Supreme Court Opinions: October 2002 Term

Supreme Court Opinions: October 2002 Term

Order Code RL31996
CRS Report for Congress
Received through the CRS Web
Supreme Court Opinions: October 2002 Term
July 15, 2003
name redacted
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Supreme Court Opinions: October 2002 Term
Summary
This report contains synopses of Supreme Court decisions issued from the
beginning of the October 2002 Term through the end of the Term on June 26, 2003.
Included in this listing are all cases decided by signed opinion and selected cases
decided per curiam. In addition to the summary, the date of decision is indicated,
and cites to United States Law Week and West's Supreme Court Reporter are
provided. Following each synopsis the vote on the Court's holding is indicated in
bold typeface, and authors of the Court's opinion and of any concurring and
dissenting opinions, along with the Justices who joined those opinions, are identified.
Cases are listed alphabetically, and a subject index is appended. These synopses are
prepared throughout the Term and can be accessed through the CRS Home Page
[http://www.crs.gov/reference/general/law/02_term.shtml], which also provides links
from the synopses to the full texts of the Court’s opinions.

Supreme Court Opinions: October 2002
Term
American Ins. Ass’n v. Garamendi 123 S. Ct. 2374, 71 USLW 4524 (6-23-03)
Preemption, foreign relations: California’s Holocaust Victim Insurance Relief
Act, which requires any insurance company doing business in the state to
disclose information about policies it or “related” companies sold in Europe
between 1920 and 1945, is preempted as interfering with the Federal
Government’s conduct of foreign relations. The relevant foreign policy is
expressed principally in executive agreements with Germany, Austria, and
France. Executive agreements that settle claims of U.S. nationals against
foreign governments date to 1799, and Congress has acquiesced in this
longstanding practice. Although the agreements at issue here address claims
against foreign corporations rather than foreign governments, that distinction
“does not matter.” The Potsdam and Yalta agreements are precedent for
executive agreements addressing reparations implicating private parties, and
limiting the permissible scope of such agreements by requiring a sharp dividing
line “would hamstring the President in settling international controversies.”
Valid executive agreements may preempt state law. The Court in Zschernig v.
Miller (1968) held that state laws may not intrude into the field of foreign
affairs, “which the Constitution entrusts to the President and the Congress,”
even in the absence of conflict with some affirmative federal activity. In this
case there is “sufficiently clear conflict to require finding preemption.” The
general policy of “encourag[ing] European governments and companies to
volunteer settlement funds in preference to litigation or coercive sanctions” has
held true in the insurance area, where the executive agreements have
“encourage[d] European insurers to work with [the International Commission
on Holocaust Era Insurance Claims] to develop acceptable claim procedures,
including procedures governing disclosure of policy information.” California’s
different tack of providing regulatory sanctions, supplemented by litigation,
“threatens to frustrate the operation of the particular mechanism the President
has chosen.” “California seeks to use an iron fist where the President has
consistently chosen kid gloves.” Congress’s silence on the subject “is not to be
equated with congressional disapproval” of the President’s policies.
5-4. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Kennedy, and
Breyer. Dissenting opinion by Ginsburg, joined by Stevens, Scalia, and Thomas.
Archer v. Warner 123 S. Ct. 1462, 71 USLW 4249 (3-31-03)
Bankruptcy: A debt embodied in a settlement agreement that settled a
creditor’s earlier claim for money obtained by fraud can be considered a debt
“for money . . . obtained by . . . fraud” within the meaning of section
523(a)(2)(A) of the Bankruptcy Code, and hence is nondischargeable in

bankruptcy. Although the settlement agreement can be considered a “kind of
novation” that replaced the debt for money obtained by fraud with a new debt,
that new debt can also amount to a debt for money obtained by fraud. The
outcome is governed by Brown v. Felsen (1979), in which the court held
nondischargeable a debt embodied in a stipulation and consent judgment
resolving a suit based on fraud. The Court in Brown said that “the mere fact
that a conscientious creditor has previously reduced his claim to judgment
should not bar further inquiry into the true nature of the debt,” and the same
reasoning applies here. There is no significant difference between a debt
embodied in a settlement and one embodied in a stipulation and judgment. The
fact that the bankruptcy provision, which originally applied only to “judgments
sounding in fraud,” was later broadened to cover all such “liabilities” indicates
that Congress “intended the fullest possible inquiry” to ensure that all debts
arising out of fraud are excepted from discharge.
7-2. Opinion of Court by Breyer, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, and Ginsburg. Dissenting opinion by Thomas, joined by
Stevens.
Barnhart v. Peabody Coal Co. 123 S. Ct. 748, 71 USLW 4041 (1-15-03)
Coal Industry Retiree Health Benefit Act, deadline for assignment of retirees:
The Coal Industry Retiree Health Benefit Act’s requirement that the
Commissioner of Social Security “shall, before October 1, 1993,” assign each
eligible coal industry retiree to an operating company for purposes of
responsibility for funding benefits does not invalidate an initial assignment
made after that date.
The claim that the deadline is jurisdictional is
“unsupportable” and “counterintuitive.” Coupling the mandatory “shall” with
a specific deadline does not automatically void agency action taken after the
deadline. The Act does not specify a consequence for noncompliance with the
deadline, and “in the ordinary course” federal courts will not impose their own
sanction. The fact that other provisions of the Act combine “shall” with a
deadline in a manner “that could not possibly be read to prohibit action outside
the statutory period” provides “structural clues.”
“Plausibility” governs
resolution of the issue: Congress “would have said more than it did, and would
not have couched its intent in language . . . already held to lack any clear
jurisdictional significance” had it intended to limit authority to act after the
deadline. The Act’s express references to “unassigned” beneficiaries merely
means that Congress recognized that in some instances there would be no
operator to which a beneficiary could be assigned; Congress did not foresee that
the deadline for assignment might not be met. It is fair to read the Act’s
requirement that an operator’s percentage of obligations be determined on the
basis of assignments “as of” the deadline date as qualified by Congress’
assumption that all possible assignments would be made by that date. Congress
intended to allocate the greatest number of beneficiaries to a responsible
operator, and the deadline should be read “as a spur to prompt action, not as a
bar to tardy completion.”
6-3. Opinion of Court by Souter, joined by Rehnquist, Stevens, Kennedy,
Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by O’Connor and
Thomas.

Beneficial Nat’l Bank v. Anderson 123 S. Ct. 2058, 71 USLW 4409 (6-2-03)
Removal, action “arising under” National Bank Act: An action brought in
state court to recover damages from a national bank for charging excessive
interest in violation of both the common law usury doctrine and an Alabama
usury statute may be removed to federal district court as an action “arising
under” federal law, even though the complaint did not refer to any federal law.
As a general rule, a case is not removable if the complaint does not allege a
federal claim; potential defenses based on federal law, even if referenced by the
complaint, ordinarily do not create a basis for removal. In two instances,
however, involving certain causes of action under the Labor Management
Relations Act and ERISA, the Court has recognized exceptions because the
federal statute “wholly displaces” the state-law cause of action. The National
Bank Act (NBA) is another such statute. The Court has long held that sections
85 and 86 of the NBA provide the exclusive cause of action for usury claims
against national banks, and has also recognized that “the special nature of
federally chartered banks” requires uniform rules limiting liability and
prescribing exclusive remedies for overcharges.
7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,
Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Thomas.
Black & Decker Disability Plan v. Nord 123 S. Ct. 1965, 71 USLW 4405 (5-27-03)
ERISA, deference to treating physician:
The “treating physician rule”
applicable by regulation to Social Security disability benefit determinations does
not apply to disability determinations under employee benefit plans covered by
ERISA.
The Secretary of Labor’s regulations implementing ERISA’s
provisions on employee benefit plans do not require extra respect for the
opinions of treating physicians, nothing in the Act itself suggests that plan
administrators must accord treating physicians special deference, and the Ninth
Circuit erred in imposing such a rule. The two statutory regimes are different.
The Social Security Act creates a nationwide benefits program, and
presumptions help the Administrator cope with the volume of claims and
provide guidance to the administrative law judges who make the initial
determinations.
ERISA does not require the same uniformity.
Rather,
employers “have large leeway to design disability . . . plans as they see fit,” and
the validity of a claim depends upon interpretation of the particular plan at issue.
“Courts have no warrant to require administrators automatically to accord
special weight to the opinions of a claimant’s physician [or to] impose . . . a
discrete burden of explanation when they [do not].”
9-0. Opinion for unanimous Court by Ginsburg.
Boeing Co. v. United States 123 S. Ct. 1099, 71 USLW 4131 (3-4-03)
Taxation, DISCs, R&D expenses:
A Treasury Regulation that governs
accounting of research and development expenses (R&D) for domestic
international sales corporations (DISCs) and foreign sales corporations is a
reasonable interpretation of the statute, and is entitled to deference by courts.
The regulation requires that R&D expenses be allocated to a broadly defined
category of products from a list of Standard Industrial Classifications (SICs),
and prevents Boeing from attributing all such costs to one particular product
model even in years when there were no sales for that product. The regulation
thereby prevents Boeing from deducting R&D expenses that are not also
reflected in combined taxable income derived by Boeing and its DISC for the

taxable years in question.
The statute grants the Secretary authority to
“prescribe all needful rules and regulations” for the enforcement of the Internal
Revenue Code. Moreover, the statute does not define “combined taxable
income” and does not specifically refer to R&D expenses. Although the statute
does refer to a percentage of combined taxable income that is “attributable” to
export sales, this limitation does not prevent the Secretary from classifying all
R&D as an indirect cost “attributable” to all export sales of products in a
broadly defined SIC category.
Similarly, general language calling for a
“ratable” apportionment of expenses that cannot definitely be allocated to some
item or class of gross income does not prevent apportionment on a categorical
basis. A regulation governing computation of combined taxable income does
not override the regulation at issue, but instead relies on the challenged
regulation for its application. To the extent that legislative history is relevant,
it “weighs in favor of the Government’s position.”
7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Kennedy,
Souter, Ginsburg, and Breyer. Dissenting opinion by Thomas, joined by Scalia.
Borden Ranch Partnership v. U.S. Army Corps of Engineers
123 S. Ct. 599, 71
USLW 4025 (12-16-02)
Clean Water Act, wetlands: The decision of the U.S. Court of Appeals for the
Ninth Circuit is upheld by an equally divided vote. The Ninth Circuit held that
the “deep ripping” plowing method, which disgorges and replaces soil in
wetlands and results in draining the land and converting it to dry land, is subject
to regulation under the Clean Water Act as the discharge of a pollutant.
4-4. Per curiam. Justice Kennedy did not participate.
Branch v. Smith 123 S. Ct. 1429, 71 USLW 4232 (3-31-03)
Congressional redistricting, Voting Rights Act, court-ordered plan: A
federal district court properly enjoined a Mississippi state court’s order
imposing a congressional districting plan for the state, and properly fashioned
its own redistricting plan rather than ordering at-large elections in accordance
with 2 U.S.C. § 2a(c). The injunction was proper because the state-court plan,
adopted after the state legislature had failed to redistrict on the basis of the 2000
census, “was not precleared [under § 5 of the Voting Rights Act] and had no
prospect of being precleared in time for the 2002 election.” Section 5 requires
preclearance when a covered jurisdiction seeks to administer a change in voting
procedures. A state’s change in voting procedures may take effect if the
Attorney General has not interposed an objection within 60 days of the state’s
submission. In this case, however, the 60-day period had been postponed by the
Attorney General’s request for additional information. The State did not
provide the requested information until Feb. 20, 2002.
The deadline for
candidate qualification was March 1, 2002, and the federal court’s injunction
was issued on Feb. 26, 2002. The 60-day period that began running on Feb. 20
with submission of the additional information “had no legal significance”
because the state “never appealed” the federal court’s injunction and thus was
no longer “seek[ing] to administer” the state-court plan.
In fashioning a
redistricting plan for Mississippi, the federal court properly relied on 2 U.S.C.
§ 2c, which directs that single-member districts “shall be established by law.”
Although this language “assuredly envisions legislative action, it also embraces
action by state and federal courts” when legislatures have not acted. An earlier-
enacted provision, 2 U.S.C. § 2a(c)(5), which directs that representatives shall

be elected at-large “until a state is redistricted in the manner provided by the law
thereof” following an apportionment which has reduced the number of
Representatives to which the state is entitled, is inapplicable. A Mississippi
statute also calling for at-large election of Representatives in such circumstances
is similarly inapplicable.
9-0 (propriety of injunction); 7-2 (remedy).
Opinion of Court by Scalia,
unanimous in part, and joined in separate part by Rehnquist, Stevens, Souter,
Ginsburg, and Breyer. Separate part of Scalia opinion joined by Rehnquist,
Kennedy, and Ginsburg. Concurring opinions by Kennedy, joined in part by
Stevens, Souter, and Breyer; and by Stevens, joined by Souter and Breyer.
Concurring and dissenting opinion by O’Connor, joined by Thomas.
Breuer v. Jim’s Concrete of Brevard, Inc. 123 S. Ct. 1882, 71 USLW 4367 (5-19-03)
Fair Labor Standards Act, removal of cases to federal court: The Fair
Labor Standards Act (FLSA), which provides that a suit “may be maintained .
. . in any Federal or State court of competent jurisdiction,” does not bar removal
of a suit from state to federal court. Such removal is authorized by 28 U.S.C.
§ 1441(a) “except as otherwise expressly provided by Act of Congress.” Use
of the word “maintained” does not amount to an express prohibition of removal;
the word is ambiguous with respect to removal. “If use of an ambiguous word
like ‘maintain’ qualified as an express provision . . . , then the requirement [in
effect] would call for nothing more than a ‘provision,’ pure and simple, leaving
the word ‘expressly’ with no consequence whatsoever.” Moreover, the FLSA
provision contrasts with language in other statutes (a civil action “may not be
removed”) that evidences an “indisputable” prohibition of removal. Removal
does nothing to defeat a right to “maintain” an action to final judgment, but
merely transfers the action from one forum to another. A contrary reading could
defeat change of venue as well as removal. A number of other statutes use the
same language allowing actions to be “maintained” in state or federal courts,
and it is “just too hard to believe that a right to ‘maintain’ an action was ever
meant to displace the right to remove.”
9-0. Opinion for unanimous Court by Souter.
Brown v. Legal Found. of Washington 123 S. Ct. 1406, 71 USLW 4221 (3-26-03)
Taking of property, IOLTA accounts: Washington State’s interest on
lawyers’ trust accounts (IOLTA) program, which requires each lawyer to
deposit into a single pooled IOLTA account for all that lawyer’s clients any
client funds that cannot otherwise earn net interest for an individual client, and
which requires the lawyer to direct the bank to pay interest on the pooled
account to the Foundation, to be used for charitable and educational purposes,
does not violate the Just Compensation Clause of the Fifth Amendment (as
applicable to the State through the Fourteenth Amendment). A law that requires
that interest on a client’s funds be transferred to a different owner for a
legitimate public use could constitute a per se taking requiring payment of just
compensation to the client. No “just compensation” is due, however. Just
compensation is measured by the owner’s pecuniary loss, and that loss is zero
if the Washington law is obeyed by placing in the IOLTA account only those
client funds that, invested individually, could not provide a net positive return
to the client.
5-4. Opinion of Court by Stevens, joined by O’Connor, Souter, Ginsburg, and
Breyer. Dissenting opinions by Scalia, joined by Rehnquist, Kennedy, and
Thomas; and by Kennedy.

Bunkley v. Florida 123 S. Ct. 2020, 71 USLW 3732 (5-27-03)
Due Process, elements of crime at time of conviction: The Florida Supreme
Court must consider whether a pocket knife with a blade of 21/ to 3 inches in
2
length was a “dangerous weapon” within the meaning of the state’s first-degree
burglary statute at the time in 1989 when the petitioner’s conviction for that
crime became final, or whether the knife instead was a “common pocketknife”
excepted from the definition of “weapon.” In 1997 the Florida Supreme Court,
relying on a 1951 opinion of the state attorney general, interpreted the provision
for the first time as excluding a pocket knife with a blade length of 33/ inches.
4
The state court characterized its 1997 decision as part of a “century-long
evolutionary process” in interpreting the provision, and this characterization
raises the question of what the provision meant in 1989 when the petitioner was
convicted. In a similar situation, the Court in Fiori v. White (2001) found a due
process violation in a state’s refusal to apply to an earlier conviction a definitive
and exonerating interpretation of a criminal statute said to reflect a clarification
of the statute’s plain language rather than a new interpretation. A conviction
denies due process if it is clear that the defendant’s conduct did not violate an
element of the crime set forth in the statute.
9-0. Per curiam.
Chavez v. Martinez 123 S. Ct. 1994, 71 USLW 4387 (5-27-03)
Due Process, self-incrimination: The respondent’s claim for damages
premised on police officers’ violation of his privilege against self-incrimination
is rejected. The officers interrogated the respondent while he was in a hospital
being treated for gunshot wounds, and failed to give him a Miranda warning.
The respondent was not charged with a crime, and hence the statements he gave
in response to the questioning were not used against him at a criminal trial. Any
such claim of outrageous conduct by police, however, may raise an issue of
denial of substantive due process. The case is remanded for consideration of the
due process issue.
5-3 (due process); 6-3 (self-incrimination). Opinion of Court by Souter (due
process issue), joined by Stevens, Kennedy, Ginsburg, and Breyer. Separate part
of Souter opinion joined by Breyer. No opinion of Court on self-incrimination.
Opinion by Thomas, joined by Rehnquist, and joined in separate and overlapping
parts by O’Connor and Scalia. Opinion by Scalia concurring in part. Opinion
by Stevens concurring in part and dissenting in part. Opinion by Kennedy
concurring in part and dissenting in part, joined by Stevens and joined in part by
Ginsburg. Opinion by Ginsburg concurring in part and dissenting in part.

Citizens Bank v. Alafabco, Inc. 123 S. Ct. 2037 (6-2-03)
Commerce power, Federal Arbitration Act: The Alabama Supreme Court
applied an “improperly cramped view of Congress’ Commerce Clause power”
in holding that the Federal Arbitration Act (FAA) applies only to transactions
“in” interstate commerce, and therefore did not apply to debt restructuring
agreements between an Alabama bank and an Alabama construction company.
The FAA applies to contracts “evidencing a transaction involving commerce.”
The term “involving commerce” is the “functional equivalent” of the term
“affecting commerce,” and ordinarily signals “the broadest permissible
exercise” of the commerce power.
“[I]t is perfectly clear that the FAA
encompasses a wider range of transactions than those actually ‘in commerce.’”
There was no need, therefore, to find that the restructuring related to interstate
transactions or to out-of-state projects. Nor was it necessary to find that any of
the individual debt-restructuring agreements, standing alone, had a substantial
effect on interstate commerce; the issue instead is the cumulative impact of “the
economic activity in question.” The agreements at issue meet the FAA’s
“involving commerce” test. The respondent company engaged in business
throughout the southeastern United States using loans from the petitioner bank;
the debt was secured by all of the company’s business assets, including out-of-
state assets; and commercial lending – the “general practice” represented by the
transactions – has “broad impact” on the national economy.
9-0. Per curiam.
City of Cuyahoga Falls v. Buckeye Community Hope Found. 123 S. Ct. 1389, 71
USLW 4213 (3-25-03)
Equal Protection, due process, referendum: City officials did not violate the
Equal Protection Clause by submitting to the voters a petition to repeal an
ordinance authorizing construction of low-income housing, or by denying
building permits while the referendum was pending. The respondents failed to
establish a racially discriminatory intent.
The City acted pursuant to the
requirements of its charter in submitting the referendum petition to the voters,
and the city engineer performed “a nondiscretionary, ministerial act” in denying
the building permits while the referendum was pending. Statements made by
private individuals during the petition drive may not be attributed to city
officials. “In fact, by adhering to charter procedures, city officials enabled
public debate on the referendum to take place, thus advancing significant First
Amendment interests.” Respondents also failed to establish a substantive due
process denial.
The denial of building permits “in no sense constituted
egregious or arbitrary government conduct.” Although the substance of a
measure approved by referendum may be challenged as arbitrary and capricious,
the subjection of an ordinance to public approval through a referendum cannot
be considered an invalid delegation of power, and in this case is not arbitrary
government conduct that violates due process.
9-0. Opinion for unanimous Court by O’Connor. Concurring opinion by Scalia,
joined by Thomas.

City of Los Angeles v. David 123 S. Ct. 1895, 71 USLW 3720 (5-19-03)
Due Process, delay in holding of hearing: The city did not deny the
respondent due process by delaying a hearing on the validity of an automobile
impoundment fee until 27 days after his car had been towed. The delay is
supported by application of the three factors set forth in Mathews v. Eldridge
(1976) for determining whether an individual has received the process that is
“due.” The private interest affected – the temporary loss of the use of money
– is fully compensable. A 30-day delay is unlikely to create the risk of
significant factual errors. The city’s interest in “administrative necessity,”
however, “argues strongly in the city’s favor.” The city already holds hearings
within 48 hours for those persons unable to pay impoundment fees, and it would
be “burdensome” to have to hold all such hearings so promptly.
9-0. Per curiam.
Clackamas Gastroenterology Assocs., P.C. v. Wells 123 S. Ct. 1673, 71 USLW 4293
(4-22-03)
ADA, definition of “employee”: The issue of whether the four shareholder-
directors of the petitioner professional corporation are “employees” under the
Americans with Disabilities Act (ADA) – an issue that in this case determines
whether the corporation is an “employer” subject to ADA coverage as having
15 or more “employees” – should be resolved by application of common law
principles that define the master-servant relationship. The ADA’s definition of
an “employee” as “an individual employed by an employer” is “completely
circular and explains nothing,”and in such instances the Court ordinarily
presumes that Congress intended the common law of agency to govern. The
petitioner’s approach of asking whether the shareholder-directors are in reality
partners “simply begs the question,” and the appeals courts’ approach seeking
guidance in the ADA’s broad purposes overlooks Congress’s reasons for
limiting coverage to firms with 15 or more employees. The common law
definition of the master-servant relationship provides “helpful guidance,” and
is reflected in EEOC “guidelines.” Under that EEOC/common law approach,
the principal issue is whether the shareholder-directors operate independently
and manage the firm or are instead subject to the firm’s control. The case is
remanded for further factual findings related to this inquiry.
7-2. Opinion of Court by Stevens, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, and Thomas. Dissenting opinion by Ginsburg, joined by
Breyer.
Clay v. United States 123 S. Ct. 1072, 71 USLW 4155 (3-4-03)
Habeas corpus, limitations period: When a federal defendant takes an
unsuccessful direct appeal from a judgment of conviction, but does not petition
for a writ of certiorari from the Supreme Court, his conviction becomes “final”
for purposes of the one-year limitation period for filing for postconviction relief
under 28 U.S.C. § 2255 when the time expires for filing the petition for
certiorari. The lower courts erred in ruling that the conviction became final on
the earlier date when the appellate court issued its mandate in the direct appeal.
Finality has “a long-recognized, clear meaning” in the context of postconviction
relief: it attaches when the Supreme Court affirms a conviction on the merits on
direct review or denies a petition for certiorari, or when the time for filing a
certiorari petition expires. The Court “presume[s] that Congress intends its
statutes to be read in conformity with this Court’s precedents.”
Parallel

statutory provisions setting limitation periods do not require a different
conclusion. The fact that a provision governing petitions from state prisoners
is worded differently – it elaborates on “the date on which the judgment became
final” by adding the words “by the conclusion of direct review or the expiration
of the time for seeking such review” – does not mean that § 2255 must be
interpreted differently. Congress might have felt the need to spell out the
meaning of “final” in the context of petitions by state prisoners but not in the
context of petitions by federal prisoners in order to make it clear that finality is
be determined by a uniform federal rule rather than by reference to state law
rules. A provision governing petitions by death-sentenced state prisoners is not
similar enough to § 2255 to create any presumption as to § 2255's meaning.
9-0. Opinion for unanimous Court by Ginsburg.
Connecticut Dep’t of Public Safety v. Doe 123 S. Ct. 1160, 71 USLW 4158 (3-5-03)
Due Process, “Megan’s Law”: Connecticut’s Megan’s Law did not deprive the
respondent of due process by requiring that he be listed as a convicted sex
offender on the State’s Website without affording him a hearing to attempt to
prove that he is not currently dangerous. Even if injury to reputation could
constitute a deprivation of a liberty interest, due process does not entitle a
person to a hearing to establish a fact that is not material. Whether or not the
respondent is currently dangerous “is of no consequence under Connecticut’s
Megan’s Law.”
The law’s posting requirements “turn on an offender’s
conviction alone.” While it may be that a claim could be raised that public
disclosures about currently non-dangerous sex offenders violate substantive due
process, the respondent disavowed any reliance on that argument, and the issue
was not properly before the Court.
9-0. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer. Concurring opinions by Scalia; by
Souter, joined by Ginsburg; and by Stevens.
Cook County v. United States ex rel. Chandler 123 S. Ct. 1239, 72 USLW 4192 (3-
10-03)
False Claims Act, applicability to local governments: Local governments are
“persons” subject to qui tam actions under the False Claims Act. Long before
enactment of the False Claims Act (FCA) in 1863 private corporations had been
held to be artificial persons ordinarily included within the statutory term
“person.” Although it was not until six years after enactment of the FCA that
the Supreme Court held that municipal corporations are also “persons,” this
decision merely reflected a common understanding antedating the FCA. The
Dictionary Act defines “person” to include corporate entities “unless the
context” shows otherwise, but nothing about the FCA makes the common
understanding inappropriate. The text is not inherently inconsistent with local
government liability. The original act included references to natural persons in
the land or naval forces, but also referred unqualifiedly to other “persons.” And,
although municipalities may not be subject to criminal penalties, “that is no
reason to exempt them from remedies that sensibly apply.” The fact that
Congress in 1863 was primarily concerned with frauds committed by private
contractors during the Civil War does not alter the fact that Congress wrote
expansively to cover all fraud. 1986 amendments to the FCA that raised the
ceiling on damages from double to treble did not repeal by implication the
FCA’s applicability to local governments.
Although municipalities are

generally exempt from punitive damages, treble damages under the FCA have
compensatory as well as punitive traits. Some liability beyond the amount of
a fraud is usually necessary to compensate the government completely for the
losses occasioned by fraud. The FCA does not provide for prejudgment interest
or for consequential damages that typically come with recovery for fraud, and
qui tam recoveries must be subtracted from the government’s recovery. More
important than the presumption against punitive recovery is the presumption
against repeals by implication. “The basic purpose of the 1986 amendments
was to make the FCA a more useful tool against fraud in modern times,” and it
is “simply not plausible” that Congress intended at the same time to repeal sub
silentio the liability of local governments, “which today often administer or
receive federal funds.”
9-0. Opinion for unanimous Court by Souter.
Dastar Corp. v. Twentieth Century Fox Film Corp. 123 S. Ct. 2041, 71 USLW 4415
(6-2-03)
Lanham Act, “origin” of goods: Section 43 of the Lanham Act, which
prohibits “a false designation of origin,” does not prevent the unaccredited
copying of a non-copyrighted work. The phrase “origin of goods” “refers to the
producer of the tangible goods that are offered for sale, and not to the author of
any idea, concept, or communication embodied in those goods.” Thus the
petitioner corporation is the “origin” of a video set about the European
campaigns of World War II that it produced and sold, even though it copied the
videos from a television series based on General Eisenhower’s book Crusade
in Europe, and made only minor modifications before selling them. The “most
natural understanding of the ‘origin’ of ‘goods,’” derived from dictionary
definitions, is “the producer of the tangible product sold in the marketplace.”
Interpreting the phrase to encompass the person whose ideas are embodied in
the product would be “out of accord with the history and purpose of the Lanham
Act.” The Lanham Act prohibits actions that deceive consumers. A brand-loyal
consumer cares about whether a favored company produced or stands behind a
product, but does not necessarily care who originally designed or devised the
formula for the product. A different rule for “communicative” products, where
authorship is important to purchasers, would result in conflict with copyright
law, which provides that the right to copy without attribution passes to the
public upon expiration of a copyright. To hold the Lanham Act applicable in
this way would be “akin to finding . . . a species of perpetual patent and
copyright.” When Congress has changed copyright law, “it has done so with
much more specificity than the Lanham Act’s ambiguous use of ‘origin.’”
Interpreting “origin” to require attribution of non-copyrighted material would
pose practical problems as well, including the determination of “who is in the
line of ‘origin.’”
8-0. Opinion of Court by Scalia, joined by all Justices except Breyer, who did
not participate.

Demore v. Kim 123 S. Ct. 1708, 71 USLW 4315 (4-29-03)
Due Process, detention of aliens; judicial review: Mandatory detention of an
alien pending removal proceedings, without an individualized determination of
risk of flight and danger to the community, does not violate due process under
the circumstances of this case, in which a lawful permanent resident alien
brought a habeas corpus action challenging the constitutionality of detention
rather than availing himself of procedures under which he could challenge
inclusion in the mandatory detention category. A provision of the Immigration
and Nationality Act, 8 U.S.C. § 1226c, requires the Attorney General to detain
“any alien” who is removable from this country because he has been convicted
of any of certain specified crimes. “Congress regularly makes rules that would
be unacceptable if applied to citizens,” and the Court “has recognized the
validity of detention during deportation proceedings.” Detention pending
removal proceedings “necessarily serves the purpose of preventing deportable
criminal aliens from fleeing,” and thus increases the chance of successful
removal. This detention is normally of relatively short duration. If detention
becomes “unreasonably long,” the alien may become entitled to an
individualized determination as to risk of flight and dangerousness. Judicial
review is not precluded by language declaring that the Attorney General’s
discretionary judgment applying the section shall not be subject to review, and
that no court may set aside any action or decision of the Attorney General
regarding the detention of any alien. Here the respondent was not challenging
a “discretionary judgment” or “decision” of the Attorney General, but rather the
“statutory framework that permits his detention without bail.”
5-4 (detention); 6-3 (judicial review). Opinion of Court by Rehnquist, joined by
Kennedy, joined in part by Stevens, Souter, Ginsburg, and Breyer, and joined in
separate part by O’Connor, Scalia, and Thomas.
Concurring opinions by
Kennedy; and by O’Connor, joined by Scalia and Thomas. Concurring and
dissenting opinions by Souter, joined by Stevens and Ginsburg; and by Breyer.
Desert Palace, Inc. v. Costa 71 USLW 4434 (6-9-03)
Civil rights, proof in “mixed-motive” cases: A plaintiff need not present
direct evidence of discrimination in order to obtain a mixed-motive instruction
in an action brought under Title VII of the Civil Rights Act of 1991. The 1991
Act provides that an unlawful employment practice is established if the
complaining party “demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other
factors also motivated the practice.” This means that “a plaintiff need only
present sufficient evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that [a prohibited consideration] was a
motivating factor for any employment practice.”
That evidence may be
circumstantial.
The statute is unambiguous.
A plaintiff “need only
demonstrate” a discriminatory motive; the statute “does not mention, much less
require, that a plaintiff make a heightened showing through direct evidence.”
Moreover, the Act defines the term “demonstrates” as meaning “to meet the
burdens of production and persuasion.” This contrasts with other situations,
where “Congress has been unequivocal when imposing heightened proof
requirements.” Title VII’s silence with respect to the type of evidence required
also “suggests” that the “conventional rule of civil litigation” applicable in Title
VII cases should govern, viz., that the plaintiff must prove her case “by a
preponderance of the evidence, using direct or circumstantial evidence.” Courts

have long recognized “the utility of circumstantial evidence in discrimination
cases,” and in other contexts as well.
9-0.
Opinion for unanimous Court by Thomas.
Concurring opinion by
O’Connor.
Dole Food Co. v. Patrickson 123 S. Ct. 1655, 71 USLW 4301 (4-22-03)
Foreign Sovereign Immunities Act: A subsidiary of a corporation in which a
foreign state owns a majority of shares is not an “agency or instrumentality” of
the foreign state for purposes of the Foreign Sovereign Immunities Act (FSIA),
and hence is not entitled to removal under 28 U.S.C. § 1441 as a “foreign state.”
“Foreign state” is defined by the FSIA to include an “agency or
instrumentality,” defined in turn to include an entity “the majority of whose
shares or other ownership interest is owned by a foreign state.” “A corporation
is an instrumentality of a foreign state under this definition only if the foreign
state owns a majority of the corporation’s shares.” The meaning of share
ownership is determined by reference to corporation law, and only “direct
ownership” satisfies the requirement. “Where Congress intends to refer to
ownership in other than the formal sense, it knows how to do so,” as, for
example, in statutes that refer to “direct and indirect ownership,” or that define
an owner as someone who “owns or controls” an entity. A shareholder, by
virtue of its ownership of shares, does not own the corporation’s assets, and
therefore does not own subsidiary corporations. “Other ownership interest”
does not include a state’s “interest” in its instrumentality’s subsidiary, but rather
is designed to recognize the possibility of different ownership forms in other
countries. Instrumentality status must be determined as of the time the action
is filed, not as of the time of the conduct giving rise to the suit.
This
interpretation is required by “plain text,” viz., use of the present tense in the
FSIA definition (“a majority of whose shares . . . is owned by a foreign state”).
Analogy to status-based immunities, which derive from an officer’s status at the
time of the conduct giving rise to suit, is inapt. Cases recognizing status-based
immunities do not involve interpretation of a statute, and the reasons for the
official immunities do not apply to a foreign state.
7-2 (ownership of subsidiary); 9-0 (timing of determination). Opinion of Court
by Kennedy, joined in part by Rehnquist, Stevens, Scalia, Souter, Thomas, and
Ginsburg, and unanimous in separate part. Concurring and dissenting opinion
by Breyer, joined by O’Connor.
Dow Chemical Co. v. Stephenson 71 USLW 4440 (6-9-03)
Class actions, Agent Orange litigation: The decision of the U.S. Court of
Appeals for the Second Circuit, reversing a district court’s dismissal of an
action brought by Vietnam veterans against manufacturers of the herbicide
Agent Orange as barred by a 1984 class action settlement, is affirmed by an
equally divided vote.
4-4. Per curiam. Justice Stephens did not participate.
Early v. Packer 123 S. Ct. 362, 71 USLW 3312 (11-4-02)
Habeas corpus, alleged coercion of jury verdict: The Ninth Circuit erred in
granting habeas corpus relief to a petitioner who alleged that the state trial judge
had coerced the jury’s verdict by instructing the jury, deadlocked 11 to 1, to
deliberate further and attempt to reach a unanimous verdict. The California
appellate court’s decision upholding the conviction was not “contrary to clearly

established federal law” within the meaning of 28 U.S.C. § 2254(d). There is
no need to cite the established federal law, as long as the result or reasoning
does not contradict that law. The California court did not fail to apply the
“totality of the circumstances” test by focusing on three particular incidents;
those incidents constituted “the essence” of the complaint about juror coercion,
and in any event the “fair import” of the court’s decision is that it considered the
cumulative impact of all the evidence. Also, Supreme Court decisions derived
from the Court’s supervisory power over the federal courts do not constitute
“clearly established federal law” to which state courts must conform.
9-0. Per curiam.
Eldred v. Ashcroft 123 S. Ct. 769, 71 USLW 4052 (1-15-03)
Copyright Term Extension Act, Copyright Clause: The Copyright Term
Extension Act (CTEA), which extends the copyright term from life of the author
plus 50 years to life plus 70 years, and applies the change to existing as well as
to future copyrights, is a valid exercise of Congress’s authority under the
Copyright Clause. The Clause, which empowers Congress to grant copyrights
“for limited times,” authorizes Congress to extend the terms of existing
copyrights. The word “limited” does not mean that a copyright term, once set,
becomes inalterable. There is “an unbroken congressional practice” of applying
copyright term extensions to existing copyrights, and the same practice has been
applied to patents. Application of the CTEA’s extension to existing copyrights
is a “rational” exercise of power. On the issue of rationality, the Court “defer[s]
substantially to Congress.” The extension conforms copyright practice to that
of the European Union, consistent with the Berne Convention, and ensures that
American authors will receive the same copyright protection in Europe as their
European counterparts. Congress also rationally relied on predictions that
longer terms would encourage copyright holders to invest in restoration and
public distribution of works. The Court rejects the argument that permitting
Congress to extend existing copyrights recognizes a power to create “perpetual”
copyrights in violation of the “limited times” constraint. “Petitioners fail to
show how the CTEA crosses a constitutionally significant threshold.” Also
rejected is the argument that there must be a quid pro quo. Authors need not
submit a new writing in exchange for an extension; the original bargain entails
“a copyright not only for the time in place . . . , but also for any renewal or
extension legislated during that time.” The “congruence and proportionality”
standard recently used to limit congressional power under § 5 of the Fourteenth
Amendment is inapplicable to the Copyright Clause. The CTEA does not
violate the First Amendment. The Copyright Clause and the First Amendment
were enacted close in time, and “copyright’s limited monopolies are compatible
with free speech principles.” In addition, copyright law has “built-in free speech
safeguards.”
7-2. Opinion of Court by Ginsburg, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, and Thomas. Dissenting opinions by Stevens and by Breyer.

Entergy Louisiana, Inc. v. Louisiana PSC 123 S. Ct. 2050, 71 USLW 4420 (6-2-03)
FERC regulation, “filed rate” preemption doctrine: Under the “filed rate”
doctrine, wholesale electricity rates filed with FERC or fixed by FERC must be
given binding effect by state public utility commissions setting intrastate retail
rates. A FERC tariff that does not set rates, but that delegates discretion to a
public utility holding company to allocate capacity and costs among its
operating companies, can also have preemptive effect under the filed rate
doctrine. The Louisiana Public Service Commission’s order disallowing costs
related to electricity sharing under Entergy’s system agreement, and having the
effect of “trapping” costs so that Entergy Louisiana could not recoup them
through retail sales, is therefore preempted. The fact that FERC had not
specifically approved the cost allocation for the period covered by the Louisiana
PSC’s order does not matter; the only issue is “whether the FERC tariff dictates
how and by whom that [allocation] should be made.”
9-0. Opinion for unanimous Court by Thomas.
Ewing v. California 123 S. Ct. 1179, 71 USLW 4167 (3-5-03)
Cruel and unusual punishment; “three-strikes” law: California’s “Three
Strikes and You’re Out” law is not unconstitutional as applied in sentencing a
repeat felon to imprisonment of 25 years to life for stealing three golf clubs
valued at $399 apiece. The three strikes law applies when a person is convicted
of a felony (here “felony grand theft”) and has previously been convicted of one
or more prior felonies defined as “serious” or “violent.” There was no opinion
of the Court. Three Justices determined that the circumstances did not warrant
application of the “narrow proportionality principle” applicable to non-capital
cases and derived from the Eighth Amendment’s Cruel and Unusual
Punishments Clause, the sentence being “justified by the State’s public safety
interest in incapacitating and deterring recidivist felons, and amply supported
by [the petitioner’s] long, serious criminal record.” One Justice asserted that the
proportionality principle cannot be intelligently applied when the penological
goal is incapacitation rather than retribution, and one Justice argued that the
Cruel and Unusual Punishments Clause “contains no proportionality principle.”
5-4.
Opinion announcing the Court’s judgment by O’Connor, joined by
Rehnquist and Kennedy.
Concurring opinions by Scalia and by Thomas.
Dissenting opinions by Stevens, joined by Souter, Ginsburg, and Breyer; and by
Breyer, joined by Stevens, Souter, and Ginsburg.
FCC v. NextWave Personal Communications, Inc. 123 S. Ct. 832, 71 USLW 4085
(1-27-03)
Bankruptcy, revocation of FCC license: Section 525 of the Bankruptcy Code
prohibits the FCC from revoking communications licenses held by a debtor in
bankruptcy upon the debtor’s failure to make timely payments for purchase of
the licenses. Section 525 provides that a government agency “may not . . .
revoke” a license held by a debtor “solely because” the debtor has not paid a
debt that is dischargeable in bankruptcy. NextWave’s failure to make payments
on the licenses was the “proximate cause” of cancellation, and it is “irrelevant”
that the FCC had a regulatory motive. When Congress has intended to provide
regulatory exceptions to bankruptcy law requirements, “it has done so clearly
and expressly.” The license obligations are “debts that [are] dischargeable” in
bankruptcy. “Debt” is defined broadly in terms of any “right to payment,” and
consequently “a debt is a debt, even when the obligation to pay it is also a
regulatory condition.” Dischargeability is not tied to authority to modify

regulatory obligations. A preconfirmation debt is dischargeable unless it falls
within an express exception to discharge, and no such exception applies. The
Court’s interpretation of section 525 does not create any conflict with the
Communications Act; the FCC’s “policy preference” for selling licenses on
credit and then cancelling the licenses rather than asserting security interests is
not mandated by the Communications Act. The dissent’s argument that section
525 should be interpreted more narrowly, in conformity with asserted
congressional “purposes,” is rejected.
8-1. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy,
Souter, Thomas, and Ginsburg. Concurring opinion by Stevens. Dissenting
opinion by Breyer.
FEC v. Beaumont 123 S. Ct. 2200, 71 USLW 4451 (6-16-03)
First Amendment, campaign finance, corporate contributions: The ban on
direct corporate contributions to candidates for federal office imposed by 2
U.S.C. § 1441b may validly be applied to nonprofit advocacy corporations. The
law allows corporations to establish political action committees (“separate
segregated fund[s] to be utilized for political purposes”) that may make
contributions as well as other expenditures in connection with federal elections.
The Court has distinguished between corporate contributions and “independent
expenditures” by corporations, upholding a prohibition on contributions in FEC
v. National Right to Work Committee (1982), and striking down a ban on
independent expenditures as applied to a nonprofit advocacy corporation in FEC
v. Massachusetts Citizens for Life (1986). The corporations involved in the two
cases were similar, and Massachusetts Citizens for Life distinguished National
Right to Work on the basis of “its addressing regulation of contributions, not
expenditures.”
“Concern about the corrupting potential underlying the
corporate ban may indeed be implicated by advocacy corporations” even though
they are “generally different from traditional business corporations.” Advocacy
corporations, as do for-profit corporations, benefit from “state-created
advantages,” and are “no less susceptible to misuse . . . as conduits for
circumventing contribution limits imposed on individuals.” Restrictions on
contributions have not been subjected to the same level of First Amendment
scrutiny as independent expenditures because “contributions lie closer to the
edges than to the core of political expression.” Section 1441b is not correctly
characterized as a complete ban on contributions, since corporations are allowed
to establish and pay the administrative expenses of PACs.
7-2. Opinion of Court by Souter, joined by Rehnquist, Stevens, O’Connor,
Ginsburg, and Breyer. Concurring opinion by Kennedy. Dissenting opinion by
Thomas, joined by Scalia.
Fitzgerald v. Racing Ass’n of Central Iowa 123 S. Ct. 2156, 71 USLW 4438 (6-9-03)
State taxation, equal protection: Iowa’s differential taxation of revenues from
slot machines – a maximum rate of 20% if the slot machines are on excursion
riverboats and a maximum rate of 36% if the slot machines are at a racetrack –
does not violate the Equal Protection Clause of the Fourteenth Amendment.
The classification is subject to rational basis review. There must be a plausible
policy reason for the classification, there must be justifying facts that the
legislature rationally may have considered true, and the relationship of the
classification to its goal must not be so attenuated as to render the distinction
arbitrary or irrational. The Iowa Supreme Court erred in invalidating the law as
frustrating what it viewed as the law’s basic objective of rescuing racetracks

from economic distress. The Iowa law can rationally be understood to advance
racetracks’ economic interests by granting tracks the authority to operate slot
machines.
More fundamentally, legislatures may, within the bounds of
rationality, “decide whom they wish to help with their tax laws and how much
help those laws ought to provide.” Also, a law can serve more purposes than
one and balance different objectives. What is harmful to the racetracks may be
helpful to the riverboats, and the legislature may have wanted to encourage
economic development of river communities or to protect reliance interests of
riverboat operators whose revenues had previously been taxed at the 20% rate.
The Allegheny Pittsburgh Coal Co. case (1989) is distinguishable. There the
Court struck down property tax assessments in the “absence of any indication
. . . that policies underlying [the law] could conceivably have been the purpose
for the . . . unequal assessment”; here the facts do not preclude an inference that
the reason for the different rates was to aid the riverboat industry or riverside
communities.
9-0. Opinion for unanimous Court by Breyer.
Franchise Tax Bd. of California v. Hyatt 123 S. Ct. 1683, 71 USLW 4307 (4-23-03)
Full Faith and Credit, sovereign immunity: The Full Faith and Credit Clause
does not require Nevada to give full faith and credit to California’s statute
immunizing its tax collection agency from suit. The Clause does not compel a
state to substitute the statutes of other states for its own statutes dealing with a
subject matter concerning which it is competent to legislate.
The Court
abandoned the balancing-of-interests approach to conflicts of law in 1981,
concluding that it is frequently the case that a court can lawfully apply either the
law of one state or the contrary law of another. In this case, involving the
California agency’s alleged intentional torts against someone alleging to be a
citizen of Nevada, Nevada has “significant contacts” and sufficient interests to
avoid the conclusion that choice of its own law is arbitrary or unfair. The tax
board’s request for a new rule recognizing “core sovereignty” interests reflected
in sovereign immunity statutes is rejected. “The question of which sovereign
interest should be deemed more weighty is not one that can be easily answered.”
In this case there is neither a “principled distinction” nor a “constitutionally
significant distinction” between competing state interests at issue in an earlier
case (California’s interest in automobile accidents on its roads and Nevada’s
interest in tort claims against its university employee) and those at issue in the
present case (Nevada’s interest in protecting its citizens against intentional torts,
California’s interest in collecting taxes). Here the Nevada Supreme Court
“sensitively applied principles of comity with a healthy regard for California’s
sovereign status.”
9-0. Opinion for unanimous Court by O’Connor.

Georgia v. Ashcroft 123 S. Ct. 2498, 71 USLW 4545 (6-26-03)
Voting Rights Act, state legislative redistricting: The federal district court
failed to consider all of the relevant factors when it determined that Georgia’s
redistricting for its State Senate violated section 5 of the Voting Rights Act, and
therefore was not entitled to preclearance. Section 5 seeks to insure that states
do not adopt changes in voting procedures that “lead to a retrogression in the
position of racial minorities with respect to their effective exercise of the
electoral franchise.” “Effective exercise of the electoral franchise” includes the
ability of minority voters to elect a candidate of their choice, and can be
achieved through creation of “safe” districts in which minority voters constitute
well over 50% of eligible voters. Effective exercise of the franchise can also be
achieved, however, by increasing the concentration of minority voters in other
districts in which they have a reasonable chance (but not a near certainty) of
electing candidates of their choice or influencing the outcome of elections.
Georgia’s Senate redistricting plan “unpacked” several safe districts, reducing
minority strength in each to just over 50%, but at the same time increased
minority voting strength in other districts in order to increase the number of
“influence” and “coalitional” districts. The district court “did not engage in the
correct retrogression analysis because it focused too heavily on the ability of the
minority group to elect a candidate of its choice in the [safe] districts,” and
neglected to credit the state’s creation of additional influence and coalitional
districts. The district court did not abuse its discretion in allowing private
litigants to intervene in the action.
5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Concurring opinions by Kennedy and by Thomas. Dissenting opinion
by Souter, joined by Stevens, Ginsburg, and Breyer.
Gratz v. Bollinger 123 S. Ct. 2411, 71 USLW 4480 (6-23-03)
Equal protection, racial discrimination, college admissions: The University
of Michigan’s policy governing admission of undergraduates relies
impermissibly on the race of applicants, and violates the Equal Protection
Clause of the Fourteenth Amendment. All racial classifications reviewed under
the Clause must be strictly scrutinized without regard to the race of those
burdened or benefitted. The University’s policy, which automatically gives 20
points, or one-fifth of the total points needed to guarantee admission, to every
applicant who is a member of an “underrepresented minority” defined by race
(African-Americans, Hispanics, and Native Americans), is not narrowly tailored
to achieve the asserted interest in educational diversity. Michigan’s program
does not meet the conditions proposed by Justice Powell in his 1978 opinion in
Regents v. Bakke, allowing a public university to take race into account in its
admissions policies in the context of “flexible” consideration of “all pertinent
elements of diversity in light of the particular qualifications of each applicant.”
Rather than providing for individualized consideration of each applicant, the
policy “has the effect of making ‘the factor of race . . . decisive’ for virtually
every minimally qualified underrepresented minority applicant.” The possibility
that a student’s application might be “flagged” for individualized consideration
does not save the policy, since this flagging can operate only after allocation of
the automatic points. The fact that there are practical difficulties in applying
individualized consideration at so large a university “does not render
constitutional an otherwise problematic system.” A petitioner who was denied
admission as a freshman and who expressed an interest in transferring if

Michigan eliminated its reliance on race had standing to maintain the action,
and was an adequate representative in a class action.
6-3. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy, and
Thomas. Concurring opinions by O’Connor, joined in part by Breyer; by
Thomas; and by Breyer. Dissenting opinions by Stevens, joined by Souter; by
Souter, joined in part by Ginsburg; and by Ginsburg, joined by Souter, and joined
in part by Breyer.
Green Tree Financial Corp. v. Bazzle 123 S. Ct. 2402, 71 USLW 4538 (6-23-03)
Arbitration: The issue of whether an arbitration clause in a contract between
a commercial lender and its customers forbids class arbitration is a matter for
the arbitrator to decide. Because there is a “strong likelihood” in these cases
that the arbitrator’s decision “reflected a court’s interpretation of the contracts
rather than an arbitrator’s interpretation,” the case is remanded for further
proceedings. The cases do not fall within narrow exceptions relating to whether
the parties agreed to arbitrate a matter, but relate instead to “what kind of
arbitration proceeding the parties agreed to.” The issue is one of contract
interpretation and arbitration procedures that arbitrators “are well situated to
answer.”
5-4. No opinion of Court. Opinion announcing the Court’s judgment by Breyer,
joined by Scalia, Souter, and Ginsburg.
Concurring opinion by Stevens.
Dissenting opinions by Rehnquist, joined by O’Connor and Kennedy; and by
Thomas.
Grutter v. Bollinger 123 S. Ct. 2325, 71 USLW 4498 (6-23-03)
Equal protection, racial discrimination, law school admissions:
The
University of Michigan Law School’s reliance on race as a factor governing
admission of students does not violate the Equal Protection Clause of the
Fourteenth Amendment. The law school seeks to enroll a “critical mass” of
underrepresented minority students in order to produce classes “both diverse
and academically outstanding.” “Student body diversity is a compelling state
interest that can justify the use of race in university admissions.” Strict scrutiny
is not always “strict in theory, but fatal in fact.” Some governmental uses of
race can withstand strict scrutiny. The law school’s “educational judgment that
such diversity is essential to its educational mission,” supported by amici
pointing to similar needs of the business and military communities, “is one to
which we defer.”
Educational benefits of diversity include “cross-racial
understanding” and “livelier” and “more enlightening” classroom discussion.
Dispelling the stereotype that there is a single “minority viewpoint” on any issue
can be achieved by a “critical mass” of minority students, but not by “token
representation.” The law school’s admissions program is “narrowly tailored”
to achieve the compelling interest of diversity. The program does not establish
a “quota,” but is “a highly individualized, holistic review of each applicant’s
file, giving serious consideration to all the ways an applicant might contribute
to a diverse educational environment.” “Some attention to numbers, without
more, does not transform a flexible admissions system into a rigid quota.” The
number of minority students enrolled between 1993 and 2000 showed variation
(from 13.5 to 20.1 percent) in “a range inconsistent with a quota.” The law
school adequately considered and rejected race-neutral alternatives to its
approach.
5-4. Opinion of Court by O’Connor, joined by Stevens, Souter, Ginsburg, and
Breyer, and joined in part by Scalia and Thomas. Concurring opinion by

Ginsburg, joined by Breyer. Concurring and dissenting opinions by Scalia,
joined by Thomas; and by Thomas, joined in part by Scalia. Dissenting opinions
by Rehnquist, joined by Scalia, Kennedy, and Thomas; and by Kennedy.
Hillside Dairy, Inc. v. Lyons 123 S. Ct. 2142, 71 USLW 4425 (6-9-03)
Commerce, state regulation; Privileges and Immunities Clause: Section 144
of the Federal Agriculture Improvement and Reform Act of 1996, disclaiming
preemption of any California law regulating “the percentage of milk solids or
solids not fat in fluid milk” does not operate to exempt California’s milk pricing
laws from scrutiny under the Commerce Clause. Although Congress may
authorize states to regulate interstate commerce in ways that, absent
authorization, would be held to be invalid as burdening or discriminating
against interstate commerce, Congress must express its intent to do so
unambiguously. The federal statute at issue unambiguously expresses an intent
to authorize California’s “compositional and labeling laws” for milk, but “that
expression does not encompass the pricing and pooling laws.”
A claim
challenging California’s pricing and pooling laws as violative of the Privileges
and Immunities Clause of Art. IV, § 2, should not have been dismissed simply
because the laws do not on their face discriminate on the basis of residency or
citizenship. “Absence of an express statement . . . identifying out-of-state
citizenship as a basis for disparate treatment is not a sufficient basis for rejecting
this claim.”
8-1 (commerce); 9-0 (privileges and immunities). Opinion of Court by Stevens,
unanimous in part, and joined in separate part by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, Ginsburg, and Breyer. Concurring and dissenting opinion by
Thomas.
Howsam v. Dean Witter Reynolds, Inc. 123 S. Ct. 588, 71 USLW 4019 (12-10-02)
Arbitration: An arbitrator rather than a court should apply an arbitration rule
of the National Association of Securities Dealers (NASD) that is applicable to
a dispute arising out of a contract between the parties, and that governs the time
limit for submitting issues to arbitration. Because arbitration is a matter of
contract and a party cannot be required to submit to arbitration without agreeing
to do so, the general rule is that a question of arbitrability is for judicial
determination unless the parties clearly and unmistakably provide otherwise.
The NASD time limit rule, however, is a “gateway” procedural matter that
parties would likely expect the arbitrator to decide, and that, therefore, is
“presumptively for the arbitrator, not for the judge.” This conclusion is
consistent with a comment to the Revised Uniform Arbitration Act: “in the
absence of an agreement to the contrary, issues of substantive arbitrability . . .
are for a court to decide and issues of procedural arbitrability, i.e., whether
prerequisites such as time limits . . . have been met, are for the arbitrators to
decide.”
8-0. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Scalia, Kennedy,
Souter, and Ginsburg. Concurring opinion by Thomas. O’Connor did not
participate.
Illinois ex rel. Madigan v. Telemarketing Assocs., Inc. 123 S. Ct. 1829, 71 USLW
4341 (5-5-03)
First Amendment, charitable solicitations, fraud: The First Amendment
does not prohibit a state from bringing a fraud action against fundraisers who
make false or misleading representations intended to deceive potential donors

about how their donations will be used.
Earlier decisions of the Court
invalidated state laws that prohibited fundraisers from keeping more than a
specified percentage of money collected, or that required fundraisers to disclose
to potential donors the percentage of their contributions that would actually be
turner over to charity. These decisions were premised on the belief that neither
high fundraising costs nor failure to disclose the fundraiser’s fee establishes
fraud, the Court explaining that states could still “vigorously enforce” antifraud
laws to protect the public from false or misleading charitable solicitations. “So
long as the emphasis is on what the fundraisers misleadingly convey, and not
on percentage limitations on solicitors’ fees per se, such actions need not
impermissibly chill protected speech.” The state bears the burden of proof in
a “properly tailored” fraud action; the Illinois law requires the state to prove by
“clear and convincing evidence” that the defendant knowingly made a false
representation of a material fact with the intent to mislead, and succeeded in
doing so.
In this case the pleading described misrepresentations that are
unprotected by the First Amendment. Fundraisers allegedly asserted that “a
significant amount” of each dollar donated would be paid over to the charity,
when in fact “the amount of funds being paid over to charity (15 cents or less
on the dollar) was merely incidental to the fund raising effort,” and also
allegedly asserted falsely that “substantial portions” of funds collected would
be used to support a message center for Persian Gulf troops.
9-0. Opinion for unanimous Court by Ginsburg. Concurring opinion by Scalia,
joined by Thomas.
INS v. Ventura 123 S. Ct. 353, 71 USLW 3314 (11-4-02)
Immigration, review of BIA decision: The Ninth Circuit erred in deciding an
immigration case on the merits rather than remanding to the Board of
Immigration Appeals to resolve an issue it had not addressed – the issue of
whether circumstances in Guatemala had changed so much following the end
of a civil war that the respondent would not face persecution on account of
political opinions if he were denied asylum and forced to return to Guatemala.
Generally, a court should remand to an agency for initial decision on a matter
that the statute places primarily in agency hands. By relying on an ambiguous
five-year-old State Department report to reach its conclusion that the threat of
political persecution remained, the court disregarded the agency’s legally
mandated role and “created potentially far-reaching legal precedent . . . without
giving the BIA the opportunity to address the matter in the first instance.”
9-0. Per curiam.
Inyo County v. Paiute-Shoshone Indians 123 S. Ct. 1887, 71 USLW 4370 (5-19-03)
Section 1983, “person,” sovereign immunity: An Indian Tribe does not
qualify as a “person” who may sue under 42 U.S.C. § 1983 to vindicate an
interest in immunity from compliance with a criminal search warrant. Section
1983 uses the word “person” in two contexts, to describe claimants who may
sue and to describe potential defendants who, “under color of state law,” deprive
someone of federal rights. The Court has held that Congress did not intend to
override state sovereign immunity, and that therefore a state is not a “person”
subject to suit under section 1983. Even if similar protection is accorded to
Indian tribes, however, this would not mean that tribes cannot be claimant
“persons” for purposes of section 1983. The general presumption that identical
words in the same act are intended to have identical meanings “is not rigid,” and

“the meaning may vary to meet the purposes of the law.” Sovereigns have been
recognized as “persons” in other contexts, but the purposes of section 1983
would not be served by such recognition under the circumstances of this case.
Section 1983 “was designed to secure private rights against government
encroachment, . . . not to advance a sovereign’s prerogative to withhold
evidence relevant to a criminal investigation.”
9-0. Opinion of Court by Ginsburg, joined by Rehnquist, O’Connor, Scalia,
Kennedy, Souter, Thomas, and Breyer. Concurring opinion by Stevens.
Jinks v. Richland County 123 S. Ct. 1667, 71 USLW 4310 (4-22-03)
Necessary and Proper Clause, supplemental jurisdiction: 28 U.S.C. §
1367(d), which provides for the tolling of a state statute of limitations while a
state cause of action that is supplemental to a federal claim is pending in federal
court, and for 30 days thereafter, is constitutional. Although the Constitution
does not expressly grant Congress the power to toll limitations periods for state-
law claims brought in a state court, the power conferred by Art. I, § 8, cl. 18 to
make all laws “necessary and proper for carrying into execution” powers vested
in the federal government supports section 1367(d). That provision is necessary
and proper to effectuate Congress’s power to “constitute tribunals inferior to the
Supreme Court,” and to enable the fair and efficient exercise of “the judicial
power of the United States.” A law need not be “absolutely necessary” to the
exercise of an enumerated power to be “necessary and proper.” “Rather, it
suffices that § 1367(d) is ‘conducive to the due administration of justice’ in
federal court and is ‘plainly adapted’ to that end.” The provision is conducive
to the administration of justice because it provides an alternative to the
unsatisfactory options that federal judges would otherwise face in determining
whether the retain jurisdiction over supplemental claims that might become
time-barred in state court, and because it eliminates a serious impediment to
access to federal courts by plaintiffs pursuing federal and state claims that
derive from a common nucleus of operative fact. Principles of state sovereignty
do not prevent § 1367(d) from being a “proper” exercise of power; the provision
does not fall into the category of state “procedure” that is immune from
congressional regulation. If there is a valid “substance/procedure dichotomy,”
the tolling of a limitations period falls on the substance side of the line. Section
1367(d) validly applies to claims brought against a state’s political subdivisions;
a clear statement rule for such cases would be inconsistent with Monell v. New
York City Department of Social Services (1978), holding that municipalities are
subject to suit as “persons” under 42 U.S.C. § 1983.
9-0. Opinion for unanimous Court by Scalia. Concurring opinion by Souter.

Kaupp v. Texas 123 S. Ct. 1843, 71 USLW 3696 (5-5-03)
Fourth Amendment, arrest, confession: The petitioner, a 17-year old, was
arrested and seized within the meaning of the Fourth Amendment when police
officers, who had been denied a warrant to take the petitioner into custody for
questioning, awoke him in his bedroom at 3 a.m. by shining a flashlight in his
eyes, told him “we need to go and talk,” handcuffed him, took him to the patrol
car in his underwear, transported him to the scene of a crime, and then took him
to the station house and questioned him. The petitioner’s “O.K.” in response
to “we need to go and talk” was “no showing of consent under the
circumstances,” but was merely a “submission to a claim of lawful authority.”
Because the petitioner was unlawfully arrested before he was questioned, his
confession during that questioning must be suppressed unless the confession
was “an act of free will sufficient to remove the primary taint of the unlawful
invasion.” A Miranda warning alone is insufficient to break the taint.
9-0. Per curiam.
Kentucky Ass’n of Health Plans, Inc. v. Miller 123 S. Ct. 1471, 71 USLW 4259 (4-2-
03)
ERISA, preemption, state laws regulating insurance: Kentucky’s “any
willing provider” (AWP) statutes, which prohibit health insurers from
discriminating against any provider willing to meet the insurer’s terms and
conditions for participation, are “law[s] . . . which regulate insurance” within
the meaning of ERISA. This means that the AWP statutes are thereby saved
from ERISA’s broad preemption of all state laws that “relate to any employee
health benefit plan.” Generally, laws specifically directed toward the insurance
practices of insurance companies are held to be laws “which regulate
insurance.” The fact that the AWP statutes’ regulation of insurance companies
also affects providers does not take the statutes outside the scope of the savings
clause. State laws need not control the terms of insurance policies in order to
qualify for the exception, but must substantially affect the risk pooling
arrangement between the insurer and insured. AWP laws do so by altering the
scope of permissible bargains between insurers and insureds; the effect is that
insurers can no longer offer lower premiums in exchange for acceptance of a
closed network of providers. Reliance on cases interpreting the McCarran-
Ferguson Act, which regulates “the business of insurance,” is misplaced. The
two statutes use substantially different language, and the McCarran-Ferguson
Act tests were developed in cases that addressed conduct by private actors rather
than state laws.
9-0. Opinion for unanimous Court by Scalia.
Lawrence v. Texas 123 S. Ct. 2472, 71 USLW 4574 (6-26-03)
Due Process, privacy, sodomy: A Texas statute making it a crime for two
people of the same sex to engage in sodomy violates the Due Process Clause of
the Fourteenth Amendment. The right to liberty protected by the Due Process
Clause includes the right of two adults, “with full and mutual consent from each
other, [to] engag[e] in sexual practices common to a homosexual lifestyle.”
Bowers v. Hardwick (1986), upholding application of a Georgia sodomy law on
the basis that there is no fundamental right of homosexuals to engage in
sodomy, is overruled.
The Bowers Court “misapprehended the claim of
liberty.” The sodomy laws, although directed at a particular sexual act, have
“more far-reaching consequences, . . and seek to control a personal relationship

that, whether or not entitled to formal recognition in the law, is within the
liberty of persons to choose without being punished as criminals.”
The
“historical premises” relied upon by the Bowers Court are questionable. “There
is no longstanding history in this country of laws directed at homosexual
conduct as a distinct matter.” General sodomy laws “do not seem to have been
enforced against consenting adults acting in private,” but rather for the most part
have been enforced in cases involving minors, assault victims, or animals. The
Bowers precedent has been undermined by later decisions of the Court, and its
reasoning has been rejected by state and foreign courts. The doctrine of stare
decisis is not controlling; “there has been no individual or societal reliance on
Bowers of the sort that could counsel against overturning its holding.”
6-3. Opinion of Court by Kennedy, joined by Stevens, Souter, Ginsburg, and
Breyer. Concurring opinion by O’Connor. Dissenting opinions by Scalia, joined
by Rehnquist and Thomas; and by Thomas.
Lockyer v. Andrade 123 S. Ct. 1166, 71 USLW 4161 (3-5-03)
Habeas corpus, “three-strikes” law: Imposition on a 37-year-old of two
consecutive 25-year-to-life sentences under California’s three strikes law on
conviction for two “petty thefts with a prior conviction” is not contrary to, and
does not involve an unreasonable application of, clearly established federal law
as determined by the Supreme Court. The standard for habeas corpus relief
from a state sentence established by the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254, is therefore not met. The Supreme Court’s
precedents in the area “have not been a model of clarity.” While a “gross
disproportionality” principle derived from the Eighth Amendment’s Cruel and
Unusual Punishments Clause is applicable to sentences for terms of years, the
precise contours of the principle are unclear. The California Court of Appeal’s
decision was not “contrary to” clearly established law. It was permissible for
that court to rely on Rummel v. Estelle (1980), in which the Court rejected a
challenge, based on gross disproportionality, to a sentence of life imprisonment
with possibility of parole after 10 to 12 years. The facts in this case fell “in
between” those of Rummel and those of Solem v. Helm (1983), in which the
Court granted relief from a sentence of life imprisonment without possibility of
parole. Nor are the consecutive sentences an “unreasonable application” of
clearly established precedent. To fail under this test the state court’s application
must be “objectively unreasonable.” “Here, however, the governing legal
principle gives legislatures broad discretion to fashion a sentence that fits within
the scope of the proportionality principle,” and the sentencing was not
objectively unreasonable.
5-4. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy, and
Thomas. Dissenting opinion by Souter, joined by Stevens, Ginsburg, and Breyer.
Massaro v. United States 123 S. Ct. 1690, 71 USLW 4310 (4-23-03)
Habeas corpus, ineffective assistance of counsel: Ineffective assistance of
counsel claims that were not raised on direct appeal may be brought in habeas
corpus proceedings even if the petitioner could have raised the claim on direct
appeal. In this case the petitioner had been represented by new counsel on
appeal, and his trial counsel’s ineffectiveness was evident from the trial record.
The general rule that claims not raised on direct appeal may not be raised on
collateral review unless the petitioner shows cause and prejudice is inapplicable
to claims of ineffective counsel. Requiring such claims to be brought on direct

appeal does not promote the interests that are served by the procedural default
rule – conserving judicial resources and promoting finality of judgments. The
trial record is not developed for the purpose of litigating a claim of ineffective
assistance of counsel, and may be incomplete for that purpose. Appellate
counsel could feel compelled to raise the issue on direct appeal before it is fully
developed, might feel pressured to bring the claim regardless of merit in order
to prevent waiver and avoid a claim of ineffective appellate counsel, and might
be hampered in obtaining trial counsel’s assistance in the appeal. “Few” such
claims would be capable of resolution on direct appeal, and appellate courts
“would waste time and resources” attempting to resolve the various issues.
Allowing ineffective assistance claims to be litigated on collateral review means
that they can be litigated in the first instance in district courts, “the forum best
suited to developing the facts necessary to determining the adequacy of
representation.”
9-0. Opinion for unanimous Court by Kennedy.
Meyer v. Holley 123 S. Ct. 824, 71 USLW 4081 (1-22-03)
Fair Housing Act, racial discrimination, vicarious liability: The Fair
Housing Act imposes vicarious liability on a corporation, but not upon
corporate officers or owners, for the racially discriminatory acts of corporate
employees. The Act prohibits racial discrimination in real estate transactions,
but is silent about vicarious liability. The established rule is that when Congress
creates a tort action, as it did in the Fair Housing Act, it incorporates the
ordinary tort rules of vicarious liability unless it specifies a different intent.
Congress has done so in several contexts, e.g., the antitrust and food and drug
laws, but said nothing in the Fair Housing Act or its legislative history about
extending vicarious liability beyond traditional principles. Traditional vicarious
liability rules make employers liable for acts of their agents or employees in the
scope of their employment, but treat the corporation – not its owner or officer
– as the employer. A corporate officer’s right to control an employee’s actions
is insufficient by itself to establish the employer/employee relationship.
Moreover, the Court defers to an administering agency’s reasonable
interpretations of a statute, and views a HUD regulation governing
administrative complaints as adopting the traditional vicarious liability rules.
The Act does not create a non-delegable duty that trumps traditional vicarious
liability principles. Characterizing the Act’s objective as an “overriding societal
priority” does not change the liability rules.
9-0. Opinion for unanimous Court by Breyer.
Miller-El v. Cockrell 123 S. Ct. 1029, 71 USLW 4095 (2-25-03)
Habeas corpus, certificate of appealability: A habeas corpus petitioner
seeking permission in the form of a certificate of appealability (COA) to initiate
appellate review of dismissal of his petition need only make “a substantial
showing of the denial of a constitutional right.” A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district
court’s rejection of his claims or could conclude that the issues are worthy of
further consideration. In this case the appeals court erred in denying a COA.
The petitioner made a “substantial showing” of racial discrimination in jury
selection at his state court trial, as measured by a “threshold” application of the
three-part test set forth in Batson v. Kentucky (1986). Statistical evidence alone
raised “some debate” as to race-based motives: the prosecutors used peremptory

challenges to exclude 10 of the 11 eligible African-American jurors, and
excluded only 4 of the 31 other prospective jurors. The manner in which
potential jurors were questioned varied by race, prosecutors used a “jury
shuffling” practice to reduce the number of African Americans likely to be
questioned during voir dire, and there was a history in the county of a formal
policy of excluding minorities from jury service. Although the prosecutors
proffered race-neutral explanations for their actions, “a fair interpretation of the
record . . . is that the prosecutors designed their questions to elicit responses that
would justify the removal of African-Americans from the venire.” Also, the
state courts made no mention of the jury shuffling or the history of purposeful
discrimination. Whether or not the petitioner can prevail on the merits by “clear
and convincing evidence,” the issue is at least “debatable,” and that is all that
is necessary for a COA.
8-1. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,
Scalia, Souter, Ginsburg, and Breyer. Concurring opinion by Scalia. Dissenting
opinion by Thomas.
Moseley v. V Secret Catalogue, Inc. 123 S. Ct. 1115, 71 USLW 4126 (3-4-03)
Federal Trademark Dilution Act: Trademark dilution, prohibited by the
Federal Trademark Dilution Act (FTDA), requires objective proof of actual
injury to the capacity of a famous mark to identify and distinguish a product,
and is not satisfied by a mere presumption of harm embodied in a “likelihood
of dilution” standard. The FTDA provides relief against the use of a famous
mark if that use “causes dilution of the distinctive quality” of the mark. This
language “unambiguously requires a showing of actual dilution, rather than a
likelihood of dilution.” Language in the definition of the term “dilution” reveals
contrasting usage that “fortifie[s]” this conclusion. Dilution is defined as “the
lessening of the capacity” of a famous mark to identify and distinguish a
product, regardless of the presence or absence of “likelihood of confusion.”
Mental association of a junior user’s mark with a famous mark is not sufficient
to establish dilution. Neither blurring nor tarnishing is a necessary consequence
of mental association. In this case, there was “a complete absence of any
evidence” that use of the name “Victor’s Little Secret” by a retail store caused
“any lessening of the capacity of the VICTORIA’S SECRET mark to identify
and distinguish goods or services sold in Victoria’s Secret stores or advertised
in its catalogs.”
9-0. Opinion of Court by Stevens, unanimous in part, and joined in separate part
by Rehnquist, O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer.
Concurring opinion by Kennedy.
National Park Hospitality Ass’n v. Department of the Interior 123 S. Ct. 2026, 71
USLW 4399 (5-27-03)
Administrative law, ripeness: The facial challenge to a National Park Service
regulation providing that the Contract Disputes Act (CDA) does not apply to
contracts between the National Park Service and concessioners in the national
parks is not ripe for adjudication. Ripeness of administrative action for judicial
review is evaluated through two inquiries: whether the issues are fit for judicial
decision and whether withholding review would create hardship for the parties.
As a general matter, a regulation is not ripe for review until its application
harms or threatens to harm a party. The National Park Service has no delegated
rulemaking authority under the CDA, and the challenged portion of its
regulation is “nothing more than a general statement of policy” informing the

public of NPS views on applicability of the CDA. The regulation, therefore, has
no effects of a strictly legal kind, and does not adversely affect a concessioner’s
“primary” conduct.
The fact that concessioners may wish to take CDA
applicability into account when bidding on contracts merely reflects possible
uncertainty not amounting to hardship. Although the issue raised is “a purely
legal one” that is “final” for purposes of the Administrative Procedure Act,
further factual development would enhance a court’s ability to deal with those
issues, and consequently judicial resolution “should await a concrete dispute
about a particular concession contract.”
7-2. Opinion of Court by Thomas, joined by Rehnquist, Scalia, Kennedy, Souter,
and Ginsburg. Concurring opinion by Stevens. Dissenting opinion by Breyer,
joined by O’Connor.
Nevada Dep’t of Human Resources v. Hibbs 123 S. Ct. 1972, 71 USLW 4375 (5-27-
03)
Family and Medical Leave Act, state immunity: The Family and Medical
Leave Act of 1993 (FMLA) is a valid exercise of congressional power under
section 5 of the Fourteenth Amendment.
The FMLA entitles eligible
employees, including employees of state governments, to take up to 12 weeks
annually of unpaid leave to care for a family member with a serious health
condition, and authorizes suits for injunctive relief and money damages “against
any employer (including a public agency)” that interferes with exercise of
FMLA rights. This authorization of recovery of money damages from state
employers is valid. Congress may, pursuant to a valid exercise of power under
section 5 of the Fourteenth Amendment, abrogate state immunity from suit in
federal court. Under section 5, Congress may enact “prophylactic legislation
that proscribes facially constitutional conduct, in order to prevent and deter
unconstitutional conduct.” The FMLA “aims to protect the right to be free from
gender-based discrimination in the workplace,” and Congress had evidence of
a pattern of gender-based discrimination by states that was “weighty enough to
justify the enactment of prophylactic §5 legislation.” The Kimel and Garrett
decisions are distinguished by the fact that age and disability discrimination are
not subjected to the
heightened level of scrutiny that applies to gender
discrimination; heightened scrutiny of state action made it “easier for Congress
to show a pattern of state constitutional violations.” The FMLA’s remedy,
“creating an across-the-board, routine employment benefit for all eligible
employees” rather than simply prohibiting gender discrimination in the
provision of leave benefits, is “congruent and proportional” to the targeted
violation. This approach “attacks the formerly state-sanctioned stereotype that
only women are responsible for family caregiving,” and reduces employers’
incentive to discriminate in the hiring and promotion of women.
The
limitations placed on leave availability (e.g., leave is unpaid, employees must
work for a year before qualifying) help to ensure that the means are
“proportionate” to ends that are legitimate under section 5.
6-3. Opinion of Court by Rehnquist, joined by O’Connor, Souter, Ginsburg, and
Breyer. Concurring opinions by Stevens; and by Souter, joined by Ginsburg and
Breyer. Dissenting opinions by Scalia; and by Kennedy, joined by Scalia and
Thomas.
Nguyen v. United States 123 S. Ct. 2130, 71 USLW 4428 (6-9-03)
Appeals courts, designation of district judges: Judges of the District Court
for the Northern Mariana Islands are not “district judges” who may sit by

designation on the U.S. Court of Appeals for the Ninth Circuit. As used in the
applicable statute, 28 U.S.C. § 292(a), which authorizes a circuit’s chief judge
to assign “one or more district judges within the circuit” to sit on the appeals
court, the term “district judges” refers to judges of Article III courts, not to
judges of territorial “Article IV” courts. Several provisions of title 28, read
together, require this conclusion. The term “district court” as used in title 28 is
defined as a “court of the United States” that is constituted pursuant to chapter
five of the title. Chapter five lists all such courts, but the District Court for the
Northern Mariana Islands is not so listed. Moreover, although chapter five
provides that district judges hold office “during good behavior,” another
provision directs that district judges for the Marianas are appointed for a term
of years, and are removable by the President for cause. Case law precedent also
supports the conclusion that the term “United States district court,” as used in
title 28, “ordinarily excludes Article IV territorial courts.” Arguments that the
appellate panel’s judgment should remain undisturbed even though the panel
was improperly constituted are rejected. The “de facto officer doctrine” has
been applied when there were merely technical defects of statutory authority,
but should not apply to contravene Congress’s “weighty” decision to maintain
the Article III character of the appeals courts. Concern for the validity of the
appeals court’s composition also counsels against deciding the case on the basis
of an assessment of the fairness of the petitioners’ convictions. The presence
of a quorum of two qualified judges on the panel is also insufficient to
overcome the defect.
5-4. Opinion of Court by Stevens, joined by O’Connor, Kennedy, Souter, and
Thomas. Dissenting opinion by Rehnquist, joined by Scalia, Ginsburg, and
Breyer.
Norfolk & Western Ry. v. Ayers 123 S. Ct. 1210, 71 USLW 4197 (3-10-03)
Federal Employers’ Liability Act, damages for mental anguish: A railroad
worker suffering from asbestosis caused in part by on-the-job exposure to
asbestos may recover damages under the Federal Employers’ Liability Act
(FELA) for pain and suffering due to fear of developing cancer. Case law
precedents under the FELA have recognized two categories of emotional
distress claims: “stand-alone” claims not provoked by any physical injury, for
which recovery is sharply circumscribed; and claims brought on by a physical
injury, for which pain and suffering recovery is permitted. Asbestosis is a
cognizable injury under the FELA, and fear that cancer will develop is an
emotional disturbance that can be tied to the injury and that can give rise to
recovery. Although it is asbestos exposure rather than asbestosis itself that can
result in cancer, once there has been bodily harm in the form of asbestosis the
responsible parties traditionally can be held liable for emotional distress
“resulting from . . . the conduct which causes [the bodily harm].” “There is an
undisputed relationship between exposure to asbestos sufficient to cause
asbestosis, and asbestos-related cancer.” Claimants must, however, establish
that their alleged fears are “genuine and serious.” The FELA does not authorize
apportionment of damages between railroad and non-railroad causes. Rather,
the FELA provides that, if an injury has resulted “in whole or in part” from a
railroad’s negligence, that railroad is “liable in damages . . . for such injury.”
This means that the railroad is jointly and severally liable for full damages even
if the injuries were caused in part by negligence of third parties. Narrowing this
employer liability without textual warrant would “run counter to a century of
FELA jurisprudence,” and would complicate adjudications.

5-4 (recovery for fear of cancer) 9-0 (joint and several liability). Opinion of
Court by Ginsburg, unanimous in part, and joined in separate part by Stevens,
Scalia, Souter, and Thomas. Concurring and dissenting opinion by Kennedy,
joined by Rehnquist, O’Connor, and Breyer. Concurring and dissenting opinion
by Breyer.
Overton v. Bazzetta 123 S. Ct. 2162, 71 USLW 4445 (6-16-03)
Due process, restrictions on prison visitation: Prison visitation policies
implemented by the Michigan Department of Corrections in 1995 are not
invalid as depriving inmates of associational or due process rights, and do not
constitute cruel and unusual punishment. The right of association “is among the
rights least compatible with incarceration.” Each challenged policy “bears a
reasonable relationship to a legitimate penological interest.” Restrictions on
visitation by children bear a rational relation to the interest in maintaining
internal security and protecting children from exposure to sexual or other inmate
misconduct. Excluding unrelated children or children as to whom the inmate’s
parental rights have been terminated is a permissible means of reducing the
overall number of child visitors. Banning all visits for a two-year period, except
those by lawyers and clergy, for inmates who commit multiple substance abuse
violations is “a proper and even necessary management technique” not shown
to be unconstitutionally severe in application. Inmates have available the
alternative means of letters and telephone calls to exercise the rights they assert;
these alternatives “need not be ideal, [but] need only be available.” Prisoners
have not pointed to a regulatory alternative that accommodates their asserted
rights while imposing only de minimis cost to valid penological objectives; on
the contrary, accommodating the prisoners’ demands would require a
“significant reallocation” of prison resources and would impair the ability of
corrections officers to protect visitors and inmates.
The restrictions for
substance-abuse violators do not constitute cruel and unusual punishment, but
a different case would be presented “if the withdrawal of all visitation privileges
were permanent or for a much longer period, or if it were applied in an arbitrary
manner to a particular inmate.”
9-0. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,
Souter, Ginsburg, and Breyer. Concurring opinions by Stevens, joined by Souter,
Ginsburg, and Breyer; and by Thomas, joined by Scalia.

Pacificare Health Systems, Inc. v. Book 123 S. Ct. 1531, 71 USLW 4280 (4-7-03)
Ripeness, arbitration: A federal district court should have granted a motion to
compel arbitration of claims arising under RICO, even though the parties’
arbitration agreements may be construed to limit the arbitrator’s authority to
award treble damages under RICO. The district court ruled that the respondents
could not obtain “meaningful relief” on their RICO claims in an arbitration
forum, but it was unclear how arbitrators might rule. The arbitration agreements
specified that arbitrators have no authority to award “punitive or exemplary”
damages. The Court has recognized, however, that RICO’s treble-damages
provision serves a “remedial function,” and it is “in doubt” whether arbitrators
would consider such damages to be punitive within the meaning of the
agreements.
8-0. Opinion of Court by Scalia, joined by all Justices except Thomas, who did
not participate.
Pharmaceutical Research and Mfrs. of America v. Walsh 123 S. Ct. 1855, 71 USLW
4354 (5-19-03)
Medicaid, burden on commerce, preemption: The Maine Rx Program, under
which the state negotiates rebates with drug manufacturers in order to provide
discounted prescription drugs to Maine citizens, does not impose an
unconstitutional burden on interstate commerce by requiring drug manufacturers
who do not enter into a rebate agreement to obtain prior authorization to qualify
a doctor’s prescription for Medicaid reimbursement. Cases invalidating price
affirmation laws that had the effect of regulating prices of sales in other states
are inapplicable because “the Maine Act does not regulate the price of any out-
of-state transaction.” Nor does the Maine law benefit in-state companies at the
expense of out-of-state companies. The petitioner did not carry its burden of
establishing a likelihood of success on the merits on its claim that the Maine
program is preempted by the Medicaid Act, and consequently the district court
should not have issued a preliminary injunction.
9-0 (burden on commerce); 6-3 (preemption). Opinion of Court by Stevens,
joined by Rehnquist, O’Connor, Kennedy, Souter, Ginsburg, and Breyer.
Separate parts of Stevens opinion joined by Souter, Ginsburg, and Breyer; and
by Souter and Ginsburg. Concurring opinions by Breyer, by Scalia, and by
Thomas. Concurring and dissenting opinion by O’Connor, joined by Rehnquist
and Kennedy.
Pierce County v. Guillen 123 S. Ct. 720, 71 USLW 4035 (1-14-03)
Commerce power, highway hazards, evidentiary privilege: 23 U.S.C. § 409,
which provides that “data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential [highway] accident
sites . . . shall not be subject to discovery or admitted into evidence in a Federal
or State court proceeding . . . in any action for damages” arising from an
accident at any such site, is a valid exercise of Congress’s authority to regulate
interstate commerce. The Court has jurisdiction under 28 U.S.C. § 1257 to
review as “final” the Supreme Court of Washington’s ruling requiring
disclosure of certain documents under the state’s public disclosure law. The
Court lacks jurisdiction, however, over a parallel tort action that is not yet
“final.” Section 409's privilege applies to data that federal law (23 U.S.C. §
152) requires states to collect and compile for a road hazard elimination
program.
Section 409 is correctly interpreted as applying to information
compiled or collected for section 152 purposes, but not to information originally

compiled or collected for other purposes and held by another agency, even if it
has since been collected for section 152 purposes. Section 409 was adopted as
a response to the reluctance of states to comply fully with section 152 for fear
that the assembled data could make them easier targets of negligence actions.
“Congress could reasonably believe that adopting a measure eliminating an
unforeseen side effect of the information-gathering requirement . . . would result
in more diligent efforts to collect the relevant information, more candid
discussions of hazardous locations, better informed decision-making, and,
ultimately, greater safety on our Nation’s roads.” Section 409, therefore, “can
be viewed as legislation aimed at improving safety in the channels of commerce
and increasing protection for the instrumentalities of interstate commerce.”
9-0. Opinion for unanimous Court by Thomas.
Price v. Vincent 123 S. Ct. 1848, 71 USLW 4351 (5-19-03)
Habeas corpus, statutory limits: Federal courts erred in granting habeas
corpus relief to a state prisoner who alleged that his prosecution for first-degree
murder constituted double jeopardy because it came after the trial judge had
indicated that second-degree murder was the “appropriate charge.” Habeas
relief is barred by 28 U.S.C. § 2254(d) because the state court decisions
upholding the first-degree murder conviction were neither “contrary to” nor an
“unreasonable application of, clearly established Federal law, as determined by
the Supreme Court.”
The Michigan Supreme Court’s decision was not
“contrary to” clearly established law, but instead followed precedent from the
U.S. Supreme Court. Moreover, the Michigan court’s conclusion that the trial
judge’s comments “simply were not sufficiently final as to terminate jeopardy”
was not an “unreasonable application” of precedent, but instead was consistent
with decisions of other courts requiring some formal indication of finality, such
as a signed order or a jury instruction. Even if such an interpretation is
incorrect, “it was at least reasonable for the state court to conclude otherwise.”
9-0. Opinion for unanimous Court by Rehnquist.
Roell v. Withrow 123 S. Ct. 1696, 71 USLW 4336 (4-29-03)
Magistrate judges, litigants’ consent to use: Consent to trial before a
magistrate judge may be implied from a party’s conduct in submitting to
litigation before the magistrate.
The Federal Magistrate Act authorizes
magistrate judges to conduct civil trials if they are specially designated by a
district court and are acting “upon the consent of the parties.” Although the
procedures established by statute and rules envision consent in writing, the text
and structure of the section as a whole suggest that a party’s failure to comply
with the procedures does not deprive a magistrate of jurisdiction. Recognizing
implied consent when parties have submitted to litigation before a magistrate
judge without filing written consent is the better solution to meeting the dual
congressional objectives of relieving court congestion and thereby improving
access for civil litigants, while keeping resort to magistrate judges purely
voluntary. The “virtue” of insistence on express consent is “simply the value
of any bright line” – here assuring that use of a magistrate judge is voluntary.
But insistence on express consent would create the risk of “wasting” a “full and
complicated trial” before a magistrate judge, and of allowing “gamesmanship”
by parties who await the outcome of the trial before objecting to the magistrate
judge’s authority.

5-4. Opinion of Court by Souter, joined by Rehnquist, O’Connor, Ginsburg, and
Breyer. Dissenting opinion by Thomas, joined by Stevens, Scalia, and Kennedy.
Sattazahn v. Pennsylvania 123 S. Ct. 732, 71 USLW 4027 (1-14-03)
Double Jeopardy, death eligibility on retrial: Pennsylvania was not barred
from seeking the death penalty at the defendant’s second trial. At his first trial,
the defendant had been sentenced to life imprisonment by operation of a statute
authorizing the judge to discharge a capital sentencing jury that is deadlocked,
and requiring the judge in such circumstances to impose a life sentence. The
mere imposition of a life sentence does not raise a double jeopardy bar. Rather,
jeopardy attaches only if there is an “acquittal at a trial-like sentencing phase.”
Normally, therefore, a retrial following a “hung” jury does not violate the
Double Jeopardy Clause. Here as well, the jury’s deadlock (9-to-3 in favor of
a life sentence) “cannot fairly be called an acquittal ‘based on findings sufficient
to establish legal entitlement to the life sentence.’”
Nor can the court’s
mandated entry of the life sentence be considered an acquittal; the judge “makes
no findings and resolves no factual matter.” There is no merit to a separate due
process claim; the Due Process Clause does not provide “greater double-
jeopardy protection than does the Double Jeopardy Clause.”
5-4. Opinion of Court by Scalia, joined by Rehnquist, O’Connor, Kennedy, and
Thomas. Separate part of Scalia opinion joined by Rehnquist and Thomas.
Concurring opinion by O’Connor. Dissenting opinion by Ginsburg, joined by
Stevens, Souter, and Breyer.
Scheidler v. NOW 123 S. Ct. 1057, 71 USLW 4116 (2-26-03)
Hobbs Act, RICO, abortion protests: Abortion protesters did not commit
“extortion” within the meaning of the Hobbs Act by using violence and threats
to attempt to shut down abortion clinics, and consequently there were no
“predicate acts” of “racketeering” on which a RICO violation could be based.
The Hobbs Act defines extortion as “the obtaining of property from another,
with his consent, obtained by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” The allegations, however, are
not that the petitioners used violence, threats, or fear to obtain property, but that
they used such devices to cause the respondents to give up property rights
(rights to seek and to provide medical services). The Hobbs Act language is
consistent with common law interpretations, and is based on the Penal Code of
New York and the Field Code, both of which included acquisition as well as
deprivation of property within the meaning of “obtaining of property.”
Similarly, the Hobbs Act has been interpreted to require acquisition.
Eliminating the requirement that property be “obtained” to constitute extortion
would eliminate the distinction between extortion and the separate crime of
coercion, which involves the use of force to restrict another’s freedom of action,
and which “more accurately describes the nature of petitioners’ actions.”
Congress was aware of the distinction between extortion and coercion when it
adopted the Hobbs Act. Although RICO defines “racketeering activity” to
include “any act or threat of . . . extortion . . . which is chargeable under State
law,” this has been interpreted to apply “a generic definition of extortion” that
requires obtaining or seeking to obtain property.
Similarly, the alleged
violations of the Travel Act, which prohibits extortion in violation of state law,
cannot constitute predicate acts for purposes of RICO because the alleged acts
are not extortionate.

8-1. Opinion of Court by Rehnquist, joined by O’Connor, Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Ginsburg, joined
by Breyer. Dissenting opinion by Stevens.
Sell v. United States 123 S. Ct. 2174, 71 USLW 4456 (6-16-03)
Due process, forced medication to stand trial; appeals: An individual has a
constitutionally protected liberty interest in avoiding the unwanted
administration of antipsychotic drugs. Although the Constitution allows the
Government to forcibly administer antipsychotic drugs
to a mentally ill
criminal defendant in order to render that defendant competent to stand trial for
a serious crime, the requisite findings were not made in this case. The treatment
must be “medically appropriate, . . . substantially unlikely to have side effects
that may undermine the fairness of the trial, and taking account of less intrusive
alternatives, . . . necessary significantly to further important governmental trial-
related interests.” Whether a sufficiently important governmental interest is at
stake will depend upon the facts of the individual case, including the potential
for future confinement.
Ordinarily, before a court approves forced
administration of drugs for purposes of rendering a defendant competent to
stand trial, it should determine whether the Government seeks, or has sought,
permission to administer the drugs for purposes of rendering the individual not
dangerous to himself or others. In this case, in which the lower courts held that
a magistrate’s finding of dangerousness was erroneous, it was error to approve
forced medication solely to render the petitioner competent to stand trial. The
appeals court had jurisdiction to hear the appeal in this case even though the
district court’s decision was not “final” within the meaning of 28 U.S.C. § 1291.
The case falls under the exception for “collateral” orders that are “effectively
unreviewable on appeal from a final judgment.”
By the time of trial the
defendant would have undergone forced medication – “the very harm that he
seeks to avoid,” and he could not have undone the harm even if acquitted.
6-3. Opinion of Court by Breyer, joined by Rehnquist, Stevens, Kennedy,
Souter, and Ginsburg. Dissenting opinion by Scalia, joined by O’Connor and
Thomas.
Smith v. Doe 123 S. Ct. 1140, 71 USLW 4182 (3-5-03)
Ex Post Facto Clause, “Megan’s Law”: Alaska’s Sex Offender Registration
Act, a “Megan’s Law” which requires persons convicted of sex offenses prior
to the Act’s enactment to register with law enforcement authorities, and which
also requires public notification, does not impose retroactive punishment
prohibited by the Ex Post Facto Clause of Article I, § 10, cl.1. Ex post facto
analysis requires a determination of whether a law is civil or punitive in
purpose. If the legislature’s purpose was to enact a civil regulatory scheme,
then the law is ex post fact only if there is “the clearest proof” of punitive effect.
Here the primary purpose was that of public safety – “protecting the public from
sex offenders.” Although this is also a goal of criminal laws, that fact alone
does not make the objective punitive. Several factors provide “guideposts” for
analysis. Registration and public notification of sex offenders are of recent
origin, and are not viewed as a “traditional means of punishment.” These
requirements do not closely resemble punishments of public disgrace imposed
in colonial times; the stigma of Megan’s Law results not from public shaming
but from the dissemination of information about a criminal record, most of
which is already public.
The Act does not subject the registrants to an
“affirmative disability or restraint”; there is no physical restraint or occupational

disbarment, and, unlike conditions of probation, there is no restraint or
supervision of living conditions. Although the Act might help to deter future
crimes, this is consistent with a non-punitive regulatory objective. There is a
rational connection to the non-punitive purpose of protecting public safety; the
statute need not be narrowly tailored for that purpose.
Nor is the act
“excessive” in relation to its regulatory purpose. Rather, “the means chosen are
reasonable in light of the nonpunitive objective.” Unlike involuntary civil
commitment, where the “magnitude of restraint [makes] individual assessment
appropriate,” the state may make “reasonable categorical judgments,” and need
not provide individualized determinations of dangerousness.
6-3. Opinion of Court by Kennedy, joined by Rehnquist, O’Connor, Scalia, and
Thomas. Concurring opinions by Thomas and by Souter. Dissenting opinions
by Stevens; and by Ginsburg, joined by Breyer.
Sprietsma v. Mercury Marine 123 S. Ct. 518, 71 USLW 4009 (12-3-02)
Preemption, Federal Boat Safety Act: The Federal Boat Safety Act of 1971
does not preempt a state common law tort action for damages from the
manufacturer of an outboard motor not equipped with a propeller guard. The
Act contains an express preemption clause that prohibits states from adopting
or enforcing “a law or regulation . . . not identical to a regulation prescribed
under [the Act].” No federal regulation requires propeller guards on outboard
motors; the Coast Guard studied the matter and decided not to issue a
regulation.
The statute’s preemption language “is best read as not
encompassing common-law claims.” Use of the article “a” before “law or
regulation” “implies a discreteness – which is embodied in statutes and
regulations – that is not present in the common law.” Also, use of the words
“law” and “regulation” together suggests that “law” should not be read so
broadly as to encompass “regulation” and thereby render superfluous inclusion
of the latter word. A narrower reading of “law” as excluding “regulation”
could also exclude “common law.” The Act’s saving clause, providing that
compliance with the federal standards or regulations “does not relieve a person
from liability at common law” “buttresses this conclusion.” The common law
claim is not implicitly preempted by the Coast Guard’s decision not to require
propeller guards. That decision was not premised on a federal policy against
propeller guards, and the Coast Guard does not view its refusal to regulate as
having any preemptive effect. Nor does the “statutory scheme as a whole”
preempt the common law claim. The Act “did not so completely occupy the
field of safety regulation of recreational boats as to foreclose state common-law
remedies.”
9-0. Opinion for unanimous Court by Stevens.

State Farm Mut. Auto. Ins. Co. v. Campbell 123 S. Ct. 1513, 71 USLW 4282 (4-7-03)
Due Process, punitive damages: Utah’s award of $145 million in punitive
damages following an award of $1 million in compensatory damages was an
irrational and arbitrary deprivation of property in violation of the Fourteenth
Amendment’s Due Process Clause. The “guideposts” governing appellate
review of punitive damages awards were set forth in BMW v. Gore (1996). The
first guidepost is the degree of reprehensibility of the defendant’s conduct.
While State Farm’s handling of the claims in this case “merits no praise,” the
state’s “legitimate objectives” could have been satisfied by “a more modest
punishment.” Instead, the case was used as a “platform” to expose and punish
State Farm for its nationwide policies, even though much of the out-of-state
conduct was lawful where it occurred, and a state may not punish a defendant
“for conduct that may have been lawful where it occurred.” More important, the
Utah courts awarded punitive damages to punish and deter conduct that bore no
relation to the plaintiffs’ harm. The second Gore guidepost examines the
disparity between the harm suffered by the plaintiff and the punitive damages
award. “Few awards exceeding a single-digit ratio . . . will satisfy due
process.” When compensatory damages are substantial, as they were in this
case, “then a lesser ratio, perhaps only equal to compensatory damages,” can be
upheld. Here the harm was economic, rather than physical, and a component
of the punitive award was likely duplicated in the compensatory award. The
third Gore guidepost, the disparity between the punitive award and civil
penalties authorized or imposed in comparable cases, reveals that the most
relevant civil sanction – a $10,000 fine for an act of fraud – is “dwarfed” by the
punitive damages award. Application of the Gore guideposts, therefore, “likely
would justify a punitive damages award at or near the amount of compensatory
damages.”
6-3. Opinion of Court by Kennedy, joined by Rehnquist, Stevens, O’Connor,
Souter, and Breyer. Dissenting opinions by Scalia, Thomas, and Ginsburg.
Stogner v. California 123 S. Ct. 2446, 71 USLW 4588 (6-26-03)
Ex Post Facto Clause, revival of limitations period: A California statute that
permits resurrection of an otherwise time-barred criminal prosecution for sexual
abuse of a child, and that was itself enacted after the pre-existing limitations
period had expired for the crimes at issue, violates the Ex Post Facto Clause of
Art. I, § 10, cl. 1. The statute threatens the kinds of harms to fairness that the
Clause seeks to avoid. Moreover, the statute falls literally within one of the four
categories of ex post facto laws described by Justice Chase in Calder v. Bull
(1798) – those laws that “aggravate a crime or make it greater than it was, when
committed,” e.g., those laws that “inflict punishment, where the party was not,
by law, liable to any punishment.” The petitioner in this case was not “liable to
any punishment” after California’s three-year statute of limitations had run on
his alleged crimes, alleged to have taken place between 1955 and 1973.
California’s 1993 law authorized prosecution for those alleged crimes however,
and prosecution was initiated 22 years after the original limitations period had
run. Commentators and courts have long believed it settled that the Clause
forbids resurrection of a time-barred prosecutions. Courts that have upheld
extensions of unexpired statutes of limitations have been careful to distinguish
those situations in which limitations periods have expired, suggesting that
resurrection rather than extension would be unconstitutional.
To allow
prosecution years after the state has, in effect, granted an amnesty and told the
accused that he need not preserve evidence of innocence, is unfair.

5-4. Opinion of Court by Breyer, joined by Stevens, O’Connor, Souter,
and Ginsburg. Dissenting opinion by Kennedy, joined by Rehnquist,
Scalia, and Thomas.
Sygenta Crop Protection, Inc. v. Henson 123 S. Ct. 366, 71 USLW 4001 (11-5-02)
Removal jurisdiction, All Writs Act: The All Writs Act does not furnish
jurisdiction for removal of an action from state to federal court. The governing
statute, 28 U.S.C. § 1441, authorizes removal of “any civil action brought in a
State court of which the district courts of the United States have original
jurisdiction.” The All Writs Act does not provide such original jurisdiction, but
instead authorizes federal courts to “issue all writs necessary or appropriate in
aid of their respective jurisdictions.”
Likewise, the All Writs Act in
combination with the doctrine of ancillary enforcement jurisdiction does not
confer the original jurisdiction on which removal must be predicated.
Invocation of ancillary jurisdiction does not eliminate “the need for compliance
with statutory requirements” for removal.
9-0. Opinion for unanimous Court by Rehnquist. Concurring opinion by
Stevens.
United States v. American Library Ass’n 123 S. Ct. 2297, 71 USLW 4465 (6-23-03)
First Amendment, spending power, internet filters: The Children’s Internet
Protection Act (CIPA), which conditions certain Internet-related federal
assistance to public libraries on the libraries’ installation of filters that block
Internet access to images that constitute obscenity or child pornography, or that
are harmful to minors, is not unconstitutional on its face. CIPA provides that
public libraries may disable the blocking filters at the request of a patron, and
thereby allow “access to any speech that is constitutionally protected with
respect to that patron.” If some libraries lack the capacity to unblock a specific
Web site or to disable the filter altogether, then there is the possibility of an as-
applied challenge. Because, however, the respondents failed to show that the
ability of adult patrons to access Internet material “is burdened in any significant
degree,” the facial challenge is rejected.
6-3. No opinion of Court. Opinion announcing the Court’s judgment by
Rehnquist, joined by O’Connor, Scalia, and Thomas. Concurring opinions by
Kennedy and by Breyer. Dissenting opinions by Stevens; and by Souter, joined
by Ginsburg.
United States v. Bean 123 S. Ct. 584, 71 USLW 4017 (12-10-02)
Judicial review, inaction on petition to remove firearms disability: A federal
district court lacks authority under 18 U.S.C. § 925(c) to grant relief to someone
whose application to the Bureau of Alcohol, Tobacco, and Firearms (ATF) to
remove his prohibition on possessing a firearm was returned unprocessed in
accordance with a prohibition in the ATF’s appropriation law. Section 925(c)
provides that “[a]ny person whose application for relief from disabilities is
denied by the Secretary may file a petition [in federal district court] for review
of such denial.” ATF’s failure to act “does not amount to a ‘denial’ within the
meaning of § 925(c). . . . An actual decision by ATF on an application is a
prerequisite for judicial review.”
The phrase “denied by the Secretary”
references the Secretary’s determinations as to whether the applicant will be
able to act in a manner not dangerous to public safety and as to whether relief
would be contrary to the public interest. Both of these standards “point to ATF

as the primary decisionmaker.” The procedures that the section requires and the
broad discretion conferred on the Secretary also suggest the need for an actual
adverse action on an application. Finally, the admission of additional evidence
in district court proceedings is contemplated only in exceptional circumstances.
Ordinarily, the district court’s determination must rely heavily on the record
compiled by ATF, but there is no such record for the court to rely on when the
application has been returned unprocessed.
9-0. Opinion for unanimous Court by Thomas.
United States v. Jimenez Recio 123 S. Ct. 819, 71 USLW 4076 (1-21-03)
Conspiracy, termination: A conspiracy does not terminate automatically when
the object of the conspiracy becomes impossible to achieve.
The Ninth
Circuit’s view that it does is rejected by “almost all courts and commentators.”
Thus, a conspiracy to distribute illegal drugs did not end when government
agents seized the drugs in question; persons caught in a sting operation set up
after the drug seizure can be convicted of conspiracy.
The essence of a
conspiracy is an agreement to commit an unlawful act, and the agreement is a
distinct evil that exists regardless of whether the substantive crime ensues. A
conspiracy poses a threat to the public “over and above” the threat of the
commission of the planned crime because the combination makes it more likely
that the conspirators will continue their criminal ways and commit other crimes.
This additional threat persists when conspirators continue to pursue their
objective, unaware that police have frustrated its accomplishment.
9-0 (merits); 8-1 (procedure). Opinion of Court by Breyer, joined by Rehnquist,
O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg.
Opinion by
Stevens, concurring in part and dissenting in part.
United States v. Navajo Nation 123 S. Ct. 1079, 71 USLW 4146 (3-4-03)
Indian Tucker Act; Indian Mineral Leasing Act: The Tribe’s claim for
compensation from the United States for breach of trust in connection with the
Secretary of the Interior’s approval of coal lease amendments negotiated by the
Tribe and Peabody Coal Company after alleged pressure brought to bear on the
Tribe by the Secretary must be rejected because the claim does not derive from
any liability-imposing provision of the Indian Mineral Leasing Act (IMLA).
The Indian Tucker Act grants the Court of Federal Claims jurisdiction over
tribal claims against the United States, but is not itself a source of substantive
rights. Existing precedent requires a tribal plaintiff to invoke a rights-creating
law that “can fairly be interpreted as mandating compensation by the Federal
Government for the damages sustained.” The IMLA is not such a law. Rather
than imposing a “detailed fiduciary responsibility” on the Secretary to manage
leasing and mineral resources in the best interests of the tribe, the IMLA
“simply requires Secretarial approval before coal mining leases negotiated
between Tribes and third parties become effective.” In this respect, the IMLA
resembles the General Allotment Act, held not to give rise to a damages action
for breach of trust in managing allotted lands, and may be distinguished from
“a network of other statutes and regulations” later held to impose “full
responsibility to manage Indian resources and land for the benefit of the
Indians.” Moreover, interpreting the IMLA to impose fiduciary duties giving
rise to compensable claims would counter one of the IMLA’s principal purposes
– that of enhancing tribal self-determination by giving tribes the lead role in
negotiating mineral leases.

6-3. Opinion of Court by Ginsburg, joined by Rehnquist, Scalia, Kennedy,
Thomas, and Breyer. Dissenting opinion by Souter, joined by Stevens and
O’Connor.
United States v. White Mountain Apache Tribe 123 S. Ct. 1126, 71 USLW 4139 (3-4-
03)
Indian Tucker Act, management of trust lands: A 1960 law under which the
former Fort Apache Military Reservation is held in trust for the White Mountain
Apache Tribe, subject to a proviso granting the United States the right to use
any part of the land and improvements for administrative or school purposes,
triggered compensable trustee responsibilities over property used under the
proviso. The Indian Tucker Act allows damage actions against the United
States only if the statute conferring substantive rights “can fairly be interpreted
as mandating compensation.”
The two Mitchell cases represent the two
categories of fiduciary duties – a “bare trust” under the General Allotment Act
the breach of which is not compensable, and “elaborate control” under timber
management statutes the breach of which is compensable. “The 1960 Act goes
beyond a bare trust and permits a fair inference that the Government is subject
to duties as a trustee and liable in damages for breach.” Although the Act does
not expressly subject the Government to duties of management and
conservation, it does subject the property to a trust, and the Government’s use
of the property, involving daily supervision and daily occupation, creates a “fair
inference [of] an obligation to preserve the property improvements.” The
Government’s defenses are rejected. Property used under the proviso is not
carved out of the trust. Specific language on damages is not needed if the
requisite “fair inference” can be drawn from the trust obligation. A damages
remedy is not “inappropriate” for a failure of maintenance even though
injunctive relief may represent the economic “equivalent.”
5-4. Opinion of Court by Souter, joined by Stevens, O’Connor, Ginsburg, and
Breyer. Concurring opinion by Ginsburg, joined by Breyer. Dissenting opinion
by Thomas, joined by Rehnquist, Scalia, and Kennedy.
Virginia v. Black 123 S. Ct. 1536, 71 USLW 4263 (4-7-03)
First Amendment, cross burning:
A state, consistent with the First
Amendment, may prohibit cross burning carried out with the intent to
intimidate. Intimidation can be a type of true threat that is not protected by the
First Amendment. Given the history of cross burnings in this country, some
cross burnings fit within this category of intimidating expression. Virginia’s
law does not run afoul of R. A. V. v. St. Paul (1992), in which the Court
invalidated as content-based an ordinance that prohibited cross burnings that
constituted “fighting words” only if they offended on the basis of race, color,
creed, religion or gender. “Virginia’s statute does not single out for opprobrium
only that speech directed toward ‘one of the specified disfavored topics.’” Not
all content discrimination is prohibited, however. “Instead of prohibiting all
intimidating messages, Virginia may choose to regulate this subset of
intimidating messages in light of cross burning’s long and pernicious history as
a signal of impending violence.” As a general matter, content discrimination is
permissible if it is “based on the very reasons why the particular class of speech
at issue . . . is proscribable.” However, the Virginia statute’s prima facie
evidence provision, stating that a cross burning “shall be prima facie evidence
of an intent to intimidate,” is unconstitutional.

6-3 (intimidation); 7-2 (prima facie evidence). Opinion of Court by O’Connor,
joined by Rehnquist, Stevens, Scalia, and Breyer. Separate part of O’Connor
opinion joined by Rehnquist, Stevens, and Breyer. Concurring opinion by
Stevens. Concurring and dissenting opinions by Souter, joined by Kennedy and
Ginsburg; and by Scalia, joined in part by Thomas. Dissenting opinion by
Thomas.
Virginia v. Hicks 123 S. Ct. 2191, 71 USLW 4441 (6-16-03)
First Amendment, overbreadth: The Richmond Redevelopment and Housing
Authority’s trespass policy is not facially invalid under the First Amendment’s
overbreadth doctrine. Under the trespass policy, the Authority may ban from
streets within the development any person who is not a resident or employee and
who “cannot demonstrate a legitimate business or social purpose for being on
the premises.” The respondent was arrested for trespass after having received
written notice barring him from the development. The Virginia Supreme Court
held that the ordinance was unconstitutionally overbroad because it granted the
property manager discretion that could be used to prohibit speech protected by
the First Amendment; persons wishing to hand out leaflets in the development’s
property would be required to obtain the manager’s permission. Under the
overbreadth doctrine, a law with legitimate applications can be invalidated if it
punishes a substantial amount of protected free speech, but only if application
to protected speech is substantial not just in an absolute sense, but also in
relation to the scope of the law’s plainly legitimate applications. “Rarely, if
ever, will an overbreadth challenge succeed against a law . . . that is not
specifically addressed to speech.” The trespass policy is addressed to non-
expressive conduct. “Neither the basis for the barment sanction (the prior
trespass) nor its purpose (preventing future trespasses) has anything to do with
the First Amendment.” More important, the policy applies to all persons who
enter the development’s streets, not just to those persons who seek to engage in
expression. The respondent failed to show that the policy would be used to bar
anyone from engaging in constitutionally protected speech, or even that
protected speech falls outside the “legitimate business or social purposes” that
permit entry to the development.
9-0. Opinion for unanimous Court by Scalia. Concurring opinion by Souter.
Washington State Dep’t of Soc. and Health Servs. v. Guardianship Estate of Keffeler
123 S. Ct. 1017, 71 USLW 4110 (2-25-03)
Social Security: The State’s use of foster children’s social security benefits to
reimburse itself for expenditures related to foster care is not prohibited by a
provision of the Social Security Act (42 U.S.C. § 407(a)) that protects benefits
from “execution, levy, attachment, garnishment, or other legal process.” The
State Supreme Court generalized from the text to conclude that it prohibits
“creditor-type acts,” and determined that the State’s reimbursement scheme
violates that principle. Neither the statute nor the regulations, however, “say
anything about ‘creditors.’” Because the reimbursement does not involve
“execution, levy, attachment, or garnishment,” the case boils down to the
meaning of “other legal process.” The interpretive canons noscitur a sociis and
ejusdem generis require that the general phrase be interpreted to embrace
objects similar in nature to the enumerated objects. The processes of execution,
levy, attachment, and garnishment require use of “some judicial or quasi-
judicial mechanism . . . by which control over property passes from one person
to another in order to discharge . . . [a] liability.” Neither characteristic is

present: the State has no enforceable claim against its foster children, and the
benefits are already in its possession and control. The State Supreme Court’s
reliance on two precedents was misplaced, since both involved forms of legal
process expressly prohibited by § 407(a). Reliance on the “best interest of the
beneficiary foster child” was also misplaced; here too, the state court should
have deferred to the Commissioner’s interpretation, under which the
beneficiary’s best interest is seen as having her basic needs taken care of by a
representative payee.
9-0. Opinion for unanimous Court by Souter.
Wiggins v. Smith 123 S. Ct. 2527, 71 USLW 4560 (6-26-03)
Habeas corpus, ineffective assistance of counsel: The petitioner’s attorneys’
failure to pursue investigation of petitioner’s personal history and to present
important mitigating evidence at his capital sentencing constituted ineffective
assistance of counsel, and the state court’s rejection of his claim involved an
“unreasonable application” of clearly established federal law within the meaning
of 28 U.S.C. § 2254. The petitioner, therefore, was entitled to federal habeas
relief. The governing law was established by Strickland v. Washington (1984),
holding that an ineffective assistance of counsel claim must be based on a
showing of deficient attorney performance that falls below an objective standard
of reasonableness, and that resulted in prejudice to the defense.
Under
Strickland, a defense attorney’s strategic judgment made after less than
complete investigation is reasonable “precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Here the
attorneys’ decision not to expand their investigation into their client’s
background fell short of professional standards then governing, and was
unreasonable in light of the information actually discovered. They abandoned
the investigation after having acquired “only rudimentary knowledge” of their
client’s history, but after having acquired information that “any reasonably
competent attorney would have realized [was necessary to pursue in] making an
informed choice among possible defenses.” Under the circumstances, the state
court’s deference to the attorneys’ “strategic decision” not to present the
background mitigating evidence was objectively unreasonable. Actual prejudice
to the petitioner’s case was established. The available mitigating evidence,
taken as a whole, “might well have influenced the jury’s appraisal of [the
petitioner’s] moral culpability.”
7-2. Opinion of Court by O’Connor, joined by Rehnquist, Stevens, Kennedy,
Souter, Ginsburg, and Breyer. Dissenting opinion by Scalia, joined by Thomas.

Woodford v. Garceau 123 S. Ct. 1398, 71 USLW 4217 (3-25-03)
Habeas corpus, cases “pending” on AEDPA effective date: For purposes of
applying the rule announced in Lindh v. Murphy (1997) that amendments made
by the Antiterrorism and Effective Death Penalty Act (AEDPA) do not apply to
cases pending on AEDPA’s effective date, a case does not become “pending”
until an actual petition for habeas relief is filed in federal court. Neither the
filing of a motion for appointment of a federal habeas counsel nor the
application for a stay of execution suffices to make a case “pending.” AEDPA
places heavy emphasis on the standards governing review of the merits of a
habeas application, and the meaning of “pending” should reflect that emphasis.
The issue, therefore, is whether on AEDPA’s effective date the state prisoner
“had before a federal court an application for habeas relief seeking an
adjudication on the merits of the petitioner’s claims.” Textual support for the
conclusion that an application is required is found in 28 U.S.C. § 2254(e)(1),
which provides that a presumption of the correctness of the state court’s
determination of factual issues shall apply “in a proceeding instituted by an
application for a writ of habeas corpus.” If a proceeding could be “instituted”
by a request for an attorney or for a stay of execution, then the presumption
would be inapplicable in such cases. Also, the filing of a habeas petition is the
functional equivalent of the filing of a complaint in a civil action, and a civil
action is commenced by the filing of a complaint.
6-3. Opinion of Court by Thomas, joined by Rehnquist, Stevens, Scalia, and
Kennedy. Concurring opinion by O’Connor. Dissenting opinion by Souter,
joined by Ginsburg and Breyer.
Woodford v. Visciotti 123 S. Ct. 357, 71 USLW 3315 (11-4-02)
Habeas corpus, ineffective assistance of counsel: The Ninth Circuit erred in
affirming the grant of habeas corpus relief to a petitioner whose claim was
barred by operation of 28 U.S.C. § 2254(d). That federal statute allows a
federal court to grant habeas relief to a state prisoner whose claim was
adjudicated on the merits in state court only if the state decision was contrary
to, or involved an unreasonable application of, clearly established federal law,
or if the state decision was based on an unreasonable determination of the facts.
The California Supreme Court’s decision was not “contrary to” the Supreme
Court’s decision in Strickland v. Washington (1984), which required a
“reasonable probability” that, but for counsel’s error, the outcome of the case
would have been different. The California court’s “occasional shorthand
reference” to the Strickland standard did not establish error. Nor did the
California court unreasonably apply Strickland. An incorrect application of
federal law is not necessarily an “unreasonable” application under section
2254(d). Although during the sentencing phase of the trial the defense counsel
had made multiple concessions as to the effects of the defendant’s brain injury,
and had failed to introduce mitigating evidence about the defendant’s
background, the state courts could reasonably have concluded that this
mitigating evidence was outweighed by “severe” aggravating factors.
9-0. Per curiam.

Yellow Transportation, Inc. v. Michigan 123 S. Ct. 371, 71 USLW 4003 (11-5-02)
Deference to agency interpretation, motor carrier regulation: The Interstate
Commerce Commission’s (ICC’s) implementation of the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA) to require that states consider
fees charged under reciprocity agreements when complying with the statute’s
mandate that registration fees under the new Single-State Insurance Registration
system be “equal to” fees “collected or charged” under the old system as of
November 15, 1991, is entitled to deference under principles established in
Chevron v. NRDC (1984).
The statute is ambiguous, and the ICC’s
interpretation is “permissible” and “reasonable.” “ISTEA’s fee-cap provision
does not foreclose the ICC’s determination that fees charged under States’ pre-
existing reciprocity agreements were, in effect, frozen by the new [system].”
The words “‘collected or charged’ can quite naturally be read to mean fees that
a State actually collected or charged,” and do not instead refer to a “fee system.”
Congress made an express delegation of authority to the ICC to promulgate
standards to implement the new registration system, and “it was thus for that
agency to resolve any ambiguities and fill in any holes in the statutory scheme.”
9-0. Opinion of Court by O’Connor, joined by Rehnquist, Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer. Concurring opinion by Stevens.

Index
Abortion
protests not "extortion" for purposes of Hobbs Act, RICO . . . . . . . . . . . . . 31
Administrative law
deference to agency interpretation, HUD regulation . . . . . . . . . . . . . . . . . . 24
deference to agency interpretation, ICC regulation . . . . . . . . . . . . . . . . . . . 41
deference to agency interpretation, Treasury Regulation . . . . . . . . . . . . . . . . 3
judicial review of regulation, ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Agent Orange
action against manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
All Writs Act
not authority for removal of cases from state to federal court . . . . . . . . . . . 35
Americans with Disabilities Act
coverage, definition of "employee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Appeals
habeas petitioner, certificate of appealability . . . . . . . . . . . . . . . . . . . . . . . . 24
Appropriations
prohibition on expenditure, effect on administrative action . . . . . . . . . . . . 35
Arbitration
applying time limit is issue for arbitrator, not judge . . . . . . . . . . . . . . . . . . 19
broad applicability of Federal Arbitration Act . . . . . . . . . . . . . . . . . . . . . . . . 7
class arbitration, interpretation of agreement . . . . . . . . . . . . . . . . . . . . . . . . 18
possibility of "meaningful relief" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Bankruptcy
FCC may not revoke license for debtor's failure to pay . . . . . . . . . . . . . . . . 14
settlement debt as "debt for money obtained by fraud" . . . . . . . . . . . . . . . . . 1
Campaign finance
ban on corporate contributions, advocacy group . . . . . . . . . . . . . . . . . . . . . 15
Charitable solicitations
state anti-fraud laws, First Amendment limitations . . . . . . . . . . . . . . . . . . . 20
Civil rights
section 1983, Indian tribe not "person" who may sue . . . . . . . . . . . . . . . . . 20
Title VII, proof in "mixed-motive" cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Clean Water Act
wetlands, "deep ripping" plowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coal Industry Retiree Health Benefit Act
deadline for assigning retirees to companies . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commerce power
evidentiary privilege, highway hazard information . . . . . . . . . . . . . . . . . . . 29
Federal Arbitration Act, scope of "involving commerce" . . . . . . . . . . . . . . . 7
Commerce, state regulation
congressional authorization for burden, clear statement req'mt . . . . . . . . . . 19
Maine discount drug program not burden on interstate commerce . . . . . . . 29
Congressional redistricting
substitution of federal court plan for state court plan . . . . . . . . . . . . . . . . . . 4

Conspiracy
no automatic termination when object becomes impossible . . . . . . . . . . . . 36
Copyright
different objectives of copyright law, Lanham Act . . . . . . . . . . . . . . . . . . . 10
Counsel, assistance of
habeas corpus, "clearly established federal law" . . . . . . . . . . . . . . . . . . . . . 40
ineffectiveness claim, no procedural default . . . . . . . . . . . . . . . . . . . . . . . . 23
ineffectiveness, capital sentencing, federal habeas corpus . . . . . . . . . . . . . 39
Cross burning
prohibition, consistency with First Amendment . . . . . . . . . . . . . . . . . . . . . 37
Cruel and unusual punishment
prison discipline, restriction on visitation . . . . . . . . . . . . . . . . . . . . . . . . . . 28
proportionality, California "three-strikes" law . . . . . . . . . . . . . . . . . . . . . . . 14
Deadline
effect of agency action after statutory deadline . . . . . . . . . . . . . . . . . . . . . . . 2
Delegation of legislative power
submission of ordinance to referendum vote not invalid . . . . . . . . . . . . . . . . 7
Double Jeopardy
death eligibility, retrial after mandatory life sentence . . . . . . . . . . . . . . . . . 31
Due Process
"Megan's Law," no right to hearing on dangerousness . . . . . . . . . . . . . . . . . 9
delay in hearing, auto impoundment fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
detention of alien during removal proceedings . . . . . . . . . . . . . . . . . . . . . . 11
elements of crime at time of conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
forced anti-psychotic medication to stand trial . . . . . . . . . . . . . . . . . . . . . . 32
interrogation by police as violation of substantive due process . . . . . . . . . . . 6
punitive damages, size of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
relationship to double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
restrictions on prison visitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
submission of ordinance to referendum vote . . . . . . . . . . . . . . . . . . . . . . . . . 7
Texas sodomy law, liberty interest in adult, consensual sex . . . . . . . . . . . . 22
Education
affirmative action, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
affirmative action, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Electricity regulation
preemption, "filed rate" doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Equal protection
racial discrimination, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 17
racial discrimination, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . 18
referendum on low-income housing ordinance . . . . . . . . . . . . . . . . . . . . . . . 7
state taxation, classifications, rational basis . . . . . . . . . . . . . . . . . . . . . . . . 15
ERISA
deference to treating physician not required for benefit plans . . . . . . . . . . . . 3
preemption, insurance law exception, "any willing provider" laws . . . . . . . 22
Ex Post Facto Clause
Megan's law not punitive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
statute of limitations for crime, resurrection after expiration . . . . . . . . . . . 34
Extortion
Hobbs Act definition, abortion protests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Fair Housing Act
vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Fair Labor Standards Act

removal of cases from state to federal court . . . . . . . . . . . . . . . . . . . . . . . . . 5
False Claims Act
qui tam suits against local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Federal Arbitration Act
broad scope, "involving commerce" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Federal Boat Safety Act
no preemption of common law tort claim . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Federal courts
appeals courts, designation of district judges . . . . . . . . . . . . . . . . . . . . . . . . 27
removal jurisdiction, All Writs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
removal not prohibited by Fair Labor Standards Act . . . . . . . . . . . . . . . . . . . 5
Federal Employers’ Liability Act
joint and several liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
recovery for mental anguish, fear of cancer . . . . . . . . . . . . . . . . . . . . . . . . . 27
Federal Trademark Dilution Act
required proof of actual injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
First Amendment
application of anti-fraud statute to charitable solicitation . . . . . . . . . . . . . . 20
campaign finance, ban on contributions, advocacy corporation . . . . . . . . . 15
cross burning with intent to intimidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
federal funding conditioned on libraries using Internet filters . . . . . . . . . . . 35
overbreadth, housing auth's trespass policy . . . . . . . . . . . . . . . . . . . . . . . . . 38
right of association, restriction on prison visits . . . . . . . . . . . . . . . . . . . . . . 28
Foreign relations
state law inconsistent with federal policy in exec. agreements . . . . . . . . . . . 1
Foreign Sovereign Immunities Act
"instrumentality" of foreign state, corporate subsidiary . . . . . . . . . . . . . . . . 12
Fourteenth Amendment
enforcement power, Family and Medical Leave Act . . . . . . . . . . . . . . . . . . 26
Fourth Amendment
invalid arrest, suppression of confession . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Fraud
state anti-fraud laws, application to charitable solicitation . . . . . . . . . . . . . 20
Full Faith and Credit
sovereign immunity, one state in another state's courts . . . . . . . . . . . . . . . . 16
Habeas corpus
cases "pending" on AEDPA effective date . . . . . . . . . . . . . . . . . . . . . . . . . 40
clearly established federal law -- coercion of jury . . . . . . . . . . . . . . . . . . . . 12
clearly established federal law -- double jeopardy . . . . . . . . . . . . . . . . . . . . 30
ineffective assistance of counsel claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ineffective assistance of counsel, capital sentencing . . . . . . . . . . . . . . . . . . 39
limitation on claims by state prisoners -- 8th Amendment . . . . . . . . . . . . . 23
limitation on claims by state prisoners -- ineffective counsel . . . . . . . . . . . 40
limitations period when no petition for cert. filed . . . . . . . . . . . . . . . . . . . . . 4
no unreasonable application of precedent -- double jeopardy . . . . . . . . . . . 30
showing required for certificate of appealability . . . . . . . . . . . . . . . . . . . . . 24
Highways
hazard information, evidentiary privilege, commerce power . . . . . . . . . . . 29
Hobbs Act
abortion protests not "extortion" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Immigration
detention of aliens pending removal proceedings . . . . . . . . . . . . . . . . . . . . 11

review of BIA decision, political asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Indian Mineral Leasing Act
not basis for suit under Indian Tucker Act . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Indian Tucker Act
Fort Apache Military Reservation, government as trustee . . . . . . . . . . . . . . 37
Indian Mineral Leasing Act not basis for suit . . . . . . . . . . . . . . . . . . . . . . . 36
IOLTA accounts
no loss to clients, no "just compensation" due . . . . . . . . . . . . . . . . . . . . . . . . 5
Judicial review
inaction on petition to remove firearms disability . . . . . . . . . . . . . . . . . . . . 35
limited preclusion under Immigration and Nationality Act . . . . . . . . . . . . . 11
Juries
coercion by court to reach verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
racial discrimination in jury selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Lanham Act
false i.d. of "origin of goods" not copyright protection . . . . . . . . . . . . . . . . 10
Limitations period
habeas corpus, no petition for cert. filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
resurrection after expiration for crimes at issue, ex post facto . . . . . . . . . . 34
tolling of state period for federal supplemental claims . . . . . . . . . . . . . . . . 21
Magistrates
implied consent by litigants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Medicaid
Maine discount drug program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Medication
forced administration of anti-psychotic drugs on criminal def. . . . . . . . . . . 32
Megan’s Law
no due process right to hearing on dangerousness . . . . . . . . . . . . . . . . . . . . . 9
no violation of Ex Post Facto Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Miranda warning
taint of invalid arrest not overcome by . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
National Bank Act
preemption of state usury actions, removal jurisdiction . . . . . . . . . . . . . . . . 3
Native Americans
Fort Apache Military Reservation, government as trustee . . . . . . . . . . . . . . 37
Indian Mineral Leasing Act creates "bare trust" . . . . . . . . . . . . . . . . . . . . . 36

Necessary and Proper Clause
supplemental jurisdiction, tolling of state limitations period . . . . . . . . . . . . 21
Overruled decisions
Bowers v. Hardwick (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Preemption
California Holocaust Victim Insurance Relief Act . . . . . . . . . . . . . . . . . . . . 1
electricity regulation, "filed rate" doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ERISA, exception for laws regulating insurance . . . . . . . . . . . . . . . . . . . . . 22
Federal Boat Safety Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Maine Rx program not preempted by Medicaid Act . . . . . . . . . . . . . . . . . . 29
National Bank Act, state-law usury actions . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Presumption
cross burning as prima facie evidence of intent to intimidate . . . . . . . . . . . 38
Privacy
sexual conduct in the home, Texas sodomy law . . . . . . . . . . . . . . . . . . . . . 22
Privileges and Immunities
no requirement of explicit discriminatory language in statute . . . . . . . . . . . 19
Punitive damages
characterization of RICO treble damages . . . . . . . . . . . . . . . . . . . . . . . . . . 29
due process limit on size of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Racial discrimination
affirmative action, college admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
affirmative action, law school admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fair Housing Act, vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
jury selection, "substantial showing" of discrimination . . . . . . . . . . . . . . . . 25
Voting Rights Act, state legis redistricting, retrogression . . . . . . . . . . . . . . 17
Referendum
low-income housing ordinance, equal protection, due process . . . . . . . . . . . 7
Removal
action "arising under" National Bank Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
All Writs Act insufficient basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
FLSA does not bar removal of cases from state to federal court . . . . . . . . . . 5
RICO
abortion protests, absence of "predicate acts" . . . . . . . . . . . . . . . . . . . . . . . 31
treble damages, remedial vs. punitive nature . . . . . . . . . . . . . . . . . . . . . . . . 29
Ripeness
challenge to regulation, absence of harm through application . . . . . . . . . . . 25
possibility of "meaningful relief" through arbitration . . . . . . . . . . . . . . . . . 29
Self-incrimination
no violation when no evidence introduced . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Social Security
protection of benefits from garnishment, other legal processes . . . . . . . . . . 38
Sodomy
Texas prohibition on homosexual sodomy, due process . . . . . . . . . . . . . . . 22
Sovereign immunity
full faith and credit, immunity in another state's courts . . . . . . . . . . . . . . . . 16
Indian tribe not "person" who may sue under sec. 1983 . . . . . . . . . . . . . . . 20
Spending power
condition that libraries use Internet filters, 1st Amendment . . . . . . . . . . . . 35
States
immunity from suit, congressional abrogation . . . . . . . . . . . . . . . . . . . . . . . 26
legislative redistricting, Voting Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes, interpretation
ambiguous word not express prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
avoiding conflict with another statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
broad language not limited by statute's narrower primary purpose . . . . . . . 10
congressional awareness of distinction between technical terms . . . . . . . . 31
contrasting usage in same statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
deadline for agency action, validity of tardy action . . . . . . . . . . . . . . . . . . . . 2
departure from "unequivocal" heightened proof language . . . . . . . . . . . . . . 11
departure from practice of "clear and express" exceptions . . . . . . . . . . . . . 14
dictionary definitions relied upon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
different statutory purposes, different implementing rules . . . . . . . . . . . . . . 3
express preemption language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
False Claims Act definition of "person" includes municipality . . . . . . . . . . . 9
history and purpose of law, reliance on . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
interpretive canons noscitur a sociis and ejusdem generis . . . . . . . . . . . . . . 39
no repeal by implication, redistricting law . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
plain meaning derived from present tense . . . . . . . . . . . . . . . . . . . . . . . . . . 12
plain meaning, "unambiguous" text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
presumption against superfluous words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
presumption that Congress intends conformity to S. Ct. precedent . . . . . . . . 9
presumption that identical words have same meaning, exception . . . . . . . . 21
purpose of statute as guide to meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
reliance on congressional purposes, reading text as a whole . . . . . . . . . . . . 30
repeals by implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
resort to common law to provide definition . . . . . . . . . . . . . . . . . . . . . . . . . . 8
saving clause, effect on interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
statutory silence, presumption that ordinary rules apply . . . . . . . . . . . . . . . 24
superfluous meaning of word avoided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Taking of property
IOLTA accounts, use for charitable purposes . . . . . . . . . . . . . . . . . . . . . . . . 5
Taxation, Federal
DISCs, R&D expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Taxation, State
classification, equal protection challenge . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Territories
judges not Art. III, cannot serve on U.S. appeals court . . . . . . . . . . . . . . . . 27
Three-strikes law
challenge on habeas, "clearly established" law . . . . . . . . . . . . . . . . . . . . . . 23
sentence for stealing golf clubs not "cruel and unusual" . . . . . . . . . . . . . . . 14
Trespass
housing authority's policy, First Amendment . . . . . . . . . . . . . . . . . . . . . . . 38

Unconstitutional state laws
California law reviving time-barred prosecution . . . . . . . . . . . . . . . . . . . . . 34
Texas sodomy statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Virginia cross burning law, presumption of intent to intimidate . . . . . . . . . 38
Voting Rights Act
preclearance, state-ordered congressional redistricting . . . . . . . . . . . . . . . . . 4
state legislative redistricting, retrogression . . . . . . . . . . . . . . . . . . . . . . . . . 17

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