SC Lawyer, Sept. 2004, #3. Court is adjourned - what have we learned?.

• Author: By Prof. Andrew Siegel

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #3.

Court is adjourned - what have we learned?

South Carolina LawyerSeptember 2004Court is adjourned - what have we learned?By Prof. Andrew SiegelIn a series of cases that largely flew under the radar screen, the Court gave strong signals that it had little interest in pushing much further in its 15 year-long campaign to limit the powers of the federal government and enhance the autonomy of the states.

When the justices of the U.S. Supreme Court released their final opinion of their most recent term on June 28 and headed off for their "summer recess," they left behind 80 decisions for practitioners and lower courts to digest. Quantitatively, the Court's output of 80 decisions, including only 74 argued cases, ranks as one of the smallest in recent memory. Qualitatively, the term was more momentous - including decisions in cases touching on such high profile issues as the scope of the president's powers in fighting the "War on Terror," the constitutionality of including the words "under God" in the Pledge of Allegiance and the right of private individuals to investigate the contacts between Vice President Dick Cheney and energy industry officials. Even in these cases, however, the Court moved cautiously - in some instances finding procedural reasons to avoid the substance of the case; in other cases ruling narrowly and carefully on the merits.

That is not to say that the current term was without its news. In the terrorism cases, the Court combined a cautious approach to the resolution of the particular cases with a ringing and near unanimous (8-1) repudiation of the president's claim that the unique nature of the "War on Terror" gave the commander-in-chief vast new powers to act without consultation with or review by the other branches of government. In a series of cases that largely flew under the radar screen, the Court gave strong signals that it had little interest in pushing much further in its 15-year-long campaign to limit the powers of the federal government and enhance the autonomy of the states. And, in two groundbreaking cases out of the state of Washington, the Court gave bold new interpretations to criminal defendants rights under the Sixth Amendment's confrontation and jury trial clauses.

What follows are summaries of 26 cases, roughly one-third of the Court's output. The summaries include not only the term's most high profile cases but also many others that - while less newsworthy - may prove to be of more interest and utility to practitioners and courts.

1. Civil cases

   1. The "War on Terrorism" and the powers of the executive branch

      1. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004)

         In the most significant ruling on the scope of presidential powers in the last half century, the Court held (8-1) that the president's powers as commander-in-chief do not provide him with unilateral authority to order the detention of alleged "enemy combatants" or immunize such designations from judicial review. However, the Court held (5-4) that Congress authorized the president to detain at least some enemy combatants captured in the "War on Terror," including American citizens captured while raising weapons against the United States on the field of battle. Therefore, at least for the time being, American citizens in this position are entitled to - but only to - a judicial proceeding to determine whether they are properly classified as enemy combatants. At that hearing, alleged enemy combatants are entitled to counsel and to present evidence though the full scope of their procedural rights remains open.

      2. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004)

         The Court held (5-4) that the petitioner - an American citizen arrested at a United States airport on suspicion of planning a terrorist attack in conjunction with Al Qaeda - had filed his habeas corpus petition in the wrong federal court and dismissed his petition for lack of jurisdiction. Though the Court did not reach the merits of this case and did not issue a binding opinion on these issues, the dissents in this case and the opinions in Hamdi reveal that a clear majority of the Court believes that the indefinite executive detention of an American citizen detained on American soil for suspicion of criminal activity exceeds the president's authority and/or violates the citizen's rights. The stage for this litigation now moves to Charleston, where Padilla's lawyers have already refiled their case pursuant to the Supreme Court's jurisdictional holding.

      3. Rasul v. Bush, 124 S. Ct. 2686 (2004)

         The Court held (6-3) that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and held at the United States Naval Base in Guantanamo Bay, Cuba. The Court based its conclusion on the fact that the United States possessed "plenary and exclusive" control, though not "ultimate sovereignty," over the Guantanamo Bay base. The decision did not address the substance of the claims the detainees may make when they get their hearings in U.S. courts nor the scope of the president's authority to hold foreign detainees captured during military hostilities.

      4. Cheney, vice president of the United States, v. United States District Court for the District of Columbia, 124 S. Ct. 2576 (2004)

         This case involved some very sexy facts and some very technical issues of law arising out of attempts by watchdog groups to investigate contacts between the members of the president's Energy Task Force (including its chairman, Vice President Cheney) and energy industry executives and lobbyists. The vice president had objected to a district court discovery order requiring that the task force turn over records to establish whether it was entitled to immunity from public scrutiny under a federal law designed to protect internal executive branch deliberations. The Court of Appeals had refused to consider prohibiting the discovery unless the vice president invoked executive privilege formally and with specificity. In a mildly fractured decision, the Supreme Court held that the Court of Appeals erred in failing to consider the vice president's claims without a formal invocation of executive privilege, made a number of additional legal observations favorable to the vice president's position and remanded to the Court of Appeals to consider whether he is entitled to relief from the district court's order. Justice Scalia made news and history in this case by issuing a long memorandum explaining why his friendship with the vice president (and a duck-hunting trip they took together) did not require him to recuse himself from the case.

   2. First Amendment - freedom of speech

      1. McConnell v. Federal Elections Commission, 124 S. Ct. 619 (2003)

         In this case (argued in a special September sitting and technically part of the Court's prior term), the Court reviewed the constitutionality of the Bipartisan Campaign Finance Act, more commonly referred to as "McCain-Feingold." The Court upheld most of the statute's core provisions (largely 5-4) over vigorous First Amendment objections, reasoning that the government's overriding interest in prohibiting actual or apparent corruption was sufficient to justify the statute's many restrictions. The Court did strike down several minor provisions of the Act (by various votes), including a ban on campaign contributions by minors. South Carolina had joined an amicus brief in this case arguing that the statute violates state sovereignty and exceeds Congress's powers, arguments the Court resoundingly rejected.

      2. Ashcroft v. American Civil Liberties Union, 124 S. Ct. 2783 (2004)

         This case is another in a rapidly growing line of cases where the Court has subjected congressional efforts to police allegedly "indecent" speech on the Internet to serious First Amendment scrutiny. In this case, the Court scrutinized the Child Online Protection Act which makes it a crime to make sexually explicit material available to minors online if done for a "commercial purpose" unless a content provider can establish as an affirmative defense that it requires credit card information or otherwise makes every effort to keep out minors. The Court found (5-4) that the statute is presumptively unconstitutional because it does not appear to be the least intrusive means for achieving the government's objectives. However, the Court remanded the decision to a lower court to determine whether, given the current state of technology, the suggested less intrusive means (such as the extensive use of "blocking and filtering software") are technologically feasible.

   3. First Amendment - religion clauses

      1. Locke v. Davey, 124 S. Ct. 1307 (2004)

         The Court (7-2) upheld against a free exercise clause challenge a Washington state law that prevented students from using a state-funded merit scholarship to pay for a degree in devotional theology. The Court concluded that the state's action was a permissible decision to decline to fund a discrete category of educational programs rather than an impermissible attempt to burden the free exercise of religion. In so holding, the case expressly carved out some breathing room for states to make decisions whether or not to fund religious programs without running afoul of either the free exercise clause or the establishment clause.

         The decision has no immediate impact on South Carolina's scholarship programs, as none of them make similar exclusions for devotional study. The decision does, however, give South Carolina legislators more flexibility in determining whether, and to what extent, to include religious schools in any school choice program they might adopt. It further suggests that South Carolina's state constitutional prohibition on paying state money to support religious institutions (which has, in any case, been narrowly construed) does not, as some have speculated, violate the U.S. Constitution. See S.C. Const. Art. XI, § 4.

      2. Elk Grove Unified School Dist. v. Newdow, 124 S. Ct. 2301 (2004)

         The Justices (5-3, with Justice Scalia recused) declined to reach the merits of a California atheist's establishment clause challenge to the inclusion of the phrase "one nation under God" in the Pledge of Allegiance as recited in his daughter's elementary school classroom. The Court ruled that the plaintiff lacked standing to bring the case in federal court because the child's mother had the sole right to sue to protect her legal interests under California custody law. Because the plaintiff lacked standing to bring the suit, the Court vacated a lower federal court's decision declaring the recitation of the Pledge in elementary schools unconstitutional. The Court's decision leaves for another day this hot-button constitutional question, although other cases already working their way through the federal courts might hasten that day.

   4. 14th Amendment - equal protection

      Vieth v. Jubeliler, 124 S. Ct. 1769 (2004)

      In this case, despite the efforts of eight justices to move the ball in different directions, the Court effectively left in place the existing stalemate over whether the Constitution prohibits legislatures from drawing the lines of legislative districts so as to favor the interests of one political party over another. Under prior caselaw, such claims were in theory cognizable but were almost impossible to prove. Here, four justices would have overruled precedent and found that courts cannot hear such claims while another four would have adopted more lenient standards for evaluating such claims and found a constitutional violation. Justice Kennedy, however, refused to side with either group, providing a fifth vote for rejecting the claim in this case but leaving open the possibility that (if the Court can figure out proper, judicially-enforceable standards) such a claim might succeed in a future case.

   5. Congress's powers and federalism

      1. Tennessee v. Lane, 124 S. Ct. 1978 (2004)

         This case - involving a disabled criminal defendant forced to crawl or be carried up the stairs to his courtroom - posed the question whether states can be sued for monetary damages for violating Title II of the Americans with Disabilities Act (ADA) by refusing to make public facilities accessible to the handicapped. The Court had previously held that the 11th Amendment protects states from suits for damages under Title I of the ADA (involving employment discrimination). In a narrow but important decision, the Court held (5-4) that individuals may seek damages from states for violations of Title II when the states' violations limit access to the courts. The decision left open whether monetary damages are available for states' failures to make other facilities (such as swimming pools and auditoriums) available to the disabled.

      2. Frew v. Hawkins, 124 S. Ct. 899 (2004)

         When sued for violations of the Constitution or federal statutes, states often enter into consent decrees, promising to take certain steps if the plaintiffs will drop their lawsuits. In a unanimous opinion, the Court held that the 11th Amendment does not prohibit courts from enforcing these voluntary agreements against states even when the decrees compel the states to take steps that might not be required by the constitutional provision or statute under which the plaintiffs sought relief.

      3. Tennessee Student Assistance Corp. v. Hood, 124 S. Ct. 1905 (2004)

         The Court held (7-2) that the 11th Amendment does not require the dismissal of a suit by a bankrupt individual against a state agency seeking to discharge student loan debt under federal law. Though the Court had granted certiorari to decide whether the bankruptcy clause of the U.S. Constitution gives Congress the right to abrogate state sovereign immunity by statute, the justices ultimately concluded that they need not resolve the issue because a bankruptcy proceeding is an in rem action that does not implicate the 11th Amendment in the first place.

      4. Sabri v. United States, 124 S. Ct. 1941 (2004) (criminal case)

         In a much watched case, the Court unanimously upheld the constitutionality of 18 U.S.C. § 666(a)(2), a statute making it a federal crime to bribe officials of a local or state government that receives at least $10,000 in federal funds. Some lower courts had imported into the statute a requirement that the bribery be related to the programs that receive federal funds or had declared the statute unconstitutional for lack of such a requirement. The Court overruled those decisions, reasoning that the statute in question was a rational attempt by Congress to insure that federal funds are not "frittered away" by corrupt state and local officials and as such is a valid exercise of Congress's power under the spending clause and the necessary and proper clause. The decision is likely to be heavily influential because of its sustained discussion of a number of subjects the Court rarely broaches so directly, including the scope of the federal criminal power, the import of the necessary and proper clause, and the propriety of facial challenges to criminal statutes.

   6. Federal practice and the scope of federal statutory law

      1. General Dynamics Land Systems v. Cline, 124 S. Ct. 1236 (2004)

         The Age Discrimination in Employment Act (ADEA), which was intended to protect older workers from age discrimination, prohibits employers from discriminating against any employee over 40 "because of [the employee's] age." In this case, the Court decided (6-3) that the ADEA does not prohibit discrimination in favor of older workers and against younger workers even if the younger workers are over 40. In reaching this result, the Court relied on a broad review of the ADEA's text, structure, history and purpose and refused to put decisive weight on the phrase "because of [the employee's] age" in interpreting the reach of the statute.

      2. Hibbs v. Winn, 124 S. Ct. 2276 (2004) (also a federalism case)

         The Court held (5-4) that the federal Tax Injunction Act does not bar federal courts from considering federal constitutional challenges to state tax credits. This case involved that collision of two strong principles for allocating cases between the federal and state court systems - that state tax disputes belong in state court and that federal court forums should be available to vindicate federal constitutional rights. Thus, while the decision was nominally one of statutory interpretation, it provoked a strong clash between the two wings of the Court over the first principles of "our federalism."

      3. Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004)

         Resolving a dispute that has been bubbling in the lower courts for more than two decades, the Court held (6-3) that an obscure 18th-century federal statute (the Alien Tort Claims Act, 28 U.S.C. § 1346(b)(1)) gives the federal courts jurisdiction to hear civil claims seeking damages for certain violations of international law occurring outside the United States. However, the Court held that the statute provides relief only for a few violations of international law that were firmly established when the statute was adopted and a smattering of other violations (such as torture) that have since come to be established with the same "definite content and acceptance among nations" as those 18th-century "paradigms."

      4. AETNA Healthcare, Inc. v. Davila, 124 S. Ct. 2488 (2004)

         Under federal law, private individuals have very limited rights to seek damages for decisions of Health Maintenance Organizations (HMOs) erroneously denying coverage for medical procedures. Most state laws seeking to expand those rights are deemed preempted by federal law. In this case, a unanimous Court firmly rebuffed a Texas statute that attempted to get around this broad preemption principle by imposing state law tort duties on HMOs that were allegedly unrelated to the contractual duties on which federal law is premised. The Court's firm rejection of Texas's creative statute is widely considered to spell the end of state law efforts to expand the liability of HMOs, leaving any possibility of reform squarely in Congress's court.

2. Criminal cases

   1. Fourth Amendment

      1. Maryland v. Pringle, 124 C. Ct. 795 (2003)

         Here the Court reviewed the limits the Fourth Amendment puts on the authority of police to make arrests in a fairly common scenario: the police stop a car with multiple passengers and find drugs in the vehicle but have no way to determine who the drugs belong to. A unanimous Court held that under the circumstances of this particular case (which included the fact that the men in the car were traveling together, the time of day and the locations in which the police found the drugs and rolls of money) the police had probable cause to arrest any or all of the car's occupants. However, the decision gave little guidance to police officers and lower courts, offering no general rule and leaving for another day the Fourth Amendment issues raised by various similar yet arguably different factual scenarios.

      2. Illinois v. Lidster, 124 S. Ct. 885 (2004)

         The Court held (9-0) that its prior precedent prohibiting police from setting up automobile roadblocks for "general crime control purposes" did not extend to brief stops designed to ferret out witnesses to a nearby crime. The Court limited its prior precedent to situations where the purpose of the roadblock was to investigate whether occupants of vehicles were themselves committing criminal activity. If the purpose of a roadblock is merely to find witnesses, the roadblock is not per se unconstitutional; rather, its constitutionality is to be determined by assessing whether the police officers' tactics were "reasonable" given all the relevant circumstances.

      3. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 124 S. Ct. 2451 (2004). (also Fifth Amendment)

         This case involved a much publicized challenge by a Nevada cowboy to a state statute that makes it a crime to fail to identify oneself to a police officer. A divided Court held (5-4) that such a "stop and identify" statute violates neither the Fourth Amendment's prohibition on "unreasonable searches and seizures" nor, in most instances, the Fifth Amendment's prohibition on "self incrimination." The Court's holdings will have limited impact in South Carolina, which does not have a "stop and identify" statute. Even in those states with such statutes, the opinion's effects may not be overwhelming. First, the Court's Fourth Amendment holding appears to be limited to situations where the police already have "reasonable suspicion" sufficient to stop and frisk the individual. Second, the Court suggests that there may well be a Fifth Amendment violation in instances where, under the circumstances, giving one's name to the police is especially incriminating.

      4. Thornton v. United States, 124 S. Ct. 2127 (2004)

         Resolving a long-running dispute, the Court held (5-4) that the police are entitled to conduct a warrantless search of a vehicle upon the arrest of a recent occupant of that vehicle. The Court rejected an attempt to limit the availability of such a search to situations where the police initiated contact with the suspect while he was in the vehicle and emphasized the need for a brightline rule that is easy for police to understand and courts to enforce.

   2. Fifth Amendment

      1. United States v. Patane, 124 S. Ct. 2620 (2004)

         Though divided over the rationale, the Court held (5-4) that the prosecution may introduce at trial physical evidence obtained as the result of a defendant's voluntary statements even when the defendant had not properly been warned of his or her Fifth Amendment rights under Miranda. This case revisited and largely upheld prior Supreme Court decisions that had been called into question because of the Court's characterization of a suspect's Miranda rights as constitutionally required four years ago in Dickerson v. United States.

      2. Missouri v. Seibert, 124 S. Ct. 2601 (2004)

         Again divided over the rationale, the Court held unconstitutional (5-4) an increasingly common police practice designed to circumvent Miranda. Under this practice - which has recently been featured in a number of police training manuals and courses - police would intentionally fail to inform a suspect of his or her rights in order to obtain a confession, at which point they would then give the suspect his or her Miranda warnings and, using the first confession as a lever, extract a second confession for use in court.

   3. Sixth Amendment - confrontation clause

      Crawford v. Washington, 124 S. Ct. 1354 (2004)

      In a blockbuster ruling that overruled a number of precedents, the Court held (7-2 on the reasoning, 9-0 on the result) that the Sixth Amendment right to "be confronted with the witnesses against" you in a criminal case prevents the state from presenting out of court "testimonial" statements of an unavailable witness unless those statements had already been subject to cross-examination in another proceeding. The decision overruled prior case law that had allowed the admission of such testimony if it fell under a "firmly rooted hearsay exception" or possessed equivalent "indicia of reliability."

      Crawford will have major implications for the criminal courts of this - and every other - state. While there are many issues about the decision's scope that remain to be litigated, the Court's express intention is to limit the discretion of trial courts, who have been eroding the Constitution's protection by routinely admitting such testimony after making a finding that the evidence appeared "reliable." The case will have a particularly strong impact on domestic violence prosecutions where the common practice of proceeding to trial with only a police officer's report of an alleged victim's statement is now almost certainly unconstitutional.

   4. Sixth Amendment - right to trial by jury

      1. Blakely v. Washington, 124 S. Ct. 2531 (2004)

         In arguably the term's most consequential case, a heavily divided Court held (5-4) that the Sixth Amendment prohibits judges from relying on facts not proven to a jury beyond a reasonable doubt in determining whether a defendant is eligible for sentencing enhancements under Washington State's mandatory sentencing guidelines. The decision builds on Apprendi v. New Jersey, a landmark 1999 precedent that prohibited judges from relying on such facts in determining the statutory maximum for a defendant's crime. The decision in this case likely invalidates the sentencing regime in 15 or 20 states and calls into serious question the validity of the federal sentencing guidelines. South Carolina state courts do not employ mandatory guidelines and appear unaffected by this decision. On the other hand, sentencing in South Carolina federal courts will certainly be chaotic and may well be suspended or drastically altered until the Supreme Court steps in to clarify the status of the federal guidelines. (The U.S. Supreme Court has recently granted certiorari to decide the consequences of Blakely for the federal sentencing guidelines. A decision is expected by the end of the year.)

      2. Schriro v. Sumerlin, 124 S. Ct. 2519 (2004)

         The Court held (5-4) that its recent decision invalidating state procedures that relied on judicial factfinding to establish eligibility for the death penalty did not apply retroactively to defendants who had completed their appeals by the date of that decision. Important in its own right, this decision also suggests that if the Court ultimately invalidates the federal sentencing guidelines under Blakely (see above) such a decision will not entitle the entire federal prison population to resentencing.

         Andrew Siegel is an Asst. Prof.of Law at the University of South Carolina School of Law and former law clerk to U.S. Supreme Court Justice John Paul Stevens. He teaches courses in Constitutional Law, U.S. Supreme Court Practice, Legal History and Criminal Law.

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