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The Supreme Court moves to the right, perhaps sharply to the right

By Erwin Chemerinsky


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Term 2008 might be remembered most for the suggestions it gave of changes to come. On the last day of the term, June 29, 2009, the Court surprised observers by not deciding one of the most high profile cases of the year, Citizens United v. Federal Election Commission. The case involved whether federal election law was constitutional in keeping a political action corporation from showing a movie highly critical of Hillary Rodham Clinton.

Instead of deciding the case that had been briefed and argued, the Court set the case for new briefing and arguments on the issue of whether prior decisions limiting corporate expenditures in federal elections should be overruled. Most believe that there are now five votes to find a First Amendment right of corporations to make campaign contributions and perhaps even five votes that all restrictions on campaign contributions are unconstitutional.

Although the most dramatic example, this is just one of many cases that indicated a Court willing to change the law in a conservative direction. This term lacked the blockbusters of a year ago, when the Court found that unlawful combatants have a right to habeas corpus in federal court, concluded that the death penalty for the crime of child rape is cruel and unusual punishment, and for the first time in American history invalidated a law regulating guns as violating the Second Amendment. But there were an especially large number of cases changing the law in areas that lawyers deal with on a daily basis.

Justice Kennedy

This year, as in each of the four terms in which John Roberts has been Chief Justice, it was the Anthony Kennedy Court. The Court decided 75 cases after briefing and oral argument. That is a bit more than the 67 cases decided a year ago and 68 resolved two years ago. In 23 of 75 cases, the Court split 5-4. Justice Kennedy was in the majority in 18 of these, more than any other justice. Justice Kennedy was in the majority in more than 92 percent of all the cases, again far more than any other justice.

Perhaps the most revealing statistic is that in 16 of the 5-4 cases, the Court split along ideological lines, with Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito on one side, and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer on the other. Justice Kennedy sided with the conservatives in 11 of 16 cases. Indeed, in the most important cases concerning civil litigation, criminal procedure, employment discrimination and civil rights, Justice Kennedy voted with the conservatives, often to change the law.

Civil litigation

For those who handle civil litigation in federal court, no decision was more important than Iqbal v. Ashcroft. It concerned basic questions: what is the standard of pleading in federal court; what should be the standard for granting a motion to dismiss for failure to state a claim upon which relief can be granted?

Ever since the Federal Rules of Civil Procedure went into effect more than 70 years ago, “notice pleading” has been the standard of pleading in federal court. This was embodied in the rule announced in Conley v. Gibson: a case should be dismissed for failure to state a claim only if there is no set of facts upon which the plaintiff can recover.

Two years ago, in Bell Atlantic v. Twombley, the majority said that Conley v. Gibson was “abrogated.” The dissent referred to it as “interred.” But it was unclear whether Bell Atlantic applied only to pleading in antitrust cases or what standard it was adopting. Tremendous confusion resulted. In fact, even though it is only two years old, Bell Atlantic is one of the five most frequently cited Supreme Court cases by lower federal courts in all of American history.

Iqbal v. Ashcroft involved a man of Pakistani descent who was detained after September 11. He claimed that his detention and treatment were illegal and he sued, among others, then-Attorney General John Ashcroft. A motion to dismiss for failure to state a claim was made. The Supreme Court in a 5-4 decision held that the motion should have been granted.

Justice Kennedy, writing for an ideologically divided Court, said that plaintiffs must plead sufficient facts that the district court can conclude that it is plausible that the plaintiff is entitled to relief. For decades, the law has been that allegations in a plaintiff’s complaint must be taken as true in assessing a motion to dismiss. The Court changed this by holding that conclusory allegations need not be accepted.

It is difficult to overstate the importance of this case since it applies to the standard for pleading in every civil case in federal court. It is unclear as to how a district court is to decide whether the allegations are “plausible.” This would seem to give a great deal more discretion to district courts to decide whether to dismiss cases. It is unclear how federal courts of appeals will review such determinations.

The philosophy of notice pleading always has been to have a lenient standard for allowing plaintiffs in to federal court and to use summary judgment as the primary stage for screening the merit of cases. The “plausibility” standard undoubtedly will mean more screening at the motion to dismiss stage, something very much favoring civil defendants over plaintiffs.

Criminal procedure

One of the most important criminal cases of the year was Herring v. United States. This case is the most significant change in the exclusionary rule since Mapp v. Ohio applied it to the states in 1961. Herring involved whether the exclusionary rule applies when police commit an illegal search based on good faith reliance on erroneous information from another jurisdiction.

Chief Justice Roberts

Chief Justice Roberts, writing for a 5-4 majority, held that the exclusionary rule does not apply. The Court held that the exclusionary rule is to be used only where its application will have significant additional deterrent effect on police misconduct, only if there is an intentional or reckless violation of the Fourth Amendment or only if there are systemic police department violations with regard to searches and seizures. For the first time in history, the Court concluded that the exclusionary rule does not apply if the Fourth Amendment is violated by good faith or even negligent police actions.

Another criminal case to significantly change the law was Montejo v. Louisiana. The Court, in a 5-4 decision, expressly overruled Jackson v. Michigan and held that police are not barred by the Sixth Amendment right to counsel from attempting to elicit incriminating statements from a criminal defendant who has been appointed an attorney.

Montejo was arraigned for murder in Louisiana and an attorney was appointed for him at the arraignment. Subsequently, the police took him to the murder scene and asked him to write a letter of apology to the victim’s widow. Prosecutors attempted to use incriminating statements from the letter at the trial. Defense counsel objected that the letter was obtained in violation of the Sixth Amendment because police had elicited it without counsel’s presence.

Justice Scalia

Justice Scalia, writing for the conservative majority, found that there was no Sixth Amendment violation. The Court concluded that the appointment of counsel under the Sixth Amendment does not preclude subsequent efforts by the police to elicit incriminating statements. However, the Court emphasized that Arizona v. Edwards remains the law and once a criminal suspect invokes the right to counsel pursuant to Miranda v. Arizona under the Fifth Amendment, the police cannot attempt to elicit incriminating statements without counsel’s presence.

Not all of the major criminal procedure decisions were divided along ideological lines. In Safford Union School Dist. #1 v. Redding, the Court held, 8-1, that the Fourth Amendment was violated when a school subjected a seventh grade girl to a strip search when she was suspected of having prescription-strength ibuprofen. The girl was required to remove all of her outer clothes and to pull out her bra and underpants so that school officials could look in them for the drugs. Nothing was found.

Justice Souter wrote for the Court and said that although there was reasonable suspicion for a search, the intrusiveness violated the Fourth Amendment, especially given the relatively minor nature of the suspected offense and the lack of any reason to believe that the girl had hidden drugs in her underwear. However, the Court also said, 7-2, that the school officials could not be held liable for their actions because the law concerning strip searches was not clearly established at the time of their search. Still, the case is significant in holding that there are some limits on what schools can do in searching students, even when they claim stopping illegal drugs as their justification.

Finally, in Melendez-Diaz v. Massachusetts, the Court ruled 5-4 that the Confrontation Clause of the Sixth Amendment requires that laboratory analysts testify in court. At Melendez-Diaz’s criminal trial, the state introduced a lab analyst’s report as to the type and quantity of the drugs. The Supreme Court held that this violated the Sixth Amendment because the report was “testimonial” in nature. There was an unusual split among the justices with Justice Scalia writing a majority opinion joined by Justices Stevens, Thomas, Souter and Ginsburg. The majority and the dissent, written by Justice Kennedy, disagreed vehemently over whether this will impose a substantial burden on state and local governments.

Employment discrimination and civil rights

Overall, this was a tough year for plaintiffs bringing employment discrimination claims. Ricci v. De-Stefano involved a New Haven, Conn. decision to not use the results of a civil service exam in promoting firefighters because it would have had a racially discriminatory effect against African-Americans. The Court, in a 5-4 decision with Justice Kennedy writing for the majority, concluded that the city’s decision violated Title VII of the 1964 Civil Rights Act.

The Court said this was discriminatory treatment against the white firefighters who were not promoted based on the test. The Court concluded that an employer may engage in such discriminatory treatment to avoid a discriminatory impact only if there is a strong basis in evidence to believe that the employer will be subject to disparate impact liability if it fails to take race-conscious discriminatory action.

In 14 Penn Plaza v. Pyatt, the Court, in a 5-4 decision with Justice Thomas writing for the majority, concluded that employment discrimination claims of individual union members are subject to arbitration when it is provided for in the collective bargaining agreement. In essence, unions via collective bargaining can waive the ability of individual employees to go to court to sue for illegal discrimination. This implicitly overruled a Supreme Court decision from more than three decades ago in Alexander v. Gardner-Denver.

Finally, in Northwest Austin Municipal Utility District No. 1. v. Holder, the Court considered whether Congress had the authority to extend section five of the Voting Rights Act of 1965 for 25 years. This provision requires jurisdictions with a history of race discrimination in voting to obtain “preclearance” from the Attorney General before changing their electoral practices.

The Court, in an 8-1 decision, avoided the question of whether Congress had the constitutional power to do this by interpreting the law to allow local governments to “bail out” of the Act’s requirements by showing that they had not engaged in recent race discrimination. Chief Justice Roberts’ majority opinion expressed serious doubts about whether section five is constitutional and jurisdictions that are denied a bail out likely will again ask the Supreme Court to strike down this important federal law.

The future

The most dramatic development of the term was the resignation of Justice David Souter. When the Court returns for oral arguments in September to hear the Citizens United case and on the first Monday in October to begin the new term, there almost surely will be a new justice, Sonia Sotomayor. She is only the third justice appointed by a Democratic president since Thurgood Marshall was nominated by President Lyndon Johnson. If confirmed, she will be the third woman and the first Hispanic to serve on the high court.

Most expect that Justice Sotomayor will generally vote as Justice Souter did, especially in the most controversial cases, and thus will not change the overall ideological balance of the Court. But the Court is a small group and perhaps there will be instances where by virtue of her life experiences and persuasiveness, her presence will change the outcome and the direction of the law.

At the very least, the resignation of David Souter and the nomination of Sonia Sotomayor was this term’s most important example of the changes to come.

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

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