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MCLE Self-Assessment Test

October 2011 term: An amazing nine months

By Erwin Chemerinsky

Erwin Chemerinsky


Few U.S. Supreme Court decisions in recent memory have attracted as much attention as National Federation of Independent Business v. Sebelius, which upheld most of the provisions of the Patient Protection and Affordable Care Act. Although this unquestionably was the most important decision of the year in terms of its practical and political significance, the term was filled with significant cases such as those extending the right to effective assistance of counsel to plea bargaining, finding crucial provisions of Arizona’s controversial SB 1070 to be unconstitutional, and limiting the political influence of public employee unions.

The court decided only 65 cases after briefing and oral arguments, the fewest in decades. A year ago, the court decided 75 cases after briefing and oral arguments and as recently as the 1980s the Court was averaging over 160 cases a term.

Once more, Justice Anthony Kennedy was most often in the majority, 93 percent of the time, and was in the majority in more 5-4 and 5-3 decisions than any other justice (12 of 16). But Chief Justice John Roberts was close behind, being in the majority 92 percent of the time, and he wrote what was certainly the most important opinion of the term in upholding the Affordable Care Act.

United State Supreme Court

United States Supreme Court

In each of the six prior years of the Roberts Court, the conservative position prevailed much more often than the liberal one. But October Term 2011 was decidedly more mixed.  There were key liberal victories, such as the decisions about the health care law, Arizona’s SB 1070, limits on life sentences without parole for juvenile murderers, and free speech. But there also were crucial conservative victories in limiting contributions to public employee unions, allowing strip searches of inmates without reasonable suspicion, and in many civil rights cases where the court made it harder to sue government officials.

Patient Protection and Affordable Care Act

There were three parts to the court’s holding in National Federation of Independent Business v. Sebelius. First, by a 5-4 margin, the court upheld the individual mandate, the centerpiece of the Act. There are 50 million Americans without health insurance and the Affordable Care Act seeks to remedy that. A crucial mechanism is to require that almost all individuals have health insurance and those that don’t must pay a penalty to the Internal Revenue Service. Insurance companies are required to provide coverage to all and no longer can deny policies based on preexisting conditions, or charge higher premiums based on health conditions, or impose yearly or lifetime caps on payments.

Chief Justice John Roberts

Chief Justice Roberts

Chief Justice Roberts, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, said that the individual mandate is a tax and within the scope of Congress’s taxing power. He explained that the mandate is calculated like a tax; for example, in 2014, it is one percent of income or $95 for those who do not purchase insurance.  It is collected by the Internal Revenue Service and the funds go to the federal treasury; it will generate about $4 billion in 2014. The court said that it was irrelevant that the Obama administration never called it a tax; the labels used by the government are not determinative.

Second, five justices – Chief Justice Roberts and the four dissenters  (Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito) – said that the individual mandate was not a constitutional exercise of Congress’s commerce clause power. They said that Congress under the commerce clause may regulate economic activity that taken cumulatively has a substantial effect on interstate commerce. They saw the individual mandate as regulating inactivity, regulating those not engaged in commerce, and thus exceeding the scope of Congress’s power.

Finally, the court in a 7-2 ruling held that it exceeded the scope of Congress’s spending power and violated the Tenth Amendment for the Act to deny all Medicaid funding to states that do not comply with the new conditions for Medicaid. The Act requires that states cover within their Medicaid programs those within 133 percent of the federal poverty level. The federal government pays 100 percent of these costs until 2019 and 90 percent thereafter. Any state that failed to comply would lose all of its Medicaid funds. The court said that this was unduly coercive. This is the first time that the court has ever found conditions on federal funds to be so coercive as to be unconstitutional. Countless federal statutes provide funds to state and local governments on the condition that they comply with requirements. There likely will be challenges to many of these laws on the ground that the requirements are too coercive.

Criminal justice

From a practical perspective, the decisions that will most affect the practice of law and what judges do on a daily basis are Missouri v. Frye  and Lafler v. Cooper. In two 5-4 decisions, with Justice Kennedy writing for Justices Ginsburg, Breyer, Sotomayor, and Kagan, the court held that the right to effective assistance of counsel applies at the plea bargaining stage. Justice Kennedy explained that plea bargaining is a critical stage of criminal proceedings; 97 percent of all convictions in federal court and 94 percent of all convictions in state court are gained via guilty pleas. The court said that the two-part test for ineffective assistance of counsel articulated in Strickland v. Washington is to be applied. First, a defendant must demonstrate that counsel’s performance was so deficient as to negate representation. Second, the defendant must show prejudice. The court said that this requires that the defendant show that he or she likely would have accepted the plea bargain, that the prosecutor likely would not have withdrawn it, and that the judge likely would have allowed the plea agreement.

The decisions likely will change how plea bargaining is done in many jurisdictions, causing it to be more formal and put in writing. Also, it already is leading to a large number of individuals arguing that their pleas were the product of ineffective assistance of counsel.

Justice Elena Kagan

Justice Kagan

In Miller v. Alabama, the court held that a mandatory sentence of life imprisonment without parole for a homicide committed by a juvenile is cruel and unusual punishment. Justice Kagan wrote for the majority and was joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. The court did not create an absolute bar to such a punishment, but said that there must be an individual determination that justifies such a sentence, which the court indicated should be rare. This likely will have the practical consequence of requiring a penalty phase when a prosecutor wants such a sentence. The jury will need to find the aggravating factors that warrant life without parole for a homicide crime committed by a juvenile.

There were two Fourth Amendment decisions. In United States v. Jones, the court held that it violated the Fourth Amendment for the police to place a GPS device on a person’s car and track his movements for 28 days without a valid warrant. Although the result was unanimous, the justices differed in their reasoning. Justice Scalia, in an opinion joined by Roberts, Kennedy, Thomas, and Sotomayor, pointed to a 1765 English decision, Entick v. Carrington, which would have treated the placing of the GPS device as a trespass which was deemed sufficient for a search. Justice Alito wrote an opinion concurring in the judgment joined by the other justices in which he argued that it makes no sense to decide what is a search in 2012 by looking to 18th century English decisions. He said that the focus should be on whether there is an invasion of the reasonable expectation of privacy.

In Florence v. Board of Chosen Freeholders, the court ruled, 5-4, that jails may subject inmates to strip searches without any need for reasonable suspicion. Justice Kennedy, in an opinion joined by Roberts, Scalia, Thomas, and Alito, said that the interest of jails in ensuring security and preventing drugs and weapons from being smuggled in was sufficient to permit strip searches without any need for reasonable suspicion.


Arizona’s SB 1070 declares its purpose to be decreasing the presence in the state of undocumented immigrants through aggressive law enforcement and attrition. In 2010, federal district court judge Susan Bolton issued a preliminary injunction against four key provisions of SB 1070. In Arizona v. United States, the Supreme Court in a 5-3 ruling affirmed almost all of Judge Bolton’s preliminary injunction. Justice Kennedy wrote for the majority and was joined by Roberts, Ginsburg, Breyer and Sotomayor. Justice Kagan was recused. Justice Kennedy began by accepting the argument of the United States that immigration is solely in the control of the federal government. Anything done with regard to immigration has foreign policy implications and states cannot have their own foreign policy. The court quoted its 1942 ruling in Hines v. Davidowitz, that states cannot “contradict or complement” federal immigration efforts.

The court affirmed three parts of Judge Bolton’s preliminary injunction, finding unconstitutional as preempted by federal law the provisions of SB 1070 that require non-citizens to carry papers at all times showing that they are lawfully in the country, that prohibit those not lawfully in the country from seeking or receiving employment in Arizona, and that allow police to arrest individuals without warrants when there is probable cause that they are deportable.

The court reversed the preliminary injunction as to the provision which allows police to question individuals about their immigration status if they are stopped for other reasons and if there is reasonable suspicion that they are not lawfully in the United States. Even this provision was substantially narrowed as the court held that police cannot extend the duration of a stop to check immigration status and also state and local police cannot arrest individuals who they determine to be illegally in the country. Moreover, the court left open the possibility of an “as applied” challenge to the provision of SB 1070 if it could be shown that it was being applied in a racially discriminatory fashion.

The decision is a clear message to state governments that laws like SB 1070 are unconstitutional because they intrude on to the federal government’s exclusive power to control immigration.

First Amendment

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the court held that it violates both the free exercise and the establishment clauses of the First Amendment to hold a religious institution liable for choices it makes as to who will be its ministers. The case involved a teacher at a parochial elementary school who took a leave of absence because of a serious illness. The Equal Employment Opportunity Commission sued on her behalf when the school filled her position when she was ill and then fired her when the school thought she might be contemplating an action under the Americans with Disabilities Act.

Chief Justice Roberts, writing for a unanimous court, said that the teacher was deemed a “minister” by the school, having taken the requisite courses at a religious college and been approved by the board of the school for this designation. The court said that it would be unconstitutional to hold the school liable under an employment discrimination law for the choices it makes as to who will be its ministers.

There were two important speech cases. In United States v. Alvarez, the court declared unconstitutional the federal Stolen Valor Act, which makes it a crime for a person to falsely claim to have received a military honor or declaration. Justice Kennedy wrote for a plurality of four and concluded that the law imposed a content-based restriction on speech and thus had to meet the most exacting scrutiny. He explained that the government failed this test because it did not prove any harm from false claims of military honors and because the government could achieve its goals through less restrictive alternatives. Perhaps most importantly for the future, he rejected the government’s argument that false speech is inherently outside the scope of the First Amendment.

Justice Breyer concurred in the judgment, joined by Justice Kagan. He said that he would use intermediate rather than strict scrutiny and that the law failed this test because it was not narrowly tailored. He suggested that a narrower statute, one that prohibits false claims of military honors with the goal of receiving a tangible benefit, likely would be constitutional. Congress may well adopt exactly that type of law.

The other major speech case was Knox v. SEIU. In Abood v. Detroit Board of Education (1977), the court held that public employees cannot be forced to join a union, but they must pay for the collective bargaining activities of the union since they benefit from them. They cannot, however, be required to support the political activities of the union. In subsequent cases, the Court made clear that those who do not want to support the political activities can “opt out” of doing so and must be given an accounting as to the percentage of dues that are used for collective bargaining as opposed to political activities.

In Knox, Justice Alito, joined by Roberts, Scalia, Kennedy, and Thomas, held that at least as to special assessments for political campaigns, non-members must “opt in” and affirmative choose to give support, as opposed to being assessed unless they opt out. As was pointed out by Justices Sotomayor and Breyer, in separate opinions, this is a major change in the law and there is no reason this will be limited to special assessments. Justice Alito’s reasoning will seemingly require non-members always to opt in and make the long-standing opt-out system unconstitutional. This will significantly decrease the funds for public employee unions to participate in the political process.

Next year

Already on the docket for next year is the issue of whether colleges and universities may continue to use race as a factor in admissions decisions to benefit minorities (Fisher v. University of Texas, Austin). Also, the court will decide whether companies can be sued in the United States for their foreign human rights violations under the Alien Tort Statute (Kiobel v. Dutch Petroleum). And it seems highly likely that the court will decide whether there is a constitutional right to marriage equality for gays and lesbians.

It is an amazing couple of years in the Supreme Court.

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