The 2013 Supreme Court Term: The Sleeper Cases

Dan Schweitzer, NAAG Supreme Court Chief Counsel

Dan Schweitzer, Supreme Court Counsel

As I write this article, many of this Term’s most important cases remain pending. By the time you read it, however, the U.S. Supreme Court will have decided them all. What to do? The answer: Look at the sleeper cases of the Term, those decisions that are important to attorneys general offices even if they didn’t make the front pages of the newspapers. (Chief Justice Rehnquist ─ quoting Thomas Gray’s Elegy Written in a Country Churchyard ─ used to compare those cases to “flowers which are born to blush unseen and waste their sweetness on the desert air.”) Here is a look at a few of those otherwise unseen flowers from the Court’s 2013 Term.

POM Wonderful LLC v. Coca-Cola Co.

An important, recurring issue for AG offices is preemption. Does a federal law displace state laws that an AG office or the state’s citizens wish to enforce? Some good anti-preemption language recently showed up in a surprising place ─ a Supreme Court opinion that did not actually address whether federal law preempts state law.

Coca-Cola sells “Pomegranate Blueberry” juice, which sounds appealing to those who want more pomegranate and blueberry in their diets. There’s just one hitch. Coca-Cola’s “Pomegranate Blueberry” juice contains only 0.3 percent pomegranate juice and 0.2 percent blueberry juice. (That’s not 3 percent and 2 percent; it’s 3/10 of 1 percent and 2/10 of 1 percent.) This prompted one of Coca-Cola’s competitors, POM Wonderful, to sue Coca-Cola under the Lanham Act for deceptive advertising. The Ninth Circuit, however, held that the Federal Food, Drug, and Cosmetic Act (FDCA) comprehensively regulates the labeling of juice beverages, leaves enforcement of those regulations to the Food and Drug Administration (FDA), and therefore impliedly precludes private Lanham Act actions. By an 8-0 vote (with Justice Breyer recused), the Supreme Court reversed.

The Court recognized that the question whether one federal statute precludes a cause of action under another federal statute is not a preemption question. The “state-federal balance does not frame the inquiry” and therefore no “presumption against preemption” applies. The Court nonetheless agreed that preemption “principles are instructive insofar as they are designed to assess the interaction of laws that bear on the same subject.” The Court went on to apply reasoning that could prove very favorable to the states in future preemption cases. Among other nuggets in Justice Kennedy’s opinion are:

  • The absence of any language in the two statutes forbidding Lanham Act claims challenging FDCA-regulated labels is telling, particularly since the two statutes have co-existed since 1946. That’s a line of reasoning a 5-Justice majority embraced in Wyeth v. Levine (2009) and now stands on even firmer ground. Put another way, if Congress wants to bar operation of another statute (e.g., preempt state law), it knows how to do so expressly ─ and a negative inference should be drawn if Congress doesn’t take that course.
  • Related to that first point, the Court observed that Congress has preempted certain state laws addressing food and beverage misbranding. The Court stated that where Congress has enacted a provision precluding one class of claims addressing a subject but “did not enact a provision addressing the preclusion of other . . . laws that might bear” on that subject, that is “powerful evidence that Congress did not intend” to preclude those other federal laws. This is another strong anti-preemption inference.
  • In finding that the FDCA did not oust Lanham Act claims, the Court noted that “[a]lthough both statutes touch on food and beverage labeling, the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety.” That should be a useful guidepost in preemption cases: state laws often deal with the same subject matter as federal laws but have different purposes and have their “own mechanisms to enhance the protection of competitors and consumers.”
  • Merely because a federal agency claims that a regulation reflected “the agency’s weigh[ing of] the competing interests” does not make a federal regulation “a ceiling” that would preclude additional regulation. This is important because federal agencies frequently contend that the standards they adopt balanced competing interests and therefore cannot be supplemented by sometimes-stricter state standards.
  • Finally, the Court found it “a bridge too far to accept” the United States’ contention that the Court should “preclude private parties from availing themselves of a well-established federal remedy because an agency enacted regulations that touch on similar subject matter but do not purport to displace that remedy or even implement the statute that is its source.” The same holds double ─ or ought to ─ for private parties that are “availing themselves of a well-established” state “remedy.”

Fernandez v. California

A perennial debate in Fourth Amendment law is whether the “touchstone” of the Fourth Amendment is its warrant requirement or is reasonableness. Most searches that are challenged in court are warrantless searches. And in challenging them, defense counsel invariably begin with a quote along these lines, from Arizona v. Gant (2009): “the basic rule [is] that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment ─ subject only to a few specifically established and well-delineated exceptions.’” By contrast, the government often begins with a sentence such as this one, from the United States’ amicus brief in Maryland v. King, quoting Pennsylvania v. Mimms (1977): “the ‘touchstone’ of a Fourth Amendment analysis ‘is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’”

This debate matters. If the Court views reasonableness as the key inquiry, it will uphold far more warrantless searches than if it views the warrant requirement as the key. For this reason, this debate turned up during oral argument in United States v. Wurie, one of the two cases this Term addressing whether the police may conduct a warrantless search of a person’s cell phone incident to that person’s arrest. During U.S. Deputy Solicitor General Michael Dreeben’s rebuttal, Justice Sotomayor said, “This is a very big confusion about the Fourth Amendment. The Fourth Amendment doesn’t permit reasonable searches without a warrant. It says you need a warrant ─ we’ve created exceptions to that, but not because a search is reasonable.”

Mr. Dreeben responded, “Justice Sotomayor, the Fourth Amendment doesn’t actually say you do need a warrant. It does protect the right against unreasonable seizures, and it describes what warrants must contain.” Justice Scalia, who often votes against the government in Fourth Amendment cases, nonetheless backed Mr. Dreeben up: “[T]he only thing it prohibits is unreasonable searches.”

And that brings us to Fernandez v. California, one of the four Fourth Amendment cases the Court decided this Term. By a 6-3 vote, the Court held that officers could enter an apartment, without a warrant, upon the consent of an occupant even if another occupant had previously objected to the officer’s entry but is no longer present. For our purposes, what matters is this: At the outset of its analysis, the Court said, “Our cases establish that a warrant is generally required for a search of a home, but the ultimate touchstone of the Fourth Amendment is reasonableness” (internal citations and quotation marks omitted). The “reasonableness” side has, for now, won the debate over the “warrant” side.

Michigan v. Bay Mills Indian Community

Some decisions appear to be wins, but upon closer inspection are really losses. And sometimes the opposite is true. In Michigan v. Bay Mills Indian Community, the states failed in their effort to convince the Court to narrow the sovereign immunity of Indian tribes. By a 5-4 vote, the Court declined to overrule Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998), which held that tribal sovereign immunity extends to a tribe’s commercial activities that take place off Indian lands. But the Court sought to reassure states that they can enforce their laws against tribes. In doing so, the Court created new, favorable law for the states.

Justice Kagan’s opinion for the Court stated that, although Michigan cannot sue the tribe directly for unlawfully operating a casino on non-Indian land, under the Ex parte Young doctrine (as analogously applied to Indian tribes) “tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct.” The Court so held even though the Bay Mills tribe offered the district court five separate reasons why Ex parte Young-type claims were unavailable here ─ and even though at least four federal courts of appeals had (in the words of Justice Thomas’ dissent) interpreted “tribal immunity . . . to cover tribal employees and officials acting within the scope of their employment.” Those decisions appear no longer to be good law, which is good news for the enforcement of state law.

White v. Woodall

The Sixth Circuit granted habeas relief to a state inmate; the Supreme Court reversed. That hardly sounds noteworthy. But in reversing the Sixth Circuit’s failure once again to apply the Antiterrorism and Effective Death Penalty Act (AEDPA) properly, the Court made an important contribution to habeas law.

As most readers of this publication know, under AEDPA a federal court may grant habeas relief with respect to a claim decided on the merits by a state court only where the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. ¿2254(d)(1). In one of its earliest cases construing that provision, Williams v. Taylor (2000), the Court appeared to approve of the Fourth Circuit’s statement that habeas relief may be granted under ¿2254(d)(1) when a state court “unreasonably refuse[s] to extend a legal principle to a new context where it should apply.” Over the years, many lower courts granted habeas relief based on their view that state courts unreasonably refused to extend legal principles established by the Supreme Court. No longer.

After explaining why the trio of cases upon which the Sixth Circuit relied did not “clearly establish” that Woodall was entitled to relief, the Court addressed Woodall’s reliance on the “notion” that a state-court merits ruling can be set aside if the state court unreasonably “refused to extend” a governing legal rule adopted by the Court. And the Court went on to reject that notion. The Court stated that “[¿]2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat that failure to do so as error.” Put another way, “‘if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision.’” Thus, one tool used by federal courts to throw out state convictions has been removed ─ through an opinion by Justice Scalia and joined by the other four conservatives and Justice Kagan.

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