National Association of Attorneys General

National Association of Attorneys General National Association of Attorneys General

A Preview of the 2009 Supreme Court Term

Dan Schweitzer, Supreme Court Counsel

The first Monday in October is fast approaching, meaning a new Supreme Court term is about to get underway. As usual, the Court’s docket includes a mixture of major cases sure to make the front pages of the papers and obscure matters of interest only to lawyers with niche practices. What may be most unusual about the upcoming term is how much has taken place before it has even officially commenced.

Most notable was the Senate’s confirmation in August of Sonia Sotomayor as associate justice to fill the seat formerly taken by David Souter. Any time a new justice joins the Court, its dynamics change ― not just its voting patterns, but how the justices interact with each other at oral argument and off the bench. There is every reason to believe that Justice Sotomayor will vote similarly to Justice Souter on the major constitutional issues of the day. But, given her background as a former prosecutor and her voting record on the Second Circuit, it is possible she will be more sympathetic to the government’s position in criminal law cases than was Justice Souter. One of the most interesting aspects of this term will be seeing Justice Sotomayor’s voting record in those cases and seeing whether oral argument ― already an ordeal in the Supreme Court ― becomes even tougher with her on the bench.

The Court also took the unusual step of hearing oral argument in early September, while its 2008 term was still technically in session. The Court heard reargument in Citizens United v. FEC, No. 08-205, to address whether it should “overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002.” In plain English, at issue is whether the First Amendment permits Congress to ban corporations and unions from using their general funds to advocate expressly for a candidate for public office. The Court initially heard argument in the case last March, and could readily have ruled for the petitioner on statutory grounds. Based on the Court’s decision to hear reargument on the constitutional issue, and on the transcript of the recent oral argument, the Court appears almost certain to overrule at least part of Austin and hold that Congress may not limit the election-related expenditures of a non-profit ideological corporation such as Citizens United. The Court may well go further and hold that Congress may not limit the election-related expenditures of any corporation or union. (Note that the case does not involve Congress’ longstanding ban on corporate contributions to political campaigns.)

The Court has 46 other cases set for argument in the 2009 term, about one-third of which will be argued by state Attorney General offices. This makes the Attorney General offices, once again, the most frequent party in the Court. Here is an overview of the most important cases on the Court’s docket, from the Attorney General perspective.

Criminal Law

The Court is addressing an array of issues that will significantly affect criminal law enforcement. Perhaps the most interesting of these cases are Graham v. Florida, No. 08-741, and Sullivan v. Florida, No. 7621, both of which present the question whether the Eighth Amendment’s ban on cruel and unusual punishments bars states from imposing the sentence of life without parole (LWOP) on juveniles for the commission of non-homicide offenses. Graham and Sullivan rely heavily on Roper v. Simmons, 543 U.S. 551 (2005), in which the Court held that the Eighth Amendment categorically forbids the execution of minors. The Court in Roper emphasized that minors are less culpable than adults and less susceptible to deterrence because they lack maturity, are especially susceptible to peer pressure, and have “more transitory, less fixed” personality traits. Graham and Sullivan argue that these same concerns make an LWOP sentence ― which eliminates the possibility of their ever being released ― a constitutionally disproportionate sentence. Florida responds that Roper (and Atkins v. Virginia, 536 U.S. 304 (2002)) are products of the Court’s “death is different” jurisprudence, and is not properly extended to non-capital sentences. And, Florida argues, state legislatures can quite reasonably conclude that an LWOP sentence is proportionate to the crimes committed in these cases: armed burglary by a recidivist and rape. In the jargon of the Court’s doctrine, such sentences are not “grossly disproportionate” to the crimes.

The case of Padilla v. Kentucky may be even more important in terms of its practical effects. Virtually all criminal convictions result in collateral consequences, ranging from lost voting rights to sex offender registration requirements to professional disbarment to deportation. And virtually all criminal convictions arise from guilty pleas. Padilla arises from the juxtaposition of those two facts. Padilla (a non-citizen) argues his counsel mistakenly told him that he could not be deported under the Immigration and Nationality Act if he pleaded guilty to trafficking marijuana. In the Supreme Court, Padilla argues not only that such affirmative misadvice can serve as the basis for withdrawing a guilty plea, but also that defense counsel have an affirmative obligation to advise defendants about the collateral consequences of conviction. In Padilla’s view, “[f]or many criminal defendants, the deportation consequences of conviction will matter much more than the criminal punishment,” and competent counsel may “need to shape defense strategy to avoid deportation.” Kentucky responds that the Constitution requires only that a guilty plea be voluntary, which requires only that the defendant know the direct consequences of the plea and the rights being waived. If the Court were to adopt Padilla’s proposed rule, it would dramatically expand the constitutionally imposed duties of defense counsel far beyond the criminal matters that are the concern of the Sixth Amendment.

Another criminal case of great practical consequence is Maryland v. Shatzer, No. 08-690 (U.S.), which bears on when police may question a suspect who has invoked his Fifth Amendment right to counsel. In Edwards v. Arizona, 451 U.S. 477 (1981), the Court held that police are prohibited from initiating the interrogation of a suspect who has invoked the right to counsel. But does that prohibition last forever? Here, Shatzer was questioned about sexually abusing his child. After he invoked his right to counsel, questioning ceased, and he was returned back to prison (where he was serving time for a separate offense). More than two years later, police received new information about the sexual abuse allegations and therefore questioned him again. At issue in the case is whether the second questioning violated the Edwards rule, or whether the Edwards prohibition was no longer operative because of the break in custody, or the long lapse of time, between the initial and later questioning.

Finally, it’s worth saying a few words about Beard v. Kindler, No. 08-992. The question presented is whether “a state procedural rule [is] automatically ‘inadequate’ under the adequate-state-grounds doctrine ― and therefore unenforceable on federal habeas corpus review ― because the state rule is discretionary rather than mandatory.” On the surface, this is about as dry and technical a case as the Court could hear. To members of state Attorney General offices trying to defend convictions, however, this issue is often hugely important. One of the fundamental rules of habeas practice is that an inmate who has failed to assert a claim in the state courts, and thereby forfeited the claim in state court, has procedurally defaulted the claim and (subject to limited exception) may not assert it on federal habeas review. The rule is based on fundamental federalism principles, and serves to ensure that state courts be given the first opportunity to address inmates’ claims for release. Several federal courts of appeal, however, have held that a state procedural rule is “inadequate” to procedurally bar a federal habeas claim if the state court has discretion in applying the rule, such as the discretion to waive its application in the “interests of justice.” Applying that approach, the Ninth Circuit has for decades refused to recognize the validity ― for procedural bar purposes ― of many of California’s core procedural rules, such as those barring unduly delayed applications and applications raising claims that could have previously been raised. Beard v. Kindler will resolve whether states must choose between giving their state judges some degree of discretion in applying their rules and having those rules count on federal habeas review.


For the first time in several years, the Court will address whether Congress exceeded its powers under the Commerce Clause when it enacted a particular statute. In this case, United States v. Comstock, No. 08-1224, the statute in question is Congress’ sexually violent predator law, which authorizes the civil commitment of dangerous sexual predators after they complete their federal prison sentences. The Fourth Circuit rejected the United States’ contention that the statute is a “component of Congress’s unquestioned power to enact criminal laws prohibiting conduct within the scope of its Article I powers and to punish persons convicted of violating those laws by committing them to federal custody.” In the court’s view, previous lawful federal custody is not a basis for commitment “after a person has completed a sentence for a federal crime, i.e., when the power to prosecute federal offenses is exhausted.” Notably, Kansas filed an amicus brief on behalf of 30 states in support of the federal law. The amicus brief noted that states have been the leaders in adoption of sexually violent predator laws, and they view the federal statute not as an intrusion on state prerogatives but “as complementary to state efforts in this area.”


The Roberts Court will hear its first takings case in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, No. 08-1151. As part of a beach restoration project, and acting under Florida’s Beach and Shore Preservation Act, county officials established a fixed “erosion control line” that set the boundary between private beachfront property and the state’s sovereign lands. The Florida Supreme Court rejected petitioner’s contention that this action constituted a taking without just compensation of their common-law littoral right to accretion. The principal issue before the U.S. Supreme Court is whether the Florida Supreme Court’s decision, which purportedly reversed longstanding state law regarding littoral rights, constitutes a “judicial taking.” This issue may prove particularly important because in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court held that property owners cannot claim a taking based on a land-use restriction that was part of the “existing rules or understandings,” such “background principles of the State’s law of property and nuisance.” The Stop the Beach case will tell us the leeway that state courts have to define (or re-define) the contours of those background principles.

Establishment Clause

The Court will tackle the intersection of religion and the law in Salazar v. Buono, No. 08-472, a contentious case arising from efforts by the Veterans of Foreign Wars (VFW) to maintain a cross as a memorial to fallen service members in a remote area within a federal preserve. The cross had been there for 70 years, until a district court held that its presence violated the Establishment Clause and the Ninth Circuit affirmed. The first issue before the Court is whether the plaintiff has standing to maintain the action, given that he does not object to the public display of the cross, but rather complains that the land should be open to other symbols. The second issue is “[w]hether, even assuming [the plaintiff] has standing, the court of appeals erred in refusing to give effect to [an] Act of Congress providing for the transfer of the land to private hands.”

Free Speech

Several years ago, Congress enacted a statute making it unlawful to create, sell, or possess, for commercial gain, a depiction of a live animal being intentionally wounded, tortured, or killed. The Court will decide whether the statute violates the First Amendment in United States v. Stevens, No. 08-769. The United States argues that the speech covered by the statute is, like child pornography and obscenity, not protected at all by the Free Speech Clause. Alternatively, the United States argues that the facial challenge to the statute must fail because “numerous applications of the statute, including crush videos and animal fighting videos, would satisfy even the strict scrutiny standard.” Respondent counters that the statute would cover documentaries depicting the clubbing of baby seals and other mistreatment of animals, as well as similar images in passages by Hemingway and in popular movies. In the end, argues Respondent, “Congress enacted a statute, the net effect of which is to hinge the freedom to speak on the speaker’s willingness to run the gauntlet of post hoc value assessments by prosecutors and juries with a five-year felony sentence hanging over his head.”

Who's My AG?

Find the attorney general who represents you.

Meetings & Trainings

Stay informed of NAAG meetings and the NAGTRI trainings we offer.

AG Spotlight

Mark Brnovich, Arizona Attorney General

Mark Brnovich was sworn into office as Arizona attorney general in January 2015.