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1 An Uncertain Future: The 2013-2014 Supreme Court Docket In the 2012-2013 term, despite positive outcomes in several high-profile cases, the conservative wing of the Supreme Court managed to accomplish a great deal to advance its agenda. From eviscerating one of the most important and effective laws from the Civil Rights movement, to insulating big business from meaningful consumer action, to undercutting adequate redress for victims of workplace harassment, the Roberts Court has achieved its right-wing agenda with alarming success. The Supreme Court’s upcoming term is already slated to be equally contentious and potentially detrimental to everyday Americans while shielding corporate interests from accountability. The granted cases concern issues that could further jeopardize our criminal justice system, impose disparate access to the political process, and tip the scale further in favor of corporate interests by insulating them from liability and allowing them disproportionate influence in elections. Specifically, in this term the Court could: Eliminate limits on aggregate direct contributions to candidates and party committees (McCutcheon) Strike down “buffer zone” laws, which protect women and families from harassment when accessing reproductive and family planning services (McCullen) Impose disparate restrictions on access to political processes for students of color (Schuette) Make it easier for corporate interests to escape accountability for harms caused to consumers (Mississippi ex rel Hood, Chadbourne) Strip the president of authority to appoint officials to vital government positions (Noel Canning) Severely impair criminal defendants’ ability to receive a fair trial and sentencing (Burrage, Titlow) Weaken the constitutional wall between church and state (Galloway) Take away one of labor’s most powerful and uncontroversial unionizing tools (Mulhall) Provide police with a loophole to conduct a warrantless search of a defendant’s home despite his or her explicit objections (Fernandez) I. Corporate Accountability 1. Mississippi ex rel Hood v. AU Optronics Corporation

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An Uncertain Future:

The 2013-2014 Supreme Court Docket

In the 2012-2013 term, despite positive outcomes in several high-profile cases, the conservative

wing of the Supreme Court managed to accomplish a great deal to advance its agenda. From

eviscerating one of the most important and effective laws from the Civil Rights movement, to

insulating big business from meaningful consumer action, to undercutting adequate redress for

victims of workplace harassment, the Roberts Court has achieved its right-wing agenda with

alarming success.

The Supreme Court’s upcoming term is already slated to be equally contentious and potentially

detrimental to everyday Americans while shielding corporate interests from accountability. The

granted cases concern issues that could further jeopardize our criminal justice system, impose

disparate access to the political process, and tip the scale further in favor of corporate interests by

insulating them from liability and allowing them disproportionate influence in elections.

Specifically, in this term the Court could:

Eliminate limits on aggregate direct contributions to candidates and party committees

(McCutcheon)

Strike down “buffer zone” laws, which protect women and families from harassment

when accessing reproductive and family planning services (McCullen)

Impose disparate restrictions on access to political processes for students of color

(Schuette)

Make it easier for corporate interests to escape accountability for harms caused to

consumers (Mississippi ex rel Hood, Chadbourne)

Strip the president of authority to appoint officials to vital government positions (Noel

Canning)

Severely impair criminal defendants’ ability to receive a fair trial and sentencing

(Burrage, Titlow)

Weaken the constitutional wall between church and state (Galloway)

Take away one of labor’s most powerful and uncontroversial unionizing tools (Mulhall)

Provide police with a loophole to conduct a warrantless search of a defendant’s home

despite his or her explicit objections (Fernandez)

I. Corporate Accountability

1. Mississippi ex rel Hood v. AU Optronics Corporation

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Issue: Parens patriae actions under the Class Action Fairness Act

Argument date: November 6, 2013

Mississippi’s attorney general filed a parens patriae action in state court against several LCD

television screen manufacturers—all of which are multinational corporations—for violating

state antitrust and consumer protection laws. The defendants removed the case to federal

court under the Class Action Fairness Act of 2005 (CAFA), arguing that the state represented

a class of LCD screen purchasers. The District Court for the Southern District of Mississippi

granted the state’s motion to remand the case to state court, but the Fifth Circuit reversed,

holding that parens patriae actions qualify as “mass actions” under CAFA, and therefore

removal was proper. Using a “claim-by-claim” approach, the Fifth Circuit determined that,

because a parens patriae action is filed on behalf of state citizens’ well-being, they are

considered “real parties in interest.”

If the Fifth Circuit’s decision to allow removal of parens patriae actions stands, the state’s

case would be significantly burdened by a “procedural nightmare”1 because the district court

would be required to identify every “real party in interest” (i.e., every individual beneficiary

of the proposed claim). Moreover, every individual plaintiff’s claim that does not exceed the

$75,000 amount-in-controversy would be remanded to state court,2 substantially undercutting

the power of the class action in federal court.

Result: The Supreme Court reversed the Fifth Circuit’s decision, finding unanimously that

the Mississippi Attorney General was the only plaintiff in the lawsuit, and that adopting the

state’s view that the term “plaintiff” should include all of the claimants on whose behalf the

state is suing “would stretch the meaning of ‘plaintiff’ beyond recognition.” Therefore,

parens patriae actions do not count as class actions falling within the scope of the Class

Action Fairness Act, and so the statute is irrelevant to this case and the state is free to litigate

on behalf of its residents in state court.

2. Chadbourne & Parke LLP v. Troice, Proskauer Rose LLP v. Troice, Willis of Colorado

Inc. v. Troice

Issue: Ensuring class action plaintiffs have adequate access to remedies

Argument date: October 7, 2013

In 1998, Congress enacted the Securities Litigation Uniform Standards Act (SLUSA), which

prohibits plaintiffs from bringing state law class actions alleging misrepresentation or

omission of a material fact “in connection with” the purchase or sale of certain securities. A

group of investors brought a class action against a brokerage firm and two law firms in

connection with their representation of Allen Stanford—the former financier convicted and

sentenced to 110 years in prison for perpetrating an infamous $7 billion Ponzi scheme.

Specifically, the plaintiffs alleged that the firms breached their fiduciary duty by inducing the

plaintiffs to buy certificates of deposits (CDs) issued by Stanford’s bank. The district court

1 Brief for Public Citizen, Inc. as Amici Curiae supporting Petitioner, granted Mississippi ex rel Hood v. AU

Optronics Corp., 133 S. Ct. 2736 (2013). 2 See id.

3

held that the state law claims could not be brought because they were sufficiently related to

the securities claims covered by SLUSA. The Fifth Circuit reversed.

The main issue the Supreme Court will consider in Chadbourne is whether a suit for aiding

and abetting securities fraud is preempted by SLUSA. If the Supreme Court reverses the

Fifth Circuit’s decision, it will severely restrict the ability of plaintiffs to bring class actions

against corporations that insulate white-collar criminals like Allen Stanford.

Result: The Supreme Court affirmed the Fifth Circuit by a vote of 7-2 in an opinion

authored by Justice Breyer, with Justice Thomas concurring and Justice Kennedy authoring a

dissenting opinion that Justice Alito joined. The Court held that SLUSA does not preclude

the plaintiffs’ state-law class actions. The Court held that the phrase “misrepresentation or

omission of a material fact in connection with the purchase or sale of a covered security”

refers to a “connection that matters.” According to the Court, a connection that matters is

one where the misrepresentation “makes a significant difference to someone’s decision” or

purchase or sell a covered security. Justice Breyer wrote that “a broader interpretation . . .

would interfere with state efforts to provide remedies for victims of ordinary state-law frauds,

despite the fact that the Litigation Act [SLUSA] purposefully seeks to avoid such results . . .

.”

Moreover, the Court found that the plaintiffs in this case did not purchase or sell a covered

security. Rather, the plaintiffs purchased certificates of deposit that Stanford had promised

were backed by safe, liquid investments. Therefore the plaintiffs were not alleging

misrepresentations in connection with a purchase or sale of a covered security; they “[a]t

most, allege misrepresentations about the Bank’s ownership of covered stock.”

3. DaimlerChrysler AG v. Bauman

Issue: Jurisdiction over foreign corporations for human rights abuses

Argument date: October 15, 2013

A group of former DaimlerChrysler AG employees and representatives of deceased

employees sued in California over human rights abuses committed by the company in

Argentina in the 1970s. Specifically, the company is alleged to have identified plaintiffs as

“subversives” or “agitators” to state security forces stationed within its plant, knowing that

they would be kidnapped, detained, tortured, or murdered as a result. Once plaintiffs were

arrested or disappeared, the company allegedly hired the police chief responsible, made him

its chief security officer, and provided him legal assistance. DaimlerChrysler AG’s

subsidiary, Chrysler, sells billions of dollars’ worth of automobiles in California.

At issue in DaimlerChrysler is whether a court may have jurisdiction over a defendant

corporation where the corporation has a subsidiary that does substantial business in that

jurisdiction. This past term in Kiobel v. Royal Dutch Petroleum,3 the Court dealt a serious

blow to decades of settled federal law by disallowing “foreign cubed” lawsuits under the

Alien Tort Statute. The Court has the opportunity in this case to clarify what kind of

3 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

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connection to the forum state would warrant federal jurisdiction; however, the Court could

also further curtail plaintiffs’ access to justice for human rights abuses.

Result: In a unanimous decision authored by Justice Ginsburg, the Court held that the

workers could not sue DaimlerChrysler AG in California. It held that while DaimlerChrysler

did have contacts with California, its contacts were very slim and unrelated to the wrongful

actions alleged in the lawsuit. To allow the district court to hear and decide such a case, in

the view of the Court, would give the courts a “global reach” over any foreign country that

did any amount of business—however slim or minimal—in a state. Justice Sotomayor filed a

separate opinion concurring in the judgment, arguing that the Court “ignores the lodestar of

our personal jurisdiction jurisprudence” by focusing more on the quantity of contacts the

company has outside of the state than by focusing on the contacts that the company does

have within the state.

4. National Labor Relations Board v. Noel Canning

Issue: Presidential recess appointment power

Argument date: January 13, 2014

The National Labor Relations Board, which implements the National Labor Relations Act

and hears labor disputes between employers and workers, requires at least three sitting

members for a quorum. In January 2012, the five-member Board had three vacancies;

meanwhile, the Board was unable to issue decisions on pending cases. One such matter was

a disputed agreement between Noel Canning, a soft-drink bottling company, and a local

union to implement a 40-cents-per-hour pay raise. At that point, the Senate was in the midst

of a three-week period during which it provided that “no business [was to be] conducted,”

and no senators were required to attend meetings, aside from a single senator to hold pro

forma sessions. Acting under his recess appointment authority enumerated in the

Constitution, President Obama temporarily appointed three members to bring the Board back

to fully functioning capacity. The NLRB panel then determined that Noel Canning had in

fact agreed to the 40-cents-per-hour wage increase, despite the company’s denial that it made

such an agreement.

The company brought a constitutional challenge to President Obama’s recess appointments

in the conservative-dominated Court of Appeals for the District of Columbia Circuit. The

D.C. Circuit took an unprecedented approach, holding that the president’s recess appointment

power only extends to breaks between Congress’s annual sessions, and that the president may

use this power to fill only those positions that become vacant during that same recess. At

issue in this case is whether the Recess Appointments Clause grants the president authority to

fill vacancies when the Senate is unavailable for advice and consent, and whether the

president may fill vacancies that existed before the recess. Under the D.C. Circuit’s logic,

hundreds of recess appointments by presidents of both parties, going back over a century,

would be invalid. This case has broad implications for the separation of powers, and will

impact President Obama’s and all future presidents’ ability to fill vacant government

positions.

Result: In a unanimous decision authored by Justice Breyer, the Supreme Court upheld the

D.C. Circuit’s conclusion that the NLRB appointments at issue were invalid under the Recess

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Appointments Clause. The Court, however, rejected the D.C. Circuit’s reasoning for so

finding, and held that a vacancy need not first occur during a recess for the President to be

able to fill the vacancy through the Recess Appointments Clause, and that both intra- and

inter-session breaks of Congress count as formal recesses. Instead, the Court held that these

particular appointments were invalid because they occurred during what amounted to only a

three-day recess because pro forma sessions of the Senate do count as real sessions that break

up what could otherwise be lengthy recesses, the recess in question therefore lasted only

three days, and recesses of shorter than 10 days are presumptively too short to invoke the

Recess Appointments Clause. In so finding, the Court relied heavily on the intent of the

Founders and historical practice of the executive. Justice Scalia—joined by Justices Thomas,

Alito, and Chief Justice Roberts—concurred in the judgment only, and argued that the Court

should have affirmed the D.C. Circuit in its entirety. Namely, he would have held that recess

appointments may be made only during an inter-session recess of Congress, and that the only

vacancies that may be filled during those recesses are the ones that first come about within

the time of the recess.

5. Environmental Protection Agency v. EME Homer City Generation LP

Issue: Protecting clean air from excessive pollution

Argument date: December 10, 2013

The Clean Air Act’s “good neighbor” provision prohibits upwind states from emitting

pollutants that “contribute significantly” to downwind states’ ability to meet air quality

standards. To enforce this provision, the EPA created the Transport Rule, which allows the

agency to impose a federal implementation plan on polluting upwind states that contribute

significantly to downwind states’ ability to meet air quality standards, and which have failed

to develop a state implementation plan to control pollution or have done so inadequately. In

2012, a 2-1 D.C. Circuit panel invalidated this important provision that allowed the EPA to

regulate ambient air quality, ignoring plain statutory text, jurisdictional bars, and circuit

precedent to reach its decision imposing its own preferred vision of “cooperative federalism.”

In doing so, two of the D.C. Circuit’s conservative judges (Brett Kavanaugh and Thomas

Griffith, both George W. Bush appointees) stripped the EPA of its congressionally granted

ability to effectively manage cross-state air pollution.

If the Supreme Court refuses to overturn the D.C. Circuit ruling, nothing will prevent

corporations like EME Homer City Generation—operator of coal-fired electric generating

units—from emitting more pollutants indiscriminately and at the expense of other states.

Result: The Supreme Court, in an opinion authored by Justice Ginsburg, reversed the D.C.

Circuit and upheld the EPA’s authority to enforce the CAA’s “good neighbor” provision

through the Transport Rule. In doing so, the Court acknowledged that the agency must have

discretion to interpret its statutory obligations.

6. Utility Air Regulatory Group v. EPA

Issue: EPA’s ability to regulate pollution emissions.

Argument Date: February 24, 2014

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For 33 years, the Environmental Protection Agency has—under the Clean Air Act authority

that allows the agency to regulate “any air pollutant”—regulated not just air pollution itself,

but the source of that air pollution. In 2010, the EPA therefore began to regulate the

pollution, or exhaust, exuded by cars and trucks (“mobile sources”), and then extended that

logic to regulate industrial factories and generating plants for power companies (“stationary

sources”).

The Supreme Court accepted six cases—with Utility Air Regulatory Group as the leading

case—to answer the lone question of whether federal law permits the EPA to use the legal

regime for mobile sources as a “trigger” for creating an analogous regulatory regime for

stationary sources. If the Supreme Court broadly decides against the EPA’s regulatory

authority, it could severely limit the EPA’s ability to regulate pollution in the face of global

warming.

Result: In a split and highly technical decision, the Supreme Court limited the EPA’s

regulatory authority in some ways (in a 5-4 split), and affirmed it in other ways (in a 7-2

split). In Part I of an opinion authored by Justice Scalia and joined by four other Justices, the

Court majority held that the EPA cannot rely on its authority to regulate emissions from

mobile sources to regulate greenhouse gas emissions from all stationary sources. Without

further congressional action, it may not regulate greenhouse emissions from smaller sources

like apartment buildings and schools. In Part II of the opinion, Justice Scalia, joined by six

other Justices, concluded that where the EPA is already regulating pollutants (other than

greenhouse gases) from specific sources, it may require the sources to use the best available

technology to limit greenhouse gas emissions. Only two other Justices—Justice Kennedy

and Chief Justice Roberts—agreed with the entirety of Justice Scalia’s opinion. Justices

Alito and Thomas joined the first part of the opinion, which struck down the EPA’s more

expansive regulatory authority. Justices Breyer, Ginsburg, Kagan, and Sotomayor—who

would have read the “all pollutants” language in the CAA as allowing the EPA to reach all

forms of greenhouse gases—dissented from Part I of Justice Scalia’s opinion, but joined Part

II upholding the EPA’s authority to impose new technology to limit greenhouse gas

emissions from sources the EPA is already regulating.

7. Halliburton Co. v. Erica P. John Fund, Inc.

Issue: Investors’ right to sue for securities fraud

Argument Date: March 5, 2014

In 1988, the Supreme Court held in Basic Inc. v. Levinson4 that, when investors sue for losing

money because of securities fraud, they do not need to show that they actually relied on

misinformation when purchasing the stock in question. Rather, under the (rebuttable) “fraud-

on-the-market” presumption, it is assumed that the investors bringing suit relied upon the

misinformation because an efficient stock exchange will reflect all the information there is

about a given security. Basic, Inc. was a 4-2 decision, with only six justices taking part;

4 485 U.S. 224 (1988).

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Justices Kennedy and Scalia, who are the only remaining justices on the Supreme Court from

that time, did not take part in the decision.5

In the current case, a class of investors sued Halliburton for putting out misleading

information that affected the company’s stock price. Halliburton argues that the “reliance”

theory from Basic is flawed, and that the presumption is particularly incorrect as applied to

class action lawsuits because it does not require the class members to prove that their own

losses can be traced to the misinformation. On the other hand, the investors argue that the

Supreme Court’s precedent in Basic, Inc. set the “foundation for modern, private securities

litigation.”

Halliburton is asking the Supreme Court to either overrule Basic, Inc. or at least to require

investors to show that the misinformation did impact the market price of a stock. The

Supreme Court granted review on both questions. If the Supreme Court backtracks on its

ruling from Basic Inc, investors who have been harmed by corporations’ misinformation will

face a much higher burden to hold corporations accountable.

Result: In a unanimous decision authored by Chief Justice Roberts, the Supreme Court

refused to overturn its precedent in Basic, Inc. and upheld the “fraud-on-the-market”

presumption. However, the Court held that the defendant may rebut the presumption at the

class certification stage by showing a lack of price impact—rather than having to wait to

rebut the presumption at the merits stage, after a class has already formed. Justice Ginsburg,

joined by Justices Breyer and Sotomayor, authored a brief concurrence to emphasize that

lower courts should interpret the decision as placing the burden of proof squarely on the

defense to demonstrate a lack of price impact, with no added burden on the plaintiffs. Justice

Thomas also filed a separate concurrence, joined by Justices Scalia and Alito, to write that he

would overturn Basic, Inc. v. Levinson.

8. Hobby Lobby Stores, Inc. v. Sebelius & Conestoga Wood Specialties Corp. v. Sec'y of the

United States HHS

Issue: Affordable Health Care Act’s contraception coverage requirement

Argument Date: March 25, 2014

The Supreme Court agreed to hear two of the many cases asking whether profit-making

companies owned by individuals with religious objections to birth control must be exempted

from the Affordable Care Act’s (ACA) contraception coverage requirement. Under the

ACA, employers with more than 50 employees are required to provide health insurance

coverage for various services related to reproductive health, including birth control.

Although strictly religious organizations are exempted from this requirement, profit-making

businesses are not. Hobby Lobby and Conestoga Wood Specialties are both profit-making

companies owned by religious families that do not want to cover birth control under the

ACA. In Hobby Lobby, the Tenth Circuit struck down the contraception coverage

requirement based on the Religious Freedom Restoration Act (RFRA). In Conestoga,

however, the Third Circuit directly disagreed with the Tenth Circuit’s decision and it rejected

5 Due to opaque recusal procedures, we do not know why Justices Kennedy and Scalia recused themselves from this

case.

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the challenge to the ACA’s coverage requirement. That court held that the owners’ religious

beliefs do not flow through to the profit-making company—under either RFRA or the First

Amendment—and therefore the company cannot claim religious freedom rights.

The Supreme Court, in taking both cases, will hear arguments under both RFRA and the First

Amendment.

Result: In a split 5-4 decision authored by Justice Alito, the Supreme Court held that

closely-held corporations (which include both petitioners) are people for the purposes of

RFRA. Therefore, the Court used the RFRA balancing test and found—without much

discussion—that the contraceptive coverage requirement under the ACA imposes a

substantial burden on Hobby Lobby’s & Conestoga Wood Specialties Corp.’s religious

freedom. The next part of the balancing test under RFRA is whether the law serves a

compelling government interest and, if so, whether the law is the least restrictive means to

achieve that compelling interest. The Court assumed (without deciding) that the government

has a compelling interest in guaranteeing cost-free access to contraception. Justice

Kennedy’s was stronger on this point, noting, “It is important to confirm that a premise of the

Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate

and compelling government interest in the health of female employees.” Nonetheless, the

Court majority held that the contraception coverage requirement is not the least restrictive

means to achieve that interest. Instead, Justice Alito wrote that a less restrictive means exists

in the accommodation that the government provides for religiously-affiliated organizations

and nonprofits. Even in suggesting the accommodation as a solution, however, Justice Alito

made it clear that the Court was not ruling on the accommodation’s constitutionality. In fact,

three days after the Hobby Lobby decision, the Supreme Court temporarily enjoined the

accommodation for Wheaton College while the school challenges the accommodations

constitutionality. The temporary injunction means that Wheaton College cannot be required

to certify its status as a religiously-affiliated organization under the current process, which

would trigger third-party coverage of contraception for its employees.

In with a dissent joined by Justices Breyer, Kagan, and Sotomayor, Justice Ginsburg called

the majority’s opinion “a decision of startling breadth.” Throughout her opinion, Justice

Ginsburg noted that the ramifications of this case could sweep beyond the seemingly narrow

focus of the majority opinion. After listing instances of employers wanting to discriminate

on the basis of race, sex, and sexual orientation, she asked, “Would RFRA require

exemptions in cases of this ilk? And if not, how does the Court divine which religious

beliefs are worthy of accommodation, and which are not?” Then, quoting the majority

opinion, she asked, “Isn’t the Court disarmed from making such a judgment given its

recognition that ‘courts must not presume to determine the plausibility of a religious claim’?”

Justice Ginsburg also wrote that the Court’s holding could extend to employers “with

religiously grounded objections” to blood transfusions, antidepressants, medications derived

from pigs, and vaccinations.

In response to Justice Ginsburg’s dissent, the majority noted that they were “concerned solely

with the contraceptive mandate. Our decision should not be understood to hold that an

insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious

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beliefs. Other coverage requirements, such as immunizations, may be supported by different

interests (for example, the need to combat the spread of infectious diseases) and may involve

different arguments about the least restrictive means of providing them.” Justice Ginsburg,

however, wrote that once the Court gets into the question of what religious objections are

worthy of legal accommodations and which ones are not, the Court then could be perceived

as favoring one religion over another. “The Court, I fear,” she wrote, “has ventured into a

minefield.”

II. Access to Justice & Civil Rights

1. McCullen v. Coakley

Issue: Constitutionality of “buffer zones,” which protect women and workers at abortion

clinics from harassment by anti-choice groups

Argument date: January 15, 2014

Over 10 years ago, in the Supreme Court’s 2000 decision in Hill v. Colorado,6 a 6-3 majority

upheld Colorado’s “buffer zone” law, which prevents anti-abortion protesters from harassing

patients and interfering with the operation of clinics which provide abortion services.

McCullen threatens to dismantle this precedent, over a decade old, and scale back the ability

of states to protect women and their families’ access to reproductive services.

Massachusetts’s law, which mandates a 35-foot buffer zone around abortion clinics, is very

similar to the law upheld in Hill, with one significant difference: the Colorado law barred all

speakers from the 100-foot buffer zone, whereas the Massachusetts statute allows clinic

employees and agents to access and communicate within the buffer zone. The opponents of

the law urge the Court to strike down the law as a content-based restriction on speech that

would violate the First Amendment because of this exception.

Perhaps recognizing the similarity of the law at issue with that upheld in Hill, or seeing an

opportunity with a reconstituted, ideologically-driven Court majority, the law’s opponents

have also asked the Court to overrule Hill and strike down buffer zone laws entirely. The

most significant difference between Hill and McCullen is the membership of the Supreme

Court, leaving it to be seen whether a new, all-male majority will join with the conservative

attacks on women’s rights and reproductive freedom across the country and strike down

buffer zone laws.

Result: The Supreme Court unanimously declared Massachusetts’s buffer zone to be an

unconstitutional violation of the First Amendment, but neither overruled nor affirmed its

precedent in Hill v. Colorado. In the opinion, the Chief Justice referred to the protestors

outside the abortion clinic as “counselors” who “consider it essential to maintain a caring

demeanor, a calm tone of voice, and direct eye contact” during “exchanges” with the women

attempting to enter the clinic. In the First Amendment analysis, Chief Justice Roberts found

that although the law—which created a fixed 35-foot buffer zone around abortion clinics—

was both viewpoint neutral and content neutral, it nonetheless failed constitutional muster

because it was not sufficiently “narrowly tailored to serve a significant government interest.”

The Court found that the law does serve a significant interest in promoting public safety,

6 Hill v. Colorado, 530 U.S. 703 (2000).

10

access to healthcare, and unobstructed use of public sidewalks, but also found that the fixed

buffer zone “impose[s] serious burdens on petitioners’ speech,” and has “taken a toll,” as

evidenced by protestors’ claims that the number of women they have managed to dissuade

from abortion has decreased since the law’s passage. In striking the law down, Chief Justice

Roberts suggested other, narrower alternatives (without claiming they were necessarily

constitutional), such as a floating buffer zone and heavier use of police involvement.

Meanwhile, the precedent that was seemingly at the heart of this case—Hill v. Colorado—

received only one mention from the Chief Justice at the beginning of the opinion, identifying

the law in that case as the model for an earlier Massachusetts buffer zone law.

Justice Scalia, however, in a concurrence joined by Justices Thomas and Kennedy, wrote

separately to say that while they agreed with the Court’s judgment that the Massachusetts

buffer zone law should be struck down, they would have gone further to overturn Hill v.

Colorado. Justice Alito authored a separate concurrence stating that he believed the law

discriminated based on viewpoint, since clinic employees were allowed to speak within the

buffer zone but protestors are not.

2. Burrage v. United States

Issue: Safeguarding fair criminal trials and sentencing

Argument date: November 12, 2013

Marcus Burrage was arrested and convicted for dealing heroin to a drug user who died while

high. At trial, the decedent’s wife testified that she had seen her husband use marijuana and

oxycodone the day before his death. One issue in this case is whether, as the Eighth Circuit

held, “distributing drugs where death results” is a strict liability crime—that is, a defendant

can be convicted and sentenced to a harsh mandatory minimum without possessing any

measure of intent and regardless of whether the death was foreseeable. Other federal

appellate courts have found the opposite, noting that such a standard could lead to absurd

results. A second important question is whether a defendant can be convicted of

“distributing drugs where death results” (and sentenced to a high mandatory minimum) even

if the drug sold by the defendant only contributes to, and is not the sole cause of death. The

overdose victim in this case had several drugs in his system at the time of death, and medical

experts could not determine if the death would have occurred without the drug sold by the

defendant.

If the Supreme Court upholds the Eighth Circuit’s decision in Burrage, it will be even easier

to sentence defendants to harsh sentences without any specific proof of intent or causation.

Result: In a unanimous opinion authored by Justice Scalia, the Supreme Court held that a

drug dealer who sold drugs to a user who later died from overdose may only receive an

enhanced, mandatory minimum sentence if the government can prove that the drug sold was

the actual cause of the user’s death; it is not enough that the drug was a “contributing cause”

of the user’s death. The Court interpreted the “results from” language in the federal statute

requiring heightened sentences for drug sales causing death or serious injury as requiring this

direct result. In doing so, Justice Scalia compared the “results from” language in the statute

to similar language in Title VII’s anti-retaliation provision. Justice Ginsburg, joined by

11

Justice Sotomayor, concurred in the judgment and wrote separately to disapprove of that

analogy and argue that the Court should not apply the same interpretation to Title VII cases.

3. Burt v. Titlow

Issue: Ineffective assistance of counsel in plea agreements

Argument date: October 8, 2013

The Supreme Court has established that the Sixth Amendment protects the right to effective

assistance of counsel, and recently affirmed that this framework extends to the plea

bargaining process. In this case, the defendant’s second attorney completely failed to

investigate her case before recommending that the defendant withdraw a plea agreement

negotiated by her first attorney, which was a guilty plea that would have reduced the charges

against her. The Sixth Circuit held that the second counsel violated the defendant’s Sixth

Amendment right to effective assistance of counsel in advising her to withdraw the guilty

plea, therefore leading the defendant to receive the longer prison sentence for murder. The

main issue the Supreme Court will consider is whether a convicted defendant’s subjective

testimony that she would have accepted a plea if not for the ineffective assistance of counsel

is sufficient to demonstrate that the defendant would have accepted the plea deal, or if

additional objective evidence is required.

Imposition of an objective requirement would make it considerably more difficult for

defendants to bring ineffective assistance of counsel claims, even when the sentence received

at trial is many times more severe than the plea agreement and an attorney’s conduct was

clearly unreasonable.

Result: The Supreme Court unanimously reversed the Sixth Circuit in a decision, with the

majority opinion written by Justice Alito and joined by all Justices except Ginsburg. Rather

than addressing issues of attorney incompetence, the Supreme Court found that the Sixth

Circuit improperly “assum[ed]” ineffectiveness on the part of counsel even though “the [fact-

finding] record was silent” on that issue. Justice Sotomayor joined fully in the Court’s

opinion, but wrote separately to emphasize that, in her view, “[r]egardless of whether a

defendant asserts her innocence (or admits her guilt), her counsel must ‘make an independent

examination of the facts, circumstances, pleadings and laws involved and then … offer his

informed opinion as to what pleas should be entered.’” Justice Ginsburg alone did not join

the opinion and only concurred in the judgment itself; she found the state court’s claim that

Titlow’s attorney acted reasonably to be “dubious.”

4. Madigan v. Levin

Issue: Plaintiffs’ access to recourse for discrimination claims

Argument date: October 7, 2013

Harvey Levin, a former Illinois Senior Assistant Attorney General, sued the state of Illinois

and various employees of the Attorney General’s office, including the Attorney General

herself, for allegedly engaging in age discriminatory employment practices. The plaintiff

was over the age of 60, and was replaced by a female attorney in her thirties. Levin brought

suit directly under 42 U.S.C. § 1983 (known as the Ku Klux Klan Act) and the constitutional

Equal Protection Clause, as well as the Age Discrimination in Employment Act (ADEA).

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The Seventh Circuit affirmed the district court holding that claims for age discrimination in

employment may be brought under the Equal Protection Clause of the Constitution, and are

not barred by the ADEA.

The Supreme Court took this case to resolve a circuit conflict on whether age discrimination

claims brought under the Equal Protection Clause are barred by the ADEA. The Equal

Protection Clause provides an important alternative avenue for plaintiffs to remedy claims of

discrimination, and the Court should uphold the Seventh Circuit’s decision in Levin’s favor.

Result: On Tuesday, October 15, the Supreme Court dismissed Madigan v. Levin as being

improvidently granted.

5. Town of Greece v. Galloway

Issue: Separation of church and state and legislative prayer

Argument date: November 6, 2013

For the first time in 30 years, the Supreme Court will rule on government prayer in

legislative meetings. None of the current justices were on the Court in 1983 when it decided

Marsh v. Chambers, which upheld an opening prayer in the Nebraska state legislature. In

Marsh, legislative prayer was upheld because it was a practice dating back to the country’s

founding.

This case involves the practice of legislative prayer at the beginning of each town board

meeting in the Town of Greece, New York. In 1999, the town’s supervisor began inviting

clergymen to begin its meetings with a short prayer. A town employee was charged with

soliciting local religious organizations and compiling a list of potential prayer-givers. Until

2008, when the suit was filed, the list contained only Christian organizations and clergy.

Although the town alleges that it did not discriminate against non-Christian prayer-givers,

from 1999 to 2007, every prayer-giver was a member of the Christian clergy and delivered an

invocation at the town’s invitation. Two town residents filed a suit challenging the

legislative prayer. The Second Circuit held that, upon viewing the totality of the

circumstances, legislative prayer in the Town of Greece was an endorsement of one

particular religion in violation of the Establishment Clause of the Constitution.

The issue presented is whether the practice violates the Establishment Clause of the

Constitution notwithstanding the absence of explicit discrimination in the selection of prayer-

givers, when the prayer was led exclusively by clergy of one religion.

Result: In a 5-4 decision authored by Justice Kennedy, the Supreme Court majority upheld

the Town of Greece’s legislative prayer policy as constitutional. The Court’s majority found

that the Establishment Clause of the First Amendment was not intended to prohibit

legislative prayer, and that the prayer does not need to be sectarian in order to be

constitutional. Otherwise, Justice Kennedy wrote, courts would be in the position of playing

the arbiters of religious speech. So long as the legislative prayers do not coerce the public

into religious observance—which Justice Kennedy differentiates from offending the public—

the prayers pass constitutional muster.

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Justices Alito and Thomas each authored concurrences; Justice Alito emphasized that a

decision striking down the legislative prayer policy would put the government in the position

of policing prayer, and Justice Thomas wrote separately to say that the Establishment Clause

should be read as a constitutional provision protecting states’ rights, rather than individual

rights.

Justices Breyer and Kagan each wrote dissenting opinions. Breyer wrote that the Town of

Greece did not do enough to make its legislative prayer inclusive of non-Christian faiths.

Justice Kagan, in her dissent joined by Justices Ginsburg, Breyer, and Sotomayor, wrote that

by making no effort to inform non-Christian clergy of the opportunity to deliver an

invocation, the town marginalized religious minorities.

6. McCutcheon v. Federal Election Commission

Issue: Aggregate limits on contributions to candidates and party committees

Argument date: October 8, 2013

In McCutcheon, a wealthy Republican donor from Alabama and the Republican National

Committee are challenging two-year caps on aggregate direct campaign contributions to

candidates and party committees (aka “hard money”) in hopes of further deregulating

campaign finance. Under federal law, there are base contribution limits on how much an

individual can contribute to a political candidate or political party committee, and there are

separate limits on the aggregate amount that an individual can give in a two-year period.

Individuals are currently permitted to contribute a total of $48,600 to candidate committees,

and $74,000 to non-candidate committees. In McCutcheon, the Court will decide whether

these aggregate limits—as distinct from base contribution limits—violate the First

Amendment.

Underlying McCutcheon is a longstanding distinction in campaign finance law that treats

limits on expenditures differently from limits on contributions. Limits on independent

expenditures face more exacting constitutional scrutiny and are often struck down as

impermissible limits on speech, as they were in Citizens United, where the Court held that

the independent expenditures of organizations—as with those of individual people—are

constitutionally protected. On the other hand, the Court has long held that political

contributions to candidates and parties are not speech and can be subject to greater

regulation. As a case about contributions, McCutcheon falls on this more permissive side of

the Court’s precedents. If the Roberts Court decides to prohibit limits on aggregate

contributions and to obliterate this distinction, it could put at risk a slew of reasonable

campaign finance laws that aim to prevent the wealth of the few from dominating the voice

of many.

Result: In a plurality decision authored by Chief Justice Roberts and joined by Justices

Alito, Kennedy, and Scalia, the Supreme Court struck down the aggregate limits on direct

campaign contributions as an unconstitutional violation of an individual’s First Amendment

right to free political speech. In doing so, the Court did not alter the base limitations on

contributions, nor did the plurality claim to be revisiting Buckely v. Valeo, the 1976

precedent that first upheld restrictions on direct individual campaign contributions and found

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that campaign finance limits in some instances may be used to thwart “the appearance of

corruption stemming from public awareness of the opportunities for abuse inherent in a

regime of large individual financial contributions.” The McCutcheon majority did, however,

adopt the definition of “corruption” that it first used in Citizens United instead of the Buckely

definition; it held that the only corruption Congress may constitutionally regulate through

individual campaign finance reform is quid pro quo corruption, or, in other words, actual

bribery. Justice Thomas joined in the judgment of the Court, but filed a separate concurrence

to write that Buckley should be overruled. Justice Breyer authored the dissenting opinion,

joined by Justices Sotomayor, Kagan, and Ginsburg. Justice Breyer wrote, “Taken together

with Citizens United, today’s decision eviscerates our Nation’s campaign finance laws,

leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that

those laws were intended to resolve.”

7. Schuette v. Coalition to Defend Affirmative Action

Issue: Guaranteeing equal access to the political process

Argument date: October 15, 2013

The Supreme Court has consistently held that affirmative action in public higher education is

constitutional. In 2006, 57 percent of Michigan voters passed Proposal 2, a state

constitutional amendment banning, among other things, the use of race and sex as relevant

factors in public university admissions. The constitutional amendment also prohibits

university admission officials from even considering whether or not to use race as a relevant

factor in their decisions. At issue in this case is a doctrine that falls under the Fourteenth

Amendment’s Equal Protection Clause, known as the “political process” doctrine. The Court

has held in prior cases that a decision-making process delegated to one body—here the

Regents of the University—cannot be restructured to create a new set of rules that makes it

more difficult for racial minorities to influence the political process than it is for other

groups. Specifically, this case concerns whether the state’s constitutional ban on affirmative

action programs in public higher education creates an unfair burden for applicants who

support diversity because a student who wants the university to use her legacy status as a

relevant factor in her application can petition the regents directly, whereas a student who

wants her race to be considered must seek a constitutional amendment. The Sixth Circuit,

both when sitting as a three-judge panel and upon rehearing the case en banc, held that this

ban does create an unfair burden when it noted that “[n]o other admissions criterion—for

example, grades, athletic ability, geographic diversity, or family alumni connection—

suffered the same fate.”

If the Supreme Court were to reverse the Sixth Circuit’s decision, it would severely obstruct

supporters of racial diversity seeking recourse through the political process.

Result: A divided Supreme Court reversed the Sixth Circuit and upheld Michigan voters’

ability to ban affirmative action in university admissions through a referendum to amend the

state constitution. The Court was split 6-2 (Justice Kagan recused herself). The plurality

opinion authored by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito,

while not explicitly overruling the “political process” precedents, narrowed those decisions

drastically. Justice Scalia, in a concurrence joined by Justice Thomas, argued that the

political process cases should be overruled. Justice Sotomayor authored a passionate dissent,

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joined by Justice Ginsburg, that she read aloud from the bench. In her dissent, she

acknowledged the effect the majority’s decision has on affirmative action (“Although the

only constitutional rights at stake in this case are process-based rights, the substantive policy

at issue is undeniably of some relevance to my colleagues”) and she discussed the importance

of affirmative action and the history of discrimination in Michigan. She countered Chief

Justice Roberts’ statement from a previous case—Parents Involved v. Seattle School

District—that “the way to stop discrimination on the basis of race is to stop discriminating on

the basis of race,” by writing, “This refusal to accept the stark reality that race matters is

regrettable. The way to stop discrimination on the basis of race is to speak openly and

candidly on the subject of race, and to apply the Constitution with eyes open to the

unfortunate effects of centuries of racial discrimination.”

8. Mount Holly v. Mount Holly Gardens Citizens in Action

Issue: Disparate impact claims under the Fair Housing Act

Argument date: December 4, 2013 The Court will no longer be hearing arguments in

this case.

In 2000, the Township of Mount Holly, New Jersey, began acquiring properties in one of its

low-income neighborhoods, Mount Holly Gardens, to implement redevelopment plans which

included demolition of most of the neighborhood’s original homes. Most of the Garden’s

residents are African American and Hispanic. In 2008, Citizens in Action and residents of

the Gardens filed suit in federal court, arguing that the Township violated the Fair Housing

Act (FHA) and other federal antidiscrimination laws.

The question the Court will consider is whether plaintiffs can use a disparate impact

argument under the Fair Housing Act to establish discriminatory housing practices. Under

disparate impact theory, plaintiffs may present statistical evidence to show the only

reasonable explanation for discriminatory results against a particular group is discriminatory

actions in the absence of a formally discriminatory policy. Disparate impact is a critical tool

in civil rights enforcement, since “second generation” discrimination has replaced explicitly

discriminatory policies in areas such as employment and housing. In other words, in 2013,

discrimination is never made as plain as a “no blacks allowed” sign.

Eleven circuit courts of appeal have held that the FHA allows disparate impact claims. The

Supreme Court decided to hear Mount Holly even though the Solicitor General advocated

against the Supreme Court hearing this case because forthcoming U.S. Department of

Housing and Urban Development regulations are likely to render the issue moot and there is

no circuit split on the issue of disparate impact under the FHA. A decision striking down

disparate impact theory under the FHA could have dire consequences for the enforcement of

many civil rights statutes.

Result: On November 13, 2013, Mount Holly Township and residents of Mount Holly

Gardens agreed to a settlement that was unanimously approved at a meeting of the Mount

Holly Township Council. The case is therefore withdrawn from the Supreme Court’s docket

without any further action.

9. Cline v. Oklahoma Coalition for Reproductive Justice

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Issue: Banning medical abortion

Argument Date: The Court will no longer be hearing arguments in this case.

In 2011, Oklahoma passed a law that limits doctors’ ability to prescribe drugs that cause

medical abortion early in the first trimester. Often referred to as RU-486, the drug regimen

was approved by the Food and Drug Administration in 2000 as an alternative to surgical

abortion when pregnancy is discovered early in the first trimester. The Oklahoma law

prohibits doctors from prescribing any “abortion-inducing drug” for an “off-label” use. The

FDA approved RU-486 thirteen years ago with a label stating that the drugs should only be

used until the 49th day of pregnancy, and specified that women be given a 600-miligram

dosage. Today, however, it is widely accepted among doctors that the regimen may be used

safely and effectively through the 63rd day of pregnancy, and that a dosage of 200

milligrams is sufficient. Such modern practice, however, is considered off-label use for the

purposes of the Oklahoma law, which would require doctors—despite evidence-based,

common practice and acceptance across the profession—to follow the original FDA label.

At best, this would require doctors to give women three times more of the drug than is

actually necessary, and limit its prescription to the 49th day of pregnancy rather than the

63rd, leaving those women to attain surgical abortions instead. At worst, the law could be

interpreted to virtually ban the practice of medical abortion altogether.

After accepting the case to its docket, the Supreme Court requested clarification from the

state court about exactly which medications the statute applies to before moving forward to

schedule the case for argument. If the Court does decide to go forward with the case, it may

impose another major impediment to women’s freedom of choice, essentially requiring

women to attain costly and invasive surgical procedures instead of the physician-approved

medical abortion regimen.

Result: The Oklahoma Supreme Court answered the Supreme Court’s inquiry by finding

that the law would, if in effect, essentially ban medication abortion in the state. On

November 4, 2013, the Supreme Court then dismissed the case as “improvidently granted” in

a per curiam opinion. As a result, the Oklahoma Supreme Court’s decision that the law is

unconstitutional stands.

10. Unite Here Local 355 v. Mulhall

Issue: The future of “neutrality agreements” in unionizing workforces

Argument Date: November 13, 2013

In order to unionize a workforce through a non-contentious process, employers and

employees will sometimes enter into “neutrality agreements.” These agreements set the

ground rules for organizing where both sides offer promises and concessions. For example,

the employer may promise not to oppose union representation, to allow the union onto its

property, and to give the union employees’ names and addresses, and while the employees

may promise to abstain from picketing, boycotting, or otherwise attempting to put pressure

on the employer’s business so long as the neutrality agreement remains in effect. In this

case, the employer Mardi Gras entered into a neutrality agreement with its employees

requiring Mardi Gras to recognize the union, to remain neutral if the union conducted an

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organizing campaign among the employees, to allow the union onto its premises to

communicate with the employees and to give the union its employees’ names and addresses.

The union in return promised not to strike, picket, or otherwise threaten economic action

against Mardi Gras so long as the neutrality agreement was in effect.

Anti-union advocates have developed a legal theory against neutrality agreements, arguing

that they violate an anti-bribery law from 1947—the Labor-Management Relations Act

(LMRA)—that forbids employers from paying any money or other valuables to a labor

union. This argument, though presented in front of several courts, has only succeeded in

front of the Eleventh Circuit, which held that the neutrality agreements may violate the

LMRA, despite the LMRA’s purpose to “promote both labor peace and collective

bargaining.” The issue is now before the Supreme Court.

If the Supreme Court embraces the Eleventh Circuit’s backwards interpretation of the LMRA

and finds against neutrality agreements, it could mean the end to one of labor’s powerful and

successful organizing tools.

Result: On December 10, 2013, the Supreme Court dismissed Mulhall as “improvidently

granted.” Although the decision to dismiss the case did not state anything further, Justice

Breyer authored a dissent that was joined by Justices Sotomayor and Kagan. The dissenting

justices said that although the union-employer contract expired before the lower court issued

its decision—which would otherwise render the case moot—the importance of the issues at

stake should have led the Court to call for additional briefing and perhaps vacate the lower

court’s decision. Justice Breyer wrote that “given the importance of the question presented

to the collective-bargaining process, further briefing, rather than dismissal, is the better

course of action.”7 By instead dismissing the case the Supreme Court left the Eleventh

Circuit’s decision—which found that the neutrality violated the LMRA’s anti-bribery

provision— in place.

11. Fernandez v. California

Issue: Warrantless search of one’s home despite a previous objection

Argument Date: November 13, 2013

When it comes to constitutional prohibitions on warrantless searches and seizures by police,

the home has always been a particularly venerated zone of privacy. If the police come to

one’s door without a warrant and request to search the home, the individual may lawfully

object and deny consent to the search. If, however, that individual is not home, a roommate

or co-tenant who answers the door may legally give (or deny) consent for the police to search

the home, despite the absence of the targeted individual.

In this case, the Supreme Court will consider the issue of whether the individual must be

physically present and objecting at the time the police come to the door requesting a

warrantless search, or whether, when absent, his previous objection is sufficient to override a

present co-tenant’s consent to the search. Here, Walter Fernandez refused consent to a

warrantless search of his apartment. The police, having reason to believe that Fernandez was

7 No. 12-99, 2013 U.S. LEXIS 9018 (U.S. 2013) (Breyer, J., dissenting).

18

a burglary suspect, arrested him. The police then returned to the apartment an hour later, and

Fernandez’s girlfriend consented to the search.

If the Supreme Court finds against Fernandez, it would create a powerful loophole for police

to search individuals’ homes without a warrant, despite the presence of explicit objections.

Result: The Supreme Court held that a suspect’s objection to police attempts to conduct a

warrantless search of his home may be overridden by another occupant who provides consent

well after the objecting occupant has been removed from the premises. Justice Alito, who

authored the 6-3 opinion (with concurrences from Justices Scalia and Thomas), wrote, “Any

other rule would trample on the rights of the occupant who is willing to consent.”

Justice Ginsburg filed a dissent that was joined by Justices Sotomayor and Kagan. In her

dissent, Justice Ginsburg warned, “Instead of adhering to the warrant requirement, today’s

decision tells the police they may dodge it, nevermind ample time to secure the approval of a

neutral magistrate. . . . [T]oday’s decision overlooks the warrant requirement’s venerable role

as the ‘bulwark of Fourth Amendment protection’” (quoting Franks v. Delaware, 438 U.S.

154, 164 (1978)).

12. Navarette v. California

Issue: Whether police have to actually observe evidence of misconduct to stop a vehicle

after receiving an anonymous tip about misconduct

Argument Date: January 21, 2014

To legally stop and search a vehicle under the Fourth Amendment, police are required to

have reasonable suspicion of criminal activity. In this case, police received an anonymous

tip that a particular pick-up truck was seen driving recklessly. The police pulled over the

pick-up truck without independently identifying misconduct beyond the anonymous tip.

While detaining the defendants, Lorenzo and Jose Navarette, the police discovered marijuana

in the vehicle and arrested the defendants. The defendants pled guilty to transportation of

marijuana after their motion to suppress the evidence seized during the search was denied.

The issue in this case is whether an anonymous tip is sufficient to justify the warrantless stop

of a vehicle, or whether the Fourth Amendment requires an officer to corroborate that tip by

witnessing the dangerous driving for herself before stopping a vehicle. A ruling that finds

anonymous tips sufficient to justify vehicle stops would broaden the definition of reasonable

suspicion, expanding police authority to stop vehicles.

Result: In a split 5-4 decision, the Supreme Court majority held that the police acted

reasonably in stopping and searching a vehicle based solely on an anonymous tip of reckless

driving. Justice Thomas wrote the majority opinion, finding that when an anonymous tip is

reliable (indicated here, according to Justice Thomas, by the facts that the caller—who said

he was run off the road by a driver—dialed 9-1-1, identified the vehicle and its license plate,

and that the police were able to locate the vehicle 18 minutes later), police are within their

authority to pull over and search the suspect vehicle. In dissent, Justice Scalia, joined by

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Justices Ginsburg, Sotomayor, and Kagan, wrote that there are many reasons to doubt

anonymous tips, including that anonymous tipsters can “lie with impunity.”

13. Harris v. Quinn

Issue: “Fair share” provisions, requiring all workers represented by a union to pay for

union representation

Argument Date: January 21, 2014

Collective bargaining agreements sometimes include what is known as a “fair share”

provision. Fair share provisions require workers covered by a union to pay a fee for costs the

union incurs by serving as the workers’ bargaining representative. The fee applies to all

workers represented by the union, including those who opted not to join.

Harris involves home-care providers in Illinois who provide in-home care to disabled

individuals. The state of Illinois, through Medicaid-waiver programs, sets the wage rate for

providers and pays them directly. The state has also statutorily labeled the workers as

“public employees” for the purpose of collective bargaining under the Illinois Public Labor

Relations Act. As a consequence, a majority of such providers chose to be represented by

SEIU Healthcare Illinois & Indiana. The collective bargaining agreement between the union

and the state includes a fair share provision, by which all home-care providers, including

non-union providers, are required to pay fees related to the union’s collective-bargaining

representation.

Non-union home-care providers are challenging this provision as violating the First

Amendment. However, the Seventh Circuit has already held that these fair share fees support

only legitimate, non-ideological union activities related to the union’s ability to bargain with

the state. Thus, the fair share provision at issue in Harris is consistent with the Supreme

Court’s decision in Abood v. Detroit Board of Education, which held that public employers

can require all of their employees to pay union fees so long as the employees are not required

to pay fees that go to supporting ideological activities. A decision to strike down mandatory

fair share fees in this case would potentially overrule Abood, and deal a major blow to the

union’s ability to bargain on behalf of its workers.

Result: In a 5-4 decision authored by Justice Alito, the Supreme Court declined to extend

Abood to the home health care workers in Illinois because they were “partial public

employees” rather than full-fledged public employees. He distinguished the workers in this

case as “partial public employees” because even though the state was in charge of all of the

economic aspects of the workers’ employment, the workers were hired by private individuals

and worked in private residences. Therefore, the majority concluded that under First

Amendment free speech and association rights, the non-union members could not be required

to pay fair share fees to the public union for the benefit of representation. Without overtly

overruling Abood, Justice Alito heavily criticized the case, writing that the precedent has

“questionable foundations.”

In her dissent joined by Justices Ginsburg, Breyer, and Sotomayor, Justice Kagan disagreed

with Justice Alito’s characterization of the home workers’ relationship with the state. She

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wrote, “Although a customer can manage his own relationship with a caregiver, Illinois has

sole authority over every workforce-wide term and condition of the assistant’s

employment—in other words, the issues most likely to be the subject of collective

bargaining. In particular, if an assistant wants an increase in pay, she must ask the State, not

the individual customer. So too if she wants better benefits.” Moreover, Justice Kagan

accused the Court majority of making up its own term of art to create a supposedly new

category of workers. In her first footnote in dissent, Justice Kagan wrote, “The majority

describes the petitioners as ‘partial’ or ‘quasi’ public employees, a label of its own devising.

But employment law has a real name—joint employees—for workers subject at once to the

authority of two or more employers (a not uncommon phenomenon).”

14. Hall v. Florida

Issue: Determining death penalty eligibility standards for the mentally handicapped

Argument Date: March 3, 2014

Freddie Hall was convicted of murdering 21-year old Karol Hurst in 1978 and was sentenced

to death. The Florida courts first addressed his mental retardation in his resentencing

proceedings in 1992. Despite findings then that Hall had been “mentally retarded all his

life,” and in 1999 that Hall is “probably somewhat retarded,” the courts continued to deny his

appeals and keep him on death row.

In 2002, the Supreme Court in Atkins v. Virginia held that it was unconstitutional for a state

to execute the “mentally retarded,” and gave states much latitude and only general guidance

in defining the process for determining whether a defendant is mentally retarded. It said that

the determination requires proving three elements: low IQ scores—generally under 70—

showing “subaverage intellectual functioning,” a lack of fundamental social and practical

skills, and that both conditions were present before the defendant turned 18 years old.

Shortly before the Atkins decision, the Florida Supreme Court established an “inflexible

bright-line cutoff” to determine mental retardation that required proof of an IQ of 70 or

below. Last year, the Florida Supreme Court held that, because Freddie Hall’s IQ had been

measured to be 71, 73, and 80 at various times, he was eligible for execution. If the Supreme

Court upholds Florida’s cut-off scheme for determining mental retardation eligibility for

capital punishment, it will add to the arbitrariness of the death penalty, leaving justice to a

state-by-state numerical analysis.

Result: In a 5-4 decision authored by Justice Kennedy and joined by Justices Breyer,

Ginsburg, Kagan, and Sotomayor, the Court held that Florida’s strict rule requiring an IQ of

70 or lower to be ineligible for the death penalty on the basis of intellectual disability (a term

the Court used to replace “mental retardation”) is unconstitutional. Justice Kennedy wrote

that “intellectual capacity is a condition, not a number.” Surveying the states, the majority

found that a strict numerical cut-off for death penalty eligibility, like the scheme in Florida, is

rare. At the least, if a defendant’s IQ falls between 65 and 75, his lawyer must be allowed to

introduce additional evidence of intellectual disability, including the inability to learn basic

skills and adapt to changing circumstances.

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Justice Alito authored a dissent, joined by Chief Justice Roberts and Justices Scalia and

Thomas. Calling the majority’s decision a “sea change” from its previous approach in Atkins

v. Virginia, Justice Alito wrote that the majority relied on “the evolving standards of . . . the

American Psychiatric Association” rather than on the evolving standards of the general

American population. The dissenting opinion disagreed with the majority’s interpretation of

the states’ consensus.

15. Plumhoff v. Rickard

Issue: Qualified immunity for police following deadly force during a high-speed chase

Argument Date: March 4, 2014

In 2007 the Supreme Court held in Scott v. Harris8 that the police did not use

unconstitutionally excessive force in attempting to stop a car during a high-speed chase by

ramming into the car. The driver of the fleeing vehicle was paralyzed as a result. Plumhoff

represents a sequel of sorts to Harris; a police officer pulled over a car containing both a

driver—Donald Rickard—and a passenger, and when the officer asked the driver to step out

of the car, the driver fled. During an ensuing high-speed chase that crossed state lines, police

fired shots into the car through the passenger side, eventually killing both the driver and the

passenger.

The Sixth Circuit refused to grant qualified immunity to the police officers, finding that the

use of force was unreasonable as a matter of law. Officer Plumoff is appealing to the

Supreme Court, arguing that his use of force was reasonable under the Harris precedent, and

that he should be entitled to qualified immunity for his actions. If the Supreme Court extends

Scott v. Harris’s logic to protect police from liability where they shoot directly into a vehicle

and kill two individuals, it would broaden the police’s ability to use deadly force without

being held accountable for their actions.

Result: The Supreme Court, in a decision authored by Justice Alito, unanimously overruled

the Sixth Circuit’s denial of immunity to the police officers in this case. The Court held that

it is reasonable for police to begin shooting into a fleeing vehicle during a high-speed chase,

and that the police may continue to shoot into the vehicle until the threat to public safety has

ended. Additionally, the Court held that regardless of its reasonability, the law on whether

such a shooting was constitutional was not clearly established at the time of the incident,

therefore barring the police from liability for their actions. Justices Ginsburg and Breyer,

without writing separately, did not join in the Court’s finding that the shooting was

reasonable, but joined with the Court’s conclusion that the law was not clearly established

enough at the time of the incident to warrant liability for the shooting.

8 550 U.S. 372 (2007).