformity Act
of 1872, since repealed. Rule 41(b), which provides that a dismissal “operates
as an adjudication on the merits” unless the court otherwise specifies, merely
precludes refiling of the same claim in the same federal district court, and does
not govern claim preclusion. Instead, the issue of the claim-preclusive effect of
a federal judgment is a matter of federal common law ultimately resolved by the
Supreme Court. The rule adopted for federal diversity judgments is the state
rule, i.e., “the rule that would be applied by state courts in the State in which the
federal diversity court sits.”
9-0. Opinion for unanimous Court by Scalia.
Shafer v. South Carolina 121 S. Ct. 1263, 69 USLW 4175 (3-20-01)
Due Process, death penalty, jury instruction on parole eligibility: The South
Carolina Supreme Court incorrectly held that the U.S. Supreme Court’s holding
in Simmons v. South Carolina (1994) is inapplicable to the State’s current
capital sentencing law. Simmons held that due process entitles a defendant to
inform a sentencing jury of his parole ineligibility if his future dangerousness is
at issue and if life imprisonment without possibility of parole is the only
sentencing alternative to the death penalty. After Simmons, South Carolina
amended its capital sentencing procedures to provide for non-capital sentencing
by the judge if the jury does not agree unanimously on the presence of an
“aggravating” circumstance. If, however, the jury does find such an aggravating
circumstance, then the jury does the sentencing, and must choose between a
death sentence and life imprisonment without possibility of parole. The South
Carolina Supreme Court erred in finding Simmons inapplicable once a jury
becomes responsible for sentencing after finding an aggravating circumstance.
The jury in this case was not properly informed of the defendant’s parole
ineligibility. During deliberation the jury had sought further instruction, asking
whether there was “any remote chance” that the defendant could become eligible
for parole, and the trial court had instructed the jury that “parole eligibility or
ineligibility is not for your consideration.”
7-2. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, O’Connor,
Kennedy, Souter, and Breyer. Dissenting opinion by Scalia, joined by Thomas.
Shaw v. Murphy 121 S. Ct. 1475, 69 USLW 4231 (4-18-01)
First Amendment, jailhouse lawyer: A prison inmate does not have a First
Amendment right to provide legal assistance to another inmate. Rather, inmate-
to-inmate communications are governed by the general test set forth in Turner
v. Safley (1987), providing that a prison regulation impinging on inmates’
constitutional rights is valid “if it is reasonably related to legitimate penological
interests.” Inmate-to-inmate correspondence that includes legal assistance is
entitled to no more First Amendment protection than is correspondence not
including legal assistance. The Turner test, which is very deferential to the
judgment of prison officials, “simply does not accommodate” assessment of the
value of the content of the communication. Even if the rule did permit special
protection based on the content of prisoners’ speech, the Court would not
accord that protection to speech that includes legal advice. “Augmenting First
Amendment protection for inmate legal advice would undermine prison officials’

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ability to address the ‘complex and intractable’ problems of prison
administration.” Inmate law clerks “are sometimes a menace to prison
discipline,” and prisoners have “an acknowledged propensity . . . to abuse both
the giving and the seeking of legal assistance.”
9-0. Opinion for unanimous Court by Thomas. Concurring opinion by Ginsburg.
Sinkfield v. Kelley 121 S. Ct. 446, 69 USLW 3362 (11-27-00)
Standing to sue, state legislative redistricting: White (Caucasian) voters who
are residents of majority-white legislative districts lack standing to challenge the
constitutionality of their own districts based on alleged racial gerrymandering of
adjacent “majority-minority” districts. The case is governed by United States v.
Hays (1995). None of the plaintiffs in this case alleged or proved that any of
them was assigned to his or her district as a direct result of having personally
been subjected to a racial classification. The fact that majority-minority districts
may have been unconstitutionally gerrymandered does “not prove anything” with
respect to adjacent majority-white districts.
9-0. Per curiam.
Solid Waste Agency v. Corps of Engineers 121 S. Ct. 675, 69 USLW 4048 (1-9-01)
Clean Water Act, jurisdiction, migratory bird rule: Section 404(a) of the
Clean Water Act (CWA) does not extend jurisdiction to the Corps of Engineers
to regulate an abandoned sand and gravel pit that provides habitat for migratory
birds, but that is not adjacent to navigable waters. Section 404 authorizes the
Corps to grant permits for the discharge of dredged or fill material into
“navigable waters,” defined in the Act as the “waters of the United States.”
Regulations promulgated by the Corps in 1977 define “waters of the United
States” to include various isolated intrastate waters, such as prairie potholes and
natural ponds, that are not tributaries of navigable or interstate waters. A 1986
clarification provided that Corps jurisdiction extends to such isolated waters that
are or could be used as habitat by migratory birds. This migratory bird rule “is
not fairly supported by the CWA.” Congress did not “acquiesce” in the 1977
isolated wetlands rule by rejecting a bill that would have narrowed the statutory
definition to traditionally navigable waters, since there is “no persuasive
evidence” that the bill was proposed in response to the Corps’ claim of
jurisdiction over isolated waters, or that the bill’s failure indicated congressional
acquiescence. Congress did not ratify the 1977 rule by enacting an amendment
to section 404 that authorized state administration of permit programs governing
waters “other than” those used in or capable of use in interstate commerce.
“[O]ther . . . waters” may simply have been a reference to non-navigable waters
adjacent to traditionally navigable waters. Chevron deference to the
administrative interpretation is inappropriate where that interpretation “invokes
the outer limits of Congress’ power,” and where there is no “clear indication”
that Congress intended that result.
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.
Texas v. Cobb 121 S. Ct. 1335, 69 USLW 4213 (4-2-01)
Sixth Amendment, “offense specific” limitation: The Sixth Amendment,
which assures an accused the right to the assistance of counsel “in all criminal

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prosecutions,” is “offense specific.” This means that a criminal suspect who has
been charged with one offense and who is represented by counsel for purposes
of defending that charge is not protected by the Sixth Amendment from police
interrogation about other offenses. For purposes of this rule, “the definition of
an offense is not necessarily limited to the four corners of a charging
instrument.” Rather, the Blockburger test applicable to double jeopardy applies:
if the same act or transaction constitutes a violation of two distinct statutory
provisions, the test is “whether each provision requires proof of a fact which the
other does not.” The Court sees “no constitutional difference between the
meaning of the term ‘offense’ in the contexts of double jeopardy and of the right
to counsel.” In this case police interrogation of a suspect about his involvement
in murder of burglary victims was permissible at a time when he was represented
by counsel on the burglary charge, but when no murder charges had been
brought. As defined by Texas law, burglary and capital murder are not the same
offense under Blockburger.

5-4. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinion by Kennedy, joined by Scalia and Thomas.
Dissenting opinion by Breyer, joined by Stevens, Souter, and Ginsburg.
The Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc. 121 S. Ct. 1776, 69 USLW
4344 (5-21-01)
Securities: Selling an option to buy stock while secretly intending never to
honor that option is a violation of section 10(b) of the Securities Exchange Act
of 1934, which prohibits the use of “any manipulative or deceptive device or
contrivance” in connection with the purchase or sale of a security. The secret
intent not to honor the option amounts to misrepresentation within the meaning
of section 10(b) and implementing Rule 10(b)(5). The fact that the agreement
was oral does not exclude it from the Act’s coverage. Case law holding the Act
inapplicable to misrepresentations that dissuade a potential buyer from buying
is not controlling, since in this case an option was actually sold. The secret
reservation rendered that option valueless, and therefore implicated section
10(b)’s policy of full disclosure concerning a sale. Finally, the case is not a
simple dispute over ownership, or breach of contract, but rather involves a claim
of fraudulent misrepresentation.
9-0. Opinion for unanimous Court by Breyer.
TrafFix Devices, Inc. v. Marketing Displays, Inc. 121 S. Ct. 1255, 69 USLW 4172
(3-20-01)
Patents, trade dress protection: A dual spring design intended to keep
temporary road signs from toppling in strong winds is a functional feature for
which there is no trade dress protection under the Lanham Act. Trade dress is
a “secondary meaning” of a product when its design or packaging attains a
distinctiveness which serves to identify the product with its manufacturer or
source. The person who asserts trade dress protection has the burden of proving
that the matter sought to be protected against copying is not functional. An
expired patent can have an important bearing on a trade dress claim by helping
to identify the functional aspects of design. In this case the fact that the dual-
spring design was the central advance claimed in the expired patent created a
strong inference of functionality that the respondent was unable to overcome.
Even in the absence of the expired patent, the respondent could not have

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disproved functionality. Because the dual-spring mechanism “provides a unique
and useful mechanism to resist the force of the wind,” it is “essential to the use
or purpose of the device,” and hence is functional.
9-0. Opinion for unanimous Court by Kennedy.
Tyler v. Cain 121 S. Ct. 2478, 69 USLW 4620 (6-28-01)
AEDPA, habeas corpus, “new rule”: The rule of Cage v. Louisiana (1990),
that a jury instruction is unconstitutional if there is a reasonable likelihood that
the jury understood the instruction to allow conviction without proof beyond a
reasonable doubt, does not qualify under the Antiterrorism and Effective Death
Penalty Act (AEDPA) as a new rule of constitutional law that has been “made
retroactive to cases on collateral review by the Supreme Court.” The
consequence is that a habeas corpus petition relying for the first time on Cage
v. Louisiana fails to qualify for an exception to AEDPA’s general rule requiring
dismissal of petitions that assert a claim not previously presented. A new rule
is “made retroactive” by the Supreme Court only if the Court holds it to be
retroactive. The Court has not held that the Cage rule is retroactive. The Cage
decision itself did not make the rule retroactive, and the Court’s decision in
Sullivan v. Louisiana (1993) “held only that a Cage error is “structural,” i.e.,
that it is “not amenable to harmless-error analysis and will always invalidate the
conviction.” Nor did Sullivan make clear that retroactive application is
warranted through application of principles set forth in Teague v. Lane (1989),
which recognized an exception for “watershed rules . . . implicating the
fundamental fairness and accuracy of the criminal proceeding.” The present case
does not afford the Court an opportunity to make Cage retroactive.
5-4. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Concurring opinion by O’Connor. Dissenting opinion by Breyer, joined
by Stevens, Souter, and Ginsburg.
United Dominion Industries, Inc. v. United States 121 S. Ct. 1934, 69 USLW 4413
(6-4-01)
Taxation, Federal, product liability losses: The product liability loss of an
affiliated group of corporations that elects to file a consolidated federal income
tax return must be figured on a consolidated basis in the first instance, not by
aggregating product liability losses separately determined company by company.
A taxpayer’s “product liability loss” (PLL) – a loss that can be carried back ten
years – is defined by the Code as the lesser of its “net operating loss” (NOL) and
its product liability “expenses” (PLEs). Applying this definition requires a
taxpayer first to determine whether it has a net operating loss, or whether instead
it has a taxable income, since a taxpayer can have a product liability loss only if
it has a net operating loss. The Code and regulations governing affiliated groups
filing consolidated returns provide only one definition of net operating loss:
“consolidated” net operating loss (CNOL). The concept of a separate net
operating loss “simply does not exist.” The only comparison that can be made,
therefore, between product liability expenses and a net operating loss is with the
“consolidated” net operating loss. “Comparable treatment” of public liability
losses of the usual corporate taxpayer and a group filing a consolidated return
can be achieved “only if the comparison of PLEs with a limiting loss amount
occurs at the consolidated level after CNOL has been determined.” Neither of

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the two suggested methods of computing PLL on a separate-member basis
squares with the notion of comparability as applied to consolidated return
regulations.
8-1. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Thomas, Ginsburg, and Breyer. Concurring opinion by Thomas.
Dissenting opinion by Stevens.
United States v. Cleveland Indians Baseball Co. 121 S. Ct. 1433, 69 USLW 4225 (4-
17-01)
FICA, FUTA, taxation of back wages: For purposes of the Federal Insurance
Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA),
awards of back wages should be attributed to the year in which they are actually
paid, and not to the year in which they should have been paid. Both statutes
refer to “wages paid during” a calendar year. Because the Court in Social
Security Board v. Nierotko (1946) interpreted the same phrase in the Social
Security Act to permit an allocation-back rule for backpay, the Court “cannot
say” that the FICA and FUTA provisions have a plain meaning that precludes
allocation of backpay to the year it should have been paid. Ordinarily, identical
statutory language is given the same interpretation each time it appears.
Nierotko, however, “does not compel symmetrical construction.” The concerns
about worker eligibility for Social Security benefits that underlay Nierotko have
no relevance in the tax setting, where the concern instead is “fiscal
administrability.” Although some “inequities” and “anomalies” can result from
application of the year-of-payment rule, and there is “some tension” between the
“twin aims” that the tax provisions be “both efficiently administrable and fair,”
the regulations and the agency’s interpretation of them are both longstanding and
reasonable, and are entitled to deference.
9-0. Opinion of Court by Ginsburg, joined by Rehnquist, Stevens, O’Connor,
Kennedy, Souter, Thomas, and Breyer. Concurring opinion by Scalia.
United States v. Hatter 121 S. Ct. 1782, 69 USLW 4336 (5-21-01)
Judges, Compensation Clause, Social Security and Medicare taxes: The
Compensation Clause of Article III, § 1, which provides that the compensation
of federal judges “shall not be diminished during their continuance in office,”
prevents the government from collecting Social Security taxes, but not Medicare
taxes, from federal judges who held office before Congress extended those taxes
to federal employees. The Clause “does not prevent Congress from imposing
a non-discriminatory tax laid generally upon judges and other citizens . . . , but
it does prohibit taxation that singles out judges for specially unfavorable
treatment.” The Court’s decision in Evans v. Gore (1920) is overruled insofar
as it held that the Compensation Clause prohibits Congress from applying a
generally applicable, nondiscriminatory tax to the salaries of federal judges.
“[T]he potential threats to judicial independence that underlie [the Compensation
Clause] cannot justify a special judicial exemption from a commonly shared tax.”
“There is no good reason why a judge should not share the tax burdens borne
by all citizens.” The Medicare tax, extended to all federal employees in 1982,
is such a nondiscriminatory tax that may be applied to federal judges. The 1983
extension of the Social Security tax to then-sitting judges, however, “is a
different matter.” The 1983 Social Security law gave 96% of federal employees
“total freedom” of choice about whether to participate in the system, and

CRS-40
structured the system in such a way that “virtually all” of the remaining 4% of
employees – except the judges – could opt to retain existing coverage. By
requiring then-sitting judges to join the Social Security System and pay Social
Security taxes, the 1983 law discriminated against judges in violation of the
Compensation Clause. This constitutional violation was not cured when
Congress in 1984 increased judges’ salaries by an amount greater than the
amount of Social Security taxes that they were required to pay.
5-2 (Medicare tax); 7-0 (Social Security tax). Opinion of Court by Breyer, joined
by Rehnquist, Kennedy, Souter, and Ginsburg, and joined in part by Scalia.
Concurring and dissenting opinion by Scalia. Dissenting opinion by Thomas.
United States v. Mead Corp. 121 S. Ct. 2164, 69 USLW 4488 (6-18-01)
Administrative law, deference to agency interpretation: A tariff classification
ruling by the United States Customs Service is not entitled to judicial deference
under principles set forth in Chevron v. NRDC (1984), but instead is “eligible to
claim respect under” Skidmore v. Swift & Co. (1944). The applicable statute
authorizes the Customs Service to fix the classification and duty rate for
merchandise under rules and regulations prescribed by the Secretary of the
Treasury. Those regulations in turn authorize classification by “ruling letters”
that describe the merchandise, determine the appropriate classification, and
specify the corresponding tariff. Ruling letters are not subject to notice and
comment before being issued, and may be modified or revoked without notice.
Any of the 46 port-of-entry Customs offices, as well as Customs Headquarters,
may issue ruling letters. Chevron deference is appropriate if Congress has
conferred authority on an agency “to speak with the force of law when it
addresses ambiguity in the statute,” as when the agency conducts adjudication
or notice-and-comment rule making. The Customs ruling letters bind only the
parties to the ruling, not third parties, and thus fall short of the kind of
“rulemaking with force of law” that merits Chevron deference. Instead, the
ruling letters “are best treated like ‘interpretations contained in policy
statements, agency manuals, and enforcement guidelines.’” Under Skidmore,
some deference can be accorded these less formal agency actions based on
consideration of such factors as their persuasive force, the complexity of the
regulatory scheme, and the specialized expertise of the agency.
8-1. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,
Kennedy, Thomas, Ginsburg, and Breyer. Dissenting opinion by Scalia.
United States v. Oakland Cannabis Buyers’ Cooperative 121 S. Ct. 1711, 69 USLW
4316 (5-14-01)
Controlled Substances, no exception for medical marijuana: There is no
medical necessity exception to the prohibitions in the Controlled Substances Act
on the manufacture and distribution of marijuana. Whether or not medical
necessity can ever be a defense when the applicable federal statute does not
expressly provide for it – and “such a defense would entail a social balancing that
is better left to Congress” – the defense “cannot succeed when [Congress] itself
has made a ‘determination of values.’” Congress has done so in the Controlled
Substances Act. The structure of the Act, which divides drugs into five
schedules and imposes different restrictions, depending in part on whether the
drug has an accepted medical use, reinforces this conclusion. By placing
marijuana in the most restrictive schedule (schedule I), Congress necessarily

CRS-41
determined that the drug had “no currently accepted medical use in treatment in
the United States.” The Act “consistently treats all schedule I drugs alike,”
whether the drugs have been placed in schedule I by Congress or have been so
categorized by the Attorney General, and the Cooperative offered “no
convincing explanation” for why drugs placed on the schedule by Congress
should be subject to fewer controls than those placed there by the Attorney
General. The canon of constitutional doubt has no application because the
statute is not ambiguous on this point. The Ninth Circuit erred in ruling that the
district court had discretion to recognize a medical necessity exception.
Although district courts have broad discretion in formulating equitable relief,
they may not “ignore the judgment of Congress, deliberately expressed in
legislation.”
8-0. Opinion of Court by Thomas, joined by Rehnquist, O’Connor, Scalia, and
Kennedy. Concurring opinion by Stevens, joined by Souter and Ginsburg. Breyer
did not participate.
United States v. United Foods, Inc. 121 S. Ct. 2334, 69 USLW 4543
First Amendment, compelled payment for generic advertising: The
Mushroom Promotion, Research, and Consumer Information Act violates the
First Amendment by imposing mandatory assessments on mushroom handlers for
the purpose of funding generic advertising to promote mushroom sales. Even
if it is accepted that commercial speech is entitled to less protection than other
speech, there is no basis in Supreme Court precedent for sustaining the
compelled assessment. In Glickman v. Wileman Brothers & Elliott (1997), the
Court upheld a similar assessment imposed on California fruit growers, but the
program sustained in Glickman differs “in a most fundamental respect” from the
mushroom program. There the mandated assessments were “ancillary to a more
comprehensive program restricting marketing autonomy,” while here there is “no
broader regulatory system in place.” Unlike the marketing scheme upheld in
Glickman, the mushroom program contains no marketing orders that regulate
how mushrooms may be produced and sold, no exemption from the antitrust
laws, and nothing else that forces mushroom producers to associate as a group
to make cooperative decisions. But for the assessment for advertising, the
mushroom growing business is unregulated.
6-3. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, Scalia, Souter,
and Thomas. Concurring opinions by Stevens and Thomas. Dissenting opinion
by Breyer, joined by Ginsburg, and joined in part by O’Connor.
Whitman v. American Trucking Ass’ns 121 S. Ct. 903, 69 USLW 4136 (2-27-01)
Clean Air Act; delegation; deference to agency interpretation: Section
109(b)(1) of the Clean Air Act, which directs the EPA Administrator to set
primary ambient air quality standards “the attainment and maintenance of which
. . . are requisite to protect the public health [with] an adequate margin of
safety,” unambiguously bars cost considerations in setting the standards. Section
109 is not an unconstitutional delegation of legislative power. The provision
contains an “intelligible principle” to guide the Administrator in setting
standards, and that is all that is constitutionally required. The Court has upheld
other “strikingly similar” provisions – directing that standards be set to avoid an
“imminent hazard to the public safety” or to assure that “no employee will suffer
any impairment of health” – and the Court has never required that statutes

CRS-42
provide “a determinate criterion for saying how much of the regulated harm is
too much.” The court of appeals had jurisdiction to review EPA’s
implementation of the revised ambient air quality standard for ozone in
“nonattainment” areas. The statute is ambiguous as to the manner in which
Subpart I (containing general nonattainment regulations) and Subpart 2
(containing ozone-specific nonattainment regulations) of Part D of Title I
interact with regard to revised ozone standards. The Court, applying Chevron
principles, would defer to any reasonable EPA resolution of that ambiguity.
EPA’s resolution, however, is not reasonable. Although there are gaps in
Subpart 2's coverage, Subpart 2 eliminates regulatory discretion that Subpart 1
allowed. EPA’s solution, making Subpart 2 inapplicable once a new standard
has been promulgated, “completely nullifies textually applicable provisions meant
to limit its discretion.”
9-0. Opinion of Court by Scalia, unanimous in part; joined in part by Rehnquist,
Stevens, O’Connor, Kennedy, Souter, Thomas, and Ginsburg; and joined in
separate part by Rehnquist, O’Connor, Kennedy, Thomas, Ginsburg, and Breyer.
Concurring opinions by Thomas; by Stevens, joined by Souter; and by Breyer.
Zadvydas v. Davis 121 S. Ct. 2491, 69 USLW 4626 (6-28-01)
Immigration, indefinite detention of aliens subject to removal: The provision
of immigration law, 8 U.S.C. § 1231(a)(6), which allows detention of a
removable alien “beyond the [90-day] removal period,” does not permit
indefinite detention. Because indefinite detention would raise “serious
constitutional concerns,” the statute is construed to contain “an implicit
‘reasonable time’ limitation, the application of which is subject to federal court
review.” Neither alien status itself nor lack of a legal right to live at large in this
country justifies indefinite detention. The choice is not between imprisonment
and “living at large,” but rather between imprisonment and supervised release.
Cases allowing detention of aliens at the border are inapplicable, since the Due
Process Clause, unavailable to aliens at the border and elsewhere outside the
United States, protects all persons within the United States, including illegal
aliens. Congress’s “plenary power” over immigration law “is subject to
important constitutional limitations.” Congress has not provided “clear
indication” of an intent to authorize indefinite detention, nor does anything in the
history of the statute clearly demonstrate such an intent. Congress could have
employed clearer language, e.g., that applicable to detention of a “terrorist
alien,” if it had intended to authorize indefinite detention. The “reasonable time”
during which detention is permissible is a period “reasonably necessary to bring
about that alien’s removal from the United States.” In order to grant the
Executive Branch “appropriate leeway” and “for the sake of uniform
administration in the federal courts,” a period of six months is determined to be
a “presumptively reasonable” detention period.
5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter, and
Ginsburg. Dissenting opinions by Scalia, joined by Thomas; and by Kennedy,
joined by Rehnquist, and joined in part by Scalia and Thomas.

CRS-43
Index
Administrative law
Chevron deference, early release of prisoners . . . . . . . . . . . . . . . . . . . . . . 25
deference to agency interpretation, Chevron scope clarified . . . . . . . . . . . 40
deference to NLRB interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
exhaustion of remedies, Prison Litigation Reform Act . . . . . . . . . . . . . . . . 5
no Chevron deference, expansive interpretation of power . . . . . . . . . . . . . 36
no Chevron deference, unreasonable agency interpretation . . . . . . . . . . . . 41
Admiralty
wrongful death action based on negligence . . . . . . . . . . . . . . . . . . . . . . . . 30
Americans with Disabilities Act
right of disabled golfer to use golf cart in PGA events . . . . . . . . . . . . . . . 32
suits against state employers barred by 11th Amendment . . . . . . . . . . . . . . 5
Antiterrorism and Effective Death Penalty Act
"properly filed" application for post-conviction relief . . . . . . . . . . . . . . . . . 2
limitation on habeas corpus, "new rule" exception . . . . . . . . . . . . . . . . . . 38
repeal of deportation waiver authority, retroactive effect . . . . . . . . . . . . . 22
tolling of limitations period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Appeals
correction of failure to sign notice of appeal . . . . . . . . . . . . . . . . . . . . . . . . 4
order compelling arbitration is "final decision" . . . . . . . . . . . . . . . . . . . . . 20
standard of review, punitive damages awards . . . . . . . . . . . . . . . . . . . . . . 13
standard of review, sentencing, "related" prior convictions . . . . . . . . . . . . . 7
Arbitration
enforceability of agreement, public policy considerations . . . . . . . . . . . . . 15
enforcement of award, waiver of tribal immunity from suit . . . . . . . . . . . . . 9
judicial review of arbitration award, remand appropriate remedy . . . . . . . 27
order compelling arbitration appealable as final decision . . . . . . . . . . . . . . 20
transportation workers, coverage under Fed. Arbitration Act . . . . . . . . . . 10
Athletics
high schools, statewide regulation, state action . . . . . . . . . . . . . . . . . . . . . . 6
Attorney’s fees
catalyst theory invalid interpretation of "prevailing party" . . . . . . . . . . . . . . 6
Civil procedure
claim preclusion following dismissal of diversity action . . . . . . . . . . . . . . . 34
Civil rights
Title VI, no right of action to enforce disparate-impact regs . . . . . . . . . . . . 1
Title VII, front pay, exclusion from cap on compensatory damages . . . . . 32
Title VII, retaliation claim, sexual harassment . . . . . . . . . . . . . . . . . . . . . 11
Clean Air Act
cost considerations impermissible in setting primary standards . . . . . . . . . 41
Clean Water Act
migratory bird rule, Corps of Engineers lacks jurisdiction . . . . . . . . . . . . . 36
Compensation Clause
application of Social Security and Medicare taxes to judges . . . . . . . . . . . 39
Congressional districting
reliance on race permissible if not "predominant factor" . . . . . . . . . . . . . . 20
Controlled Substances Act
no medical necessity exception for marijuana . . . . . . . . . . . . . . . . . . . . . . 40

CRS-44
Copyright
electronic distribution of print articles . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Counsel
ineffective counsel, showing of prejudice . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sixth Amendment right to assistance is "offense-specific" . . . . . . . . . . . . . 36
Death penalty
due process, sentencing, jury instruction on parole eligibility . . . . . . . . . . 35
jury's exercise of discretion, defendant's mental retardation . . . . . . . . . . . . 31
Delegation of legislative power
Clean Air Act § 109 provides intelligible principle . . . . . . . . . . . . . . . . . . 41
Double Jeopardy
punitive nature of law, as-applied challenge rejected . . . . . . . . . . . . . . . . . 34
Drug testing
pregnant cases in state-run hospital, Fourth Amendment violation . . . . . . 17
Drugs
vehicle checkpoints, Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 11
Due Process
capital case, jury instruction on parole eligibility . . . . . . . . . . . . . . . . . . . . 35
failure to prove element of crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
public contracts, withholding of payment, remedies . . . . . . . . . . . . . . . . . 26
retroactive abrogation of common law rule by court . . . . . . . . . . . . . . . . . 33
Elections
ballot labels identifying candidates not supporting term limits . . . . . . . . . . 12
Electronic communications
interception, disclosure of contents, First Amendment . . . . . . . . . . . . . . . . 4
Eleventh Amendment
enforcement of interstate compact, damages award against state . . . . . . . 22
Equal Protection
congressional districting, reliance on race . . . . . . . . . . . . . . . . . . . . . . . . . 20
gender-based classification, citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
presidential election, Florida recount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ERISA
preemption, state statute, designation of beneficiary . . . . . . . . . . . . . . . . . 16
Estoppel
judicial estoppel, boundary dispute between states . . . . . . . . . . . . . . . . . . 28
Ex post facto
Clause inapplicable to judicial decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 33
punitive nature of law, as-applied challenge rejected . . . . . . . . . . . . . . . . . 34
Federal Arbitration Act
order compelling arbitration appealable as "final decision" . . . . . . . . . . . . 20
scope of exclusion from coverage, transportation workers . . . . . . . . . . . . 10
Federal Cigarette Labeling and Advertising Act
preemption of state restrictions on cigarette advertising . . . . . . . . . . . . . . 25
First Amendment
campaign finance, coordinated expenditures . . . . . . . . . . . . . . . . . . . . . . . 16
compelled payment for generic advertising . . . . . . . . . . . . . . . . . . . . . . . . 41
funding restriction, legal services, challenges to welfare laws . . . . . . . . . . 24
prisoner, no right to provide legal assistance to another inmate . . . . . . . . . 35
prohibition on disclosure of illegally intercepted communication . . . . . . . . . 4
state restrictions on tobacco advertising . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CRS-45
viewpoint discrimination, religious groups, use of schools . . . . . . . . . . . . 19
Flood Control Act
scope of sovereign immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FOIA
no “Indian trust” exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fourteenth Amendment enforcement power
ADA, invalid abrogation of 11th Amendment immunity . . . . . . . . . . . . . . . 5
Fourth Amendment
arrest rather than citation permissible for minor offense . . . . . . . . . . . . . . . 3
drug interdiction vehicle checkpoints violate the Amendment . . . . . . . . . . 11
non-consensual prenatal drug testing in state-run hospital . . . . . . . . . . . . . 17
pretextual arrest permissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
securing the premises while obtaining warrant upheld . . . . . . . . . . . . . . . . 21
warrantless thermal imaging of home presumptively unreasonable . . . . . . 23
Golf
ADA requires PGA Tour to allow disabled golfer to use cart . . . . . . . . . . 32
Habeas corpus
AEDPA, "new rule" exception to dismissal of claim . . . . . . . . . . . . . . . . . 38
AEDPA, "properly filed" application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AEDPA, limitations period, tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
challenge to previous convictions used to enhance current one . . . . . . . . . 23
use to challenge retroactive effect of immigration law change . . . . . . . . . . 22
Immigration
indefinite detention of aliens subject to removal . . . . . . . . . . . . . . . . . . . . 42
judicial review, retroactive repeal of A.G.'s waiver authority . . . . . . . . . . 22
judicial review, survival of habeas corpus . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Interstate Agreement on Detainers
antishuttling, transportation of prisoner for arraignment . . . . . . . . . . . . . . . 1
Interstate commerce
interpretation of phrase “engaged in commerce” . . . . . . . . . . . . . . . . . . . . 10
Interstate compacts
enforcement, damages award against state, Eleventh Amendment . . . . . . . 22
Judges
Compensation Clause, Social Security and Medicare taxes . . . . . . . . . . . . 39
Labor
"supervisor": exercise of independent judgment, burden of proof . . . . . . . 29
Legal services
funding restriction invalid under First Amendment . . . . . . . . . . . . . . . . . . 24
Marijuana
no medical necessity exception to Controlled Substances Act . . . . . . . . . . 40
Maritime law
limitation of liability, relation to saving to suitors clause . . . . . . . . . . . . . . 24
Medical Device Amendments
preemption, state tort action for fraud on FDA . . . . . . . . . . . . . . . . . . . . . . 7
Mental retardation
capital punishment, jury's "reasoned moral response" . . . . . . . . . . . . . . . . 31
Migratory bird rule
jurisdiction of Corps of Engineers under CWA § 404 . . . . . . . . . . . . . . . . 36
Mootness
effect of withdrawal of license application . . . . . . . . . . . . . . . . . . . . . . . . 11

CRS-46
Mushroom Promotion, Research, and Consumer Information Act
compelled contribution to generic ads, First Amendment violation . . . . . . 41
Native Americans
tribal court jurisdiction, civil claim against state official . . . . . . . . . . . . . . 27
tribal immunity from suit, waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
tribal taxation of non-members on non-Indian fee land . . . . . . . . . . . . . . . . 3
Overruled decisions
Evans v. Gore (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Patents
trade dress protection, functional features of product . . . . . . . . . . . . . . . . 37
Preemption
ERISA, Washington statute affecting plan beneficiary . . . . . . . . . . . . . . . 16
Massachusetts restrictions on tobacco advertising . . . . . . . . . . . . . . . . . . 25
Medical Device Amendments, state tort action for fraud on FDA . . . . . . . . 7
Presidential election
Florida recount, equal protection violation . . . . . . . . . . . . . . . . . . . . . . . . . 8
remand to Florida Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Prison Litigation Reform Act
exhaustion of administrative remedies when relief unavailable . . . . . . . . . . . 5
Prisoners
no 1st Amendment right to provide legal advice to fellow inmates . . . . . . 35
Privacy
Fourth Amendment protection from thermal imaging of home . . . . . . . . . 23
Private right of action
no implied action to enforce disparate-impact regs . . . . . . . . . . . . . . . . . . . 1
Punitive damages
standard of review, appeals courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Qualified immunity
police officer, defense to claim of excessive force in arrest . . . . . . . . . . . . 34
Religion: Establishment Clause
after-hours use of school for religious purposes . . . . . . . . . . . . . . . . . . . . 19
RICO
"enterprise" distinct from "person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ripeness
takings action, final decision as to permitted use of land . . . . . . . . . . . . . . 31
Securities Exchange Act
sale of option with intent not to honor constitutes violation . . . . . . . . . . . 37
Self-Incrimination
privilege available to those who claim innocence . . . . . . . . . . . . . . . . . . . 30
psychiatric report, introduction during capital sentencing . . . . . . . . . . . . . 31
Sentencing
motion to vacate, challenge to previous convictions . . . . . . . . . . . . . . . . . 13
standard of review, "related" prior convictions . . . . . . . . . . . . . . . . . . . . . . 7
Sexually violent predators
civil confinement, rejection of as-applied challenge . . . . . . . . . . . . . . . . . . 34
Sixth Amendment
right to assistance of counsel is "offense-specific" . . . . . . . . . . . . . . . . . . . 36
Standing to sue
state legislative districting, gerrymander of adjacent district . . . . . . . . . . . 36

CRS-47
State action
nominally private statewide regulatory body . . . . . . . . . . . . . . . . . . . . . . . . 6
States
admission, title to submerged lands, reservation by U.S. . . . . . . . . . . . . . . 21
authority to serve process on tribal lands . . . . . . . . . . . . . . . . . . . . . . . . . 27
Maine-New Hampshire boundary, Piscataqua River . . . . . . . . . . . . . . . . . 27
Statutes, interpretation
canon of constitutional doubt inapplicable . . . . . . . . . . . . . . . . . . . . . . . . 41
clear, "unambiguous" statutory language . . . . . . . . . . . . . . . . . . . . . . . . . 41
constitutional doubt, elimination of judicial review . . . . . . . . . . . . . . . . 9, 22
constitutional doubt, indefinite detention of aliens . . . . . . . . . . . . . . . . . . 42
ejusdem generis canon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
passage of amendment not ratification of agency interpretation . . . . . . . . 36
plain language precludes catalyst theory for attorney's fees . . . . . . . . . . . . . 7
rejection of bill not acquiescence in agency interpretation . . . . . . . . . . . . . 36
reliance on statutory purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
resolving "tension" between two statutes . . . . . . . . . . . . . . . . . . . . . . . . . 24
rule of lenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
same phrase in different contexts, different construction . . . . . . . . . . . . . . 39
statutory history, context for amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 6
technical correction, presumption of no "radical" change in law . . . . . . . . 14
Submerged lands
title at statehood, reservation for use by Indian tribe . . . . . . . . . . . . . . . . . 21
Supreme Court
jurisdiction, exceptions to finality requirement inapplicable . . . . . . . . . . . . 18
Suspension Clause
historical "core," effect on statutory construction . . . . . . . . . . . . . . . . . . . 22
Taking of property
notice rule, Rhode Island restriction on wetlands development . . . . . . . . . 30
Tariffs
Customs Service ruling letters, Chevron deference inappropriate . . . . . . . 40
Taxation, Federal
consolidated corporate returns, product liability losses . . . . . . . . . . . . . . . 38
FICA, FUTA, awards of back wages attributable to year paid . . . . . . . . . 39
Social Security and Medicare taxes, application to judges . . . . . . . . . . . . . 39
subchapter S corporations, shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Taxation, State
federal instrumentalities, banks for farm cooperatives . . . . . . . . . . . . . . . . 14
Term limits
ballot labels identifying candidates not supporting . . . . . . . . . . . . . . . . . . 12
Tobacco
restrictions on advertising, preemption, constitutionality . . . . . . . . . . . . . . 25
Unconstitutional Federal laws
ADA, authorization of damage actions against states . . . . . . . . . . . . . . . . . 5
extension of Social Security tax to judges . . . . . . . . . . . . . . . . . . . . . . . . . 39
Legal Services Corporation Act, funding restriction . . . . . . . . . . . . . . . . . 24
mushroom promotion law, compelled payment for generic ads . . . . . . . . . 41
prohibition on disclosure of illegally intercepted communication . . . . . . . . . 4
Unconstitutional State laws
Missouri ballot labels of candidates not supporting term limits . . . . . . . . . 12

CRS-48
Pennsylvania law prohibiting disclosure of intercepted message . . . . . . . . . 4
Wetlands
isolated waters, migratory bird habitat, CWA § 404 jurisdiction . . . . . . . . 36
restriction on development, taking of property . . . . . . . . . . . . . . . . . . . . . 30

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