State Bar of California California Bar Journal
Home Page Official Publication of the State Bar of California August2008
MCLE Self-Study
You Need to Know
Trials Digest
Contact CBJ

When it matters most, it is still the Kennedy Court

By Erwin Chemerinsky


(Click to Enlarge)

October Term 2007 will be most remembered for a few high profile cases that dealt with issues of enormous legal and social significance: the meaning of the Second Amend-ment, the right of individuals imprisoned in Guantanamo to have access to the federal courts, the ability of a state to impose the death penalty for the crime of child rape. Not surprisingly, each of these cases was decided by a 5-4 margin with Justice Anthony Kennedy in the majority.

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

This term, though, there were fewer cases defined by ideology and fewer 5-4 decisions than in the first two years of the John Roberts Court. In October Term 2007, there were 14 decisions that were resolved by a 5-4 or 5-3 margin, compared with 24 cases the year before.There were more instances than in prior terms of the Roberts Court where criminal defendants and employees won important victories.

Second Amendment

The case that understandably received the most media attention was District of Columbia v. Heller, 128 S.Ct. ___ (June 26, 2008), which concerned the constitutionality of a 32-year-old District of Columbia ordinance that prohibited possession of handguns and imposed significant restrictions on long guns. The Supreme Court, in a 5-4 decision, invalidated the ordinance as violating the Second Amendment.

There long has been a debate about the meaning of the Second Amendment, which provides: “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.” One side of the debate sees the latter clause as being key and interprets the Second Amendment as creating an individual right to possess firearms. The other side of the debate emphasizes the first clause and says that it is a right only for purposes of service in the militia.

The Court split 5-4 between these interpretations, with Justice Scalia writing for the majority. He carefully traced the history of gun rights, in England and the United States, and said that the Second Amendment recognizes an individual’s right to have firearms, especially in the home for the purpose of self-defense.

Justice Stevens, writing for the dissenters, also carefully looked at this history and came to the opposite conclusion, arguing that the text and history of the amendment make clear that it protects a right to have firearms only for purposes of militia service.

Justice Scalia

There is no doubt that this decision will lead to challenges to countless federal, state and local laws regulating firearms. Two issues will be key in this litigation. First, what regulation of guns will be allowed under what circumstances? Justice Scalia’s majority opinion was clear that the Second Amendment does not create an absolute right. He said, for example, that the government certainly could regulate where guns would be allowed and could keep some individuals (such as those with criminal records or histories of serious mental illness) from having firearms.

However, the majority opinion did not specify the level of scrutiny to be used. This will be crucial as lower courts hear challenges to criminal and regulatory statutes dealing with firearms.

Second, does the Second Amendment apply to state and local governments? Never has the Second Amendment been found to apply to other than the federal government and the Court did not deal with this issue in Heller since a District of Columbia law was at issue.

Already challenges have been brought to gun control ordinances in San Francisco and Chicago, and the Supreme Court will need to resolve this issue soon.

Enemy combatants and access to the courts

In Boumediene v. Bush, 128 S.Ct. ___ (June 12, 2008), the Supreme Court held that non-citizens held as enemy combatants, including those imprisoned in Guantanamo, have the right to bring a habeas corpus petition in federal court. Since the first detainees were brought to Guantanamo in January 2002, the Bush administration has vehemently argued that federal courts lack the authority to hear their habeas corpus petitions. After the Supreme Court rejected this argument in Rasul v. Bush, 542 U.S. 466 (2004), Congress adopted the Detainee Treatment Act and then the Military Commission Act to preclude such federal jurisdiction.

The Military Commission Act provides that non-citizens held as enemy combatants shall not have access to federal courts via a writ of habeas corpus or otherwise, except that if there is a military proceeding, the detainee may seek review of its decision in the United States Court of Appeals for the District of Columbia Circuit.

Justice Kennedy

In a 5-4 decision, with Justice Kennedy writing an opinion joined by Justices Stevens, Souter, Ginsburg and Breyer, the Court held that the preclusion of habeas corpus jurisdiction was unconstitutional. Justice Kennedy explained that Article I, §9 of the Constitution allows Congress to suspend habeas corpus in times of rebellion or invasion. Neither was claimed to be present. Moreover, the Court concluded that the remedy provided, review in the D.C. Circuit, did not substitute for habeas corpus.

The majority and the dissent articulated vastly different views about the role of the federal courts during the war on terrorism. For the majority, the Constitution and access to the federal courts to enforce it, are essential even in times of crisis. From this perspective, the decision was a profound reaffirmation of the rule of law. For the dissent, the decision was dangerous judicial meddling in a realm properly left to the President and Congress. Justice Scalia said that he believed that people would needlessly be killed because of the majority’s opinion.

In the short term, the most important effect of the decision is to allow hundreds of suits by Guantanamo detainees to now forward.

Criminal law and procedure

Criminal defendants fared better this year than in many recent terms. There were two major death penalty cases, one of which was a victory for those on death row. In Kennedy v. Louisiana, 128 S.Ct. ___ (June 25, 2008), the Court held that the death penalty could not be imposed for the crime of child rape. Justice Kennedy, writing for the Court in a 5-4 decision, held that a person may be sentenced to death only for the intentional killing of another.

But in Baze v. Rees, 128 S.Ct.1520 (2008), the Court upheld the three-drug protocol used for lethal injections in most states that have capital punishment. The decision was 7-2, though there was no majority opinion. Chief Justice Roberts, writing for the plurality, held that to constitute cruel and unusual punishment, a method of execution must present a “substantial” or “objectively intolerable” risk of unnecessary suffering. The Court said that a state’s refusal to adopt an alternative procedure is unconstitutional only where the procedure is feasible, is readily implemented, and significantly reduces the risk of substantial pain.

The decision was based on the record before the Court concerning the risks from Kentucky’s method of execution. The door remains open to challenges to lethal injection based on more developed records that show a substantial or objectively intolerable risk of harm from the drugs used for lethal injections.

From a practical perspective in terms of day-to-day practice in federal courts, two decisions early in the term concerning criminal sentencing were among the most important. In Gall v. United States, 128 S.Ct. 586 (2007), the Court held that federal courts of appeals are to review sentences under an abuse of discretion standard and district courts are not required to find extraordinary circumstances to justify sentences outside the range provided under the federal Sentencing Guidelines. In Kimbrough v. United States, 128 S.Ct. 558 (2007), the Court applied this to hold that district courts may use their discretion in sentencing to alleviate the substantial disparity in sentencing for crack as opposed to powder cocaine.

Together, these cases show that the Court’s decision in United States v. Booker, 543 U.S. 220 (2005), is enormously important in its holding that the federal Sentencing Guide-lines are advisory, not mandatory, and courts of appeals should uphold sentences so long as they are reasonable.

One other criminal procedure case of note came from California. In Giles v. California, 128 S.Ct. ___ (June 25, 2008), the Court held that a criminal defendant does not “forfeit” his or her Sixth Amendment Confrontation Clause rights upon a showing that the defendant caused the unavailability of a witness. Four years ago, in Crawford v. Washington, 541 U.S. 36 (2004), the Court held that a prosecutor may not use testimonial statements against a criminal defendant if the witness is unavailable at trial and the statements are reliable. The issue in Giles was whether there is an exception to Crawford in a situation where the defendant killed the witness and thus caused the person’s unavailability to testify.

Justice Scalia wrote for the Court and found in favor of the criminal defendant. The Court said that there must be more than a showing that the defendant’s actions are responsible for the unavailability of the witness; there also must be a showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying. This is a case likely to have significant implications in domestic violence and child abuse cases.

Together, these cases show that in some areas of criminal procedure — especially sentencing and the Confrontation Clauses — ideology does not predict outcomes. The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants.

Employment discrimination

It also was a surprisingly good year for employees in employment discrimination litigation. In two cases, CBOCS West Inc. v. Humphries, 128 S.Ct. 1951 (2008), and Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008), the Court made clear that laws prohibiting employment discrimination include a claim for retaliation, even if that is not provided in the statutes, unless Congress expressly specifies otherwise. In CBOCS, the Court held that 42 U.S.C. §1981, which prohibits racial discrimination in contracting, includes a cause of action for those alleging retaliation based on race. Similarly, in Gomez-Perez, the Court held that the Age Discrimination in Employment Act protects federal employees from retaliation, even though the statute expressly provides this only for employees in the private sector.

In Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. ___ (June 19, 2008), the Court held that an employer defending a disparate impact claim under the Age Discrimi-nation in Employment Act bears both the burden of production and the burden of persuasion for showing that the decision was based on “reasonable factors other than age.” This is an important victory for plaintiffs in age discrimination suits.

Business litigation

Overall, the Roberts Court is quite pro-business and that was reflected in a number of its decisions. In Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008), the Court ruled in favor of manufacturers of medical devices and held that approval by the Food and Drug Administration under the Medical Devices Act pre-empted state tort or breach of warranty claims. Justice Scalia, writing for the Court in an 8-1 decision, concluded that a provision in the act pre-empting state regulation of devices approved by the federal government also preempts states from allowing liability.

In Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 128 S.Ct. 761 (2008), the Court held that the Securities and Exchange Commission rule 10(b) does not allow a plaintiff class of investors to maintain a civil cause of action against vendors who participated in a scheme to inflate a public corporation’s stock price where the vendors made no public statements upon which the plaintiff relied. This ruling, by a 5-3 margin, is a important win for businesses in limiting their liability under federal securities law.


Already for next year, the Court has important cases on the docket concerning government regulation of indecent speech over television and radio, pre-emption of state liability over warning labels on prescription drugs and civil rights litigation. The one safe prediction is that where it matters most, Anthony Kennedy will be the decisive vote.

• Erwin Chemerinsky is dean and Distinguished Professor of Law, University of California, Irvine, School of Law.

Contact Us Site Map Notices Privacy Policy
© 2023 The State Bar of California