Review of the 2007 Term of United States Supreme Court Opinions - Articles

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Posted by: Perry Craft & Michael Sheppard on Aug 19, 2008

Journal Issue Date: Sep 2008

Journal Name: September 2008 - Vol. 44, No. 9

During its 2007 Term, the high court made headlines. High-profile cases sparked media coverage, captured public attention and generated intense debate. The subjects of these far-reaching pronouncements ranged from guns to Guantanamo, from child porn to child rapists and the death penalty, and from the nation's worst maritime environmental disaster to the regulatory response to California's 1999 energy crisis when in-state rates for electricity jumped fifteenfold.

The court expansively read the Second Amendment to give individuals a right to keep and bear arms, ruled that Guantanamo Bay detainees may invoke the constitutional writ of habeas corpus to challenge their detentions, refused to strike a federal law aimed at perpetrators of child porn, and held that the Eighth Amendment forbade states from imposing the death penalty for child rapists, but allowed states to execute murderers by lethal injection.

The court dramatically reduced a punitive damages award against Exxon for the infamous Exxon Valdez oil spill, advancing its two decades run to limit punitive damages. The Justices showed no let-up in preempting state tort suits for complex devices approved by the FDA, stressed state courts must honor arbitration clauses, continued beggaring the Fourth Amendment's prohibition against unreasonable searches and seizures, and resolved vexing issues following its 2004 decision, U.S. v. Booker,[1] holding the federal Sentencing Guidelines violated the Sixth Amendment and, though no longer mandatory, retained some vitality. The court was unfriendly to securities law plaintiffs, narrowed the False Claims Act, ruled for a plaintiff in a civil RICO case, decided against corporate defendants in ERISA cases, remained unsympathetic to taxpayers seeking refunds, issued several decisions interpreting the ADEA, resolved several federal criminal law questions, limited enforcement of a treaty giving foreign nationals a right of consular access when arrested, and determined that a civil rights claimant may bring a claim for retaliation under 42 U.S.C.  § 1981.

Although split 5-4 decisions on social issues are not uncommon, the court has drifted to the right. Overall, plaintiffs fared better than in the last several terms, but the court remains friendly to government and large business. This article summarizes the 2007 term decisions that likely are of interest to Tennessee lawyers[2] and concludes with observations about the upcoming presidential election and its impact on the court.

Arbitration: A contract between a TV judge and entertainment lawyer-agent contained an arbitration provision. In a fee dispute, the lawyer demanded arbitration. Under state law, a state agency was charged with hearing the dispute. Under the Federal Arbitration Act (FAA), 9 U.S.C.  § 1, when parties agree to arbitrate disputes, questions about the validity of the entire contract are first resolved by the arbitrator, not a court. In Preston v. Ferrer,[3] the court ruled that the FAA overrode state statutes both that refer state-law disputes to courts and vest authority to resolve them with state agencies. The court rejected an exhaustion of administrative remedy requirements prior to arbitration. By granting a state agency sole jurisdiction to decide issues that parties agreed to arbitrate and by imposing requirements prior to enforcing arbitration not applicable to contracts generally, state law conflicted with the FAA and its primary objective: to streamline proceedings. Requiring a dispute's initial reference to an agency would hinder its speedy resolution. Here, state law empowered the agency to act as impartial arbiter, the precise role the FAA assigned to an arbitrator. Since the question concerned the forum to decide the dispute and no substantive state law right was waived, the parties must arbitrate. In Hall St. Assocs. v. Mattel Inc.,[4] the court found that the FAA set the exclusive grounds for judicial review, 9 U.S.C.  § § 10-11, and parties cannot supplement those grounds by contract. If parties agree to arbitrate, they must adhere to the arbitration process.

Civil Rights: Adhering to stare decisis, in CBOCS West Inc. v. Humphries,[5] the court affirmed that 42 U.S.C.  § 1981 " the civil rights law conferring on blacks the same right as whites to "make and enforce" contracts " provided a remedy for retaliation or for a person complaining about a violation of another person's contract-related right.

Age Discrimination in Employment Act (ADEA): In Gomez-Perez v. Potter,[6] the court ruled that a federal employee who faces retaliation due to filing an age discrimination complaint may assert a claim under the ADEA's federal-sector provision, 29 U.S.C.  § 633a(a). In Mendelsohn v. Sprint/United Management Co.,[7] the court heard a critical evidentiary question in ADEA cases, but announced no bright-line rule. When a plaintiff tries to establish corporate-wide discrimination under  § 621, similarly situated employees' testimony " those who testify about age discrimination but whose supervisors differ from plaintiff's " is not necessarily admissible or inadmissible. Federal Rules of Evidence 401 and 403 require the trial court to balance the proffered testimony's probative value against its prejudicial effect. Next, in Ky. Ret. Sys. v. EEOC,[8] the court found that Kentucky's pension-disability plan did not discriminate against older workers because of age and did not offend the ADEA. Age and pension are distinct concepts. To prove an age-related disparate treatment (intentional discrimination) claim, age must actually motivate the employer's decision. Here, the plan's requirements for eligibility and retirement were similar, but did not result inevitably in older workers receiving lower benefits and were not motivated by age-related stereotypical assumptions about older workers. Separately, the court (1) defined what constitutes a "charge" to the EEOC in Fed. Express Corp. v. Holowecki[9]; and (2) noted although employees must identify the practice that constitutes a disparate impact, employers carry the burdens of production and persuasion for establishing the affirmative defense, "reasonable factor other than age" (RFOA) in Knolls Atomic Power Lab.[10]

Racketeer Influenced & Corrupt Organizations Act (RICO): RICO, 18 U.S.C.  § 1961, gives a private treble damage action to a person injured in his "business or property" "by reason of a violation" of its criminal prohibitions,  § 1964(c). When a RICO suit alleges mail fraud as the predicate act, in Bridge v. Phoenix Bond & Indem. Co.[11] the court ruled that a plaintiff need not show reliance on defendant's misrepresentations either as an element of the claim or as a prerequisite to establish proximate cause.

Securities: In Stoneridge Inv. Partners LLC v. Scientific-Atlanta Inc.,[12] the court held that the implied private right of action under  § 10(b) of the 1934 Securities Exchange Act, 15 U.S.C.  § 78j(b), and Rule 10b-5, 17 CFR  § 240.10b-5 (2007), did not typically impose liability on firms that aid and abet securities fraud. Here, Charter and its customers and suppliers arranged to allow Charter to issue misleading financial statements that affected stock price. Reliance is a necessary element of a 10b-5 claim. Since the investors did not rely upon the representations of Charter's customers and suppliers, they had no Rule 10b-5 claim. The dissenters wrote that the high court for a generation rarely has found implied private causes of action, a result at odds with courts' traditional historic role.

False Claims Act (FCA): In Allison Engine Co. v. U.S. ex rel. Sanders,[13] the court limited the FCA, 31 U.S.C.  § 3729(a). The FCA gives individuals the right to sue on behalf of the U.S. for false claims made to the U.S. A plaintiff making a FCA claim must establish a relationship between making the false claim presented to a third party and payment to or approval of the false claim by the U.S. The FCA requires the U.S. actually to pay or approve the claim even if first presented to a third party. Liability turns on a defendant's purpose or intent: Did defendant intend the false statement to be material to the federal government's decision to pay or approve the claim? The party submitting a false statement for payment by the U.S. must have the intent that it will be used to get the U.S. to pay the claim.

Employee Retirement Income Security Act (ERISA): ERISA regulates most employer sponsored plans for pension, retirement, and disability benefits. For a generation, typically the high court has strictly interpreted ERISA and sided with employers and their insurers over employees. ERISA contemplates two types of pension plans: a defined benefit plan (guaranteeing a fixed retirement income at retirement based upon years of service and salary), and a defined contribution plan (retirement income is a function of the amount paid into the plan and its investment performance, the most common today). In Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985), the court ruled that a plan participant in a defined benefit plan could not sue a plan administrator, a fiduciary under ERISA, for damages from a delay in processing her claim. Here, in LaRue v. DeWolff, Boberg & Assocs.,[14] the plan administrator failed to honor the participant's request in a defined contribution plan to make changes to his account as the plan permitted. This failure costs the participant $150,000. Under ERISA,  § 502(a)(2), the court ruled that a plan participant could sue the plan administrator for fiduciary breaches causing this type loss to his defined contribution plan. Separately, in Metro. Life Ins. Co. v. Glenn,[15] the court also ruled for the employee. When a plan administrator denies an employee's disability benefits, he may seek judicial review, an administrative-type review. Plan administrators often serve dual roles: evaluate and approve or deny claims and then pay (or not pay) benefits. Here, MetLife served a dual role, instructed the employee to seek Social Security (SS) disability benefits and when she prevailed on her SS claim, the back benefits offset what MetLife had paid her. Later, in denying her claim for extended benefits, MetLife ignored the SS's findings about her inability to work, emphasized a medical report that favored denial and de-emphasized others, and did not give its vocational and medical experts all relevant reports. MetLife's inconsistent positions benefited it financially, were an important factor in its decision and showed procedural unreasonableness. Accordingly, the court found the conflict justified reversing MetLife's decision to deny benefits. The employee won.

Bankruptcy: The Bankruptcy Code provides a stamp-tax exemption for any asset transfer under a plan confirmed under Chapter 11, 11 U.S.C.  § 1146(a). Piccadilly was granted an exemption for assets transferred after it had filed for bankruptcy but before its Chapter 11 plan was confirmed by the bankruptcy court. The Florida department of revenue objected. In Fla. Dep't of Revenue v. Piccadilly Cafeterias Inc.,[16] the court sided with Florida:  § 1146(a)'s stamp-tax exemption does not apply to transfers made before a Chapter 11 plan is confirmed.

Equal Access to Justice Act (EAJA): In Richlin Sec. Serv. Co. v. Chertoff,[17] the court held that the EAJA, 28 U.S.C.  § 2412(d)(1)(A), allows a prevailing party in a suit by or against the U.S. to recover fees for paralegal services at the market rate.

Energy Regulation: By state statute, California restructured the regulation of its electrical generation market. In 1999, a series of events " changes in law, market manipulation, and increased demand " produced a serious in-state energy crisis: prices for electricity leaped fifteenfold before returning to normal levels the next year. During the high-price period, some utilities entered into long term contracts to buy power at rates lower than the fifteenfold increase, but far higher than historical levels. Federal law, 16 U.S.C.  § 824, permits wholesale rates for electricity to be set by tariff or by contract between sophisticated buyers, subject to regulatory review. After prices dropped, the utilities asked the Federal Energy Regulatory Commission (FERC) to abrogate the contracts, arguing they were not in the public interest. FERC refused. In Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1,[18] the court affirmed FERC's action. The case implicated the Mobile-Sierra doctrine's scope, stressed the benefits of freedom of contract, explained away FERC's change in position during the proceedings, and found that freely negotiated rates for wholesale electricity met federal law's "just and reasonable" standard.

Taxes: The Internal Revenue Code (IRC) allows individuals to subtract from their taxable income certain itemized deductions (below-the-line) that exceed 2% of adjusted gross income (AGI). A trust may claim those deductions subject to the 2% floor, except that costs incurred in administering the trust, which would not have been incurred if the property were not held by a trust, may be deducted without regard to the floor. For individuals, investment advisory fees are subject to the 2% floor. In Knight v. Comm'r,[19] the trust lost. When investment advisory fees are incurred by a trust, they too are also subject to the 2% floor. In U.S. v. Clintwood Elkhorn Mining Co.,[20] the court held that taxpayers seeking a refund of taxes unlawfully assessed under the Constitution's Export Clause must comply with the IRC's tax refund procedures, which requires filing an administrative claim with the IRS and limits refund suits to three years. The court rejected the taxpayers' plea to permit recovery of taxes up to six years via the Tucker Act. In Boulware v. U.S.,[21] the court considered criminal tax liability. To willfully attempt to evade federal tax is a felony. Tax evasion requires a tax deficiency and an affirmative act to evade or attempt to evade a tax. The IRC, 26 U.S.C.  § § 301, 316(a), allows treating certain distributions as returns of capital. A return of capital is nontaxable to the taxpayer. A taxpayer charged with criminal tax evasion may defend by showing the distribution was a return-of-capital without proving that he or the corporation intended a capital return when the distribution occurred. Economic reality, not subjective intent, dictated tax treatment.

Armed Career Criminal Act (ACCA): For some time, the court has generally sided with the U.S. in construing federal criminal law. Under the ACCA, the court has applied its mandatory 15-year prison term for felons who unlawfully possess a firearm and have three prior convictions for committing "violent felonies," 18 U.S.C.  §924(e)(1). In U.S. v. Rodriquez,[22] the court determined that a state law recidivist enhancement statute for state drug trafficking conviction qualified as "a serious drug offense" and approved upping the jail time for a convicted felon possessing a firearm, but in Watson v. U.S.,[23] ruled that trading drugs for a firearm did not violate the ACCA, and in Begay v. U.S.,[24] found that "previous convictions" that constitute a "violent felony" under the ACCA did not include driving under the influence (DUI).

Money laundering: Prosecutors have long charged drug lords and corporate executives with money laundering. In two cases, the court narrowed the money laundering statute, 18 U.S.C.  § 1956(a). In U.S. v. Santos,[25] by plurality, the court held that the word "proceeds" in the money-laundering statute,  § 1956(a)(1), meant "profits," not mere "receipts." Section 1956(a)(1)(A)(i), prohibits transactions that promote criminal activity and uses "proceeds" to mean (1) a transaction involved proceeds of specified unlawful activity (the proceeds element) and (2) a defendant knew the property involved in the transaction were proceeds of unlawful activity (the knowledge element). The law does not define proceeds, a word meaning receipts or profits. Applying the rule of lenity to resolve the ambiguity and finding that "profits" was more defendant-friendly than "receipts," to convict, a defendant must obtain "profits," not just receipts. Another subsection,  § 1956(a)(2)(B)(i), bars international transportation of proceeds of unlawful activity, but does not require an "appearance of legitimate wealth." A violation required proof that defendant (1) tried to transport funds abroad from the U.S., (2) knew the funds were proceeds of unlawful activity, and (3) knew the transportation's design was to "conceal or disguise the nature, the location, the source, the ownership, or the control" of the funds. The court focused on the third issue: the defendant knew that taking the funds abroad was "designed" to conceal or disguise their nature, location, source, ownership, or control. Hiding funds during transportation is not a violation. Concealing money to transport it differs from transporting money to conceal it: how an individual moves money is distinct from why he moved it. In Regalado Cuellar v. U.S.,[26] though the defendant went to great lengths to hide money, the government did not show an unlawful "why." Broadly reading the money laundering statute would raise questions about legitimate transfers of funds.

Enforcing Treaties: In Medellin v. Texas,[27] Mexico filed a claim against the U.S. in the International Court of Justice (ICJ) for violating a treaty, the Vienna Convention. The treaty requires that individuals charged with crimes in foreign countries be granted consular access upon arrest. The ICJ ordered that state courts review Mexican nationals' convictions in state courts without applying state procedural default rules. State procedural default rules would preclude state courts from considering treaty violations as a basis to disturb their convictions or for retrial. President Bush issued a formal memorandum that purported to direct state courts to comply with the ICJ ruling. The high court held that the treaty was not self-executing, did not give Mexican nationals a private action, and the President lacked authority to order state courts not to apply procedural default rules. The ruling has raised troubling questions. Critics argue that if the U.S. avoids honoring the treaty as interpreted by the ICJ (whose jurisdiction the U.S. originally consented to) and in effect, the treaty does not bind American state courts, foreign governments and courts may deny consular access to American citizens arrested abroad. The treaty was designed to protect foreign nationals charged with crimes in other nations. The ruling prompted questions about the enforceability and effect of other treaties.

Preemption: In Riegel v. Medtronic Inc.,[28] the court held that the preemption clause in the 1976 Medical Device Amendments, 21 U.S.C.  § 360k, barred an injured plaintiff's state law tort and warranty claims suit challenging a medical device's safety and effectiveness, which the Food & Drug Administration (FDA) had given premarket approval. The Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C.  § 301, requires FDA approval before a manufacturer markets new, complex medical devices (Class III devices). The rigorous premarket approval process requires a manufacturer to submit a comprehensive application about a device's safety and effectiveness, its components, ingredients, properties and principles of operation. After weighing the device's benefits against risk, the FDA approves it only upon finding a "reasonable assurance" of the device's safety and effectiveness. The FDA reviews a device's proposed labeling to ensure it is not false or misleading. Under federal law, a state may not "establish or continue in effect" for a device intended for human use "any requirement ... different from, or in addition to, any requirement" under federal law. Here, a heart catheter [Class III device] received FDA premarket approval and was inserted into Riegel's coronary artery, seriously injuring him. Since state law sought to impose requirements different from or in addition to the FDA's, the court found that federal law preempted Riegel's state law tort and warranty claims.

In Rowe v. N.H. Motor Transp. Ass'n, the court found that federal law regulating motor carriers preempted Maine's statute regulating delivery and sale of tobacco designed to prevent sales to minors. Federal law forbade states from enacting laws relating to rates, routes, or services. State law required delivery of tobacco products only to licensed tobacco retailers, and the delivery service must verify the purchaser's identity and age. Preemption results even when the state law effect on rates, routes or services is indirect or by implication promotes public health. If a state law may significantly impact deregulatory and preemption related objectives, it conflicts with federal law purposes, and it is immaterial whether a state law is "consistent" or "inconsistent" with federal regulation. Maine law focused on trucking services, which made up a substantial part of all delivery services, and created a direct connection with motor carrier services. The Maine law had a significant, adverse impact on federal law's ability to achieve its objectives.

A California statute, AB 1889, expressed employer-union neutrality, but prohibited employers who received state funds from using them "to assist, promote, or deter union organizing." The law required employers who received $10,000 in state funds to allow unions access to their property, imposed onerous record keeping requirements, and gave a private action for violations. Federal law balanced protection, prohibition, and laissez-faire for organization, collective bargaining, and labor disputes. Though the National Labor Relations Act does not expressly preempt the California-type law, the court has long held that implied preemption forbids the NLRB and states to regulate conduct that Congress left unregulated. In Chamber of Commerce of the U.S. v. Brown,[29] the court preempted AB 1889: it regulated a zone reserved for market freedom, the intersection of employee organizational rights and employer speech rights. A state may not regulate noncoercive speech about unions directly or indirectly by imposing spending restrictions on the use of state funds.

Commerce Clause: States and their political subdivisions have long issued bonds for public purposes. They often exempt interest earned on their own bonds from their state income taxes, but impose them on bond interest from other states. Under a dormant Commerce Clause analysis, the court has struck state laws that discriminate against out-of-state producers. Kentucky exempted interest earned on publicly issued, in-state bonds, but taxed interest on out-of-state bonds. In Dep't of Revenue v. Davis[30] the court determined that Kentucky's differential tax scheme served legitimate public purposes and did not violate the dormant Commerce Clause.

Punitive damages, maritime law: In 1989, the Exxon Valdez oil tanker ran aground in Prince William Sound, resulting in a massive oil spill and an environmental disaster. At trial, the jury heard evidence that management knew the tanker captain, inebriated at the time of the incident, was a backsliding alcoholic. In Exxon Shipping Co. v. Grant Baker,[31] Justice Alito recused himself. A 4-4 court declined to rule whether a shipowner is liable for punitive damages caused by his employees' acts without the ship-owner acquiescing in them. The court held that punitive damages were not impliedly preempted by federal maritime law when it did not expressly provide for them and reduced the original $5 billion punitive damages award to the amount of compensatory damages, or less than one-tenth of that amount. Exxon had not profited from the conduct. Significantly, the court based its punitive damages analysis in developing federal maritime common law remedies, not on due process limitations.

Habeas Corpus: Prisoners in the War on Terror, noncitizen enemy combatants, had been held up to six years at Guantanamo Bay, Cuba. By treaty, the U.S. completely controls Guantanamo Bay. The enemy combatants filed writs of habeas corpus challenging their detentions. Historically, the writ has secured liberty and checked executive abuse. Since the "insular cases," the court has ruled that the Constitution in part follows the flag when the U.S. takes new territories. Here, the procedures set up to challenge these detentions' validity did not give detainees the right to counsel before the initial tribunal or effectively the right to challenge evidence against them. In a 5-4 decision, Boumediene, et al v. Bush,[32] the court found that the detainees may file habeas proceedings to challenge their detentions, that Congress did not properly withdraw habeas as required by the Suspension Clause, Const. Art. I,  § 9, cl. 2, and that one part of the 2006 Military Commissions Act was unconstitutional. Separately, in Munaf v. Geren,[33] at Iraq's request, the Multinational Force-Iraq (MNF), an international coalition, including U.S. forces, operated under the unified command controlled by the U.S. MNF forces detained two American citizens who aided the enemy and committed crimes in Iraq. After presenting evidence against them and giving them a right to be heard and call witnesses, a military tribunal ordered them detained for transfer and prosecution under Iraqi law in Iraqi courts. Though federal courts had jurisdiction to hear the habeas claims, like any sovereign, Iraq may prosecute them for crimes committed within its borders. The court did not grant habeas relief.

First Amendment, Elections: In N.Y. State Bd. of Elections v. Lopez Torres,[34] the court upheld New York law governing selection of judicial candidate by political parties. A judge refused to make patronage hires, and the party did not nominate her at the next delegate convention. The procedures under state law required a prospective judicial candidate to secure a number of party members' signatures in a short time frame and favored the party. The candidate was not denied the right to vote and had no First Amendment associational right to become a party's candidate. Critics claim that the decision will serve to make judges and judicial races more partisan, resulting in less judicial independence. Supporters counter that judges ought to be accountable to the political process. In Wash. State Grange v. Wash. State Republican Party,[35] on a facial challenge, the court refused to strike a statute on First Amendment freedom on association grounds. State law let a prospective candidate self-designate party affiliation; the two top vote-getters from the primary, regardless of party affiliation, were to run against each other in the general election. No factual record was developed, and the law could be construed in a constitutionally permissible way.

Child Porn: Six years ago, in Ashcroft v. Free Speech Coalition,[36] the court struck a federal anti-child pornography statute criminalizing the possession of pornographic "virtual images" of children, not just actual children. Congress passed another law that prohibited pandering or soliciting "child pornography," 18 U.S.C.  § 2252A(a)(3). In U.S. v. Williams,[37] the court distinguished Ashcroft and ruled the new federal statute was not overbroad or void for vagueness. The new law targeted "pandering" or "soliciting" child porn, a distinction the court deemed significant.

The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In D.C. v. Heller,[38] a sharply divided court held that a District of Columbia law prohibiting an individual from possessing handguns at home violated the Second Amendment. The Amendment contains a prefatory clause, "[a] well regulated militia ... free state," and an operative clause, "the right of the people to keep and bear arms ..." The court determined that the former clause did not limit the latter clause, undertook a textual analysis, cited weathered precedent and venerable commentators, expressed the Second Amendment's purposes, and concluded: The Second Amendment confers an individual right to possess a firearm unconnected with militia service. An individual may use a firearm for lawful purposes such as self-defense in the home. The result seemed at odds with the courts' long standing decisions, and not surprisingly, the court limited them, most notably its oft-cited 1939 case, U.S. v. Miller.[39] While vastly expanding the Second Amendment individual right "to keep and bear arms," the court continued to narrow individual rights guaranteed by the First and Fourth Amendments, which, too, are a part of the Bill of Rights.

Fourth Amendment: In Virginia v. Moore,[40] officers stopped a car and arrested the driver for driving on a suspended license, a misdemeanor under Virginia law. Under state law, they should have issued a summons, not arrested him. They did not immediately search him. Later, he was searched, and officers found crack cocaine. When an officer has probable cause to believe a minor crime, even driving on a suspended license, was committed in his presence, under the Fourth Amendment, he may arrest the person. The search was incident to a lawful Fourth Amendment arrest. The court upheld the search and seizure. A state law violation did not convert the search into a Fourth Amendment violation.

Sentencing Guidelines (SG) & Sentencing: In U.S. v. Booker,[41] the court declared that the federal SG violated the Sixth Amendment, but judges still must use them in sentencing criminals. Booker created much confusion about using the "effectively advisory" SG. Under 18 U.S.C.  § 3742(e), departures from a sentence within the SG's range are subject to a de novo appellate standard of review. In Rita v. U.S., 127 S. Ct. 2456 (2007), the court held that appellate courts may presume that a sentence within the guidelines' range typically is reasonable. In Gall v. U.S.,[42] the court directed federal appellate courts to review all sentences under the deferential abuse-of-discretion standard and upheld a lenient sentence for a self-rehabilitated drug-dealer. A recreational drug-using student joined a conspiracy to distribute Ecstasy, affirmatively withdrew from it, had not sold or used drugs since that time, graduated from college, was working, had no significant criminal history, and did not organize or lead the conspiracy. Years later, he admitted his role in the crime, but could not finger other conspirators not then known to agents. He pleaded guilty. Under the SG, his sentence range was 30-37 months sentence, which was the same sentence range as the ringleaders. The trial judge departed from the SG range, found jail time unnecessary, placed Gall on probation for 36 months, and explained his rationale. The high court upheld the trial court's lenient sentence. Separately, in Kimbrough v. U.S.,[43] noting that courts consider the advisory only SG as one factor in sentencing under 18 U.S.C.  § 3553(a), the court ruled that a trial judge may examine the disparity (100:1 ratio) between how the SG factors treat crack cocaine versus powder cocaine and impose a sentence on a crack cocaine drug trafficker that is less than the SG range. The court rejected the argument that a "sentence outside" the SG "range is per se unreasonable" because of a mere disagreement with the SG sentencing disparity for crack and powder cocaine crimes. Nonetheless, when a federal statute sets a precise punishment for a crime or enhancement, the court usually literally reads and applies the statute and may disregard context. Before Booker, the court had held the SG as mandatory and to allay due process concerns about notice to defendants about an upward departure in sentencing, Fed. R. Crim. Proc. 32 was promulgated. Rule 32 required notice to a defendant before an upward departure or increasing the sentence above the SG's range. In light of Booker, the court in Irizarry v. U.S.[44] found since the SG is no longer mandatory, strict compliance with Rule 32 is not necessary. In another decision, U.S. v. Ressam,[45] defendant tried to enter the U.S. with explosives in his trunk to detonate at an airport, lied about his identity on a customs' form and committed a felony, 18 U.S.C.  § 1001. "During the commission" of that felony (lying on the form), he was carrying an explosive and also violated 18 U.S.C.  § 844(h). Sec. 844(h) added 10 years to the punishment. The rub was the absence of a tie between lying on the form and the explosives. The court literally read the Act's text and upheld the higher sentence.

Sixth Amendment, Incompetence, Self-Representation, Right to Counsel & Confrontation: In Indiana v. Edwards,[46] the court ruled no Sixth Amendment violation resulted when a trial court determined that a schizophrenic, delusional defendant was mentally competent to stand trial, but not mentally competent to represent himself pro se at trial. In Rothgery v. Gillespie County,[47] the court ruled that the Sixth Amendment's right to counsel applies at the defendant's first appearance before a judicial officer or magistrate, regardless of whether the DA as opposed to a police officer was present. The right to counsel attaches when a defendant is told of the formal accusation against him and his liberty is restricted. In Crawford v. Wash., 541 U.S. 36 (2004), the court ruled that the Sixth Amendment's Confrontation Clause gave the accused the right to actually confront witnesses against him and rejected invitations to water down that right. In Giles v. Cal.,[48] the court determined that two testimonial exceptions to confrontation were established at the nation's "founding": dying declarations, and forfeiture by wrongdoing. Focusing on forfeiture by wrongdoing, the court made clear that this exception required the accused by "means and contrivance" to procure or cause the absence of or detain the witness. At common law, unless the killer's purpose was to wrongfully prevent the victim from testifying, this exception did not extend to allow a typical murder victim's statement, which was excluded unless it was a dying declaration or "confronted." Here, a domestic violence victim's un-confronted statements to police weeks before her murder should have been excluded; the testimony was not a dying declaration and did not fit within "forfeiture by wrongdoing" exception.

Eighth Amendment, Death Penalty: In Kennedy v. Louisiana,[49] a 5-4 decision, the court held that the Constitution forbids imposing a death sentence for the perpetrator of aggravated rape of a child, here 8 years old. The Eighth Amendment's prohibition against "cruel or unusual punishment" is informed by society's "evolving standards of decency," articulated in Trop v. Dulles, 356 U.S. 86 (1958). While acknowledging the horror and societal revulsion to child rape, the death penalty is reserved for those who murder and have the capacity to understand the import of their actions. Separately, by plurality, in Baze v. Rees,[50] the court ruled that the Eighth Amendment's ban on "cruel and unusual punishment" did not prohibit states from using lethal injection as a means of execution.

Batson error: The Constitution prohibits striking a prospective juror on the basis of race. When a prosecutor in a capital case uses a preemptory to strike a black juror, Batson v. Ky., 476 U.S. 79 (1986), controls: When a defendant must make a prima facie showing that a preemptory challenge was based on race, the prosecutor must offer a race-neutral basis for the strike, and the trial judge determines whether defendant has shown purposeful discrimination. In Snyder v. La.,[51] the prosecutor used a preemptory strike for a black juror, purporting to justify the exclusion by claiming the prospective juror appeared nervous during voir dire and that due to the prospective juror's schedule, he may choose to avoid a penalty phase and not impose a death sentence. The trial judge did not rule on the prospective juror's demeanor. Finding the prosecutor's rationale was pretextual, the court ruled the strike ran afoul of Batson and reversed.

Fourteenth Amendment: In Engquist v. Or. Dep't of Agric.,[52] the court ruled that a public employee cannot state an Equal Protection Clause claim for a "class of one." Recognizing a "class of one" would undermine government efficiency and effectiveness and turn public employment disputes into constitutional questions.

Briefly, the court (1) authorized railroads to mount challenges to state law ad valorem taxes[53]; (2) noted that states constitutionally may impose a tax on multistate businesses under unitary business principles, but cast doubt on the operational function test[54]; (3) concluded that an assignee of a legal claim for money owed has standing to sue in federal court even if the assignee has agreed to remit money collected from suit to the assignor[55]; (4) by plurality, upheld a state Voter ID law from constitutional attack[56]; (5) found that doctrine of patent exhaustion " once a patented item is lawfully sold, there is no restriction on its use to be implied for the patentee's benefit " applied to method patents[57]; (6) ruled that defense counsel alone may consent to a magistrate judge's presiding over voir dire and jury selection in a felony trial and that a defendant's consent is unnecessary[58]; (7) without the government filing an appeal or cross appeal, determined that federal appellate courts sua sponte could not order an increase in defendant's sentence[59]; (8) held under the Federal Tort Claims Act, 28 U.S.C.  § 2680(c), exceptions to U.S. waiver of sovereign immunity for torts committed by federal employees do not include Bureau of Prisons officials[60]; (9) disapproved of the doctrine of virtual representation whereby the outcome of a suit filed by one unrelated party in one circuit is dispositive of the outcome of a second suit by another person in a different circuit[61]; and (10) held the statute of limitations was a jurisdictional limit in filing suits in the court of Federal Claims against the U.S.[62]

The Presidential Election and the Court: The Constitution assigns the President the power to nominate a Justice. Confirmation is subject to the advice and consent of the Senate. Due to the court's role as the Constitution's final arbiter and as the court of last resort, the court and naming prospective Justices have become hot button issues during presidential campaigns. In modern times, Justices typically serve for a generation " or longer. Justice Stevens, appointed by Gerald Ford, has served for one-third of a century. Republicans have won 7 of the last 10 presidential elections, and Republican Presidents have appointed 7 of the 9 Justices. "W" appointed the two youngest Justices, Roberts and Alito, "conservatives" in their 50s. The two oldest Justices, Stevens and Ginsburg, usually labeled "liberal," in 2008 turned 88 and 75, respectively. Justices Scalia, Breyer, and Kennedy (the swing vote) are in their 70s, and Justice Souter is 69. Given their ages, rumors abound about justices retiring. Pundits opine in the next four years that the next president will appoint two or three justices. In the next eight years, some predict as many as five justices altogether will step aside. Though solemnly uttered, these predictions are sheer speculation.

While the court strives to be nonpartisan in announcing decisions, elections do count and affect the court. Before naming a prospective justice, a president will seek a like-minded nominee and carefully vet him or her, mindful that the Senate must confirm the nominee. Therefore, by design, the democratic process shapes the court. Over time, new Justices come on board and inevitably change the court and its direction.

In addition, the President appoints the Solicitor General. The Solicitor General represents the United States before the court and is the Department of Justice's third highest ranking official. While pundits have tagged him as the "tenth Justice," admittedly an exaggerated claim, the Solicitor General frequently appears before the court representing the United States as a litigant. The court regularly invites him to file an amicus brief in other cases. By long standing tradition, the court affords respect and defers to the Solicitor General. When a case is accepted for certiorari, litigants ask for his support or, at a minimum, that he not oppose their position. Thus, the election results in the President making a key appointment and influencing the court on a wide range of issues that affect individuals, businesses, states, the United States, and the public.

Comments or questions: The authors invite readers to offer comments, criticism, suggestions, or advice, or ask questions to either of them by e-mail at or to call at (615) 309-1707.


  1. U.S. v. Booker, 543 U.S. 220 (2005).
  2. For instance, while every court decision is significant, no Indian reservations are located within Tennessee. Few Tennessee lawyers confront questions about tribal courts' jurisdiction over nonIndians on fee land within a reservation. See Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S.Ct. 2709 (June 25, 2008) (Roberts, C.J.). Thus, this article does not discuss the holding.
  3. Preston v. Ferrer, 128 S.Ct. 978 (Feb. 22, 2008) (Ginsburg, J.).
  4. Hall St. Assocs. v. Mattel Inc., 128 S. Ct. 1396 (March 25, 2008) (Scalia, J.).
  5. CBOCS West Inc. v. Humphries, 128 S.Ct. 1951 (May 27, 2008) (Ginsburg, J.).
  6. Gomez-Perez v. Potter, 128 S. Ct. 1931 (May 27, 2008) (Alito, J.).
  7. Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140 (Feb. 26, 2008) (Thomas, J.).
  8. Ky. Ret. Sys. v. EEOC, 128 S.Ct. 2361 (June 19, 2008) (Breyer, J.).
  9. Fed. Express Corp. v. Holowecki,128 S. Ct. 1147 (Feb. 27, 2008) (Kennedy, J.) (When an aggrieved employee submits an EEOC Form 283 "intake questionnaire" and affidavit requesting the EEOC to act, the employee has filed a "charge" of discrimination under the ADEA, 29 U.S.C.  § 621).
  10. Knolls Atomic Power Lab., 128 S.Ct. 2395 (June 19, 2008) (Souter, J.).
  11. Bridge v. Phoenix Bond & Indem. Co., 128 S.Ct. 2131 (June 9, 2008) (Thomas, J.).
  12. Stoneridge Inv. Partners LLC v. Scientific-Atlanta Inc., 128 S. Ct. 761 (Jan. 15, 2008) (Kennedy, J.).
  13. Allison Engine Co. v. U.S. ex rel. Sanders, 128 S.Ct. 2123 (June 9, 2008) (Alito, J.).
  14. LaRue v. DeWolff, Boberg & Assocs., 128 S. Ct. 1020 (Feb. 20, 2008) (Stevens, J.).
  15. Metro. Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (June 19, 2008) (Breyer, J.).
  16. Fla. Dep't of Revenue v. Piccadilly Cafeterias Inc., 128 S.Ct.2326 (June 16, 2008) (Thomas, J.).
  17. Richlin Sec. Serv. Co. v. Chertoff, 128 S. Ct. 2007 (June 2, 2008) (Scalia, J.).
  18. Morgan Stanley Capital Group Inc. v. Public Util. Dist. No., 128 S.Ct. 2733 (June 26, 2008) (Scalia, J.).
  19. Knight v. Comm'r, 128 S. Ct. 782 (Jan. 16, 2008) (Roberts, C.J.)
  20. U.S. v. Clintwood Elkhorn Mining Co., 128 S. Ct. 1511 (April 15, 2008) (Roberts, C.J.).
  21. Boulware v. U.S., 128 S. Ct. 1168 (March 3, 2008) (Souter, J.).
  22. U.S. v. Rodriquez, 128 S. Ct. 1783 (May 19, 2008) (Alito, J.).
  23. In Watson v. U.S., 128 S. Ct. 579 (Dec. 10, 2007) (Souter, J.), the court held that a person who trades his drugs for a gun does not "use" a firearm "during and in relation to" a "drug trafficking crime" under 18 U.S.C.  § 924(c)(1)(A), which does not define "use." Relying on the ordinary or natural meaning of "use" in context, defendant did not use his gun in a drug trafficking offense merely by trading it for drugs, here Oxycontin. The result seemed at odds with Smith v. U.S., 508 U.S. 223 (1993) (Criminal who traded his firearm for drugs, or the reverse of the facts here, used it during and in relation to a drug trafficking offense under  § 924(c)(1)).
  24. Begay v. U.S., 128 S. Ct. 1581 (April 15, 2008) (Breyer, J.).
  25. U.S. v. Santos, 128 S. Ct. 2020 (June 2, 2008) (Scalia, J.).
  26. Regalado Cuellar v. U.S., 128 S. Ct. 1994 (June 2, 2008) (Thomas, J.).
  27. Medellin v. Texas, 128 S. Ct. 1346 (March 25, 2008) (Roberts, C.J.).
  28. Riegel v. Medtronic Inc., 128 S.Ct. 999 (Feb. 20, 2008) (Scalia, J.).
  29. Chamber of Commerce of the U.S. v. Brown, 128 S.Ct. 2408 (June 19, 2008) (Stevens, J.).
  30. Dep't of Revenue v. Davis, 128 S. Ct. 1801 (May 19, 2008) (Souter, J.).
  31. Exxon Shipping Co. v. Grant Baker, 128 S.Ct. 2605 (June 25, 2008) (Souter, J.).
  32. Boumediene, et al v. Bush, 128 S.Ct. 2229 (June 12, 2008) (Kennedy, J.).
  33. Munaf v. Geren, 128 S.Ct. 2207 (June 12, 2008) (Roberts, C.J.).
  34. N.Y. State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791 (Jan. 16, 2008) (Scalia, J.).
  35. Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184 (March 18, 2008).
  36. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
  37. U.S. v. Williams, 128 S. Ct. 1830 (May 19, 2008) (Scalia, J.).
  38. D.C. v. Heller, 128 S.Ct, 2783 (June 26, 2008) (Scalia, J.).
  39. U.S. v. Miller, 307 U.S. 174 (1939).
  40. Virginia v. Moore, 128 S. Ct. 1598 (April 23, 2008) (Scalia, J.).
  41. U.S. v. Booker, 543 U.S. 220 (2005).
  42. Gall v. U.S., 128 S. Ct. 586 (Dec. 10, 2007) (Stevens, J.).
  43. Kimbrough v. U.S., 128 S. Ct. 558, 579 (Dec. 10, 2007) (Ginsburg, J.).
  44. Irizarry v. U.S., 128 S.Ct. 2198 (June 12, 2008) (Stevens, J.).
  45. U.S. v. Ressam, 128 S. Ct. 1858 (May 19, 2008) (Stevens, J).
  46. Indiana v. Edwards, 128 S. Ct. 2379 (June 19. 2008) (Breyer, J.).
  47. Rothgery v. Gillespie County, 128 S.Ct. 2578 (June 23, 2008) (Souter, J.).
  48. Giles v. Cal., 128 S.Ct. 2678 (June 25, 2008) (Scalia, J.).
  49. Kennedy v. Louisiana, 128 S.Ct. 2641 (June 25, 2008) (Kennedy, J.).
  50. Baze v. Rees, 128 S. Ct. 1520 (April 16, 2008) (Roberts, C.J.).
  51. Snyder v. Louisiana, 128 S.Ct. 1203 (March 19, 2008) (Alito, J.).
  52. Engquist v. Or. Dep't of Agric., 128 S.Ct. 2455 (June 9, 2008) (Roberts, C.J.).
  53. CSX Transp. Inc. v. Ga. State Bd. of Equalization, 128 S. Ct. 467 (Dec. 4, 2007) (Roberts, C.J.) " The 1976 Railroad Revitalization & Regulatory Reform Act (4-R Act), 49 U.S.C.  § 11501, prevents states from discriminating against railroads by taxing their property more heavily than other in-state commercial property. Here, the court held railroads may challenge a state's methodologies and application in determining railroad property's valuation for state-law ad valorem taxes.
  54. MeadWestvaco Corp. v. Ill. Dep't of Rev., 128 S. Ct. 1498, 1509 (April 15, 2008) (Alito, J.).
  55. Sprint Communs. Co. v. APCC Servs., 128 S.Ct. 2531 (June 23, 2008) (Breyer, J.).
  56. Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (April 28, 2008) (Stevens, J.).
  57. Quanta Computer Inc. v. LG Elecs. Inc., 128 S.Ct. 2109 (June 9, 2008) (Thomas, J.).
  58. Gonzalez v. U.S., 128 S. Ct. 1765 (May 12, 2008) (Kennedy, J.).
  59. Greenlaw v. U.S., 128 S.Ct. 2559 (June 23, 2008) (Ginsburg, J.).
  60. Ali v. Fed. Bureau of Prisons, 128 S. Ct. 831, 841 (Jan. 22, 2008) (Thomas, J.).
  61. Taylor v. Sturgell, 128 S.Ct. 2161 (June 12, 2008) (Ginsburg, J.).
  62. John R. Sand & Grav. Co. v. U.S., 128 S. Ct. 750 (Jan. 8, 2008) (Breyer, J.) (28 U.S.C.  §2501 reads: "every claim" where "Court of Federal Claims has jurisdiction" is "barred unless" filed "within six years after" it "first accrues" is jurisdictional, not subject to waiver. U.S. did not assert the statute of limitations (SOL) on appeal, but appellate court may still raise it. The court ruled for the U.S., distinguishing Irwin v. Dep't of Vet. Affairs, 498 U.S. 89 (1990) (Equitable tolling extended similar SOL for employment discrimination against U.S.)).

Perry A. Craft PERRY A. CRAFT and MICHAEL G. SHEPPARD are friends and partners in the law firm of Craft & Sheppard PLC. Craft, a former deputy attorney general, regularly lectures on developments and trends in the Supreme Court, constitutional law and federal practice. He has practiced law for nearly 30 years and litigated cases ranging from personal injury to class actions, trade regulation, commercial practices, administrative and regulatory law to constitutional law, and federal and state statutory causes of action in state and federal courts.


Sheppard, a former insurance executive, has more than 30 years’ experience in personal injury and insurance law. He has served as general counsel, has practiced in state and federal courts and is admitted in Tennessee and Ohio. He has managed litigation for a number of companies and now practices in the areas of ERISA, medical malpractice, product liability, workers’ compensation, personal injury and business transactions.

Either may be reached at (615) 309-1707 or through their Web site,