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Roberts and Kennedy were most often in the Supreme Court majority in Term 2009

By Erwin Chemerinsky


Supreme CourtOctober Term 2009 will be most remembered for being the last on the Court after 35 years for Justice John Paul Stevens and the first for Justice Sonia Sotomayor. In many ways, it was like the prior four years in which John Roberts was Chief Justice. The Court decided 73 cases after briefing and oral argument, almost the same as the 75 during the year before.

There were 17 5-4 decisions, down a bit from the 23 5-4 rulings during October Term 2008. As has been true in each of the five years of the Roberts Court, Anthony Kennedy was in the majority in more 5-4 decisions — 13 of 17 ­— than any other justice.

A clear sense of the overall ideology of the Roberts Court can be found by looking at the 5-4 decisions in which the Court split along ideological lines, with Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito on one side, and Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sotomayor on the other. There were 12 such cases and Justice Kennedy sided with the conservative justices in nine of these and with the liberals in three. The year before, there were 16 such cases and Kennedy sided with conservatives in 11 and the liberals in five.

Chief Justice Roberts and Justice Kennedy were in the majority most frequently, each being part of the majority in 92 percent of the cases. The two justices most often in agreement were Justices Scalia and Thomas, agreeing 92 percent of the time. Interestingly, the next most frequent agreement was between Justices Ginsburg, Breyer and Sotomayor, who agreed with each other in 90 percent of the cases.


For lawyers, some of the decisions with the greatest practical significance received the least media attention and did not divide the Court along ideological lines. For example, in Hertz v. Friend, the Court ruled unanimously that for purposes of diversity jurisdiction, a corporation’s principal place of business is determined by looking to where it has its “nerve center,” which is usually based on the location of its corporate headquarters. Under 28 U.S.C. §1332, a corporation is deemed to be a citizen of both the state where it is incorporated and the state where it has its principal place of business.

In Mohawk Industries Inc. v. Carpenter, the Court ruled that the denial of the protection of the attorney-client privilege by a federal district court is not subject to an interlocutory appeal. In Justice Sotomayor’s first opinion for the Court, the justices unanimously stressed the strong presumption against interlocutory appeals and held that this applies even when a federal district court’s order will mean the revelation of material covered by the attorney-client privilege.


John Paul Stevens

The most high profile criminal case of the year, Skilling v. United States, involved Jeffrey Skilling, convicted for his role in the Enron scandal. In a 6-3 ruling, with Justice Ginsburg writing for the majority and Justices Stevens, Breyer and Sotomayor dissenting, the Court rejected Skilling’s claim that extensive pretrial publicity deprived him of an impartial jury. The Court emphasized that media coverage, even press reports that are highly critical of a defendant, do not require reversal of a conviction so long as the trial court carefully questions prospective jurors to ensure a fair jury.

Even more important, also by a 6-3 margin, the Court concluded that the federal statute prohibiting the denial of intangible “honest services,” 18 U.S.C. §1346 is limited to instances of bribery and kickbacks. With Justice Ginsburg again writing for the majority, but with Justices Scalia, Kennedy and Thomas dissenting, the Court rejected a claim that “honest services” is unconstitutionally vague and saved the statute by limiting its application to bribes and kickbacks. Skilling’s case was reversed and remanded for a determination of whether the failure to instruct the jury in this way was harmless error or whether a new trial is needed.

Sonia Sotomayor

There were two important cases concerning the Fifth Amendment privilege against self-incrimination and both were victories for law enforcement. In Berguis v. Thompkins, the Court ruled, 5-4, that a defendant must explicitly invoke his or her right to remain silent and that any answers to police questions are sufficient to constitute a waiver. Thompkins was arrested for murder, given his Miranda warnings and questioned by police for two hours and 45 minutes. He remained almost completely silent during this time.

The officer then asked Thompkins if he believed in God. Thompkins answered yes. Thompkins was asked whether he prayed to God. Thompkins again answered yes. Thompkins was asked whether he would pray for forgiveness for shooting and killing the victim. Thompkins once more answered yes. These answers were used against him at trial and were regarded as key evidence in securing his conviction.

Justice Kennedy, writing for the Court, concluded that being silent is not sufficient to invoke the right to remain silent. A defendant must unambiguously invoke this right. Thompkins’ answers were deemed a waiver of his Fifth Amendment privilege against self-incrimination. Justice Sotomayor wrote for the four dissenters and accused the majority of turning Miranda on its head by not requiring a clear and unambiguous waiver of a constitutional right and not allowing silence by a suspect to constitute invocation of the right to remain silent.

In Shatzer v. Maryland, the Court held that after a suspect invokes the right to counsel under Miranda v. Arizona, police cannot attempt to elicit an incriminating statement for 14 days. Earlier, in Edwards v. Arizona, the Court had ruled that police may not attempt to elicit an incriminating statement from a suspect who invokes the right to counsel under the Fifth Amendment. But in Maryland v. Shatzer, Justice Scalia, writing for a Court that was unanimous as to the result, said that there must be an expiration to this and chose 14 days as the place for drawing this line.

Finally, one of the term’s most high-profile criminal cases involved the issue of whether it is cruel and unusual punishment under the Eighth Amendment to impose a sentence of life in prison without the possibility of parole for a crime committed by a juvenile. In Roper v. Simmons, in 2005, the Court, in a 5-4 decision, held that it is cruel and unusual punishment to impose a death sentence for a crime committed by a juvenile.

In another 5-4 decision, with Justice Kennedy again writing for the Court, the justices in Graham v. Florida decided that it violates the Eighth Amendment to impose a sentence of life without the possibility of parole for a crime committed by a juvenile. Justice Kennedy emphasized the rarity of such sentences, both in the United States, where only 129 individuals (77 in Florida) are serving such sentences, and throughout the world. The Court also focused on the difference between juveniles and adults in terms of moral culpability and the chances for rehabilitation and change.


In many ways, the most significant cases of the term involved the First Amendment. Likely the year’s most important case was Citizens United v. Federal Election Commission, where the Court held that corporations have a First Amendment right to spend as much as they choose in independent expenditures in election campaigns.

The McCain-Feingold Bipartisan Campaign Finance Reform Act of 2001 prohibits corporations and unions from spending money for broadcast advertisements for or against an identifiable candidate 30 days before a primary or 60 days before a general election. In McConnell v. Federal Election Commission (2003), in a 5-4 decision, the Court upheld this as constitutional. In Citizens United, the Court expressly overruled this recent decision. The difference was that Justice O’Connor had been in the majority upholding the provision, and her replacement, Justice Alito, came to the opposite conclusion.

From a practical perspective, the ability of corporations, and by implication unions, to spend unlimited amounts of money in election campaigns will likely make a difference in many elections. The Court did not consider the constitutionality of bans on corporate and union contributions directly to candidates, but there likely are five votes to strike this down as well in a future case.

In Humanitarian Law Project v. Holder, the Court, in a 6-3 decision, upheld the constitutionality of a key federal law used in terrorism prosecutions, 18 U.S.C. §2339(B), which makes it a crime to materially assist foreign terrorist organizations. Chief Justice Roberts wrote for a majority that surprisingly included Justice Stevens as well as Scalia, Kennedy, Thomas and Alito. The Court rejected the challenge that the statute was unconstitutionally vague and held that assisting terrorist activity could include helping the organization learn to use international law or applying for humanitarian aid. The Court said that independent advocacy to advance the group’s goals is permissible but coordinated activity with a foreign terrorist organization is constitutionally prohibited even if it involves nothing but expressive activity.

Finally, in one of the most closely watched decisions of the year, Christian Legal Society v. Martinez, the Court held that the University of California Hastings College of Law could deny recognition to a student group that discriminated based on religion and sexual orientation. Justice Ginsburg wrote for the majority in a 5-4 decision and explained that a public college or university may say that a student group must be open to all students in order to be officially recognized and thus eligible to receive school funds and use school facilities. Justice Alito wrote a vehement dissent, joined by Roberts, Scalia and Thomas, in which he accused the majority of undermining freedom of speech and association.


In McDonald v. City of Chicago, the Court concluded that the Second Amendment applies to state and local governments and can be used to challenge their gun control laws. From 1791 until 2008, the Supreme Court never had invalidated any gun law. The Court had always ruled that the Second Amendment protects a right to have guns solely for the purpose of militia service. But in District of Columbia v. Heller (2008), in a 5-4 decision, the Court struck down a District of Columbia law prohibiting private ownership or possession of handguns.

Because the District of Columbia is a part of the federal government, the Court had no occasion to consider whether this right applies to state and local governments. In McDonald, again in a 5-4 decision with Justice Alito writing for a majority that included Roberts, Scalia, Kennedy and Thomas, the Court held that this right applies to state and local governments. As in Heller, the Court stressed that this is not an absolute right, but it did not specify the level of scrutiny to be used.

McDonald also will be remembered for Justice Stevens’ 60-page dissent in which he defended the idea of a “living Constitution” and responded to those who would limit the Constitution’s protections to its original meaning. Predictably, Justice Scalia wrote a response in which he defended his originalist philosophy. No doubt Justice Stevens regarded this as his last chance to write a judicial opinion defending his approach to constitutional interpretation.


Undoubtedly, the most important event of the term occurred when Justice John Paul Stevens announced his resignation. Only two justices in history served longer on the Supreme Court than Justice Stevens.

His replacement, Elena Kagan, will likely not change the ideological balance on the Court. Most expect her, like Stevens, to be a moderate liberal. But Kagan is just 50 years old, 40 years younger than the justice she is replacing. Indeed, if she is fortunate enough to serve until she is 90, she’ll be on the Court until the year 2050.

• Erwin Chemerinsky is the Dean and Distinguished Professor of Law at the University of California, Irvine, School of Law.