house property section 53a

- "supreme court:the term in review," an fjtn program for judges,staff attorneys, and law clerks. now from the television studiosof the federal judicial center in washington, dc,your host--john cooke. - hello,i am john cooke, deputy director of the federal judicial center. welcome to this year's "supremecourt: the term in review," our annual look at the decisionsreached by the supreme court

that are most likely to affectthe work of federal judges. the court handed down 64 signedopinions after argument this term and issued 11 per curiamdecisions. the decisions that attracted themost attention were those involving theconstitutionality of the federal health care law and thearizona immigration statute. we'll discuss those, but we willfocus most on decisions involving more common issueslike search and seizure, the confrontationclause, and sentencing.

we are fortunate to have ourexpert faculty with us again to explore and explainthis term's decisions. they are erwin chemerinsky,dean of the university of california at irvine lawschool; professor evan lee of the hastings college oflaw in san francisco; professor laurie levenson of loyolalaw school in los angeles; and professor suzanna sherryof the vanderbilt university law school. our own beth wiggins and jimchance will be moderating

our discussions. in our first segment, bethwiggins, erwin chemerinsky, and suzanna sherry will discusssome first amendment decisions. - hello,i am beth wiggins from the federal judicial center. with me to discuss 3 firstamendment decisions reached by the court this term are suzannasherry and erwin chemerinsky. let's start with the decisionregarding the free exercise and establishment clausesof the first amendment.

this was hosanna-taborevangelical lutheran church and school versusthe equal employment opportunity commission. hosanna-tabor is a religiousschool in michigan that has two kinds of teachers--lay teachersand those who are called. called teachers areconsidered to be ministers. cheryl perich began as a layteacher and then became a called teacher after takingthe required courses. after teaching at the school for5 years, she became ill and had

to take leave. when her doctor told her she waswell enough to return to work, perich informed the school butwas told that they had filled her position with a lay teacher. the school offered to pay partof her health insurance if perich resigned but she refused,threatened to file a complaint with the eeoc,and then was fired. the eeoc complaint said theschool had violated perich's rights under the americanswith disabilities act both

for denying her a job afterher illness and for firing her in retaliation for assertingher rights under the ada. the school raised the firstamendment religion clauses as a defense. erwin, what did the courtdecide? - the supeme court unanimouslyheld that it would violate both the establishment clauseand the free access clause to hold the school liable forthe choices that it makes as to who will be itsministers.

chief justice roberts wrote forthe court-- he said it's not just aboutemployment decisions. this would intrude on theinternal decision making of a religious institution as towho'll be its ministers. so the court said it wouldviolate the free exercise clause to interfere with who will bethe choice as to ministers, it will interfere withthe establishment clause, once the school is beinginterfered with, with their fundamentalreligious choices.

- well, suzanna, that soundspretty straightforward. was it? - well, that part wasstraighforward, but there were some complicating issues. first, there was the questionof whether perich really was a minister. the court said that she was aminister, but it declined to adopt any particular test,no rigid tests. perich, for example, had arguedthat she wasn't a minister because lay teachers performedmany of the same duties that she

did and also because thestrictly religious part of her job did not take up very much ofher time. the court said that, no, thosefacts don't change their conclusion that she is aminister, and justices alito and kaganwrote a concurrence on this point highlighting the fact thatthe court had adopted a functional test,not a mechanical test. the title of minister, forexample, was not sufficient or necessary to determine thatsomebody was a minister.

the second important issue waswhether recognizing the ministerial exception wasinconsistent with the court's previous decision in employmentdivision versus smith. you might remember, thatdecision held that the religion clauses do not relieveindividuals of the obligation to comply with generallyapplicable laws, which, of course, the ada is, and the court said there's noconflict. it distinguished the case fromsmith by saying that smith

involved regulation of outwardphysical acts, whereas perich's case was about regulation ofwhat they said was an internal church decision that affects thefaith and the mission of the church itself. - so, erwin, what are theimplications of this decision? - chief justice roberts'majority opinion is very broadly written. what if a religious school--

k-through-12, college,university-- decides that it's gonna makeall of its employees ministers? in fact,what if any religious institution decides todesignate all of its employees as ministers? is it then completelyexempt from employment discrimination law? this was something that i thinkjustice alito and justice thomas were also trying to addressin their concurring opinions.

we obviously don't know,but it's certainly important to remember, this is the first timethe supreme court has ever said that the free access clause andthe establishment clause give religious institutions anexemption from federal civil rights laws. - one final important note,the court made very clear that the ministerial exceptionis an affirmative defense. it's not a jurisdictional bar. - thank you.

let's move on to two decisionsdealing with freedom of speech. the first one of these isknox v. service employees international union, local1000, or knox v. seiu. california law allows publicemployees' unions to collect dues from non-members forcollective bargaining activities that are directly related torepresenting the employees' interests, but the supreme courtsaid in an earlier decision, abood v. detroit board ofeducation, that individuals have a right not to pay forpolitical activities of a union,

and since the court's decisionin teachers v. hudson, public employee unions must annuallycalculate what percentage of their dues go to collectivebargaining and what percentage go to political activity. then they have to send aso-called hudson letter to all non-members giving them theopportunity to opt out of paying the percentage of the duesgoing to political activities. suzanna, what happened thatbrought this case forward? - well,in this case, the union local,

the seiu, was fighting then-governor schwarzenegger over some proposals of his that wouldhave reduced the influence of public employee unions. so first,they sent out a hudson letter, and they stated in that hudsonletter that the dues might increase at any time. so they reserved that right,and then after the opt-out period had expired, they imposeda new special assessment, additional dues, and they saidthat that special assessment,

all of it, would go to fightingthe governor's proposal. so it would all be political,and some of the non-members objected because they didn'tthink that they should have to pay the special assessmentthat was all going to be used for political purposes. they said that would violatetheir first amendment speech rights by forcing them tosubsidize speech that they didn't necessarily agree with. - so how did the case come out?

- well, it was mixed. 7 justices agreed that the seiushould have sent out a hudson letter when it imposed thespecial assessment and that they should have allowed all non-members to avoid all of the dues because of the specialassessment because the entire special assessment was gonnabe used for political purposes, but 5 of the justices in themajority went even further, and they said that when it comesto a special assessment, instead of giving the non-membersan opportunity to opt out

of the special assessment,they had to give them an opportunity to opt in so thatunless they opted in, they would not be charged any of thespecial assessment, and this is where the majority lostjustices ginsberg and sotomayor. they strongly objected that thequestion of opt out versus opt in had not beenbriefed or argued. - justice alito questioned theprecedents that said that it's sufficient to have thenon-members opt out. he said as a matter of firstamendment law, at least

with regard to the specialassessment, they have to make the choice to optinto supporting the political activities. justice breyer, in a dissentthat was joined by justice kagan, said it'd be enoughto just give them notice in the following year as to thepercentage of the dues that went to collective bargaining,as opposed to political activities, instead of opt in, but justice breyer's real anger--and i think it was that--

in the dissent was--this was justice sotomayor--that thiswas really a change in the law that was not briefed and argued,that the supreme court had long said that opt out is sufficientand to go to opt in would really mean a great deal with regardto the political influence of public employee unions inthe united states, and so it's a very sharp division,5-4, on that, and i think we get a verysignificant effect if what the supreme court is saying is thatnon-members always must make

the choice to opt inbut opt out is never constitutionally sufficient. - our second freedom of speechdecision came down on the last day of the term. this was thisunited states v. alvarez. xavier alvarez lied aboutwinning the congressional medal of honor. in doing that, he violated thestolen valor act, which made it a federal crime to falselyclaim receiving military honors

or decorations. alvarez was convicted underthe law but challenged it as a violation of his firstamendment free speech rights. erwin, how did thecourt come down on this? - the supreme court, in a 6-3decision without a majority opinion, declared the stolenvalor act unconstitutional. justice kennedy wrotefor the plurality. his opinion was joined by chiefjustice roberts and also justice ginsberg and sotomayor.

he said the law is a content-based restriction of speech. he said it doesn't fit into anyof the categories of unprotected speech, said, therefore,the court has to use the most exacting scrutiny, and it seemsthat this was just a synonym for strict scrutiny. he said that the governmentcould not prove a causal connection to these false claimsbringing harm to the military. he also said there's lessrestrictive alternatives, such as the possibility thatthe government just publish

a database of all that receivedthe honors to quickly be able to spot the liars. - so, suzanna, what didthe other justices write? - well,justices breyer and kagan concurred in the judgment only,not joining the plurality, because they explicitly rejectedthe pluralities strict categorical analysis. they wanted the court to useintermediate scrutiny or what they called a proportionalitytest to balance the harm to

speech against the government'sobjectives, and they thought the harm done to speech by thestolen valor act was somewhat less than the plurality thoughtit was because they said that the danger of suppressingvaluable ideas is much lower when the government is onlyprohibiting false factual statements, but even under theirtest, they felt the statute failed because it was possibleto achieve the government's interests in a lessburdensome way. so they suggested, for example,that congress might rewrite the

statute to limit it to only somemilitary honors or to require a showing of some specific harmor maybe to limit the context or the type of lie which wouldbe subject to prosecution. - ok. what about the dissents? - well,justices alito, scalia, and thomas thought that falsefactual statements have no value and, therefore, arenot protected under the first amendment at all. - really is important to notein that regard that though there

was no majority opinion,6 of the justices rejected the government's argument that falsespeech is inherently outside the scope of the first amendment. - thanks, erwin.thanks, suzanna. before we end this panel,there are two other decisions in this area. in fcc versus fox, the court wasexpected to rule on whether the federal communicationscommission's standards that ban fleeting expletives orbrief nudity violated

the first amendment. instead, the court held that thefcc did not give broadcasters fair notice that it would applythe standards the way it did and, therefore, violated thebroadcasters' due process rights, and finally, in americantradition partnership v. bullock, the court summarilyreversed a montana supreme court decision upholding that state'scampaign finance regulations. the montana high court haddistinguished its decision from the u.s. supreme court's recentruling in citizens united v. fec

on grounds that montana'sunique history allowed the state legislature to enact acampaign finance law to serve a compelling interest inpreventing corruption. the u.s. supreme court 5-justicemajority made it clear that it wasn't interested inreconsidering citizens united and that it's ruling in thatcase imposes a blanket bar on limiting corporate campaignexpenditures which cannot be overcome by factual findings. - hello,i am jim chance from the fjc,

and here with me to discussfourth amendment decisions by the court are laurielevenson and evan lee. the 3 cases we are going tolook at arose in very different situations and deal withdifferent aspects of the fourth amendment's protections. we'll start with united statesversus jones, a case that started here in thewashington area. antoine jones was beinginvestigated by the fbi for drug trafficking.

the bureau got a 10-day warrantto attach a gps tracking device to jones' wife's car in thedistrict of columbia, a car that antoine jones used almostexclusively, but agents did not attach the device to the caruntil the 11th day and then not in dc,but in maryland. they then tracked thecar for 28 days. well, when prosecutors attemptedto use the evidence, jones objected that it had beengathered in violation of the fourth amendment, first,because the warrant was for dc,

not maryland, and second,because it had lapsed before the police attached thetracking device. did the lower courts seeit that way, evan? - partially. the district court in jones'first trial suppressed the data that was collected while thecar was in jones' garage because that's part of hishouse, but it admitted the rest of the evidencebecause, it said--quoting from a 1984 supreme court decision,united states versus knotts,

and here i quote--"a persontraveling in a vehicle "on a public thoroughfare hadno reasonable expectation "of privacy in his movementsfrom one place to another," end quote. therefore, the court reasoned,no warrant was necessary for the tracking evidence. that first trial resulted ina hung jury on the conspiracy count. government went after him again,again got the gps tracking

evidence admitted. this time, it resulted ina conviction, and the court sentenced him to lifeimprisonment, but dc circuit reversed on the ground that theadmission of the tracking data gathered without a valid warrantviolated the fourth amendment. - laurie, were there anysurprises in the supreme court's decision? - well, not so muchin the ruling. this was a unanimous decisionby the court saying that it was

a fourth amendment violation,but there were real divisions in reasoning for this decision. so you have justice scaliawho writes that, in fact, he's moving from the standard inkatz from 1967, which found that there was a search ifthere was both a subjective and a reasonable expectationof privacy, to a standard they actually were overruling inkatz, the old olmstead physical trespass approach, and hereturned to that physical trespass approachand says, "look.

"in this case, they physicallyplanted a beeper on jones' car. "that was a trespass. "it was a trespass at the timeof the adoption "of the fourth amendment. "that violates theconstitution." i think that what that means,though, for judges and lawyers is that they're really goingto have to study up on what trespass law is about,especially when you have multiple owners of property.

- now,as we said, the holding was unanimous, but there were otheropinions on the reasoning, right, evan? - that's true. justice sotomayor stressedin her concurrence that the trespass test is cumulative,that it's not a substitute for the reasonable expectationof privacy test. on the other hand, youhad 4 justices-- alito, breyer, ginsburg,and kagan--who all would have

relied exclusively on thereasonable expectation of privacy test. they didn't think that thegovernment's actions would clearly be a search or a seizureunder the new test because of the differences in propertylaw among the different states, but clearly what bothered theconcurring justices the most in this case was the lengthof the surveillance that went on here, 28 days, and that was,of course, made possible by this high-tech, low-cost gps device.

they thought that violatedhis reasonable expectation of privacy on thepublic thoroughfares. now, i think that at least someof those concurring justices might have accepted thisevidence had the duration of the tracking been very brief. - and whereas this mighthave worked out just fine for mr.jones, the hard cases are the onescoming down the pike that involve surveillance that doesnot involve a physical beeper.

we know that law enforcementare stopping and not using those anymore. so what about the cases thatuse, for example, cell phone technology where wirelessly,they can locate individuals? how will those be analyzedunder the fourth amendment? we don't have ananswer to that yet. - well,there was nothing remote about the searches in florenceversus board of freeholders. albert florence was improperlyarrested on an expired warrant

and sent first to the countyjail and then to a larger facility, and both times,he was subjected to a visual strip search, in the secondcase, a visual full-body cavity search. when the mistake with thewarrant was discovered, he was released, and all thecharges were dropped. well, florence sued undersection 1983 for a fourth amendment violation, arguingthat the strip searches for minor offenses wereunconstitutional, and what did

the court say, laurie? - the court upheld theconstitutionality of the search, and it did so under thespecial needs doctrine. giving deference to the jail andprison officials, they basically said that the correctionalinstitution's needs for security outweighed the intrusion and,therefore, no reasonable suspicion was requiredfor the search. - that's exactly right. justice kennedy wrote for themajority and cited

two decisions--bell versus wolfish, turner versus safley--for the proposition that courts haveto defer to the judgment of correctional officials unlessthere is substantial evidence that their policies areunnecessary or unjustified as a response to problemsof jail security. the court said that visualsearches of prisoners are necessary to identify prisonerswith contagious diseases, gang tattoos, weapons, drugs,money, and justice kennedy wrote

that there have to be readilyadministrable rules pursuant to which correctional officers arenot gonna get second-guessed by courts, although he did leaveopen the door for rules to be different if the people areadmitted not to the general population of ajail or a prison. - right,but i think that you had 4 dissenters in this 5-4 case,and the dissenters--justices breyer, kagan, sotomayor,and ginsburg--thought that the majority was reallyunderestimating the intrusion

that went on with these searchesand would hold that these were unreasonable searches,especially when you're dealing with suspects charged with minorcrimes that are almost like civil matters. - finally, we are going tolook at the court's decision in messerschmidtversus millender. detective curt messerschmidtsearched the home of augusta millender pursuant to a warrantallowing the detective to search for guns, ammunition,and evidence of street gang

membership or affiliation. messerschmidt was looking formillender's former foster son jerry ray bowen, who had fireda sawed-off shotgun at his girlfriend shelly kelly when shemoved out of their apartment. kelly had told the police aboutthe incident and that bowen belonged to a coupleof local gangs. the police also had anarrest warrant for bowen. well, the search turned up ashotgun, a box of ammunition belonging to millender, as wellas a letter to bowen, but not

bowen himself and nofirearms that could have belonged to bowen. millender sued messerschmidtunder 1983 for a violation of her fourth amendment rights,contending that the warrant was unconstitutionally overbroad. what did the courtsbelow decide, evan? - the district court heldthat no reasonable officer in messerschmidt's positionwould think that a warrant that broad would be justified by themere evidence that bowen had

used a single weapon during theincident with his girlfriend, and the ninth circuiten banc agreed. - what did thejustices decide, laurie? - well,7 of the justices decided that, indeed, the officers wereentitled to qualified immunity, that a reasonable police officercould presume that this warrant that had been issued by amagistrate was, in fact, valid and that even the requestfor the gang evidence was ok because it's possible that thisassault was based upon a need to

keep the victim quiet about thedefendant's gang activities. the majority thought that theofficers had shown good faith, that it's not determinative,but by the officers going to get a warrant, that's some typeof indication of their good-faith behavior. - and,evan, what did the other two justices believe? - well,justices ginsburg and sotomayor felt that there was no probablecause for such a broad warrant,

also that the officers had notacted in good faith and that the majority was basically allowingfishing expeditions which left officers with insufficientreason to reflect before they request warrants inthese kinds of cases. - thanks, evan.thank you, laurie. i will be back with laurieand erwin chemerinsky to look at some fifthamendment decisions. laurie levenson is back with me. we've been joined by erwinchemerinsky for a discussion

of fifth amendment decisionsby the court this term. these decisions covered a numberof fifth amendment protections. we'll start with the privilegeagainst self-incrimination. this was howes versus fields. randall fields was serving timein a michigan state prison when he was taken from his cell toa private room, where two sheriff's deputies questionedhim about allegations that before coming to prison, hehad engaged in sex with a 12-year-old boy.

fields was questioned for 5 to 7hours but was told several times that he could leavewhenever he wanted. he was never givenhis miranda rights. he told the deputies more thanonce that he wanted to leave and go back to his cell, but hefailed to do so until after he had made someincriminating statements. the sixth circuit court ofappeals granted fields habeas relief on the ground that aprisoner is per-se "in custody" for the purposes of miranda ifhe is taken aside and questioned

about prior events thathappened outside the prison. laurie, what didthe majority hold? - justice alito, writing for themajority, said that fields was not in custody for mirandapurposes and that there is no categorical rule that says justbecause a prisoner is within an institution that if they'requestioned, they're in custody and get their miranda rights. it's not the same coercivenessthat the court had been looking for in miranda cases, and it'snot like fields was denied his

support system by being askeda question. - so, erwin, how are lowercourts to determine if a prisoner is in custody forpurposes of miranda when they're interrogated in prison? - the supreme court said that aprisoner is in custody if the reasonable person inthose circumstances would not feel free to leave and if thesituation is as coercive as questioning ina station house. here the court looked to thecircumstances and emphasized,

as laurie just pointed out, thathe was repeatedly told that he could leave if he wanted to,and that's why the court said in this circumstance, theindividual is not in custody. - there was a combinationconcurrence and dissent here by the remaining justices. so what did they thinkthe issue was? - well, what justice ginsburgwrote for herself and justices breyer andsotomayor is that they agreed that the law was not as clearlyestablished as the sixth circuit

has said it was,but they disagreed with the others that fieldswas not in custody. in fact, they thoughthe was in custody and that he was being held a bitin incommunicado for this questioning. - i think it's important to notethat this is the second time in the last 3 yearsthe supreme court has considered the issue--when isa prisoner who's questioned while in custody in custodyfor purpose of miranda?

and in both instances,the supreme court said the prisoner was notin custody for purposes of the fifth amendment. and as laurie said earlier, the court's been clear,there's no categorical rule that says that every timea prisoner is questioned, miranda warnings haveto be given. - in our next decision,"blueford v. arkansas," the appellant, alex blueford,

was charged withthe capital murder of a 1-year-old child. he was also charged withthe lesser offenses of first-degree murder,manslaughter, and negligent homicide. the jury was instructedthat if it had reasonable doubt about blueford's guilt onthe charge of capital murder-- it would consider the chargeof murder in the first degree. if it had reasonable doubt ofhis guilt on that charge,

it would then considerthe charge of manslaughter. and if it had reasonable doubt on blueford's guilton that charge, it would then consider thecharge of negligent homicide. the jury was given verdict formsthat allowed it to convict blueford on one of the chargesor to acquit him on all of them. acquitting on some but notothers was not an option. after deliberatingfor some time, the jury foreperson declaredin open court that the jury

was unanimous against the guilt on capitalor first degree murder but it was deadlockedon manslaughter and had notvoted on negligent homicide. so the judge sent them backto deliberate some more but finally declared a mistrial. blueford was retriedby the state, which charged him again withcapital and first-degree murder. blueford claimed it violated hisrights against double jeopardy

to be tried for capitaland first-degree murder when his first jury had voted hewas not guilty of those crimes. so how did the courtsee it, erwin? - the supreme court held that itwas not a violation of double jeopardy. the supreme court said thatthe jury had never come to a verdict, either acquittalor guilty. then when the forepersondeclared where the jury was, the juryhadn't completed

its deliberations. the jury could change its mindat any point. and since there had not beena verdict by the jury, there wasn't a violationof double jeopardy in having the retrial. - but as the dissenterspoint out, this was an acquittal first jurisdiction. and therefore, the jurors musthave found that they had acquitted on the firsttwo charges in order to get

to that charge. and the dissenters argued thatthat jury decision should have been given effect. - i think this is the courttaking a much more formalistic approach deciding when there'sa violation to the right againstdouble jeopardy. - two decisions now dealingwith different aspects of the fifth amendment'sguarantee of due process. the first, "smith v. cain,"

involving the requirement that prosecutors turn overpotentially exculpatory evidence to criminal defendants. that has been the law for nearly50 years since the court's ruling in "brady v. maryland." what were the factsthere, erwin? - juan smith was convictedof 5 murders. the evidence against him attrial was solely the testimony of one witness, larry boatner.

after smith was convictedand after his conviction was affirmed and appealed, a post-conviction proceedingwas filed. at this time, there was theability of the defense lawyers to obtain the detective's notes. turns out that the detectivethat interviewed boatner the night of the murder,is that he couldn't identify who the assailant was. five days later, the samedetective interviewed boatner.

and boatner said he didn't geta clear enough view to be able to doan identification of the person who wasthe assailant. and then, of course,the argument was that this was evidence thatshould have been turned over and the failure to doso violated "brady v. maryland." - that seems prettystraightforward, laurie. did the court think so? - well, the majority did.and it was an 8-1 decision

with just justice thomasdissenting. but the majority saidthat this was a clear violation of "brady." and the key issue is whetherthis witness statement would have been material. when this is the key eyewitnessin the case, the court found no problem in sayingthis would have helped with impeachment. and, moreover, i actually thinkthat this may be a sign

that the court is beginningto crack down on some of these "brady" cases. - our second due processdecision involves eyewitness identification. this is "perryv. new hampshire." on august 15, 2008, a manin nashua, new hampshire, called the police to reportthat he had seen someone breaking into carsin the parking lot of his apartment house.

an officer responded and foundbarion perry standing in a parking lot holdingtwo car stereo speakers near the car witha smashed window and a baseball bat at his feet. meanwhile, another officer wentto the apartment of the person who calledin the original report and asked that woman who livedthere if she could identify the man who broke into the carin the parking lot. she walked over to the windowand said the man she saw

standing next tothe police officer in the lot, and pointed at perry. about a month later, policeshowed the woman a photo array that included a picture of perryand asked if she could identify the man who had broken intothe car that first night. she could not. perry moved to suppressthe identification from the night of the crime,arguing that it amounted to a one-person show-upin the parking lot by police

and that that show-up had allbut guaranteed that she would i.d. himas the culprit. so did the court sidewith mr. perry, erwin? - no. in an 8-1 decision,the supreme court held that there was nota constitutional violation. justice ginsburg wrotefor the court, and she explained that thepolice had not in any way been involved in creatinga suggestive situation for the eyewitness.

the court said that therehas to be a judicial inquiry with regard to the reliabilityof eyewitness testimony if the police are involved increating a suggestive situation. that wasn't present here. the supreme court said thatthere are other ways of ensuring the reliability ofthe eyewitness testimony. there can be cross-examination;there can be impeachment; there can be invocation ofthe right to have no conviction without proof beyonda reasonable doubt.

- and in this case, you did havea sole dissent by justice sotomayor, who really emphasizedthe tremendous problems there are with eyewitnessidentification that we know fromthe exoneration cases that about 75%of the 250 exoneration cases have been basedupon eyewitness i.d. and so she emphasizedin her dissent that there should be due processprotection

against unreliableidentifications, even if the police did notmake the identification happen. - thank you, laurie.thank you, erwin. beth wiggins will be takinga look at the court's sixth amendment decisions withour next panel. - the supreme court dealt with3 sets of issues concerning the sixth amendmentthis term. the court returned tothe confrontation clause and the question of howlaboratory reports

might be introduced intoevidence. it also expanded the scope ofits ruling in "apprendi v. new jersey"regarding trial by jury and proof beyonda reasonable doubt. and it decided 4 cases involving ineffective assistance ofcounsel under the sixth amendment. we're going to start with the confrontation clausedecision.

but first let's reviewa little background. in "crawford v. washington," the court interpreted the confrontation clause ofthe sixth amendment to hold that prosecutors may not usetestimonial statements from unavailable witnesses,even if those statements are reliable. five years later, in "melendez-diazv. massachusetts,"

the court ruled that thisapplies to laboratory reports and that the laboratory analysts who prepared the laboratorycertificate must testify. finally, last term, the courtreaffirmed this ruling in "bullcoming v. new mexico," where it held thatthe confrontation clause was violated when anotheranalyst from the lab testified rather than the analystswho actually prepared the report.

all that leads us to this term'sdecision on the confrontation clause, "williams v. illinois." among other things, this maybe the most fractured opinion of the term. erwin, can you give usthe central facts of this case? - a rape occurred in illinois. biological evidence was sent toa lab in maryland. it did a dna profile ofthe rapist

and sent it back to illinois. sandy williams was arrestedon another charge. blood was taken from him, and a dna profile wasdone of him. the illinois crime lab dida match between sandy williams' dnaand the dna that had come back on the profilefrom the maryland lab. at williams' trial, the marylandlab report was not introduced as evidence.

instead, someone fromthe illinois crime lab testified as an expert witnessthat there was a one in quadrillion chance thatit was anybody other than sandy williams who committedthe rape. williams was convicted. on appeal, he argued thatit violated the confrontation clauseto not have an analyst from the maryland lab testifyagainst him. the illinois supreme courtaffirmed the conviction.

they said it's permissibleto have an expert testify without the lab report beingintroduced. the illinois supreme court saidthe defense lawyer had ample opportunityto cross-examine the analyst from the illinois lab, and that was sufficient to meetthe confrontation clause. - so what did the supreme courtdecide, and what was its reasoning? - well, that's kind ofa compound, complex question.

and it's easier to say what thenarrow holding of the case was than what the court'sreasoning was. you had a 4-justice pluralitythat found that there had been no violationof the confrontation clause for two different reasons. first of all, the findings ofthe maryland lab were not offered for the truthof the matter asserted. that is to say, the maryland labprofile was not offered into evidence itself.

it was simply used as the basisfor the illinois lab's expert's opinion. second, the maryland lab reportcited by the expert witness was not createdfor an accusatorial purpose because the policehadn't yet arrested williams. and so he was still at-large, and the report was madeprimarily to catch an unknown rapist whowas still a fugitive. - so how did this pluralityof opinion become a majority?

- justice thomas was the fifthvote to affirm the illinois supreme court, though he disagreed withthe reasoning of the plurality. for justice thomas, what was keywas that the maryland dna report was not in his view testimonial. therefore, the confrontationclause wouldn't apply. he said in order forsomething to be testimonial, it must be "solemn and formal." he said, here it wasn't signedor attested to under oath.

it wasn't notarized. that meantit wasn't testimonial. - so what are the implications? - i think the implications arebroad. at the very least, i think thismeans that a lab analyst can testify as an expert withoutthe report coming in where the report is notdeemed testimonial. i think that justice thomas'opinion, then, really opens the door to prosecutors beingable to circumvent

"melendez-diaz"and "bullcoming." they can have an analyst testifyas an expert witness without the lab report coming inso long as the lab report was never signed, attestedto under oath, or notarized. - yeah. justice alito was notdismissive of those kinds of concerns, but he said that therewere a number of ways that trial courts could preventabuses like the ones that you're talking about. first of all, he said they canscreen out experts

who would act as mere conduitsfor hearsay by strictly enforcingthe requirement that experts have to displaysome kind of genuine scientific, technical, or other specializedknowledge that will help the trier of factto understand the evidence or to determine a fact that'san issue. secondly, he said expertsare generally precluded from exposing inadmissibleevidence to a jury. third, justice alito stressedthat if such evidence is

disclosed, then trial judgesmay--and in most cases, are-- required to actually instructthe jury that out-of-court statements can't be accepted for theirtruth and that an expert's opinion isreally only as good as the independent evidencethat establishes its underlying premises. and finally, justice alito said,if the prosecution cannot prove, cannot muster any independentadmissible evidence to prove

the foundational facts thatare essential to the relevance of the expert's testimony,then the expert's testimony cannot be given any weightby the trier of fact. - what were the other opinionsin this case? - justice breyer wrotea fascinating-- i think potentially veryimportant concurring opinion. he said there were so manyanalysts involved with regard to a dna report, the questionhas to be faced, how many of them will need tocome and testify?

he had a chart where he showed9 different analysts that were involved. and where are we going to drawthat line? he said the court didn'taddress that. and he felt that the pluralityof opinion was closest to the prior decisions and hisposition on the prior decisions, and that therefore he was goingto adhere to that. justice kagan wrote a verysharp dissent. now, it's got to be rememberedthat she was joined in that

by 3 other justices who werein the majority in "bullcoming" and also were in the majorityearlier in "melendez-diaz." and she said that it makesno sense to say that an expert can testify withoutthe lab report being introduced and that it doesn't violatethe confrontation clause. she also disagreed withjustice thomas that something becomesnon-testimonial just because it's not notarizedor just because it's not attested to under oath.

- yeah, if i could just add,i think this motley collection of opinions putson public display an internal struggle withinthe court with respect to what to do with "crawford"and its progeny, the practical ramifications ofthose decisions in the forensic evidencecontext. - it sure does. 12 years ago in"apprendi v. new jersey," the court held that the sixthamendment right to trial by jury

and proof beyonda reasonable doubt requires that any factorother than a prior conviction that leads to a sentence greaterthan the statutory maximum must be proven to the jurybeyond a reasonable doubt. the court has reaffirmedand applied "apprendi" in a series of decisions, all of them involving a prisonsentence. the issue this term in "southernunion company v. united states" is whether "apprendi" appliesto a criminal fine.

does it, evan? - it does for a couple ofreasons. first of all, at leastfor "apprendi" purposes, the court said, there's no basisfor treating a criminal fine any differently than treatingimprisonment or even death. second, if the fine is reallythat insubstantial, then the crime is considereda petty one. and the sixth amendment--right to a jury trial-- doesn't apply.

but where the sixth amendmentdoes apply, then "apprendi" applies as well. - so was this a surprisedecision? - i don't think it wasa surprise for just the reasons thatevan said. what the supreme court saidis where the sixth amendment applies, then the jury has tofind any facts other than a prior convictionto look at a sentence greater than the statutorymaximum.

i think, though, it's worthnoting that in both "apprendi"and in "booker," justices stevens and souterwere in the majority. if either of theirreplacements-- justices kagan or sotomayor-- had come out differently, thenthere could have been a major reconsideration of"apprendi" and of "booker." but the fact that they're takingthe same position as the justices replaced meansthat "apprendi" and "booker"

and the whole progeny of thosecases is still intact. - now let's move on to our4 "ineffective assistance of counsel" decisions. in two of these decisions--"lafler v. cooper" and "missouri v. frye"-- the court held that the right ofeffective assistance of counsel applies at the plea bargainingstage. the facts in these two caseswere very different, but the court's reasoningwas the same in both.

frye was chargedwith a misdemeanor-- driving with a revoked license-- and was offered a plea bargainthat his defense attorney failed to tell him about. instead of the 90 daysthe prosecutor offered, frye was convicted of a felonyat trial and sentenced to 3 years. cooper was charged with assaultwith intent to kill for shooting a woman 3 timeswhile she was fleeing.

he initially accepteda plea bargain but later rejected it when hislawyer convinced him that the state could not proveassault with intent to kill because he only shot the victimbelow the waist, which was seriously erroneousadvice. evan, what was the court'sreasoning in these two cases? - well, in essence, the courtapplied the two-step approach of "strickland v. washington" regarding ineffective assistanceof counsel.

and that's familiar to us now, but just to review very,very briefly, your first prong is thatthe performance of defense counsel has to beso deficient as to negate the sixth amendmentright to counsel. and, second of all,the defendant has to have been prejudiced or has to show thathe's been prejudiced by the inadequaterepresentation. so as it applies to the law ofplea bargaining,

the second part of the testrequires that the defendant show a reasonable probabilitythat he would have accepted the plea offer; that the prosecutor wouldn'thave withdrawn that offer; and that the court would haveaccepted it. - what about the dissents? - the majority rejectedjustice scalia's argument that the sixth amendmentis concerned solely with the right to a fair trial

and his other correlativeargument that ineffective assistanceis wholly derivative of the trial right. justice scalia also saidthat the majority was opening a whole new field of constitutionalized criminalprocedure and that beingplea bargaining law. - mm-hmm. so, erwin, howimportant were these two cases? - i think these cases aretremendously important.

i think from the perspective offederal district court judges, these are probably the mostimportant decisions of the term. 97% of all the convictionsin federal court and 94% of all the convictionsin state court are gained via guilty pleas. as evan pointed out,the supreme court rejected justice scalia's view thata fair trial is all that the sixth amendmentrequires. i think that these decisionsfollow from the supreme court's

ruling a couple years agoin "padilla v. kentucky" where the supreme court saidthat inaccurate advice with regard to immigration--consequences of a guilty plea-- is ineffective assistance ofcounsel. by the way, it's worth notingthat the supreme court has granted review for next termin "chaidez v. united states" on the question of whether ornot "padilla" applies retroactively. but i think this will alsoapply and change the practice

of law. i think you'll see that pleabargaining in many jurisdictions will become much more formalthan it's traditionally been. - yeah. and i just want to saya word about prejudice here. it's a complicated question. in dealing with prejudice,the majority suggested that the courts might holdhearings in which it canresentence petitioners to something betweenthe plea bargain on the one hand

and the trial sentence onthe other hand, or where the defendant'sconvicted of a more serious charge than those to which he wouldhave pled, the court might order the prosecution to reoffera plea. and then the court could useits discretion whether to vacate the convictionand accept the plea bargain. - one of the most importantquestions that district court judges aregoing to face is whether

this applies retroactively. i think it's important to notethat "lafler" came up via habeas and the standard under 2254(d)is where the state court decision iscontrary to an unreasonable application ofclearly established law as already articulatedby the supreme court. and justice kennedy foundthat that standard was met here.

in other words, the court wassaying, it's not creating a new rule. - that's right. and that'sa really important point, is that we shouldn't be waitingfor a follow-on decision to say, "and this is retroactive." it was on habeas corpus. - our final two cases dealingwith ineffective assistance of counsel ask when such claimscan excuse a procedural default on habeas corpus.

in martinez v. ryan, the specific question waswhether a prisoner has a right to effective counsel incollateral proceedings which first provide the occasion toraise a claim of ineffective assistance at trial. erwin, how did this play out? - it's important to notethat in arizona, claims of ineffectiveassistance of counsel cannot be raisedon direct appeal.

in this instance, a person, after being convicted and havingthe conviction affirmed, filed a proceeding forpost-conviction relief in the arizona court. he didn't raise ineffectiveassistance of counsel at that time. he then filed a subsequentpetition for post-conviction relief in the arizona courts, and this time he did raiseineffective assistanceof counsel,

claiming that in his firstpetition forpost-conviction relief, there was ineffectivenessof counsel in not challenging representationat trial. the arizona court saidprocedural default, that he didn't raiseineffectiveness of counsel in his first petition, and therefore he couldn'traise it in the second. and generally there is no rightto counsel in post-conviction proceedings.

however, the supreme court,in a 7 to 2 decision, with justice kennedy writing theopinion for the majority, said that there wasjustification for finding cause to excuse the proceduraldefault. justice kennedy said here therewasn't the opportunity to raise ineffective assistanceof counsel on direct appeal. so in essence, the petition forpost-conviction relief took the form of a directappeal. and in thesecircumstances, then,

there can be a claimof ineffectiveness of counsel with regard topost-conviction relief. but i want to emphasize i thinkthe court's holding is narrow. i think it appliesonly in states where ineffective assistance ofcounsel cannot be raised on direct appeal. then, it seems, there's a right to effectiveness of counsel inthe first petition for post-conviction relief

to be able to raise ineffectiveassistance counsel claims. - thanks, erwin. evan, could you tell us aboutour last case, maples v. thomas? - yeah. corey maples was sentencedto death in alabama in 1997. two young lawyers at sullivanand cromwell in new york volunteered torepresent him pro se. they found local counsel, theypetitioned to be allowed to

practice in alabama for thelimited purposes of that case, and they filed a petition forpost-conviction relief on maples' behalf, alleging ineffective assistanceof his counsel at trial. local counsel made it clear thathe was only involved in the case for the limited purpose ofgetting them admittedpro hac vice and that he did not knowanything about criminal law and that he wasn't taking anysubstantive responsibility for the case.

now, while the petition forpost-conviction reliefwas pending, those two associates left theemploy of sullivan and cromwell for positions that, let's justsay, precluded them from any further representationof mr. maples. the problem was they failed toinform the alabama court, local counsel, or their clientthat they could no longerrepresent him. when the trial court denied thepetition for post-conviction relief, it sent the notice tothe firm, where the mailroom returned that notice stamped,quote, unquote,

"recipient unknown." local counsel figured thatthe new york firm was handling the matter, and so he didn't payany attention to it. by the time maples learned whathad happened, his time for appeal had lapsed, and the alabamacourts denied him relief on the grounds that hissubsequent appeal was untimely. a majority of the united statessupreme court held that

although it was true thatnegligence on the part of a lawyer would not count ascause to excuse a procedural default, this was morethan negligence. it was a complete abandonmentby his counsel, and therefore, that was sufficientto constitute cause for purposes ofprocedural default. - thanks, evan.thanks again, erwin. - 4 decisions now on sentencing, with the court addressingimportant questions

about judges' discretion anddealing with issues of both constitutional lawand statutory interpretation. miller v. alabamaand jackson v. hobbs both involved 14 year-olddefendants convicted of homicide who were given mandatory lifewithout parole sentences. the question before the courtwas whether such sentences violated miller's and jackson'sprotection against cruel and unusual punishmentunder the eighth amendment. how did the court answerthat question, laurie?

- well, the court answered it bysaying, yes, there was an eighth amendment violation, and the court did so by reachingback to a couple of decisions the court has made recently. one was roper v. simmons, where the court held that thedeath penalty for juveniles violated the eighth amendment, and also graham v. florida, where the court found that lifein prison without possibility of

parole for non-homicide crimesfor juveniles would violate the eighth amendment. the court had made a point inboth of those decisions of saying juveniles aredifferent-- they're more impulsive,they're less able to judge the consequencesof their acts, they're more susceptible to peer pressure. and therefore, even,constitutionally, the court would look at it differently.

so here, the court usedthe same logic, and it said you could not havemandatory life withoutthe possibility of parole for juveniles, even onhomicide crimes. - but, to be clear,the court did not saythat juveniles could not be given a sentence of lifewithout parole, just that it could not be mandatory. - yes, that is right. judges can still sentencejuveniles to lifewithout parole, but they have to be able toconsider mitigatingcircumstances.

they have to be able to considerthose fundamental differences between children and adultsthat laurie talked about, take into consideration thingslike family situation, before they get sentenced. the majority distinguisheda famous eighth amendmentprecedent, harmelin v. michigan,where the defendant was given life withoutpossibility of parole for simply possessing a largeamount of cocaine, and the majority saidthat's different,

harmelin had nothingto do with juveniles. - and the majority and thedissenters didn't just disagree on the decision in this case,but on the process the majority used to reach thatdecision, didn't they? - absolutely.in fact, chief justice roberts made a point of saying thatthe standard of evolvingstandards of decency doesn't always mean moreleniency towards the defendant. to answer that question ofwhat's an evolving standard, he says that the courts shouldbe looking to the statelegislatures to see

what would bethe appropriate sentence. - yeah, and the majority answersby saying, well, there is no national consensus formandatory lwop sentences for juvenile murderers, despitethe fact that 28 states and the district of columbiahave such laws on their books. and justice scalia writes thatthe majority is ignoring the evidence of trends in the statesin deciding what is, quote, unquote, "unusual" and is instead substitutingtheir own value judgment.

- and in fact, the majoritygoes a step further and says not only do they think amandatory life without paroleis unconstitutional, but they think even whenit's not mandatory, it will be uncommon. - now a second set ofcompanion cases, dorsey v. united statesand hill v. united states. here the question was, did thefair sentencing act of 2010, which went into effect on august3 of that year, and which readjusted the mandatorysentencing disparities

for crack and powder cocaine,apply to offenders who were convicted before august 3but sentenced afterwards? a little background here. the 1986 drug act established a100 to 1 disparity in the amount of crack and powder cocainerequired to trigger mandatory minimum sentences. so 5 grams of crack got youthe same sentence as 500 grams of powder cocaine. well, the fair sentencing actreduced those disparities

to 18 to 1 by increasing the amount ofcrack cocaine needed to trigger the 5- and 10-year minimums. the change was also made to thefederal sentencing guidelines. the court decided in these twocases that the fair sentencing act's new lower mandatoryminimums apply to post-act sentencing of pre-act offenders. so what was the core disputein this case, evan? - well, your problem is you'vegot two statutes that are

pointing in opposite directions. one, as you mentioned, isthe fair sentencing act, suggesting by its terms thatdefendants sentenced afterthe act's effective date should receive the morelenient punishment that's set forth there. but then you havethis other statute, the general federal savingsstatute, which says that a statute that repeals an olderstatute does not change the penalties,quote, unquote, "incurred"

under the older statute unlessthe repealing act so provides. now, both the majority and thedissenters agreed that the savings statute did not requirean "express" statement that the new thresholds apply. it was enough that the plainimport of the new statute was that the new standardswould apply. - but i think that's the problemthat the majority and dissent have with each other as to whether this statute, thenew the fair sentencing act,

actually has thatplain import standard. - what do you think is theimpact of this decision? - well, certainly one impactis that it's going to help offenders who committed theircrimes before the fair sentencing act becameeffective but were sentenced afterwards, but i think there'salso an indication in how the court did itsstatutory interpretation that it's going to look beyondthe language of the statute

to see if it also impactssentencing disparities. - finally we are going to lookat setser v. united states, which asks whethera district judge in sentencing a defendant for a federaloffense has the authority to order that the federal sentencebe consecutive to an anticipated state sentence that hasnot yet been imposed. setser was arrested forpossessing methamphetamine while serving a 5-year term ofprobation for a previous state level drug crime.

he was indicted in state courtfor possession with intent to deliver and in federal courtfor what was essentially the same crime. the state also moved torevoke his probation, and the federal judge imposed a151-month sentence to run consecutively to any sentencethe state might yet impose for the probation violation butconcurrent to any new state drug sentence. so, evan,if the district judge did not

have the discretion to dothat, who supposedly did? - well, setser and the federalgovernment argued that it was the bureau of prisonsand not the district court that should have the authority todecide whether the federal sentence should runconcurrently or consecutively with any state sentencesthat would be imposed. but the united states supremecourt sided with federal judges, said that they should bedeciding--majority said that there was a common law traditionin favor of federal trial judgesexercising broad discretion

on the concurrentversus consecutive question and that there was nothing inthe statutes that takesthat discretion away. - i think the majority said alsoyou have the judges applying the 35-53a standardand the factors in it, and so that a trial court, ifthey make a mistake on this, they can reconsider it if thebureau of prisons come back and makes a motion to reduceor change the sentence. - yeah. you know, the dissentersfelt that it made more sense for the bop to make the decision

because of an informationalproblem, that the district court would not yet have allthe facts, because the state sentenceswouldn't have beenhanded down yet, but that the bop would havethe benefit of that hindsight. up next, a discussion of thecourt's long-awaited decision on the federal health care law. - no decision this term wasmore intently awaited than the court's opinion on theconstitutionality of the patient protection and affordable careact, the 2009 law that expands

health care coveragein this country for tens of millions of people. there were 3 cases challengingthe law that worked their way up through the courts of appealsin the last 3 years, and these cases presented the courtwith two major issues. first, was the so-calledindividual mandateconstitutional? the individual mandaterequires that by 2014, everyone in the united stateswho does not already havehealth insurance must purchase itor pay an amount tothe federal government.

undocumented aliens do not comeunder the mandate, and also, there is financial aid to helppay for insurance for people who can't afford itbut aren't poor enoughto qualify for medicaid. second, was the federalgovernment coercing the states to do its bidding, and violatingthe principles of federalism, by threatening to take away allmedicaid funding from the states if they did not expand medicaidcoverage under the new law? there were 4 opinions inthis case: a majority opinion, a combination concurrenceand dissent,

and two complete dissents. suzanna, can you start parsingall of this for us? - let's start by talking aboutthe government's arguments to uphold the individual mandate. the government argued that themandate could be upheld on 3 separate constitutionalgrounds: congress' powerunder the commerce clause, its authority under thenecessary and proper clause, and finally its taxing power.

now, because 5 justicesrejected the commerce clause and necessary and properarguments, which we'll turn to in a minute, the court had toreach the question of whether this came withincongress' power to tax. - and the supreme court held5-4 that the individual mandate was constitutional becauseit does fit within the scope of congress' taxingand spending power. chief justice roberts wrotefor the majority here. chief justice robertsexplained that the individual

mandate is in everyway functionally a tax. it's calculated as apercentage of income, or a small flat rate. for 2014, it's 1%of income or $95. it's collected by theinternal revenue service. it goes to generalfederal revenue. it'll be about $4 billion for the federalgovernment in 2014. chief justice roberts, relyingon earlier cases, said

the label used by thepresident and congress isn't determinative. because this is a tax,it falls within the scope of congress' article 1 section8 taxing and spending power. chief justice roberts' opinionhere was joined by justices ginsburg, breyer,sotomayor, and kagan. - so there weretwo questions here. first, is it a penalty,or is it a tax? and second, if it is a tax,is it a direct tax that needs

to be apportioned tobe constitutional? suzanna? - well,the court said that even though it could be construedas a tax, it was not a direct tax, so it didn't haveto be apportioned. but i think a more interestingquestion is, the chief justice's vote to uphold themandate as a tax has some other implications. he wrote that even thoughinterpreting it as a tax is

not its most natural reading,the court had to use every reasonable construction of thestatute in order to give the statute the full measureof deference that's owed to congress and to save a statutefrom unconstitutionality. now, this is consistent withessentially a lot of precedent that says if congress canenact a statute under one power, it doesn't reallymatter what power congress thinks it's acting under. but justice ginsburg in heropinion asked why if the chief

justice was going to vote touphold it under the taxing power, why did he need to reach thecommerce clause and necessary and proper questions? and his response was thathe only adopted this "saving construction" of the mandateas a tax, which, as he says, is not a natural reading--heonly adopts it because he has to. if it wasn't for theunconstitutionality under the

commerce clause, he wouldn'teven have to reach the question of a tax and hewouldn't have interpreted the statute as a tax. so the way i read this,i think it's a fairly strong reaffirmation of twolongstanding principles. one is the canon of avoidanceof constitutional questions, and the other is the deferenceowed to congress with the presumption ofconstitutionality. now, the court has, of course,applied those principles

before, but sometimes it'sbeen a little uneven in its application. so it's not entirely clearhow strong this reaffirmation of those principles is. - i think you're right. i think it is a reaffirmationof congress' power to tax, and i think the message is,should congress ever want to discourage behavior in thefuture, congress can do so by imposing a tax on it.

i guess we will have to waitand see how the lower courts interpret that part of thedecision and ultimately how the supreme court rules. so lets talk about thegovernment's arguments based on the commerce clause and thenecessary and proper clause. - well,with regard to the commerce clause, 5 justices--chiefjustice roberts, writing for himself, and the 4dissenting justices--rejected the argument that theindividual mandate's

in the scope of congress'commerce power. chief justice robertsreaffirmed all of the existing precedents with regard to thescope of congress' commerce power, but he said what theyestablished was that congress can regulateeconomic activity. both chief justice roberts andthe dissenting justices said when congress was forcingpeople to purchase insurance, they were regulating those whowere not engaged in commerce. they were regulatinginactivity, and that was

beyond the scopeof congress' power. justice ginsburg, joined byjustices breyer, sotomayor, and kagan, stronglydisagreed with that. justice ginsburg said everyonein the united states is using health care, thereforeeveryone is engaged in economic activity. everyone's either buyinginsurance or self-insuring. what congress is doing isregulating those who are self-insuring, and that'spermissible, in her view,

under the commerce power. - the chief's argumentsin this case, i think, were mostly slipperyslope arguments. he was worried that if thegovernment can force people to buy health insurance, the government can forcepeople to buy anything. and certainly the dissent'sargument--the joint dissent's argument--was also aslippery slope argument. in their unsigned opinionthat was jointly written by

justices kennedy, scalia,alito, and thomas, they say several times something alongthe lines of if this law does not exceed congress'constitutional powers, then nothing does. but i think the mostimportant thing to know about the commerce clauseanalysis is that it may not matter in the future. health care and healthinsurance is pretty unique. congress isn't likely totry and force people to buy

anything else. so even the majorityholding that congress is here regulating inactivity andthat the commerce clause prohibits them from regulatinginactivity, that it's not within their commerce clausepower, i don't think that that's going to make anydifference in the future. for all practical purposes,as you say, the court reaffirmed--justice robertsand the dissenting justices reaffirmed all of the existingcommerce clause jurisprudence.

so i think that the commerceclause jurisprudence is exactly where it wasbefore this case. - i have a somewhatdifferent take on that. i certainly agree with youthat i think it's unlikely that congress is gonna becompelling economic transactions into the future. certainly the unpopularityin certain quarters of the individual mandatemakes it even less likely to happen.

on the other hand, wheneverthe court draws a distinction, like activity versusinactivity or direct versus indirect, i think that's anopen invitation to litigation. it's uncertain what thecourts will do with it. let me give you an example. title ii of the 1964 civilrights act, which was adopted by congress under its commerceclause power, prevents hotels and restaurants fromdiscriminating onthe basis of race. were hotels and restaurantsthat discriminated based

on race engaging in inactivity,or is that activity? now, i don't think the supremecourt's gonna declare title ii of the 1964 civil rights actunconstitutional, but i do think it shows howcharacterizations and labels can lead to challenges, and i think theywill in the future. - no, i disagree. i don't think title ii isany danger, because hotels and restaurants are engagedin commerce just by operating

their business, and congresscan regulate how they operate that business. what's unique about healthinsurance is that the people who don't have healthinsurance are not engaged in commerce at all. they are not doing anything. and the question is whethercongress can force them to enter into acommercial transaction, and the disagreement betweenchief justice roberts

and the partial dissent iswhether the fact that most people will inevitably needhealth care in the future, whether that's enough torequire them to buy health insurance now. - so, erwin, what about the necessary andproper clause argument? - chief justice robertswrote here that the necessary and proper clause is not anindependent power of congress. he said what the necessary andproper clause does is allow

congress to choose the meansto carry out its other powers, and thus it wasn't asufficient independent basis for upholding theindividual mandate. - well,let's turn to the other major issue in this case, whethercongress was coercing the states by threatening to takeaway all of their medicaid funding if they did not expandcoverage in that program under the new health care act. what did thecourt decide here?

- well,here the decision was actually 7 to 2. only justices ginsburg andsotomayor dissented, and what the court held that thecongress was impermissibly coercing the states bythreatening to take away all of their medicaid fundingbecause some states stood to lose as much as 20% of theirannual budget if congress took away their medicaid funding. and the court said thatcongress could withhold

the expansion of the medicaidfunds--the new medicaid funds-- if the states did not abideby the expansion, but they couldn't take away the states'pre-existing medicaid funds. now, what's thedifference between coercion and encouragement? neither the chief justice'smajority nor the joint dissent said exactly where the linewas between encouragement and coercion, but they both saidthat congress had crossed it. and i think this may wellbe the most doctrinally

significant partof the decision. - i agree with that. i think it's the part of thecase that's most likely to lead to future litigation. this is the first time thesupreme court has ever found that any conditions on federalmoney were so coercive as to exceed the scope of congress'power and to violate the tenth amendment. there are so many federallaws that tie federal money to

state and local governments toconditions, and the question is when are they too coercive? think of the solomon amendmentthat says that if a law school refused to allow themilitary to recruit on campus, the university will loseall of its federal money. is that too coercive? or think about federal civilrights laws that say that if any part of a universitydiscriminates on the basis of race or gender, the entireuniversity will lose all

of its funds. or no child left behind. - no,i don't think that's right. well, first of all, the chiefjustice described the medicaid expansion as a "gunto the head." so i think that requires avery strong level of coercion, and in particular, i thinkit requires that a very high percentage of the state'sbudget be at issue. so your example of theuniversities, i don't think

that any laws affecting stateuniversities are likely to fall under this--under thiscase because the university budget is such a small partof the state's budget. now, your no child leftbehind example is different. there might be enough there,but still i think that the part of the state's budgetthat would be affected if congress were to take awayfunding under that statute is still something like 5% to 10%of a state's budget, which is much more similar to whatwas at issue in

dole v. south dakota, thehighway funding case, where the courts said thatcongress was not being coercive. so i think i'm sticking tomy view that no other federal statute is actually likelyto be held coercive, although you're right, theremight be challenges. - those developments willbe interesting to watch. thanks, suzanna.thanks, erwin. - now,two decisions about federalism and two regardingthe authority

of the federal courts. first, one of the mostanticipated decisions of the term, arizona v.united states. an arizona law made statecrimes out of some actions by undocumented immigrantsand gave police officers in arizona authority toenforce some federal immigration violations. the court reviewed 4 sectionsof the law and came to different conclusions abouttheir constitutionality

or unconstitutionality. evan, can you start us out? - well,why don't i start with the 3 that the court struck down? there was section 3 of thelaw, which made failure to comply with federal alienregistration law a misdemeanor in arizona; then there wassection 5-c, which made it a misdemeanor for anundocumented alien to seek or engage in employment in thestate of arizona; and then

there was section 6,which authorized state law enforcement to conductwarrantless arrests of persons when they had probable causeto believe that the person had committed a deportableoffense. the 5-justice majority inthis case found that these 3 sections conflicted witha comprehensive system of federal immigrationregulation and therefore were impliedly preemptedby federal law. - and what about thefourth section, suzanna?

- well, the fourth section wassection 2-b, the "show me your papers"section, and that was the one that gatheredmost of the attention. under 2-b, state officers arerequired to make a reasonable attempt to determine animmigration status of anyone that they properlystop or detain. and what the court found herewas that it was premature to decide whether that statute,that section, was or was not preempted because thesection could be interpreted

and applied in ways that wereconstitutional and ways that were not preempted. the court pointed out thatstate level law officers already have the authority tocheck with federal immigration officials on the status,and so they can just do that, and that would be fine. the majority, though,also pointed out that the statute could be challenged-- this section of the statutecould be challenged later as

it's interpreted and appliedonce it goes into effect. and they gave as an examplethat if 2-b was interpreted and applied to allowofficers to detain someone for an unreasonable amountof time just to check their immigration status, that thatcould be unconstitutional. - and what about the dissents? - justice scalia wrote a very,very strong dissent in this case. he defended arizona'ssovereign authority to defend

its borders and to excludepersons from the state that it didn't want to be there. he said that field preemption,which is what he really thought was going on in thiscase, is not sufficient to overcome state sovereigntyin the immigration field. - that's what he said. there are a couple of otherpoints that are interesting-- side points--about this case. first of all, justice kaganrecused herself, presumably

because she had dealt withthe issue when she was solicitor general. but that means that if thecourt had split 4-4 without her, the ninth circuitdecision would have been affirmed, but there wouldhave been no supreme court decision, and that wasprevented because chief justice roberts didjoin the majority. and he did so in full. he didn't write aseparate opinion.

he didn't explainany other reasons. so that's interesting. the second interesting pointis not one of the opinions in this case cited the court'sdecision from a few terms ago in at&t v. concepcion, which is oneof the court's most recent and most elaborateddiscussions of implied preemption. i think concepcion wouldhave supported the majority's

decision in this case,but 3 of the justices who were in the majority in thiscase dissented in concepcion, and so they probablydidn't want to cite it. - our second federalismdecision, coleman v. maryland court of appeals,involves the federal family and medical leave act. under that law, employers mustallow employees to take leave to care for themselves whenill or to care for a new child or a sick family member.

the question before the courtwas if a state employer--here, the marylandcourt of appeals-- does not allow anemployee such leave to care for himself, does the state'ssovereign immunity protect it from being suedin the federal court? and what did thecourt decide, suzanna? - well, that takesa little explaining. we have to start with thefirst thing to remember, which is that a state--aslong as it doesn't waive its

sovereign immunity, a statecan only be sued if congress abrogates its immunity,and congress can only abrogate a state's immunity whencongress is acting under section 5 of the14th amendment. so the real question in thiscase is whether the family and medical leave act was avalid act of congress under section 5. it's clearly valid underthe commerce clause, but the question is whetherit's valid under section 5.

so a few years ago, in 2003, in nevada department of humanresources v. hibbs, the court decided thatcongress did validly abrogate the state's sovereign immunitywhen it required leave for family care and soemployees could sue states for violating thatportion of the fmla. but here in coleman, the courtheld that congress' attempt to abrogate sovereign immunity inrequiring leave for self-care was not valid under section 5because it was not a congruent

and proportional remedy fora constitutional violation, and so congresscouldn't do it. - can you explain thata little more, evan? - well,in the hibbs decision, the court found that thestates had family leave policies that differentiatedon the basis of gender and discriminatedagainst female employees. there was evidence of apattern of such discrimination against women over anumber of years that

was unconstitutional. that's the hibbs case. coleman, on the other hand,could not prove that pattern of discrimination. the evidence here was thatmen took self-care leave at about the same ratethat women were taking it, and there was no widespreaddiscrimination against women for taking self-care leave. - so how does this decisionaffect the law in this area?

- i think it basically sendsa signal that the hibbs case, as well as a 2004 case whichalso allowed congressional abrogation, tennessee v. lane, were somewhat ofaberrations in allowing congress broad latitude undersection 5 in abrogating state sovereign immunity. i think what this tells usis that congress, in order to abrogate state sovereignimmunity, is really going to have to provide solidevidence of a pattern of state

constitutional violations. - yeah. justice scalia onlyconcurred in the judgment. and he would go all the way. he would say, let's get ridof the congruence and proportionality test. it's improper for the courtto be engaging in that. and let's prohibit congressfrom adopting any kind of prophylactic remedies,except in race discrimination cases, where staredecisis would control.

- now let's look at our twodecisions affecting jurisdiction and procedure inthe federal courts. the first of these is anotherdecision dealing with the rights of public employeesto bring employment actions in federal court. the decision involves theright of federal employees to bring employmentdiscrimination claims that's elgin v.department of the treasury. the civil service reformact allows certain federal

employees to obtainadministrative and judicial review of specifiedadverse employment actions. judicial review takes placein the federal circuit court of appeals. now, the question before thecourt was whether that process was exclusive under thestatute or if affected employees can bring suitin federal district court alleging that their dismissalwas unconstitutional. so what did the court answerin that situation, suzanna?

- the majority held that thecsra provided the exclusive avenue for review ofcovered decisions. - was it unexpected? - no, i don't think itwas very surprising. congress' intent was prettyclear--the statute was pretty clear--that they wantedthe csra to be exclusive. the statute does makesome other exceptions. so, for example, employmentactions that are alleged to violate one of the federalemployment discrimination

statutes are accepted fromthe statute--exempted from the statute, and so congress knowshow to make an exception to the csra if it wants to. and the law also does providefor some judicial review in the federal circuit, as yousaid, so it doesn't raise any really hard questions aboutwhat do you do if there's a decision by an agencythat is not reviewable at all in court? - the federal employee whobrought the action in this

case, michael elgin,was terminated because he refused to register withthe selective service. he claimed that theregistration requirement was unconstitutional on its faceas a violation of the equal protection clause and alsothe bill of attainder clause. the court found that while themerit system protection board, which is charged in the actto review the employee's complaint, lacked jurisdictionto adjudicate a facial constitutional challenge to astatute, it could find enough

facts to provide the federalcircuit with a sufficient record to engage in anas-applied analysis of the statute. - we should note that therewas a dissent in this case. the dissenters argued thatthese constitutional claims that evan was talking aboutare not the kinds of claims that congress wanted tochannel through the csra, but i think that is a reallyhard argument to make in light of the language andhistory of the statute.

- yeah,and i think the take-home message for federal judges inthis case is that the burden is on the plaintiff to showthat it is not, quote, unquote, "fairly discernible"that congress intended to preclude such an actionfrom being brought - earlier we mentioned at&t v.concepcion in regards to federal preemption. now, the facts of that caseinvolved an arbitration clause in a consumer contract,the enforceability of which

the court upheld. but this term,in compucredit v. greenwood, the courtaddresses arbitration clauses for the first time sinceconcepcion and again finds them to be broadlyenforceable. the question here is oneof statutory interpretation regarding what seem to beconflicting mandates between two federal statutes. so can you, evan, helpus explain the conflict?

- the credit repairorganizations act, or croa, establishes a consumer'sright to sue in disagreements with companies that haveprovided them with credit. greenwood was part of aclass action suit against compucredit over credit cardsthat it had issued to the members of the class. but the agreement they signedwhen they applied for the card said that any claim, dispute,or controversy between the parties would have tobe resolved

in binding arbitration. so the question before thecourt was whether congress meant to override thefederal arbitration act, which promotes enforcement ofarbitration clauses where they exist, when itenacted the croa? - and what did thecourt decide, suzanna? - it held that congress didnot intend to override it. it said that while the croaprovided for a right to sue-- it established a right to sue--

it did not establish a rightto sue in court. so it was possible forindividuals to waive the right to sue in court. all the croa does is givenotice, the court said, of remedies that are availableelsewhere, and there's no remedy that requires that theybe allowed to sue in court. - yeah, and thecourt explained that because arbitration agreementsin federal statutes were commonplace when croa wasenacted, the fact that

congress did not expresslyrule out enforcement of an arbitration agreement,that inclined the majority to believe that congress fullyexpected that the faawould apply. - this is very much in keepingwith a series of cases that the court's been deciding thathave basically been holding that if congress wantssomething to override the faa, congress has to doso quite explicitly. - thank you, evan.thanks, suzanna. - finally, we look at 3 civilrights decisions reached by

the court this term. all 3 involved suitsagainst individuals working for the government, and all 3ruled against the plaintiffs. erwin, can you tellus about minecci v. pollard? - pollard was a prisoner ata private prison that was operating under a contractwith the federal government. he fell while in the prison,landed on his arms, and fractured both elbows. he claimed that his medicaltreatment showed deliberate

indifference and this wascruel and unusual punishment. he said when he was taken to thehospital he was put in arm restraints which causedhim excruciating pain. he said that also he wasn'ttaken for appropriate x-rays and rehabilitation. and he brought a suit againstthe private prison guards under bivens, claiming itwas a violation of his constitutional rights. - why did the court ruleagainst pollard, laurie?

- well,because the court used a two-part test to decidewhether there was a right under bivens to sue. and the court said first,is there an alternative process for pollard touse to protect his constitutional rights? and here, there is a statetort action that he could use. and second, even if there isno alternative process that would be as giving as a bivensaction, are there other factors

counseling against authorizingthe federal litigation? so in this case, thecourt said a bivens is the wrong remedy. there is a statetort law available. it's adequate enoughto deter this type of constitutional violation. and even though the state tortacton might have limitations that forbid recovery foremotional damages or the amount of recovery, it didn'tmean that it authorized

a bivens action. - i think there are acouple of things that are significant here. in 2001, in correctionsdepartment v. malesko, the supreme courtsaid that private prisons cannot be sued under bivens. now the supreme court hasalso said that private prison guards at those entities alsocan't be sued under bivens. and second, this is the firsttime the supreme court has

ever said that the existenceof a state tort remedy precludes the availabilityof a bivens cause of action. in bivens itself, there was astate tort remedy available, but the supreme courtsaid that the vindication of federal constitutionalrights shouldn't depend on the vagariesof state tort law. now the supreme court issaying at least in this context, the existence ofstate tort remedy precludes the bivens cause of action.

- the appellee in the nextcase, james paulk, was the chief investigator inthe d.a.'s office. paulk testified 3 times beforea grand jury that charles rehberg had harassed thepersonnel of a local hospital. 3 times the grand juryindicted rehberg, and 3 times rehberg got theindictments dismissed. finally, rehberg sued paulkunder section 1983 for denying him his civil rightsunder color of law. paulk asserted absoluteimmunity as his defense.

the question before the courtwas, does absolute immunity protect a government officialwho is a complaining witness in a grand jury proceeding? laurie, what was thecourt's reasoning here? - well,the court came out with a unanimous decisionhere, and they said in fact, if you look at common lawprinciples, trial witnesses had the immunity, so the samething should apply here for grand jury witnesses.

and for policy reason,the court thought it was important to providethis immunity. one, they didn't wantwitnesses to be reluctant to come before the grand jury,and second of all, they were worried aboutgrand jury secrecy. so the court says, we'regonna take the principles from common law that apply to trialwitnesses and apply it to grand jury witnesses. now, one thing we should makea point of is that the court

didn't say that that immunityapplied to things that happened outside the grand jury room. so if there were falseaffidavits or other types of misconduct, maybethere would be an action. - so was this a significantexpansion on earlier rulings? - in briscoe v. lahue, the supreme court saidthat police officers have absolute immunity to civilsuits for damages if they give false testimony at trial.

i do think that this is anexpansion because this says it doesn't matter whether it'sa police officer or an investigator. it doesn't matter whetherit's a trial or a grand jury. it doesn't matter that it'sthe chief complaining witness. absolute immunitystill applies. and i think the question is,how far will this extend? what about testimony ata preliminary hearing? what about testimony ata suppression motion?

or laurie gives the exampleabout, what about false statements in anaffidavit or declaration? in kalina v. fletcher in 1997, the supremecourt said, those aren't protected by absoluteimmunity, but is there really a meaningful distinctionbetween this case and that one? - and our final decision isabout qualified immunity. this is filarsky v. delia.

qualified immunity here meansthat government officials who are not protected by absoluteimmunity are still protected by qualified immunity whensued for money damages so long as it cannot be provedthat they violated clearly established law thata reasonable officer should know. the issue in filarsky iswhether private individuals who are contracting with astate or local government and acting under color of lawcan claim qualified immunity

as a defense. erwin,what were the facts? - delia was a firefighterwho then took time off work for a medical disability. but he was seen going to ahome improvement store buying building supplies. when that was reported to hisemployer, they were thinking, maybe he's notreally disabled. so they hired a privateinvestigator to go to his home

to see, and the privateinvestigator and others went and said, we want to see thebuilding materials to see that you haven't installed them. he believed that he wasbeing harassed and that his constitutional rights wereviolated, and he brought a civil suit against thatprivate investigator, who was contracted with thegovernment, saying there was a constitutional violation. - so how did thecourt analyze this?

- well,again the court looked to history, and the courtsaid that there was a long tradition of private citizenshelping with government work. so when 1983 was actuallyenacted, private individuals were doing all sortsof government services. they were serving with sheriffposses, they were ferrymen, they were even sometimespart-time prosecutors. based upon that, that thecommon law did not draw a distinction between afull-time public servant

and a private individual whomight help with government service, the courtsaid that it would not. so, bottom line out of thiscase, private individuals who are doing the work for thegovernment will have the same type of immunity whetheror not they're full-time public servants. - this is a significantchange to the law. in two prior cases, wyatt v.cole and richardson v. mcnight, the supreme court said thatwhen private individuals are

acting under color of law,they are not protected by qualified immunity. the supreme court did notoverrule those decisions, but clearly limited themessentially to the fact--and i agree with laurie's conclusion-- that apart from facts like those earlier decisions,when a private individual acting under color of law issued, that person can raise qualified immunityas a defense.

- you know, erwin, i thinkwe can sum up these cases by saying it is a lot easier nowto defend against civil rights actions, and if you look atwhat we have in these 3 cases-- first, that there is nobivens action unless there are no other adequate remedies;two, that the court is going to continue to look atimmunity as evolved under the common law; and third, that aperson being sued doesn't have to have that full-timerelationship as a government servant to have the immunity;it does make it harder to

bring these civilrights actions. - thanks, laurie,thanks, erwin. here's john cookewith some final words. - that's our programfor this year. i thank our faculty fortheir thoughtful discussion. we hope you found the programuseful and interesting.