The 2011 Supreme Court Term: The Hidden Gems

Dan Schweitzer, NAAG Supreme Court Counsel

Dan Schweitzer, Supreme Court Counsel

This is the time of year when U.S. Supreme Court decisions are front page news. Who isn’t interested in the fate of campaign finance laws, violent video games, and global warming? And who isn’t interested in finding out what the police can do when they smell marijuana wafting out of an apartment door? But for offices of the Attorney General, some of the most important decisions are the unheralded ones ─ what Chief Justice Rehnquist (quoting Thomas Gray’s Elegy Written in a Country Churchyard) used to compare to “flowers which are born to blush unseen and waste their sweetness on the desert air.”[1] Here is a look at a few of the hidden gems of the Court’s 2011 term.

Camreta v. Greene

This case had all the makings of front page news. A father was suspected of sexually abusing his 9-year-old daughter (S.G.). Oregon child protective services and local police feared that the mother knew but stood by silently. The only witness was S.G., but the officers couldn’t get a warrant to seize her because they didn’t yet have probable cause. What to do? The answer: Go to the girl’s elementary school and interview her there (without clueing in her mother ahead of time). Alas, S.G.’s mother later filed a §1983 suit against the child protective services worker and deputy sheriff who conducted the interview, alleging that it violated S.G.’s Fourth Amendment rights. The Ninth Circuit agreed with the mother, holding that the warrantless seizure of S.G. violated the Fourth Amendment because the government officials lacked a court order, parental consent, or exigent circumstances. The Supreme Court agreed to review the case. The holding: The case was moot because S.G. was about to turn 18 and had moved across the country. There was virtually no way she would be subjected to the allegedly wrongful behavior again.

Sounds like one of those cases that portended great importance but fizzled out. A closer look tells a different story. A key fact left out of the above description was that the Ninth Circuit held that the defendant officers were entitled to qualified immunity from damages liability because the law governing this situation was not clearly established. That left Oregon officials in a bind. Although they had prevailed based on qualified immunity, the Ninth Circuit ruling established binding precedent that barred government actors from protecting suspected victims of sexual abuse by interviewing them at school. (Because the victims are usually the only witnesses to the crime, it’s very hard for officers to establish probable cause prior to those interviews. And spouses are often complicit in the crime. Interviews of the sort conducted here are therefore an important tool in combating sexual abuse of children.) The usual rule, however, is that the prevailing party cannot appeal to a higher court.

Creating an exception to that rule, a 5-Justice majority held that the Supreme “Court generally may review a lower court’s constitutional ruling at the behest of a government official granted qualified immunity.” Camreta, slip op. 2. The Court recognized the dilemma decisions like this one impose on a government official: “He must either acquiesce in a ruling he had no opportunity to contest in this Court, or defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages.” Id. at 12 (internal quotation marks omitted). And the Court recognized that this dilemma is the inevitable consequence of its instruction to lower courts to decide constitutional questions before considering qualified immunity claims when that is necessary “to clarify the legal standards governing public officials.” Id. at 11. The Court therefore “exempt[ed] one special category of cases from [its] usual rule against considering prevailing parties’ petitions” ─ a special category of special importance to the offices of Attorney General.

Camreta’s impact extends far beyond child-interview cases or even Fourth Amendment cases generally. A state officer might lose the constitutional question but prevail on qualified immunity on any number of issues ─ be it the constitutionality of the Virginia Military Institute’s supper prayer, see Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); whether a statute limiting the disclosure of information about government investigations violates the First Amendment, see Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005); or whether prison officials violated a prisoner’s due process rights by failing to provide meaningful periodic reviews during his lengthy confinement in administrative segregation, see Toevs v. Reid, No. 10-1535 (11th Cir. June 20, 2011). Now, a state Attorney General’s office can seek Supreme Court review of a federal court of appeal’s constitutional holding regardless of the court’s qualified immunity holding. That is a major gain for Attorneys General offices.

Sossamon v. Texas

In this case, the Court held by a 6-2 vote that states, by accepting federal funds, do not consent to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act. That’s a nice win for the states in its own right, but my focus is on a little-noticed aspect of the Court’s decision. But first a word of background.

The Supreme Court had long held that the United States’ sovereign immunity is comparable to the states’ sovereign immunity. For example, in Tindal v. Wesley, 167 U.S. 204, 213 (1897), the Court held that “it cannot be doubted that the question whether a . . . suit is against the State . . . must depend upon the same principles that determine whether a . . . suit is against the United States.” More recently, in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 682 (1999), the Court stated that “in the context of federal sovereign immunity — obviously the closest analogy to the present case — it is well established that waivers are not implied. . . . We see no reason why the rule should be different with respect to state sovereign immunity.” This equation of federal and state sovereign immunity is helpful because some important sovereign immunity rules have been declared only in the context of federal immunity. An example is United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940), and United States v. Shaw, 309 U.S. 495 (1940), which held that even where a sovereign affirmatively seeks relief in federal courts, it does not waive its immunity from cross-claims and counterclaims (apart from defensive claims that seek only recoupment).

The Court muddied the waters, however, in Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002). In Lapides, the state of Georgia relied on United States Fidelity & Guaranty Co. and Shaw. The Court had any number of responses, but ended up choosing a problematic one. The Court distinguished the cases as having involved the United States’ immunity, not “the Eleventh Amendment—a specific text with a history that focuses upon the States’ sovereignty vis-a-vis the Federal Government.” Lapides, 535 U.S. at 623. As I have previously written, “[t]his matter-of-fact uncoupling of states’ sovereign immunity from federal sovereign immunity is contrary to more than 100 years of Supreme Court jurisprudence.”[2]

Thankfully, the Court in Sossamon has “re-coupled” the states’ sovereign immunity and federal sovereign immunity. In ruling for Texas, the Court relied on a case involving the United States’ immunity, Lane v. Pena, 518 U.S. 187 (1996). Sossamon, 131 S. Ct. at 1658. The Court then added an explanatory ─ and very helpful ─ footnote:

Although Lane concerned the Federal Government, the strict construction principle, which flows logically from the requirement that consent be “unequivocally expressed,” applies to the sovereign immunity of the States as well. Cf. United States v. Nordic Village, Inc., 503 U. S. 30, 37 (1992) (equating the “unequivocal expression” principle from “the Eleventh Amendment context” with the principle applicable to federal sovereign immunity); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 682 (1999) (noting the “clos[e] analogy” between federal and state sovereign immunity); Belknap v. Schild, 161 U. S. 10, 18 (1896) (“[A] State … is as exempt as the United States [is] from private suit”).

Id. at 1658 n.4. That language should clear up, once and for all, that states may rely on federal sovereign-immunity cases and principles in support of their own immunity claims.

Harrington v. Richter

State habeas lawyers are already familiar with Harrington v. Richter, a decision in which the Court excoriated the Ninth Circuit for failing to abide by the Antiterrorism and Effective Death Penalty Act (AEDPA) and for failing to give sufficient deference to trial counsel under Strickland v. Washington. State lawyers are particularly fond of the Court’s statement that AEDPA permits a federal court to grant habeas relief under 28 U.S.C. §2254(d)(1) only “where there is no possibility that fair-minded jurists could disagree that the state court’s decision conflicts with this Court’s precedent.” 131 S. Ct. at 786. Other favorites are the statements that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable,” and that “[i]f this standard is difficult to meet, that is because it was meant to be.” Id. at 786. I would like to focus on a different, less-noticed passage.

One of the major innovations of AEDPA was authorizing federal courts to grant habeas relief with respect to a legal claim addressed on the merits by the state court only if the state court’s adjudication was “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. §2254(d)(1). Thus, a federal court can no longer grant habeas relief merely because it disagrees with the state court’s legal ruling. The federal court typically has to find that the state court’s ruling was “an unreasonable application of” Supreme Court precedent ─ or, in the Supreme Court’s words, “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000).

Nonetheless, it is not uncommon for federal habeas courts to conduct an ordinary de novo review of the legal issue and then, after reaching a different conclusion than the state court, to add (in so many words) that “we therefore conclude that the state court’s ruling was an unreasonable application of Supreme Court precedent.” Indeed, that’s precisely what the Ninth Circuit did in Harrington. And the Supreme Court was having none of it.

Here it is not apparent how the Court of Appeals’ analysis would have been any different without AEDPA. The court explicitly conducted a de novo review, 578 F.3d, at 952; and after finding a Strickland violation, it declared, without further explanation, that the “state court’s decision to the contrary constituted an unreasonable application of Strickland.” 578 F. 3d, at 969. AEDPA demands more. Under §2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. The opinion of the Court of Appeals all but ignored “the only question that matters under §2254(d)(1).” Lockyer v. Andrade, 538 U. S. 63, 71 (2003).
131 S. Ct. at 786.

A federal habeas court must now do more than assert that the state court’s decision was objectively unreasonable; it must explain why that’s so. And that explanation must go beyond a mere repetition of the federal court’s conclusion that the state court erred. The federal court must explain why “there is no possibility that fair-minded jurists could disagree that the state court’s decision conflicts with th[e Supreme] Court’s precedent.” This unheralded portion of a decision little known outside the habeas corpus field should prove very helpful to the states in the upcoming years.


[1] See Richard W. Garnett, William H. Rehnquist: A Life Lived Greatly, and Well, 115 Yale L.J. 1847, 1849 (2006).

[2] Dan Schweitzer, Lapides v. Board of Regents of University System of Georgia: A Partial Answer to the Sovereign Immunity-Waiver Conundrum, 17 National Environmental Enforcement Journal No. ___, at __ (___ 2002).

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