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October Term 2010: The Conservatives Triumph

By Erwin Chemerinsky

U. S. Supreme Court
United State Supreme Court

The Supreme Court’s October Term 2010 was a year that conservatives will cheer over and liberals will bemoan. The Court had fewer blockbuster decisions that attracted national media attention than in many years, but it decided an extraordinarily large number of cases that will affect the day-to-day work of lawyers. In a significant number of cases, the Court ruled in favor of government and business lawyers who sought to restrict access to the courts.


 Overall, the Supreme Court decided 75 cases after briefing and oral argument. That is the same number as the year before and about average for the six years of the Roberts Court, but less than half of what the Court was deciding in the 1980s. The two justices who were most often in agreement were Chief Justice John Roberts and Justice Samuel Alito, who voted together more than 96 percent of the time. Next most often in agreement were Justices Sonia Sotomayor and Elena Kagan, who voted together 94 percent of the time.

Justice Anthony Kennedy
Justice Kennedy

It continues to be the Anthony Kennedy Court. Kennedy was the justice most often in the majority, 94 percent of the time. As in every prior year of the Roberts Court, the impact of Justice Kennedy was most evident in 5-4 decisions. There were 16 5-4 decisions and Kennedy was in the majority in 14, the most of any justice.

It is possible to get a sense of the ideology of the term and the overall ideology of the Roberts Court by focusing on the 5-4 decisions that were divided along traditional ideological lines. There were 14 such decisions this term, where Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Alito were on one side and Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor and Kagan were on the other. Justice Kennedy sided with the conservatives in 10 and with the liberals in four. The prior year, in October Term 2009, there were 12 such ideologically divided 5-4 decisions and Justice Kennedy was with the conservatives in nine and the liberals in three. And the year before that, there were 16 decisions split along ideological lines; Kennedy sided with the conservatives in 11 and the liberals in five. For the six terms of the Roberts Court, Kennedy has been with the conservatives more than 70 percent of the time when the Court divides 5-4 along ideological lines. 

Some of the most important rulings of the term were in the areas of the First Amendment, access to the courts and criminal procedure. Justice Kennedy’s role as the “swing justice” was evident as to all of these topics. 

First Amendment

The two free speech decisions that received great media attention were not ideologically divided. In Snyder v. Phelps, the Court considered whether the First Amendment protects the right of protestors to go to military funerals to express anti-gay and anti-lesbian messages. Matthew Snyder was a Marine who died in military service in Iraq. The members of the Westboro Baptist Church went to his funeral and as is their practice, held up signs that condemned homosexuality and tolerance for it. Snyder’s father sued the demonstrators for intentional infliction of emotional distress and invasion of privacy. A jury in federal district court ruled in favor of Snyder and the judge upheld a $10 million judgment, including both compensatory and punitive damages.

Justice Roberts
Justice Roberts

The Supreme Court, in an 8-1 decision, concluded that liability for such speech violates the First Amendment. Chief Justice Roberts, writing for the Court, stressed that the speech lawfully occurred on public property and did not disrupt the funeral. The Court emphasized that the speech involved a matter of public concern. The Court explained that there are alternatives available to state and local governments to protect privacy and sensibility at funerals, such as creating buffer zones around them, similar to what the Court has permitted around reproductive health care facilities. The case is important because the Court reaffirmed one of the most basic principles of the First Amendment: Speech cannot be punished or held liable just because it is offensive, even deeply offensive.

In Brown v. Entertainment Merchants Ass’n, by a 7-2 vote, the Court struck down a California law that made it a crime to sell or rent violent video games to minors under age 18 without parental consent. Justice Scalia wrote for the Court and held that this is an impermissible content-based restriction on speech and that the government failed to prove that the law was necessary to achieve a compelling purpose. In perhaps the strongest language to date, the Court spoke of the First Amendment rights of minors and once more refused to recognize violent speech as a category less protected by the First Amendment.

One free speech case was ideologically divided and reflected the Court’s ongoing disagreement over campaign finance laws. In Arizona Free Enterprise Club’s Freedom Fund PAC v. Bennett, the Court struck down Arizona’s public funding scheme for elections. Under the Arizona law, candidates opting to receive public funding receive additional money, up to a capped amount, based on the amount spent by or on behalf of opponents. In a 5-4 decision, with Chief Justice Roberts writing the majority, the Court held that this violated the First Amendment by chilling the spending of money and thus speech. In the Court’s view, a candidate for office would be likely to spend less if he or she knew that would trigger more government funds for an opponent.

Justice Kagan
Justice Kagan

Justice Kagan wrote an impassioned dissent in which she contended that the effect of the Arizona law was more speech, not less. Assuming that spending money in election campaigns is speech, the effect of the Arizona law is more spending and thus more expression.

Access to the courts

There were a striking number of cases in which the Court, usually divided along ideological lines, restricted access to the courts. In PLIVA Inc. v. Mensing, the Court held, 5-4, that those injured by generic drugs cannot sue drug companies on a failure to warn theory. Two years ago, in Wyeth v. Levine, the Court had ruled that makers of nongeneric drugs can be sued on such a basis. But in PLIVA, the Court said that such suits are preempted if they are against generic drug manufacturers. As the majority opinion acknowledged and as the dissented lamented, this leads to the practical reality that for the identical drug, the maker of the non-generic version can be sued for a failure to adequately warn doctors and patients, while the maker of the generic equivalent cannot be sued.

Justice Scalia
Justice Scalia

In two important cases, the Court limited class action suits. In AT&T v. Concepcion, the Court concluded that a standard arbitration clause in a consumer contract precludes individuals from participating in a class action suit. In Wal-Mart v. Dukes, the Court ruled that a class action of 1.5 million women who alleged sex discrimination by Wal-Mart in pay and promotions could not go forward because they could not show sufficient commonality to their claims. Justice Scalia, writing for the majority, said that Wal-Mart had an official nondiscrimination policy and that the employment decisions were made by countless different individuals, preventing this from being litigated as a class action suit. These two cases, both 5-4, will significantly limit the ability to use class actions for consumer and employment discrimination claims.

In two cases, the Court limited the ability to sue local governments for constitutional violations. In County of Los Angeles v. Humphries, the Court reversed law that has long been followed in the Ninth Circuit and held that cities and counties may be sued for injunctive relief only if it can be shown that their own polices or customs violated the Constitution. And in Connick v. Thompson, the Court held, 5-4, that a man who spent 18 years in prison, almost all on death row, could not sue a local government even though prosecutors unconstitutionally withheld crucial evidence. The Court said that a single instance of wrongdoing could not prove the policy or custom needed to establish local government liability.

Another case restricting access to the courts was Cullen v. Pinholster, where the Court ruled that federal courts on habeas corpus are limited to the evidence before the state court. In other words, a federal court ruling on a habeas corpus petition pursuant to 28 U.S.C. §2254(d)(1) generally cannot hold an evidentiary hearing or decide on the basis of new evidence. This is a significant change in practice and will have a major effect, especially in death penalty litigation.

Criminal procedure

Justice Sotomayor
Justice Sotomayor

The most important criminal procedure cases involved the Confrontation Clause of the Sixth Amendment. In 2004, in Crawford v. Washington, the Court ruled that prosecutors cannot use testimonial statements from unavailable witnesses if there has not been the opportunity for cross-examination. In Michigan v. Bryant, this term, the Court clarified that whether a statement is deemed testimonial is determined from looking at the “primary purpose” of the police in their questioning. Justice Sotomayor, writing for the Court, said that this is an objective inquiry. In this case, a statement given by a gravely wounded man to the police officers who found the victim was deemed not to be testimonial.

Bullcoming v. New Mexico also involved the Confrontation Clause and clarified an earlier ruling by the Supreme Court. Two years ago, in Melendez-Diaz v. Massachusetts, the Court held that laboratory reports are testimonial and thus the lab analyst must testify. In Bullcoming, the analyst who performed the test in a DUI case was unavailable, but another analyst from the lab came to court and testified. The Supreme Court, in a 5-4 decision with Justice Ginsburg writing for the Court, said that this violated the Sixth Amendment and that the analyst who performed the test must testify.

In J.D.B. v. North Carolina, the Court said that in determining whether a suspect is in custody for purposes of applying Miranda v. Arizona, a child’s age is relevant, so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer. Under Miranda, a suspect need be given warnings only if he or she is in custody. But the Court, in a 5-4 decision, said whether a person would feel free to leave is likely to depend on the age of the suspect.

Finally, two Fourth Amendment cases are noteworthy. In Kentucky v. King, the Court said that police can enter a house without a warrant or probable cause if the police hear sounds consistent with the destruction of evidence. The Court, in an 8-1 decision, ruled that warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through an actual or threatened Fourth Amendment violation. This case is a significant expansion of the ability of police to enter homes and apartments without a warrant or probable cause.

In Davis v. United States, the Court found that the exclusionary rule does not apply to evidence gained via a search that was lawful when it was done, but that became illegal under a subsequent Supreme Court decision. The Court reaffirmed its holding from two years ago in Herring v. United States: The exclusionary rule applies only to intentional or reckless violations of the Fourth Amendment and not to negligent or good faith infringements.


Erwin Chemerinsky

These, of course, are only some of the important rulings from October Term 2010. But they certainly give a sense of the term. It was a year of significant decisions, but nothing on the docket was nearly as controversial, or high profile, as what may come to the Court next year: the constitutionality of the individual mandate in the federal health care law, the constitutionality of state immigration laws like Arizona’s SB 1070, and the constitutionality of the ban on same-sex marriage. This year was important, but next year is likely to be truly momentous.

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