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The 2011 Supreme Court Term at the Halfway Mark

Dan Schweitzer, Supreme Court Counsel

We are about halfway through the 2011 U.S. Supreme Court term, but that doesn’t mean the Court has done half of its work already; it is far from it. The Court typically saves its most important and controversial opinions until late in the term; and it still has three more months of oral arguments to hear. A review of a Court term at the halfway mark is therefore closer to reviewing a football game after the first quarter. One looks for intriguing patterns and assesses what they may portend for the more exciting action to come. With that in mind, here are a couple of ways of looking at some of the major decisions the Court has issued so far.

Surprising Unanimity.

Perhaps the two most important decisions issued during the first half of the Court’s term were Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, and Perry v. Perez, No. 11-713. Each dealt with a contentious issue that had divided politicians and the public. Most observers therefore expected the Court to divide along liberal-conservative lines, with heated dissents and spirited rebuttals. Yet when the dust settled, the end result was two unanimous opinions.

In Hosanna-Tabor, the Court recognized a “ministerial exception” that exempts from employment discrimination laws the relationship between religious institutions and their “ministers.” All of the federal courts of appeal had recognized that exception, so perhaps it was no surprise all nine Justices did so as well. More surprising was all nine Justices also agreed that the plaintiff in the case, a teacher at a Lutheran church’s school (respondent Cheryl Perich), qualified as a “minister” for purposes of the exception. Perich was a “called” minister who taught kindergarten and fourth grade, spending most of her time on secular subjects (math, social studies, art, and the like), but also teaching a religious class four days a week and leading the students in prayer each day. The EEOC had argued that any ministerial exception “should be limited to those employees who perform exclusively religious functions”; the Sixth Circuit held that Perich did not qualify as a “minister” because her duties as a called teacher were identical to the duties she performed her first few years at the school, when she was still a lay teacher. Without dissent, the Court rejected the EEOC’s position as “extreme”; and rejected the Sixth Circuit’s holding for failing to consider other factors, such as “the nature of the religious functions [she] performed,” and the fact that both she and the church held her out as a minister.

Of course, one way the Court manages to issue unanimous opinions in controversial cases is by saving tricky follow-up issues for another day. And that is precisely what the Court did here, declining to say whether a religious institution would be protected “from liability for retaliating against employees for reporting criminal misconduct or for testifying before a grand jury or in a criminal trial.” Likewise, the Court said, “We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.” The Court’s work on the “ministerial exception” has only just begun.

In Perry v. Perez, the Court addressed redistricting and the Voting Rights Act in the context of Texas’ politically charged effort to redistrict its state House and Senate and its U.S. House seats in the wake of the 2010 Census. The case specifically involved §5 of the Voting Rights Act, which the Court appeared close to striking down two terms ago in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009), before ultimately ruling on statutory grounds. So when the Court granted Texas’ request for a stay of interim electoral maps drawn by a three-judge district court in Texas, with oral argument set for barely over a month later, the table was set for another heated battle between the liberals and conservatives on the Court. But instead of battling each other through heated words, the Justices ended up singing a chorus of “Kumbaya.”

The case involved a conundrum created by the Court’s Voting Rights Act jurisprudence. A jurisdiction covered by §5 of the Voting Rights Act may not implement a change to its voting procedures unless and until the change is submitted to and approved by the U.S. Attorney General or a three-judge U.S. District Court for the District of Columbia. But what happens when a covered jurisdiction seeks preclearance of new electoral maps from the D.C. district court, but that court does not issue a decision in time for upcoming elections? That question presented itself to a three-judge district court in Texas, which was convened to hear a suit claiming that Texas’ new electoral maps violated the U.S. Constitution and §2 of the Voting Rights Act. The Texas district court could not simply order the state to use the old electoral maps until the state received preclearance because, due to the state’s population gains reflected in the 2010 census, use of the old maps would violate the one-person, one-vote rule. Nor could the Texas district court order use of the new electoral maps, because §5 bars their use until they are precleared. Nor could the Texas court rule on the preclearance issue itself, for the Supreme Court has made clear that local district courts “may not address the merits of §5 challenges.” And so the Texas court had no choice but to draw up its own interim electoral maps that would apply until legislatively drawn maps received preclearance.

Redistricting, however, is fraught with political and policy judgments that courts are ill-equipped to make. What should guide the Texas court as it draws the interim maps? And to what extent should it look to the newly-enacted legislative maps, on the one hand, or to the pending §2, §5, and constitutional challenges, on the other? These are tricky issues, the answer to which depend in large measure on how one views the underlying purpose of §5 and the proper role of courts in the redistricting process ─ issues that have long divided the Justices. Yet all nine Justices agreed on the common-sense answers set out in Chief Justice John Roberts’ opinion: a regional district court in the Texas court’s shoes “should take guidance from the State’s recently enacted plan in drafting an interim plan”; it should take into account challenges under the Constitution or §2 of the Voting Rights Act only if the plaintiffs have shown a likelihood of success on the merits of those claims; and it should take into account a §5 challenge only if the challenge “stand[s] a reasonable probability” of succeeding, i.e., the challenge is “not insubstantial.” The Court concluded that the Texas district court might not have applied those principles and so vacated the court’s interim map with instructions to take another stab at it.

Technology and Criminal Law

On the criminal-law side, the Court grappled with how the Constitution should deal with new technologies in the important case of United States v. Jones, No. 10-1259. Officers suspected that respondent Antoine Jones was involved in drug trafficking and therefore installed a GPS device on the underside of the Jeep Grand Cherokee he drove. (The officers had obtained a warrant authorizing the installation, but they failed to comply with its terms.) Over the next 28 days, the officers used the device to pinpoint the Jeep’s location and connect him to a “stash house” containing cocaine. Jones challenged the evidence obtained through the GPS surveillance, saying that both the installation of the GPS device and the 28-day surveillance of him through the device violated the Fourth Amendment. The United States argued that there was no Fourth Amendment violation because there was no “search” within the meaning of the Fourth Amendment in the first place. All nine Justices of the Court agreed with Jones, though the Justices were very divided on precisely why.


Justice Antonin Scalia wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor. They decided this high-tech case on distinctly old-fashioned grounds. The majority said that the Framers believed the Fourth Amendment was closely tied to property rights, and that they unquestionably would have concluded that a “physical intrusion” onto “private property for the purpose of obtaining information” ─ as occurred here with the GPS device ─ constituted a “search” within the meaning of the Fourth Amendment.

That reasoning constitutes a dramatic change in Fourth Amendment jurisprudence. For more than 40 years, the Court has decided Fourth Amendment cases by applying the rule announced in Justice John Marshall Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 360 (1967): the Fourth Amendment protects a person’s reasonable expectation of privacy. Justice Scalia made clear that his majority opinion did not disown Katz; it supplemented it. That is, the “reasonable expectation of privacy” test announced in Katz is “not the sole measure of Fourth Amendment violations.” Adoption of the additional “physical intrusion” test, however, raises a host of issues that will inevitably arise in future cases: How closely tied is the test to the law of trespass? Will it vary from state to state because states’ trespass laws vary? Is it tied to the law of trespass as understood at the Founding or to current trespass law?

The four-Justice concurring opinion by Justice Samuel Alito (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan) concluded that the officers conducted a “search” of Jones for a very different reason: because the 28-day monitoring “involved a degree of intrusion that a reasonable person would not have anticipated.” Justice Alito strongly criticized the majority’s “physical intrusion” rule, saying that Katz has long been the sole Fourth Amendment test. But Justice Alito also recognized that it is not easy to apply the reasonable-expectations-of-privacy test to new technologies that can change those very expectations. As he put it, “Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes” ─ which could thereby change what actions law enforcement may take consistent with the Fourth Amendment.

In the end, Justice Alito’s four-Justice concurring opinion, applying the Katz test, concluded that “relatively short-term monitoring of a person’s movements on public streets” would not constitute a search, but that “the use of longer term GPS monitoring of investigations of most offenses impinges on expectations of privacy.” Justice Alito declined to “identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.” Nor did his opinion “consider whether GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy.”

Justice Sotomayor agreed with that conclusion in her separate concurring opinion, meaning that five Justices adopted that “rule.” But what kind of “rule” is it? As Justice Scalia pointed out in the majority opinion, the Court had never previously held that “whether a search has occurred depends on the nature of the crime being investigated.” And the concurring opinions never explain “why a 4-week investigation is ‘surely’ too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an ‘extraordinary offens[e]’ which may permit longer observation.” “What,” Justice Scalia asks, “of a 2-day monitoring of a suspected purveyor of stolen electronics? Or a 6-month monitoring of a suspected terrorist?” Good questions, which only future cases involving technologies that don’t involve “physical intrusions” will have to answer.

A final note on the decision: The Court only ruled that the law enforcement officers conducted a “search” within the meaning of the Fourth Amendment. The Court did not hold that the officers therefore violated the Fourth Amendment. The United States had “argue[d] in the alternative that even if the attachment and use of the [GPS] device was a search, it was reasonable ─ and thus lawful ─ under the Fourth Amendment because” the officers had reasonable suspicion or probable cause to believe Jones was involved in a major drug-distribution conspiracy. The Court did not consider that argument, however, because the government did not raise it in the lower courts and the lower courts therefore did not reach it. And so still more questions remain unresolved in this area of the law.

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