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A Preview of the 2011 Supreme Court Term

Dan Schweitzer, Supreme Court Counsel

The 2011 Supreme Court Term begins next week and early predictions are that it will be a blockbuster. The highest profile cases are two the Court has not yet even agreed to hear ─ the challenge to the Affordable Health Care Act and Arizona’s defense of its illegal immigration law. Cert petitions have been filed in both cases, and it is very likely the Court will hear them. Meanwhile, the Court has already agreed to hear 41 cases, involving issues ranging from habeas corpus to the Free Speech Clause to preemption to intellectual property. Here is a quick rundown on some of the more important pending cases to Attorney General offices.

Criminal Law

In a pair of state cases, the Court is addressing claims that defense counsel performed ineffectively during the plea bargaining process. In Lafler v. Cooper, No. 10-209, a Michigan defendant (Lafler) declined to accept a plea offer because his counsel misconstrued an element of the crime (and therefore misconstrued the prosecution’s ability to prove that element). Lafler was then convicted after a fair trial and sentenced to a far longer sentence than he had been offered pre-trial. He argues that he was clearly prejudiced by his counsel’s deficient performance, and that he is therefore entitled to have the plea offer reinstated. Michigan counters that the Sixth Amendment right to counsel ensures a fair trial ─ which is precisely what Lafler received. Nor does it make sense, argues Michigan, to order reinstatement of the plea offer because the prosecutor always had the right to withdraw the offer and the trial court could have rejected the deal.


In Missouri v. Frye, No. 10-444, defense counsel failed to tell the defendant (Frye) about a plea offer that the prosecution said would expire six weeks later. Eventually, Frye pled guilty and the court sentenced him to imprisonment for several years longer than would have been imposed under the offer. The parties’ arguments are similar to those asserted in Lafler: the defendant points to the obvious injury he incurred as a consequence of his counsel’s incompetent actions; and the government emphasizes that Frye was not deprived of a fair trial by his counsel’s actions and that he had no entitlement to the plea offer. Because plea bargains are offered in the vast majority of criminal cases, the outcome of these cases could have far-reaching consequences.

The Court is also hearing an important and interesting Fourth Amendment case, United States v. Jones, No. 10-1259. This case involved efforts by federal law enforcers to catch a suspected drug dealer by installing a GPS device on his car and monitoring it. The tactic worked and led to Jones’ arrest and conviction, but the D.C. Circuit held that the government’s monitoring of his car’s movements for an entire month constituted an unreasonable search. The United States relies on United States v. Knotts, 460 U.S. 276 (1983), as holding that persons have no legitimate expectation of privacy when they are on the public roads, and that the police are permitted to use technology to enhance their viewing of what transpires in public. The D.C. Circuit concluded, however, that “the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements . . . is essentially nil.” Nor did it matter, ruled the court, that each individual movement by Jones on the road is exposed to the public. Applying a “mosaic” theory, the court stated that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble,” which can “reveal more about a person than does any individual trip viewed in isolation.” The Supreme Court added a twist when it granted certiorari, asking the parties also to address whether the police violated the Fourth Amendment when, without a warrant, they attached the GPS devise on the exterior of the car in the first place.

A final criminal case meriting note is Martinez v. Ryan, No. 10-1001. The petitioner is, at bottom, asking the Court to overrule Pennsylvania v. Finley, 481 U.S. 551 (1987), and hold that the Constitution grants inmates a right to counsel in state post-conviction proceedings. According to Martinez, not only was his trial counsel constitutionally ineffective, but also his state post-conviction counsel was ineffective in failing properly to raise trial counsel’s ineffectiveness. Martinez filed a federal habeas petition raising his ineffective-assistance-of-trial-counsel claim, but he had to overcome his state-court procedural default. To do that, he asserted that his state post-conviction counsel’s ineffectiveness is the “cause” of his default. Under Supreme Court precedent, however, a counsel’s ineffectiveness can constitute “cause” to overcome a procedural default only if that ineffectiveness amounted to a constitutional violation. And so we reach the constitutional question: is a defendant constitutionally entitled to the effective assistance of counsel in state post-conviction proceedings when (as here) those proceedings are the first opportunity the defendant had to raise the claim at issue? If Martinez prevails, many states will, for the first time, have to provide counsel in non-capital collateral proceedings.


Federalism is on the Court’s docket, in the form of three preemption cases and a sovereign immunity case. Two of the preemption cases are of the conventional sort. At issue in National Meat Association v. Harris, No. 10-224, is whether the Federal Meat Inspection Act ─ which regulates the “premises, facilities, and operations” of slaughterhouses, and expressly preempts state regulations “in addition to, or different than” the federal regulations ─ preempts a California law that requires slaughterhouses to “immediately euthanize” any non-ambulatory animal on their premises. And at issue in Kurns v. Railroad Friction Products Corp., No. 10-879, is whether the Locomotive Inspection Act, by operation of implied field preemption, preempts state law causes of action against locomotive parts manufacturers based on the plaintiff railroad employee’s alleged exposure to asbestos contained in those parts.


By contrast, the third preemption case, Douglas v. Independent Living Center of Southern California, No. 09-958, raises novel issues about how preemption cases may be brought against states under Spending Clause statutes. California attempted to make its Medicaid program more efficient by reducing its reimbursement rates to certain types of providers. Groups of providers and beneficiaries filed federal lawsuits claiming that California’s reimbursement-reduction statutes were preempted by a provision of the Medicaid Act known as §30(A). But, California pointed out, it was undisputed that §30(A) does not create any rights that are privately enforceable under §1983 or directly under the statute. Rather, argued California, Congress intended §30(A) to be enforced by the U.S. Department of Health and Human Services, which is empowered to withhold federal funding to a state if the state is not complying with the Medicaid Act. The Ninth Circuit disagreed, holding that the Supremacy Clause always creates a private right of action to assert that federal law preempts a state law. This case raises fundamental questions about the nature of Ex parte Young actions, the Supremacy Clause, and Spending Clause statutes.

Finally, after a five-year respite, the Court will again decide whether a particular federal law validly abrogated states’ sovereign immunity. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Court held that the family-leave provision of the Family and Medical Leave Act (FMLA) validly abrogated the states’ sovereign immunity because it was a valid exercise of Congress’ power under §5 of the 14th Amendment. At issue in Coleman v. Court of Appeals of Maryland, No. 10-1016, is whether the same result obtains with respect to the FMLA’s self-care leave provision, which provides employees up to 12 weeks of unpaid leave for medical reasons. The Hibbs Court reasoned that the family-leave provision “aims to protect the right to be free from gender-based discrimination in the workplace,” specifically, “discriminatory leave policies” under which women were often granted far more maternity leave than men. Applying the test established in City of Boerne v. Flores, 521 U.S. 507 (1997), the Court concluded that the family-leave provision was “congruent and proportional” to that targeted violation. In Coleman, Maryland argues that Congress enacted the self-care leave provision for entirely different reasons, having nothing to do with gender-based discrimination, and that the law therefore cannot be justified as remedying unconstitutional discrimination by state governments.

First Amendment

The Court is also hearing two interesting First Amendment cases. In FCC v. Fox Television Stations, No. 10-1293, the Court will resolve “[w]hether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.” In 2001, the FCC modified its approach to enforcing a statutory ban on “indecent language” in broadcasts, and then found the ban violated when the singer Bono cursed in accepting a Golden Globe Award during an NBC broadcast; when Cher and Nicole Richie cursed during Fox’s airings of the Billboard Music Awards; and when ABC showed an adult woman’s naked buttocks in an episode of NYPD Blue. The Second Circuit held that the FCC’s indecency policy is unconstitutionally vague because “it fails to give broadcasters notice of what words or expressions will be deemed patently offensive; [and] it fails to give broadcasters notice when the words f*** and sh** will be permitted because they are deemed ‘integral’ to a program or within a ‘bona fide news interview.’” The plaintiff broadcasters also argue that the FCC’s indecency policy is a “content-based speech restriction[]” that violates the First Amendment because less restrictive alternatives (such as V-chips) are available, and because the material at issue is not highly enough sexualized to be proscribable under the First Amendment.


Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, involves the scope of the “ministerial exception,” a First Amendment doctrine adopted by 12 federal circuits which bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The case was brought by a “called” teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes and regularly leads students in prayer and worship. She asserted that the school violated the Americans with Disabilities Act when it fired her. The Church argues that the Establishment Clause, the Free Exercise Clause, and the right to expressive association combine to prevent courts from, essentially, appointing ministers. In its view, the ministerial exception applies to “employees who perform functions important to the employer’s religious mission” and which would require reinstatement or “require the court to decide religious issues” ─ requirements it contends are met here. The EEOC and the teacher counter that the only issue is whether the ADA’s “anti-retaliation prohibition is unconstitutional as applied to the circumstances of this case.” They assert that application of a generally applicable anti-discrimination law to a teacher of secular subjects is not unconstitutional even if she also performed religious functions at the school.

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