1

CONSTITUTION OF THE UNITED STATES

[P. 35, delete from penultimate line of n.10:]

Connecticut, May 6, 1919;

[P. 35, add to end of n.10:]

 Although some sources (including the main volume of this book) state that Connecticut ratified the 18th Amendment on May 6, 1919 (after the date that three-fourths of the

states had ratified it, and after the Acting Secretary of State, on January 28, 1919, had

certified that the 18th Amendment had become valid; see 40 Stat. 1941-42 (1919)), the

Journal of the Senate of the State of Connecticut, January Session, 1919, reports on May

6, 1919, at page 1191: “The committee of Conference, to whom was referred a resolution

[Senate Joint Resolution No. 56] ratifying an Amendment to the Constitution concerning

the Manufacture, Sale and Transportation of Intoxicating Liquors, reported that they had

the same under consideration and cannot agree . . . .” The New York Times (Feb. 5, 1919)

reported that, on Feb. 4, 1919, the Connecticut Senate voted against ratification by a vote

of 20 to 14. A week later (Feb. 12, 1919), the New York Times reported that, on Feb. 11,

1919, the Connecticut House of Representatives voted in favor of ratification by a vote of

153 to 96.

[P. 36, n.11, add, in the appropriate places, the following states

that ratified the 19th Amendment:]

Texas, June 28, 1919; Utah, October 2, 1919; Washington, March 22, 1920; Tennessee,

August 18, 1920.

See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed. 1

1937), 301-302, 304-305; 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 889, at 335 (1833).

3

ARTICLE I

Section 2. House of Representatives

Clause 1. Congressional Districting

CONGRESSIONAL DISTRICTING

[P. 112, add to n.299:]

Vieth v. Jubelirer, 541 U.S. 267 (2004) (same); League of United Latin American Citizens

v. Perry, 548 U.S. 399 (2006). Additional discussion of this issue appears under Amendment 14, The New Equal Protection, Apportionment and Districting.

Section 6. Rights and Disabilities of Members

Clause 2. Emoluments

DISABILITIES OF MEMBERS

[P. 142, n. 462, change “No. 36” to “381”:]

Section 7. Bills and Resolutions

Clause 3. Presentation of Resolutions

THE LEGISLATIVE PROCESS

Presentation of Resolutions

[Pp. 148-49, substitute for entire section:]

The purpose of clause 3, the Orders, Resolutions, and Votes

Clause (ORV Clause), is not readily apparent. For years it was

assumed that the Framers inserted the clause to prevent Congress from evading the veto clause by designating as something

other than a bill measures intended to take effect as laws. Why 1

a separate clause was needed for this purpose has not been

explained. Recent scholarship presents a different possible

explanation for the ORV Clause – that it was designed to authorize delegation of lawmaking power to a single House, subject to
4 ARTICLE I–LEGISLATIVE DEPARTMENT

 Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why 2

Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly

Reasoned, 83 TEX. L. REV. 1265 (2005).

 S. REP. NO. 1335, 54th Congress, 2d Sess.; 4 HINDS’ PRECEDENTS OF THE HOUSE OF 3

REPRESENTATIVES § 3483 (1907).

 3 U.S. (3 Dall.) 378 (1798). 4

 Although Hollingsworth did not necessarily so hold (see Tillman, supra), the Court 5

has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229 (1920) (in

Hollingsworth “this court settled that the submission of a constitutional amendment did

not require the action of the President”); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in

Hollingsworth the Court “held Presidential approval was unnecessary for a proposed

constitutional amendment”).

presentment, veto, and possible two-House veto override. If 2

construed literally, the clause could have bogged down the

intermediate stages of the legislative process, and Congress

made practical adjustments. At the request of the Senate, the

Judiciary Committee in 1897 published a comprehensive report

detailing how the clause had been interpreted over the years.

Briefly, it was shown that the word “necessary” in the clause had

come to refer to the necessity for law-making; that is, any “order,

resolution, or vote” must be submitted if it is to have the force of

law. But “votes” taken in either House preliminary to the final

passage of legislation need not be submitted to the other House

or to the President, nor must concurrent resolutions merely

expressing the views or “sense” of the Congress.3

Although the ORV Clause excepts only adjournment resolutions and makes no explicit reference to resolutions proposing

constitutional amendments, the practice and understanding,

beginning with the Bill of Rights, have been that resolutions

proposing constitutional amendments need not be presented to

the President for veto or approval. Hollingsworth v. Virginia, in 4

which the Court rejected a challenge to the validity of the Eleventh Amendment based on the assertion that it had not been

presented to the President, is usually cited for the proposition

that presentation of constitutional amendment resolutions is not

required.5
ARTICLE I–LEGISLATIVE DEPARTMENT 5

 Sabri v. United States, 541 U.S. 600, 605 (2004). 6

 541 U.S. at 606. 7

Section 8. Powers of Congress

Clause 1. Power to Tax and Spend

SPENDING FOR THE GENERAL WELFARE

Scope of the Power

[P. 164, add to end of section:]

As with its other powers, Congress may enact legislation

“necessary and proper” to effectuate its purposes in taxing and

spending. In upholding a law making it a crime to bribe state

and local officials who administer programs that receive federal

funds, the Court declared that Congress has authority “to see to

it that taxpayer dollars . . . are in fact spent for the general

welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are

derelict about demanding value for dollars.” Congress’ failure to 6

require proof of a direct connection between the bribery and the

federal funds was permissible, the Court concluded, because

“corruption does not have to be that limited to affect the federal

interest. Money is fungible, bribed officials are untrustworthy

stewards of federal funds, and corrupt contractors do not deliver

dollar-for-dollar value.”7

– Conditional Grants-in-Aid

[P. 165, add to n.603:]

This is not to say that Congress may police the effectiveness of its spending only by

means of attaching conditions to grants; Congress may also rely on criminal sanctions to

penalize graft and corruption that may impede its purposes in spending programs. Sabri

v. United States, 541 U.S. 600 (2004).

[P. 166, add to n.608:]

Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (because

Individuals with Disabilities Education Act, which was enacted pursuant to the Spending

Clause, does not furnish clear notice to states that prevailing parents may recover fees

for services rendered by experts in IDEA actions, it does not authorize recovery of such

fees).
6 ARTICLE I–LEGISLATIVE DEPARTMENT

See, e.g., United States v. Darby, 312 U.S. 100, 115-16 (1941). 8

 United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted). Illustra- 9

tive of the power to legislate to protect the channels and instrumentalities of interstate

commerce is Pierce County v. Guillen, 537 U.S. 129, 147 (2003), in which the Court

upheld a prohibition on the use in state or federal court proceedings of highway data

required to be collected by states on the basis that “Congress could reasonably believe

that adopting a measure eliminating an unforeseen side effect of the informationgathering requirement . . . would result in more diligent efforts [by states] to collect the

relevant information.”

Clause 3. Commerce Power

POWER TO REGULATE COMMERCE

Definition of Terms

– Necessary and Proper Clause

[P. 175, add to n.665:]

Gonzales v. Raich, 545 U.S. 1 (2005).

[P. 175, add to text after n.665:]

In other cases, the clause may not have been directly cited, but

the dictates of Chief Justice Marshall have been used to justify

more expansive applications of the commerce power.8

The Commerce Clause as a Source of National Police Power

– Is There an Intrastate Barrier to Congress’ Commerce Power.

[P. 212, substitute for second paragraph of section:]

Congress’ commerce power has been characterized as having

three, or sometimes four, very interrelated principles of decision,

some old, some of recent vintage. The Court in 1995 described

“three broad categories of activity that Congress may regulate

under its commerce power. First, Congress may regulate the use

of the channels of interstate commerce. Second, Congress is

empowered to regulate and protect the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities.

Finally, Congress’ commerce authority includes the power to

regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect

interstate commerce.”9
ARTICLE I–LEGISLATIVE DEPARTMENT 7

 545 U.S. 1 (2005). 10

 84 Stat. 1242, 21 U.S.C. §§ 801 et seq. 11

 545 U.S. at 19. 12

 545 U.S. at 25, quoting Webster’s Third New International Dictionary 720 (1966). 13

[P. 217, add to n.883:]

Lopez did not “purport to announce a new rule governing Congress’ Commerce Clause

power over concededly economic activity.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58

(2003).

[P. 218, add to text at end of section:]

Yet, the ultimate impact of these cases on Congress’ power

over commerce may be limited. In Gonzales v. Raich, the Court 10

reaffirmed an expansive application of Wickard v. Filburn, and

signaled that its jurisprudence is unlikely to threaten the enforcement of broad regulatory schemes based on the Commerce

Clause. In Raich, the Court considered whether the cultivation,

distribution, or possession of marijuana for personal medical

purposes pursuant to the California Compassionate Use Act of

1996 could be prosecuted under the federal Controlled Substances

Act (CSA). The respondents argued that this class of activities 11

should be considered as separate and distinct from the

drug-trafficking that was the focus of the CSA, and that regulation of this limited non-commercial use of marijuana should be

evaluated separately.

In Raich, the Court declined the invitation to apply Lopez

and Morrison to select applications of a statute, holding that the

Court would defer to Congress if there was a rational basis to

believe that regulation of home-consumed marijuana would affect

the market for marijuana generally. The Court found that there

was a rational basis to believe that diversion of medicinal marijuana into the illegal market would depress the price on the latter

market. The Court also had little trouble finding that, even in 12

application to medicinal marijuana, the CSA was an economic

regulation. Noting that the definition of “economics” includes

“the production, distribution, and consumption of commodities,”13

the Court found that prohibiting the intrastate possession or

manufacture of an article of commerce is a rational and commonly used means of regulating commerce in that product. 

The Court’s decision also contained an intertwined but

potentially separate argument that Congress had ample author-
8 ARTICLE I–LEGISLATIVE DEPARTMENT

 545 U.S. at 18, 22. 14

 545 U.S. at 23-25. 15

 545 U.S. at 34-35 (Scalia, J., concurring). 16

 The Court had developed the “original package” doctrine to restrict application of 17

a state tax on imports from a foreign country in Brown v. Maryland, 25 U.S. (12 Wheat.)

419, 449 (1827). Although Chief Justice Marshall had indicated in dictum in Brown that

the same rule would apply to imports from sister states, the Court had refused to follow

that dictum in Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869).

 Mugler v. Kansas, 123 U.S. 623 (1887). Relying on the distinction between 1 8

manufacture and commerce, the Court soon applied this ruling to authorize states to

prohibit manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128 U.S. 1

(1888).

 125 U.S. 465 (1888). 19

ity under the Necessary and Proper Clause to regulate the

intrastate manufacture and possession of controlled substances,

because failure to regulate these activities would undercut the

ability of the government to enforce the CSA generally. The 14

Court quoted language from Lopez that appears to authorize the

regulation of such activities on the basis that they are an essential part of a regulatory scheme. Justice Scalia, in concurrence, 15

suggested that this latter category of activities could be regulated

under the Necessary and Proper Clause regardless of whether the

activity in question was economic or whether it substantially

affected interstate commerce. 16

 THE COMMERCE CLAUSE AS A RESTRAINT ON STATE

POWERS

Doctrinal Background

– Congressional Authorization of Impermissible State Action.

[Pp. 228-229, substitute for second paragraph of section:]

The Court applied the “original package” doctrine to interstate commerce in intoxicants, which the Court denominated

“legitimate articles of commerce.” Although holding that a state 17

was entitled to prohibit the manufacture and sale of intoxicants

within its boundaries, it contemporaneously laid down the rule, 18

in Bowman v. Chicago & Northwestern Ry. Co., that, so long as 19

Congress remained silent in the matter, a state lacked the power,

even as part and parcel of a program of statewide prohibition of

the traffic in intoxicants, to prevent the importation of liquor

from a sister state. This holding was soon followed by another to

the effect that, so long as Congress remained silent, a state had

no power to prevent the sale in the original package of liquors
ARTICLE I–LEGISLATIVE DEPARTMENT 9

 Leisy v. Hardin, 135 U.S. 100 (1890). 20

 Ch. 728, 26 Stat. 313 (1890), upheld in In re Rahrer, 140 U.S. 545 (1891). 21

 Rhodes v. Iowa, 170 U.S. 412 (1898). 22

 Ch. 90, 37 Stat. 699 (1913), sustained in Clark Distilling Co. v. Western Md. Ry., 23

242 U.S. 311 (1917). See also Department of Revenue v. Beam Distillers, 377 U.S. 341

(1964).

 Granholm v. Heald, 544 U.S. 460, 487 (2005). See also Bacchus Imports Ltd. v. 24

Dias, 468 U.S. 263 (1984); Brown-Forman Distillers Corp. v. New York State Liquor

Auth., 476 U.S. 573 (1986); Healy v. The Beer Institute, 491 U.S. 324 (1989), and the

analysis of section 2 under Discrimination Between Domestic and Imported Products.

introduced from another state. Congress soon attempted to 20

overcome the effect of the latter decision by enacting the Wilson

Act, which empowered states to regulate imported liquor on the 21

same terms as domestically produced liquor, but the Court

interpreted the law narrowly as subjecting imported liquor to

local authority only after its resale. Congress did not fully 22

nullify the Bowman case until 1913, when it enacted the

Webb-Kenyon Act, which clearly authorized states to regulate 23

direct shipments for personal use.

National Prohibition, imposed by the Eighteenth Amendment, temporarily mooted these conflicts, but they reemerged

with repeal of Prohibition by the Twenty-first Amendment.

Section 2 of the Twenty-first Amendment prohibits “the importation into any State . . . for delivery or use therein of intoxicating

liquors, in violation of the laws thereof.” Initially the Court

interpreted this language to authorize states to discriminate

against imported liquor in favor of that produced in-state, but the

modern Court has rejected this interpretation, holding instead

that “state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.” 24

[P. 231, add to n.954 after initial citation:]

See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003) (authorization of state laws

regulating milk solids does not authorize milk pricing and pooling laws).

State Taxation and Regulation: The Modern Law

– Taxation.

[P. 241, add to text after n.1012:]

The broad inquiry subsumed in both constitutional requirements

is whether the taxing power exerted by the state bears fiscal

relation to protection, opportunities and benefits given by the
10 ARTICLE I–LEGISLATIVE DEPARTMENT

 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505 (2008) 25

(citations and internal quotation marks omitted).

 550 U.S. 330 (2007). 26

state – that is, whether the state has given anything for which it

can ask return.” 25

[P. 242, add to n.1019:]

See also Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1508 (2008)

(the concept of “operational function,” which the Court had introduced in prior cases, was

“not intended to modify the unitary business principle by adding a new ground for

apportionment”).

[P. 246, add to n.1038:]

But see American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545 U.S. 429 (2005),

upholding imposition of a flat annual fee on all trucks engaged in intrastate hauling

(including trucks engaged in interstate hauling that “top off” loads with intrastate pickups

and deliveries) and concluding that levying the fee on a per-truck rather than per-mile

basis was permissible in view of the objectives of defraying costs of administering various

size, weight, safety, and insurance requirements.

– Regulation

[P. 249, add to n.1051:]

But cf. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003)

(state prescription drug program providing rebates to participating companies does not

regulate prices of out-of-state transactions and does not favor in-state over out-of-state

companies).

[P. 250, substitute for the sentence in the text that accompanies

n.1056 and delete n.1056:]

In United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid

Waste Management Authority, the Court declined to apply 26

Carbone where haulers were required to bring waste to facilities

owned and operated by a state-created public benefit corporation

instead of to a private processing facility, as was the case in

Carbone. The Court found this difference constitutionally significant because “[d]isposing of trash has been a traditional government activity for years, and laws that favor the government in

such areas – but treat every private business, whether in-state

or out-of-state, exactly the same – do not discriminate against

interstate commerce for purposes of the Commerce Clause.

Applying the Commerce Clause test reserved for regulations that

do not discriminate against interstate commerce, we uphold these

ordinances because any incidental burden they may have on

interstate commerce does not outweigh the benefits they
ARTICLE I–LEGISLATIVE DEPARTMENT 11

 550 U.S. at 334. The Commerce Clause test referred to is the test set forth in 27

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). “Under the Pike test, we will uphold a

nondiscriminatory statute . . . ‘unless the burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits.’” Id. at 1797 (quoting Pike, 397

U.S. at 142). The fact that a state is seeking to protect itself from economic or other

difficulties, is not, by itself, sufficient to justify barriers to interstate commerce. Edwards

v. California, 314 U.S. 160 (1941) (striking down California effort to bar “Okies” – persons

fleeing the Great Plains dust bowl during the Depression). Cf. Crandall v. Nevada, 73

U.S. (6 Wall.) 35 (1867) (without tying it to any particular provision of Constitution,

Court finds a protected right of interstate movement). The right of travel is now an

aspect of equal protection jurisprudence.

 128 S. Ct. 1801 (2008). 28

 This exemption from state taxes is also generally made available to bonds issued 29

by local governmental entities within a state.

 Reliance could not be placed on Executive statements, the Court explained, 30

because “the Constitution expressly grants Congress, not the President, the power to

‘regulate Commerce with foreign Nations.’” 512 U.S. at 329. “Executive Branch

(continued...)

confer . . . .”27

In Department of Revenue of Kentucky v. Davis, the Court 28

considered a challenge to the long-standing state practice of

issuing bonds for public purposes while exempting interest on the

bonds from state taxation. In Davis, a challenge was brought 29

against Kentucky for such a tax exemption because it applied

only to government bonds that Kentucky issued, and not to

government bonds issued by other states. The Court, however,

recognizing the long pedigree of such taxation schemes, applied

the logic of United Haulers Ass'n, Inc., noting that the issuance of

debt securities to pay for public projects is a "quintessentially

public function," and that Kentucky's differential tax scheme

should not be treated like one that discriminated between privately issued bonds. In what may portend a significant change

in dormant commerce clause doctrine, however, the Court declined to evaluate the governmental benefits of Kentucky's tax

scheme versus the economic burdens it imposed, holding that, at

least in this instance, the "Judicial Branch is not institutionally

suited to draw reliable conclusions." 

Foreign Commerce and State Powers

[P. 256, substitute for last two sentences of first full paragraph:]

The tax, it was found, did not impair federal uniformity or

prevent the Federal Government from speaking with one voice in

international trade, in view of the fact that Congress had rejected

proposals that would have preempted California’s practice. The 30
12 ARTICLE I–LEGISLATIVE DEPARTMENT

 (...continued) 30

communications that express federal policy but lack the force of law cannot render

unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide

combined reporting.” Id. at 330. Dissenting Justice Scalia noted that, although the

Court’s ruling correctly restored preemptive power to Congress, “it permits the authority

to be exercised by silence.” Id. at 332.

The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139-49 3 1

(1993).

result of the case, perhaps intended, is that foreign corporations

have less protection under the negative commerce clause.31

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption

– The Standards Applied

[P. 262, add to n.1109:]

Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit brought against HMO under state

health care liability act for failure to exercise ordinary care when denying benefits is

preempted).

[P. 265, add to n.1118:]

But cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (interpreting preemption

language and saving clause in Federal Boat Safety Act as not precluding a state common

law tort action).

[P. 266, add footnote at end of second line of text on the page:]

For a more recent decision applying express preemption language to a variety of state

common law claims, see Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (interpreting

FIFRA, the federal law governing pesticides). 

COMMERCE WITH INDIAN TRIBES

[P. 278, add to n.1189:]

United States v. Lara, 541 U.S. 193, 200 (2004).

[P. 281, add to n.1206:]

Congress may also remove restrictions on tribal sovereignty. The Court has held that,

absent authority from federal statute or treaty, tribes possess no criminal authority over

non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Court also

held, in Duro v. Reina, 495 U.S. 676 (1990), that a tribe has no criminal jurisdiction over

non-tribal Indians who commit crimes on the reservation; jurisdiction over members rests

on consent of the self-governed, and absence of consent defeats jurisdiction. Congress,

however, quickly enacted a statute recognizing inherent authority of tribal governments

to exercise criminal jurisdiction over non-member Indians, and the Court upheld

congressional authority to do so in United States v. Lara, 541 U.S. 193 (2004).

Clause 8. Copyrights and Patents
ARTICLE I–LEGISLATIVE DEPARTMENT 13

 Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 32

 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America v. 33

Universal City Studios, 464 U.S. 417, 429 (1984)).

 537 U.S. at 204. 34

 The Court in Eldred upheld extension of the term of existing copyrights from life 35

of the author plus 50 years to life of the author plus 70 years. Although the more general

issue was not raised, the Court opined that this length of time, extendable by Congress,

was “clearly” not a regime of “perpetual” copyrights. The only two dissenting Justices,

Stevens and Breyer, challenged this assertion.

 Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S. (14 36

How.) 539, 548 (1852); Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864); Eunson v.

Dodge, 85 U.S. (18 Wall.) 414, 416 (1873).

Scope of the Power

[P. 312, substitute for sentence ending with n.1421:]

These English statutes curtailed the royal prerogative in the

creation and bestowal of monopolistic privileges, and the Copyright and Patent Clause similarly curtails congressional power

with regard both to subject matter and to the purpose and

duration of the rights granted.32

[P. 313, convert final sentence of paragraph to a separate paragraph and place it after the following new paragraph to be added

at end of section:]

The constitutional limits, however, do not prevent the Court

from being highly deferential to congressional exercise of its

power. “It is Congress that has been assigned the task of defining

the scope of the limited monopoly that should be granted to

authors,” the Court has said. “Satisfied” in Eldred v. Ashcroft 33

that the Copyright Term Extension Act did not violate the

“limited times” prescription, the Court saw the only remaining

question as whether the enactment was “a rational exercise of the

legislative authority conferred by the Copyright Clause.” The 34

Act, the Court concluded, “reflects judgments of a kind Congress

typically makes, judgments we cannot dismiss as outside the

Legislature’s domain.” Moreover, the limitation on the duration

of copyrights and patents is largely unenforceable. The protection period may extend well beyond the life of the author or

inventor. Congress may extend the duration of existing copy- 35

rights and patents, and in so doing may protect the rights of

purchasers and assignees.36
14 ARTICLE I–LEGISLATIVE DEPARTMENT

 33 U.S. (8 Pet.) 591 (1834). 37

 33 U.S. (8 Pet.) at 595. 38

 33 U.S. (8 Pet.) at 667. 39

 33 U.S. (8 Pet.) at 657-58. The Court noted that the same principle applies to “an 40

individual who has invented a most useful and valuable machine. . . . [I]t has never been

pretended that the latter could hold, by the common law, any property in his invention,

after he shall have sold it publicly.” Id.

 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine of 41

common-law copyright was long statutorily preserved for unpublished works, but the

1976 revision of the federal copyright law abrogated the distinction between published

and unpublished works, substituting a single federal system for that existing since the

first copyright law in 1790. 17 U.S.C. § 301.

 33 U.S. (8 Pet.) at 661. 42

Nature and Scope of the Right Secured

[P. 316, substitute for first paragraph of section:]

The leading case on the nature of the rights that Congress is

authorized to “secure” under the Copyright and Patent Clause is

Wheaton v. Peters. Wheaton was the official reporter for the 37

Supreme Court from 1816 to 1827, and Peters was his successor

in that role. Wheaton charged Peters with having infringed his

copyright in the twelve volumes of “Wheaton’s Reports” by

reprinting material from Wheaton’s first volume in “a volume

called ‘Condensed Reports of Cases in the Supreme Court of the

United States’”; Wheaton based his claim on both common law 38

and a 1790 act of Congress. On the statutory claim, the Court

remanded to the trial court for a determination of whether

Wheaton had complied with all the requirements of the act. On 39

the common law claim, the Court held for Peters, finding that,

under common law, publication divests an author of copyright

protection. Wheaton argued that the Constitution should be 40

held to protect his common law copyright, because “the word

secure . . . clearly indicates an intention, not to originate a right,

but to protect one already in existence.” The Court found, 41

however, that “the word secure, as used in the constitution, could

not mean the protection of an acknowledged legal right,” but was

used “in reference to a future right.” Thus, the exclusive right 42

that the Constitution authorizes Congress to “secure” to authors

and inventors owes its existence solely to acts of Congress that

secure it, from which it follows that the rights granted by a

patent or copyright are subject to such qualifications and limita-
ARTICLE I–LEGISLATIVE DEPARTMENT 15

 33 U.S. (8 Pet.) at 662; Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815). A major 43

limitation of copyright law is that “fair use” of a copyrighted work is not an infringement.

Fair use can involve such things as quotation for the use of criticism and reproduction for

classroom purposes, but it may not supersede the use of the original work. See Harper &

Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an unauthorized 300- to

400-word excerpt, published as a news “scoop” of the authorized prepublication excerpt of

former President Ford’s memoirs and substantially affecting the potential market for the

authorized version, was not a fair use within the meaning of § 107 of the Copyright Act,

17 U.S.C. § 107). For fair use in the context of a song parody, see Campbell v. Acuff-Rose

Music, Inc., 510 U.S. 569 (1994).

 Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006). But see id. at 591 (“Exigency 44

alone, of course, will not justify the establishment and use of penal tribunals not

contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other

part of that document authorizes a response to the felt need.”).

 17 U.S. (4 Wheat.) 316 (1819). 45

tions as Congress sees fit to impose.43

[P. 317, add to n.1448:]

Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd, 545 U.S. 913 (2005) (active

encouragement of infringement by distribution of software for sharing of copyrighted

music and video files can constitute infringement).

Clauses 11, 12, 13, and 14. War; Military Establishment

CONSTITUTIONAL RIGHTS IN WARTIME

The Constitution at Home in Wartime

– Enemy Aliens

[P. 347, add to text at end of section:]

Because this use of military tribunals was sanctioned by Congress, the Court found it unnecessary to decide whether “the

President may constitutionally convene military commissions

‘without the sanction of Congress’ in cases of ‘controlling necessity.’”44

Clause 18. Necessary and Proper Clause

Scope of Incidental Powers

[P. 357, substitute for first sentence of section:]

The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of

the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland set the stan- 45

dard in words that reverberate to this day.
16 ARTICLE I–LEGISLATIVE DEPARTMENT

 130 S. Ct. 1949 (2010). Breyer wrote the opinion of the Court, joined by Justices 46

Roberts, Stevens, Ginsburg and Sotamayor. Justices Kennedy and Alito concurred in the

judgement, while Justices Thomas and Scalia dissented.

 130 S. Ct. at 1965. 47

Operation of Clause

[P. 358, add to n.1734:]

Congress may also legislate to protect its spending power. Sabri v. United States, 541

U.S. 600 (2004) (upholding imposition of criminal penalties for bribery of state and local

officials administering programs receiving federal funds).

Definition of Crime and Punishment

[P. 359, add to text at end of section:]

One of the most expansive interpretations of the Necessary and

Proper Clause arose in the context of the administration of the

federal penal system. In United States v. Comstock, the Court 46

evaluated a federal statute which allowed for the civil commitment of a federal prisoner past the term of his imprisonment if

that prisoner would have serious difficultly in refraining from

sexually violent conduct or child molestation. The statute contained no requirement that the threatened future conduct would

fall under federal jurisdiction, raising the question of what

constitutional basis could be cited for its enforcement. The

majority opinion in Comstock upheld the statute after considering

five factors: (1) the historic breadth of the Necessary and Proper

Clause; (2) the history of federal involvement in this area; (3) the

reason for the statute’s enactment; (4) the statute’s accommodation of state interests; and (5) whether the scope of statute was

too attenuated from Article I powers.47

In evaluating these factors, the Court noted that previous federal

involvement in the area included not only the civil commitment of

defendants who were incompetent to stand trial or who became

insane during the course of their imprisonment, but, starting in

1949, the continued confinement of those adjudged incompetent

or insane past the end of their prison term. In upholding the sex

offender statute, the Court found that protection of the public and

the probability that such prisoners would not be committed by

the state represented a “rational basis” for the passage of such
ARTICLE I–LEGISLATIVE DEPARTMENT 17

 Justice Kennedy, in concurrence, expressed concern that whether a statute is 48

"rationally related" to the implementation of a power, see Williamson v. Lee Optical Co.,

348 U.S. 483, 487-88 (1955) (Due Process Clause), is too deferential a standard to be used

as regards the Necessary and Proper Clause. Justice Kennedy would use a more rigorous

"rational basis" standard, found in Commerce Clause cases, where there must be shown a

"demonstrated link in fact, based on empirical demonstration." See Comstock, 130 S. Ct.

1949 at 1966-67 (Kennedy, J., concurring).

 Jinks v. Richland County, 538 U.S. 456 (2003). 49

 538 U.S. 84 (2003). 50

legislation. The Court further found that state interests were 48

protected by the legislation, as the statute provided for transfer of

the committed individuals to state authorities willing to accept

them. Finally, the Court found that the statute was not too

attenuated from the Article I powers underlying the criminal

laws which had been the basis for incarceration, as it related to

the responsible administration of the United States prison

system. 

Courts and Judicial Proceedings

[P. 361, add to text after n.1759:]

may require the tolling of a state statute of limitations while a

state cause of action that is supplemental to a federal claim is

pending in federal court,49

Section 10 – Powers Denied to States

Clause 1. Making Treaties, Coining Money, Ex Post Facto Laws,

Impairing Contracts

Ex Post Facto Laws

– Scope of the Provision

[P. 382, add to text after n.1912:]

Distinguishing between civil and penal laws was at the

heart of the Court’s decision in Smith v. Doe upholding applica- 50

tion of Alaska’s “Megan’s Law” to sex offenders who were convicted before the law’s enactment. The Alaska law requires

released sex offenders to register with local police and also

provides for public notification via the Internet. The Court

accords “considerable deference” to legislative intent; if the

legislature’s purpose was to enact a civil regulatory scheme, then

the law can be ex post facto only if there is “the clearest proof” of
18 ARTICLE I–LEGISLATIVE DEPARTMENT

 538 U.S. at 92. 51

 The law's requirements do not closely resemble punishments of public disgrace 52

imposed in colonial times; the stigma of Megan's Law results not from public shaming

but from the dissemination of information about a criminal record, most of which is

already public. 538 U.S. at 98.

 538 U.S. at 102. 53

 Excessiveness was alleged to stem both from the law’s duration (15 years of 54

notification by those convicted of less serious offenses; lifetime registration by serious

offenders) and in terms of the widespread (Internet) distribution of the information.

 538 U.S. at 105. Unlike involuntary civil commitment, where the “magnitude of 55

restraint [makes] individual assessment appropriate,” the state may make “reasonable

categorical judgments,” and need not provide individualized determinations of dangerousness. Id. at 103.

punitive effect. Here, the Court determined, the legislative 51

intent was civil and non-punitive – to promote public safety by

“protecting the public from sex offenders.” The Court then

identified several “useful guideposts” to aid analysis of whether a

law intended to be non-punitive nonetheless has punitive effect.

Registration and public notification of sex offenders are of recent

origin, and are not viewed as a “traditional means of punishment.” The Act does not subject the registrants to an “affirma- 52

tive disability or restraint”; there is no physical restraint or

occupational disbarment, and there is no restraint or supervision

of living conditions, as there can be under conditions of probation.

The fact that the law might deter future crimes does not make it

punitive. All that is required, the Court explained, is a rational

connection to a non-punitive purpose, and the statute need not be

narrowly tailored to that end. Nor is the act “excessive” in 53

relation to its regulatory purpose. Rather, “the means chosen 54

are ‘reasonable’ in light of the [state’s] non-punitive objective” of

promoting public safety by giving its citizens information about

former sex offenders, who, as a group, have an alarmingly high

rate of recidivism.55

– Changes in Punishment

[P. 383, substitute for first sentence of section:]

Justice Chase in Calder v. Bull gave an alternative description of the four categories of ex post facto laws, two of which

related to punishment. One such category was laws that inflict

punishment “where the party was not, by law, liable to any
ARTICLE I–LEGISLATIVE DEPARTMENT 19

 3 U.S. (3 Dall.) 386, 389 (1798). 56

 539 U.S. 607, 632-33 (2003) (invalidating application of California’s law to revive 57

child abuse charges 22 years after the limitations period had run for the alleged crimes).

 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey 58

in Dobbert v. Florida, 432 U.S. 282, 298-301 (1977).

 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 59

In Re Medley, 134 U.S. 160, 171 (1890). 60

 Polar Tankers, Inc. v. City of Valdez, Alaska, 129 S. Ct. 2277, 2282 (2009). 61

punishment”; the other was laws that inflict greater punishment

than was authorized when the crime was committed.56

Illustrative of the first of these punishment categories is “a

law enacted after expiration of a previously applicable statute of

limitations period [as] applied to revive a previously time-barred

prosecution.” Such a law, the Court ruled in Stogner v. California, is prohibited as ex post facto. Courts that had upheld 57

extension of unexpired statutes of limitation had been careful to

distinguish situations in which the limitations periods have

expired. The Court viewed revival of criminal liability after the

law had granted a person “effective amnesty” as being “unfair” in

the sense addressed by the Ex Post Facto Clause.

Illustrative of the second punishment category are statutes

that changed an indeterminate sentence law to require a judge to

impose the maximum sentence, that required solitary confine- 58

ment for prisoners previously sentenced to death, and that 59

allowed a warden to fix, within limits of one week, and keep

secret the time of execution.60

Clause 3. Tonnage Duties and Interstate Compacts

Tonnage Duties

[P. 423, add to beginning of section:]

The purpose of the Tonnage Clause is “to ‘restrai[n] the states

themselves from the exercise’ of the taxing power ‘injuriously to

the interests of each other.’ . . . In writing the Tonnage Clause,

the Framers recognized that, if ‘the states had been left free to

tax the privilege of access by vessels to their harbors the prohibition [in Article I, § 10, clause 2] against duties on imports and

exports could have been nullified by taxing the vessels transporting the merchandise.’”61
20 ARTICLE I–LEGISLATIVE DEPARTMENT

 Polar Tankers, Inc. v. City of Valdez, Alaska, 129 S. Ct. at 2283 (citation omitted). 62

[Page 423, add to n.2125:]

Polar Tankers, Inc. v. City of Valdez, Alaska, 129 S. Ct. 2277 (2009).

[Page 423, add to text after n.2125:]

The Tonnage Clause, however, does not ban all “taxes which fall

on vessels that use a State’s port, harbor, or other waterways.

Such a radical proposition would transform the Tonnage Clause

from one that protects vessels, and their owners, from discrimination by seaboard States, to one that gives vessels preferential

treatment vis-à-vis all other property, and its owners, in a

seaboard State.”62
21

ARTICLE II

Section 1. The President

Clause 1. Powers and Term of the President.

NATURE AND SCOPE OF PRESIDENTIAL POWER 

Executive Power: Theory of the Presidential Office

– The Youngstown Case

[P. 442, add to n.40:]

And, in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), the Court cited Youngstown

with approval, as did Justice Kennedy, in a concurring opinion joined by three other

Justices. Id. at 638.

Section 2. Powers and Duties of the President

Clause 1. Commander-in-Chiefship; Presidential Advisers;

Pardons

COMMANDER-IN-CHIEF

The Cold War and After: Presidential Power to Use Troops

Overseas Without Congressional Authorization

– The Power of Congress to Control the President’s Discretion.

[P. 474, substitute for the beginning of the sentence in text (up to

“unless Congress”) that follows n.175:]

If the President introduces troops in the first of these three

situations, then he must terminate the use of troops within 60

days after his report was submitted or was required to be submitted to Congress, 

[P. 475, add to text after n.181:]

By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of

Iraq before seeking a UN Security Council resolution, all the

while denying that express authorization from Congress, or for

that matter, the UN Security Council, was necessary to renew

hostilities in Iraq. Prior to adjourning for its midterm elections,
22 ARTICLE II–EXECUTIVE DEPARTMENT

 Pub. L. 107-243; 116 Stat. 1498 (2002). The House approved the resolution by a 1

vote of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23.

See President’s Statement on Signing The Authorization for Use of Military Force 2

Against Iraq Resolution of 2002, 38 Weekly Comp. Pres. Doc. 1779 (Oct. 16, 2002).

Ex parte Quirin, 317 U.S. 1, 37-38 (1942) (“Citizens who associate themselves with 3

the military arm of the enemy government, and with its aid, guidance and direction enter

this country bent on hostile acts, are enemy belligerents within the meaning of the

Hague Convention and the law of war.”). See also Colepaugh v. Looney, 235 F.2d 429,

432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) (“[T]he petitioner’s citizenship in

the United States does not . . . confer upon him any constitutional rights not accorded

any other belligerent under the laws of war.”)

Congress passed the Authorization for Use of Military Force

against Iraq Resolution of 2002, which it styled as “specific 1

statutory authorization within the meaning of section 5(b) of the

War Powers Resolution.” On signing the measure, the President

noted that he had sought “an additional resolution of support”

from Congress, and expressed appreciation for receiving that

support, but stated, “my request for it did not, and my signing

this resolution does not, constitute any change in the

long-standing positions of the executive branch on either the

President’s constitutional authority to use force to deter, prevent,

or respond to aggression or other threats to U.S. interests or on

the constitutionality of the War Powers Resolution.” In the 2

Bush administration’s view, the primary benefit of receiving

authorization from Congress seems to have been the message of

political unity it conveyed to the rest of the world rather than the

fulfillment of any constitutional requirements.

Martial Law and Constitutional Limitations

– Articles of War: The Nazi Saboteurs.

[P. 483, add to text at end of section:]

In any event, the Court rejected the jurisdictional challenge by

one of the saboteurs on the basis of his claim to U.S. citizenship,

finding U.S. citizenship wholly irrelevant to the determination of

whether a wartime captive is an “enemy belligerent” within the

meaning of the law of war.3
ARTICLE II–EXECUTIVE DEPARTMENT 23

 Pub. L. 107-40, 115 Stat. 224 (2001). 4

 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). There was no opinion of the Court. 5

Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice

Breyer, avoided ruling on the Executive Branch argument that such detentions could be

authorized by its Article II powers alone, and relied instead on the “Authorization for Use

of Military Force” passed by Congress. Justice Thomas also found that the Executive

Branch had the power to detain the petitioner, although his dissenting opinion found that

such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsburg,

rejected the argument that the Congress had authorized such detentions, while Justice

Scalia, joined with Justice Stevens, denied that such congressional authorization was

possible without a suspension of the writ of habeas corpus.

 At a minimum, the petitioner must be given notice of the asserted factual basis for 6

holding him, must be given a fair chance to rebut that evidence before a neutral decision

maker, and must be allowed to consult an attorney. 542 U.S. at 533, 539.

 542 U.S. 466 (2004). 7

[P. 483, add new section after “Articles of War: World War II

Crimes”:]

– Articles of War: Response to the Attacks of September 11, 2001.

In response to the September 11, 2001 terrorist attacks on

New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the Authorization for Use of

Military Force, which provided that the President may use “all 4

necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed

or aided the terrorist attacks [or] harbored such organizations or

persons.” During a military action in Afghanistan pursuant to

this authorization, a United States citizen, Yaser Hamdi, was

taken prisoner. The Executive Branch argued that it had plenary

authority under Article II to hold such an “enemy combatant” for

the duration of hostilities, and to deny him meaningful recourse

to the federal courts. In Hamdi v. Rumsfeld, the Court agreed

that the President was authorized to detain a United States

citizen seized in Afghanistan, although a majority of the Court

appeared to reject the notion that such power was inherent in

the Presidency, relying instead on statutory grounds. However, 5

the Court did find that the government may not detain the

petitioner indefinitely for purposes of interrogation, without

giving him the opportunity to offer evidence that he is not an

enemy combatant.6

In Rasul v. Bush, the Court rejected an Executive Branch 7

argument that foreign prisoners being held at Guantanamo Bay,

Cuba were outside of federal court jurisdiction. The Court
24 ARTICLE II–EXECUTIVE DEPARTMENT

 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). 8

 The petitioners were Australians and Kuwaitis. 9

 Rasul v. Bush, 542 U.S. at 467. 10

 The Court found that 28 U.S.C. § 2241, which had previously been construed to 11

require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by

the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court of Ky., 410

U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen

arrested on American soil, was remanded after the Court found that a federal court’s

habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate

custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court’s

jurisdiction over Secretary of Defense Rumsfeld was not sufficient to satisfy the presence

requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the

Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens

held by the Multinational Force-Iraq, an international coalition force operating in Iraq

and composed of 26 different nations, including the United States. The Court concluded

that the habeas statute extends to American citizens held overseas by American forces

operating subject to an American chain of command, even when those forces are acting as

part of a multinational coalition.

 Detainee Treatment Act of 2005, Pub. L. 109-148, § 1005(e)(1) (providing that “no 12

court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas

corpus filed by . . . an alien detained . . . at Guantanamo Bay”). After the Court decided,

in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee

Treatment Act did not apply to detainees whose cases were pending at the time of

enactment, the language was amended by the Military Commissions Act of 2006, Pub. L.

109-366, to also apply to pending cases where a detainee had been determined to be an

enemy combatant.

 128 S. Ct. 2229 (2008). 13

 U.S. Const. Art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas Corpus 14

shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety

may require it.” In Boumediene, the government argued only that the Suspension Clause

did not apply to the detainees; it did not argue that Congress had acted to suspend

habeas.

distinguished earlier case law arising during World War II that

denied habeas corpus petitions from German citizens who had

been captured and tried overseas by United States military

tribunals. In Rasul, the Court noted that the Guantanamo 8

petitioners were not citizens of a country at war with the United

States, had not been afforded any form of tribunal, and were 9

being held in a territory over which the United States exercised

exclusive jurisdiction and control. In addition, the Court found 10

that statutory grounds existed for the extension of habeas corpus

to these prisoners.11

In response to Rasul, Congress amended the habeas

statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional. This 12

amendment was challenged in Boumediene v. Bush as a viola- 13

tion of the Suspension Clause. Although the historical record 14

did not contain significant common-law applications of the writ
ARTICLE II–EXECUTIVE DEPARTMENT 25

 “[G]iven the unique status of Guantanamo Bay and the particular dangers of 15

terrorism in the modern age, the common-law courts simply may not have confronted

cases with close parallels to this one. We decline, therefore, to infer too much, one way or

the other, from the lack of historical evidence on this point.” 128 S. Ct. at 2251.

 128 S. Ct. at 2258. “[Q]uestions of extraterritoriality turn on objective factors and 16

practical concerns, not formalism.” Id.

 Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006), quoting Marbury v. 17

Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals were

(continued...)

to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether

habeas applied in this case. Emphasizing a “functional” ap- 15

proach to the issue, the Court considered (1) the citizenship and 16

status of the detainee and the adequacy of the process through

which the status determination was made; (2) the nature of the

sites where apprehension and detention took place; and (3) any

practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous

case law, noting that the instant detainees disputed their enemy

status, that their ability to dispute their status had been limited,

that they were held in a location (Guantanamo Bay, Cuba) under

the de facto jurisdiction of the United States, and that complying

with the demands of habeas petitions would not interfere with

the government’s military mission. Thus, the Court concluded

that the Suspension Clause was in full effect regarding these

detainees.

Clause 2. Treaties and Appointment of Officers

THE TREATY-MAKING POWER

Treaties as Law of the Land

[P. 494, n.271, add after “(1884),” before period in initial citation:]

(quoted with approval in Medellin v. Texas, 128 S. Ct. 1346, 1357, 1358-59 (2008))

[P. 494, add to text after n.271:]

The meaning of treaties, as of statutes, is determined by

the courts. “If treaties are to be given effect as federal law under

our legal system, determining their meaning as a matter of

federal law ‘is emphatically the province and duty of the judicial

department,’ headed by the ‘one supreme Court’ established by

the Constitution.” Yet, “[w]hile courts interpret treaties for 17
26 ARTICLE II–EXECUTIVE DEPARTMENT

 (...continued) 17

arrested in the United States, and, in violation of Article 36 of the Vienna Convention on

Consular Relations, their nations’ consuls were not notified that they had been detained

by authorities in a foreign country (the U.S.). The foreign nationals were convicted in

Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in

challenging their convictions. The Court did not decide whether Article 36 grants rights

that may be invoked by individuals in a judicial proceeding (four justices would have held

that it did grant such rights). The reason that the Court did not decide whether Article

36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36

does grant rights, the defendants in the two cases before it were not entitled to relief on

their claims. It found, specifically, that “suppression of evidence is [not] a proper remedy

for a violation of Article 36,” and that “an Article 36 claim may be deemed forfeited under

state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342.

 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366 U.S. 18

187, 194 (1961).

 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International 19

Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the

Court).

 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 20

371, 375 (1998) (per curiam).

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original, internal 21

quotation marks omitted). As in the case of the foreign nationals in Sanchez-Llamas,

Medellin’s nation’s consul had not been notified that he had been detained in the United

States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named

in an ICJ decision that found a violation of Article 36 of the Vienna Convention.

themselves, the meaning given them by the departments of

government particularly charged with their negotiation and

enforcement is given great weight.” Decisions of the Interna- 18

tional Court of Justice (ICJ) interpreting treaties, however, have

“no binding force except between the parties and in respect of

that particular case.” ICJ decisions “are therefore entitled only 19

to the ‘respectful consideration’ due an interpretation of an

international agreement by an international court.”20

Even when an ICJ decision has binding force as between

the governments of two nations, it is not necessarily enforceable

by the individuals affected. If, for example, the ICJ finds that

the United States violated a particular defendant’s rights under

international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not

necessarily “constitute binding federal law enforceable in United

States courts. . . . [W]hile treaties may comprise international

commitments . . . they are not domestic law unless Congress has

either enacted implementing statutes or the treaty itself conveys

an intention that it be self-executing and is ratified on these

terms.” A memorandum from the President of the United 21

States directing that the United States would “discharge its
ARTICLE II–EXECUTIVE DEPARTMENT 27

 Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing 22

character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371. The

majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens,

concurring, noted that, even though the ICJ decision “is not ‘the supreme Law of the

Land,’ U.S. Const., Art. VI, cl. 2,” it constitutes an international law obligation not only

on the part of the United States, but on the part of the State of Texas. Id. at 1374. This,

of course, does not make it enforceable against Texas, but Justice Stevens found that

“[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375.

Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the

consent of the United States to the ICJ’s jurisdiction[ ] bind[s] the courts no less than

would ‘an act of the [federal] legislature.’” Id. at 1376. The dissent believed that, to find

treaties non-self-executing “can threaten the application of provisions in many existing

commercial and other treaties and make it more difficult to negotiate new ones.” Id. at

1381-82. Moreover, Justice Breyer wrote, the Court’s decision “place[s] the fate of an

international promise made by the United States in the hands of a single State. . . . And

that is precisely the situation that the Framers sought to prevent by enacting the

Supremacy Clause.” Id. at 1384. On August 5, 2008, the U.S. Supreme Court denied

Medellin a stay of execution. Medellin v. Texas, 129 S. Ct. 360 (2008) (Justices Stevens,

Souter, Ginsburg, and Breyer dissenting), and Texas executed him the same day.

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Whitney v. Robertson, 23

124 U.S. 190, 194 (1888).

international obligations” under an ICJ decision interpreting a

non-self-executing treaty, “by having State courts give effect to

the decision,” is not sufficient to make the decision binding on

state courts, unless the President’s action is authorized by

Congress. 22

– When is a Treaty Self-Executing.

[P. 501, at the end of the first sentence in the section, change

period to a comma and insert:]

in which case they are enforceable only after the enactment of

“legislation to carry them into effect.”23

[P. 501, in the second sentence in the section, change “citizen” to

“litigant”]

[P. 501, three lines from the bottom of the page, after “provision.”, substitute for the rest of the paragraph and the first

paragraph that begins on p. 502:]

A treaty will not be self-executing, however, “when the terms of

the [treaty] stipulation import a contract – when either of the

parties engages to perform a particular act. . . .” When this is

the case, “the treaty addresses itself to the political, not the

judicial department; and the legislature must execute the con-
28 ARTICLE II–EXECUTIVE DEPARTMENT

 Foster v. Neilson, 27 U.S. (2 Pet.) at 314. 24

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Ingartua-De La Rosa v. 25

United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc).

E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 26

1919); 1 W. WILLOUGHBY, supra, at 589. The State Department held the same view. G.

HACKWORTH, 5 DIGEST OF INTERNATIONAL LAW 426 (1944).

 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453 U.S. 27

654 (1981) was rich in learning on many topics involving executive agreements, but the

preemptive force of agreements resting solely on presidential power was not at issue, the

Court concluding that Congress had either authorized various presidential actions or had

long acquiesced in others.

tract, before it can become a rule for the court.”24

Sometimes the nature of a treaty will determine whether

it requires legislative execution or “conveys an intention that it

be ‘self-executing’ and is ratified on these terms.” One author- 25

ity states that whether a treaty is self-executing “depends upon

whether the obligation is imposed on private individuals or on

public authorities. . . .”

INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

The Domestic Obligation of Executive Agreements

[P. 527, substitute for first sentence of first full paragraph on the

page:]

Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not

become the “law of the land” pursuant to the Supremacy Clause

because such agreements are not “treaties” ratified by the Senate. The Supreme Court, however, found another basis for 26

holding state laws to be preempted by executive agreements,

ultimately relying on the Constitution’s vesting of foreign relations power in the national government.

[P. 529, substitute for final paragraph of section:]

Belmont and Pink were reinforced in American Insurance

Association v. Garamendi. In holding that California’s Holo- 27

caust Victim Insurance Relief Act was preempted as interfering

with the Federal Government’s conduct of foreign relations, as

expressed in executive agreements, the Court reiterated that

“valid executive agreements are fit to preempt state law, just as
ARTICLE II–EXECUTIVE DEPARTMENT 29

 539 U.S. at 416. 28

 539 U.S. at 413. 29

 539 U.S. at 420. 30

 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). See also United States 31

v. Belmont, 301 U.S. 324, 331 (1937) (“The external powers of the United States are to be

exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations

generally, state lines disappear”.); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889)

(“For local interests the several States of the Union exist; but for national purposes,

embracing our relations with foreign nations, we are but one people, one nation, one

power”.); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of government . . .

requires that federal power in the field affecting foreign relations be left entirely free

from local interference”.).

treaties are.” The preemptive reach of executive agreements 28

stems from “the Constitution’s allocation of the foreign relations

power to the National Government.” Because there was a 29

“clear conflict” between the California law and policies adopted

through the valid exercise of federal executive authority (settlement of Holocaust-era insurance claims being “well within the

Executive’s responsibility for foreign affairs”), the state law was

preempted.30

[P. 529, add new section after “The Domestic Obligation of

Executive Agreements”:]

State Laws Affecting Foreign Relations — Dormant Federal

Power and Preemption

If the foreign relations power is truly an exclusive federal

power, with no role for the states, a logical consequence, the

Supreme Court has held, is that some state laws impinging on

foreign relations are invalid even in the absence of a relevant

federal policy. There is, in effect, a “dormant” foreign relations

power. The scope of this power remains undefined, however, and

its constitutional basis is debated by scholars.

The exclusive nature of the federal foreign relations power

has long been asserted by the Supreme Court. In 1840, for

example, the Court declared that “it was one of the main objects

of the constitution to make us, so far as regarded our foreign

relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state

authorities.” A hundred years later the Court remained em- 31

phatic about federal exclusivity. “No State can rewrite our

foreign policy to conform to its own domestic policies. Power over

external affairs is not shared by the States; it is vested in the
30 ARTICLE II–EXECUTIVE DEPARTMENT

 United States v. Pink, 315 U.S. 203, 233-34 (1942). Chief Justice Stone and 32

Justice Roberts dissented.

 389 U.S. 429 (1968). 33

 In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity 34

requirement that did not have the additional requirement relating to confiscation.

 389 U.S. at 440. 35

 389 U.S. at 440, 441. 36

national government exclusively. It need not be so exercised as

to conform to State laws or State policies, whether they be

expressed in constitutions, statutes, or judicial decrees. And the

policies of the States become wholly irrelevant to judicial inquiry

when the United States, acting within its constitutional sphere,

seeks enforcement of its foreign policy in the courts.”32

It was not until 1968, however, that the Court applied the

general principle to invalidate a state law for impinging on the

nation’s foreign policy interests in the absence of an established

federal policy. In Zschernig v. Miller, the Court invalidated an 33

Oregon escheat law that operated to prevent inheritance by

citizens of Communist countries. The law conditioned inheritance by nonresident aliens on a showing that U.S. citizens

would be allowed to inherit estates in the alien’s country, and

that the alien heir would be allowed to receive payments from

the Oregon estate “without confiscation.” Although a Justice 34

Department amicus brief asserted that application of the Oregon

law in this one case would not cause any “undu[e] interfer[ence]

with the United States’ conduct of foreign relations,” the Court

saw a “persistent and subtle” effect on international relations

stemming from the “notorious” practice of state probate courts in

denying payments to persons from Communist countries.35

Regulation of descent and distribution of estates is an area

traditionally regulated by states, but such “state regulations

must give way if they impair the effective exercise of the Nation’s

foreign policy.” If there are to be travel, probate, or other restraints on citizens of Communist countries, the Court concluded,

such restraints “must be provided by the Federal Government.”36

Zschernig lay dormant for some time, and, although it has

been addressed recently by the Court, it remains the only holding

in which the Court has applied a dormant foreign relations

power to strike down state law. There was renewed academic

interest in Zschernig in the 1990s, as some state and local
ARTICLE II–EXECUTIVE DEPARTMENT 31

See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The 3 7

Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 341

(1999); Carlos Manuel Vazquez, Whither Zschernig? 46 VILL. L. REV. 1259 (2001); Jack L.

Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617 (1997);

Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223 (1999). See also

LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 149-69 (2d ed. 1996).

 Crosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (1999). For the 38

appeals court’s application of Zschernig, see National Foreign Trade Council v. Natsios,

181 F.3d 38, 49-61 (1st Cir. 1999).

 American Insurance Association v. Garamendi, 539 U.S. at 419 & n.11 (2003). 39

 It is contended, for example, that Article I, § 10’s specific prohibitions against 40

states’ engaging in war, making treaties, keeping troops in peacetime, and issuing letters

of marque and reprisal would have been unnecessary if a more general, dormant foreign

relations power had been intended. Similarly, there would have been no need to declare

treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey, supra, 75 NOTRE DAME

L. REV. 341.

 Arguably, part of the “executive power” vested in the President by Art. II, § 1 is a 41

power to conduct foreign relations.

governments sought ways to express dissatisfaction with human

rights policies of foreign governments or to curtail trade with

out-of-favor countries. In 1999, the Court struck down Massa- 37

chusetts’ Burma sanctions law on the basis of statutory preemption, and declined to address the appeals court’s alternative

holding applying Zschernig. Similarly, in 2003 the Court held 38

that California’s Holocaust Victim Insurance Relief Act was

preempted as interfering with federal foreign policy reflected in

executive agreements, and, although the Court discussed

Zschernig at some length, it saw no need to resolve issues relating to its scope.39

Dictum in Garamendi recognizes some of the questions

that can be raised about Zschernig. The Zschernig Court did not

identify what language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made that the Constitution does not require a

general foreign affairs preemption not tied to the Supremacy

Clause, and broader than and independent of the Constitution’s

specific prohibitions and grants of power. The Garamendi 40 41

Court raised “a fair question whether respect for the executive

foreign relations power requires a categorical choice between the

contrasting theories of field and conflict preemption evident in

the Zschernig opinions.” Instead, Justice Souter suggested for

the Court in Garamendi, field preemption may be appropriate if

a state legislates “simply to take a position on a matter of foreign
32 ARTICLE II–EXECUTIVE DEPARTMENT

 539 U.S. at 419 n.11. 42

 Justice Ginsburg’s dissent in Garamendi, joined by the other three dissenters, 43

suggested limiting Zschernig in a manner generally consistent with Justice Souter’s

distinction. Zschernig preemption, Justice Ginsburg asserted, “resonates most audibly

when a state action ‘reflects a state policy critical of foreign governments and involve[s]

sitting in judgment on them.’” 539 U.S. at 439 (quoting HENKIN, supra n.34, at 164).

But Justice Ginsburg also voiced more general misgivings about judges becoming “the

expositors of the Nation’s foreign policy.” Id. at 442. In this context, see Goldsmith,

supra n.34, at 1631, describing Zschernig preemption as “a form of the federal common

law of foreign relations.”

 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54 44

Stat. 767-768, applied the same broad ban to employees of federally funded state and

local agencies, but this provision was amended in 1974 to restrict state and local

government employees in only one respect: running for public office in partisan elections.

Act of Oct. 15, 1974, P. L. 93-443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502.

 330 U.S. 75 (1947). See also Civil Serv. Corp. v. National Ass’n of Letter Carriers, 45

413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based

on the Court’s expanding free speech jurisprudence, but the act was again sustained. A

“little Hatch Act” of a state, applying to its employees, was sustained in Broadrick v.

Oklahoma, 413 U.S. 601 (1973).

policy with no serious claim to be addressing a traditional state

responsibility,” and conflict preemption may be appropriate if a

state legislates within an area of traditional responsibility, “but

in a way that affects foreign relations.” We must await further 42

litigation to see whether the Court employs this distinction.43

THE EXECUTIVE ESTABLISHMENT

Appointments and Congressional Regulation of Offices

– Congressional Regulation of Conduct in Office

[P. 540, substitute for final paragraph of section:]

Until 1993, § 9(a) of the Hatch Act prohibited any person 44

in the executive branch, or any executive branch department or

agency, except the President and the Vice President and certain

“policy determining” officers, to “take an active part in political

management or political campaigns,” although employees had

been permitted to “express their opinions on all political subjects

and candidates.” In United Public Workers v. Mitchell, these 45

provisions were upheld as “reasonable” against objections based

on the First, Fifth, Ninth, and Tenth Amendments. The Hatch

Act Reform Amendments of 1993, however, substantially liberalized the rules for political activities during off-duty hours for

most executive branch employees, subject to certain limitations

on off-duty hours activities and express prohibitions against
ARTICLE II–EXECUTIVE DEPARTMENT 33

 P. L. 103-94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321-7326. Executive 46

branch employees (except those appointed by the President, by and with the advice and

consent of the Senate) who are listed in § 7323(b)(2), which generally include those

employed by agencies involved in law enforcement or national security, remain under

restrictions similar to the those in the old Hatch Act on taking an active part in political

management or political campaigns.

 130 S. Ct. 3138 (2010). 47

 The case involved the Public Company Accounting Oversight Board, a private 4 8

non-profit entity with a five-member board, that has significant authority over accounting firms that participate in auditing public companies. The board members are

appointed to staggered 5-year terms by the Securities and Exchange Commission, and

can only be removed for “good cause shown,” which requires a finding of either a violation

of securities laws or board rules, willful abuse of power, or failure to enforce compliance

with the rules governing registered public accounting firms. 15 U.S.C. § 7217(d)(3). The

members of the Commission, in turn, can only be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

 130 S. Ct. at 3153-54. 49

on-the-job partisan political activities.46

– Other Phases of Presidential Power

[P.552, add to the text after n. 541:]

However, in the case of Free Enterprise Fund v. Public Company

Accounting Oversight Bd., the Court considered whether an 47

inferior officer can be twice insulated from the President's

removal authority – in other words, can a principal officer whom

Congress has protected from at will removal by the President in

turn have his or her power to remove an inferior officer restricted? The Court held that such multilevel protection from 48

removal is contrary to the President's executive authority. First,

even if the President determines that the inferior officer is

neglecting his duties or discharging them improperly, the President does not have the power to remove that officer. Then, if the

President seeks to have the principal officer remove the inferior

officer, the principal officer may not agree with the President’s

determination, and the President generally cannot remove the

principal officer simply because of this disagreement.49

The Presidential Aegis: Demands for Papers

– Private Access to Government Information

[P. 556, add to text at end of section:]

Reynolds dealt with an evidentiary privilege. There are

other circumstances, however, in which cases must be “dismissed

on the pleadings without ever reaching the question of
34 ARTICLE II–EXECUTIVE DEPARTMENT

Reynolds, 345 U.S. at 11, n.26. 50

 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating 5 1

and applying Totten’s “broader holding that lawsuits premised on alleged espionage

agreements are altogether forbidden”). The Court in Tenet distinguished Webster v. Doe

on the basis of “an obvious difference . . . between a suit brought by an acknowledged

(though covert) employee of the CIA and one filed by an alleged former spy.” Id. at 10.

 Cheney v. United States District Court, 542 U.S. 367 (2004). 52

 Although the information sought in Nixon was important to “the constitutional 53

need for production of relevant evidence in a criminal proceeding,” the suit against the

Vice President was civil, and withholding the information “does not hamper another

branch’s ability to perform its ‘essential functions.’” 542 U.S. at 383, 384.

 The Court recognized “the paramount necessity of protecting the Executive 54

Branch from vexatious litigation that might distract it from the energetic performance of

its constitutional duties.” 542 U.S. at 382. But cf. Clinton v. Jones, 520 U.S. 681, 702

(1997).

evidence.” In holding that federal courts should refuse to 50

entertain a breach of contract action seeking enforcement of an

agreement to compensate someone who performed espionage

services during the Civil War, the Court in Totten v. United

States declared that “public policy forbids the maintenance of any

suit in a court of justice, the trial of which would inevitably lead

to the disclosure of matters which the law itself regards as

confidential.”51

– Prosecutorial and Grand Jury Access to Presidential Documents.

[P. 559, add to text at end of section:]

Public disclosure was at issue in 2004 when the Court weighed a

claim of executive privilege asserted as a bar to discovery orders

for information disclosing the identities of individuals who

served on an energy task force chaired by the Vice President.52

Although the case was remanded on narrow technical grounds,

the Court distinguished United States v. Nixon, and, in in- 53

structing the appeals court on how to proceed, emphasized the

importance of confidentiality for advice tendered the President.54
ARTICLE II–EXECUTIVE DEPARTMENT 35

RECESS APPOINTMENTS

Judicial Appointments

[P. 561, add to n.568:]

Other cases holding that the President’s power under the Recess Appointments Clause

extends to filling judicial vacancies in Article III courts include United States v. Allocco,

305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v. Stephens, 387

F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). In the latter case, however,

Justice Stevens, although concurring in the denial of the petition of certiorari, wrote that

“it would be a mistake to assume that our disposition of this petition constitutes a

decision on the merits of whether the President has the constitutional authority to fill

future Article III vacancies, such as vacancies on this Court, with appointments made

absent consent of the Senate during short intrasession ‘recesses.’” 544 U.S. at 943.

PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS:

THE STEEL SEIZURE CASE

Power Denied by Congress

[P. 599, add to n.718:]

In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Justice Kennedy, in a concurring

opinion joined by three other Justices, endorsed “the three-part scheme used by Justice

Jackson” as “[t]he proper framework for assessing whether Executive actions are

authorized.” The Court in this case found “that the military commission convened [by the

President, in Guantanamo Bay, Cuba] to try Hamdan lacks power to proceed because its

structure and procedures violate [the Uniform Code of Military Justice].” Id. at 567.

Thus, as Justice Kennedy noted, “the President has acted in a field with a history of

congressional participation and regulation.” Id. at 638.

 Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a general 1

principle of the highest importance to the proper administration of justice . . . . Liability

. . . would destroy that independence without which no judiciary can be either respectable

or useful. . . . Nor can this exemption of the judges from civil liability be affected by the

motives with which their judicial acts are performed.” Bradley v. Fisher, 80 U.S. 335,

347 (1872).

37

ARTICLE III

Section 1. Judicial Power, Courts, Judges

JUDICIAL POWER

Finality of Judgment as an Attribute of Judicial Power

– Award of Execution

[P. 654, add to n.160:]

Wallace and Haworth were cited with approval in Medimmune, Inc. v. Genetech, Inc., 549

U.S. 118, 126 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and

‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory

Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or

be in breach of its license agreement before it can seek a declaratory judgment that the

underlying patent is invalid, unenforceable, or not infringed,” id. at 767).

[P. 654, add new section after “Chief Justice Taney’s formulation”:]

Judicial Immunity from Suit

Under common law – the Supreme Court has not elevated

judicial immunity from suit to a constitutional principle – judges

“are responsible to the people alone for the manner in which they

perform their duties. If faithless, if corrupt, if dishonest, if

partial, if oppressive or arbitrary, they may be called to account

by impeachment, and removed from office. . . . But responsible

they are not to private parties in civil actions for the judicial

acts, however injurious may be those acts, and however much

they may deserve condemnation, unless perhaps where the acts

are palpably in excess of the jurisdiction of the judges, and are

done maliciously or corruptly.” Three years later, the Court 1

qualified this exception to judges’ immunity: the phrase beginning “unless, perhaps,” the Court wrote, was “not necessary to a
38 ARTICLE III–JUDICIAL DEPARTMENT

 Bradley v. Fisher, 80 U.S. 335, 351 (1872). The Court offered a hypothetical 2

example of the distinction. A judge of a probate court who held a criminal trial would act

in clear absence of all jurisdiction over the subject matter, whereas a judge of a criminal

court who held a criminal trial for an offense that was not illegal would act merely in

excess of his jurisdiction. Id. at 352.

 435 U.S. 349 (1978). 3

 435 U.S. at 357, 358. The defendant was an Indiana state court judge, but the 4

suit was in federal court under 42 U.S.C. § 1983. The Court noted that it had held in

Pierson v. Ray, 386 U.S. 547 (1967), that there was no indication that, in enacting this

statute, Congress had intended to abolish the principle of judicial immunity established

in Bradley v. Fisher, supra.

 435 U.S. at 362. Justice Stewart’s dissent, joined by Justices Marshall and 5

Powell, concluded that what Judge Stump did “was beyond the pale of anything that

could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote,

provided for administrative proceedings for the sterilization of certain people who were

institutionalized (which the girl in this case was not), and what Judge Stump did “was in

no way an act ‘normally performed by a judge.’” Id. at 367.

correct statement of the law, and . . . judges . . . are not liable to

civil actions for their judicial acts, even when such acts are in

excess of their jurisdiction, and are alleged to have been done

maliciously or corruptly. A distinction must be here observed

between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter,” with judges subject to liability

only in the latter instance.2

In Stump v. Sparkman, the Court upheld the immunity of

a judge who approved a petition from the mother of a 15-year-old

girl to have the girl sterilized without her knowledge (she was

told that she was to have her appendix removed). In a 5-to-3 3

opinion, the Court found that there was not the “clear absence of

all jurisdiction” that is required to hold a judge civilly liable. The

judge had jurisdiction “in all cases at law and in equity whatsoever,” except where exclusive jurisdiction is “conferred by law

upon some other court, board, or officer,” and no statute or case

law prohibited the judge from considering a petition for sterilization. The Court also rejected the argument that the judge's 4

approving the petition had not constituted a “judicial act.” The

Court found “that the factors determining whether an act by a

judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to

the expectations of the parties, i.e., whether they dealt with the

judge in his judicial capacity. . . . Judge Stump performed the

type of act normally performed only by judges and . . . he did so

in his capacity as a [judge].”5
ARTICLE III–JUDICIAL DEPARTMENT 39

 Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 6

(1980).

 Pulliam v. Allen, 466 U.S. 522, 524-25 (1984). 7

 42 U.S.C. § 1988(b). Under this statute, “suits brought against individual officers 8

for injunctive relief are for all practical purposes suits against the State itself,” and,

therefore, the state must “bear the burden of the counsel fees award.” Hutto v. Finney,

437 U.S. 678, 700 (1978).

Consumers Union, 446 U.S. at 738-39. This is not the case, however, when judges 9

are sued in their legislative capacity for having issued a rule. Id. at 734.

Pulliam, 466 U.S. at 544. In 1996, Public Law 104-317, § 309, amended § 1988(b) 10

to preclude the award of attorneys’ fees in a suit against a judicial officer unless the

officer’s action “was clearly in excess of such officer's jurisdiction.”

 In Robertson v. United States ex rel. Watson, the Court had granted certiorari to 11

consider District of Columbia law that allowed a private individual to bring a criminal

contempt action in the congressionally established D.C. courts based on a violation of a

civil protective order. 130 S. Ct. 2184 (2010). The Court subsequently issued a per curiam

order dismissing the writ of certiorari as having been improvidently granted, but four

Justices dissented. Writing in dissent, Chief Justice Roberts thought it imperative to

make clear that “[t]he terrifying force of the criminal justice system may only be brought

to bear against an individual by society as a whole, through a prosecution brought of

behalf of the government.” 130 S. Ct. at 2185 (Roberts, C.J., dissenting). Of particular

concern was how various protections in the Bill of Rights against government action

would play out in a privately brought action. Id. at 2187-88.

(continued...)

Although judges are generally immune from suits for

damages, the Court has held that a judge may be enjoined from

enforcing a court rule, such as a restriction on lawyer advertising

that violates the First Amendment. Similarly, a state court 6

magistrate may be enjoined from “imposing bail on persons

arrested for nonjailable offenses under Virginia law and . . .

incarcerating those persons if they could not meet the bail. . . .”7

But what if the prevailing party, as it did in these two cases,

seeks an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976? The Court found that “Con- 8

gress intended to permit attorney’s fees awards in cases in which

prospective relief was properly awarded against defendants who

would be immune from damage awards.” In fact, “Congress’ 9

intent could hardly be more plain. Judicial immunity is no bar to

the award of attorney’s fees under 42 U.S.C. § 1988.”10

ANCILLARY POWERS OF FEDERAL COURTS

Categories of Contempt

[P. 655, add to text after n.162]

Criminal contempt, unlike civil contempt, implicates procedural

rights attendant to prosecutions.11
40 ARTICLE III–JUDICIAL DEPARTMENT

 (...continued) 11

 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. 12

 INS v. St. Cyr, 533 U.S. 289, 301 (2001), as quoted in Rasul v. Bush, 542 U.S. 13

466, 474 (2004).

 128 S. Ct. 2229 (2008). 14

 In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the 15

federal habeas statute, applied to these detainees. Congress then removed all court

jurisdiction over these detainees under the Detainee Treatment Act of 2005, Pub. L.

109-148, §1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or

consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at

Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557

(2006), that the Detainee Treatment Act did not apply to detainees whose cases were

pending at the time of enactment, it was amended by the Military Commissions Act of

2006, Pub. L. 109-366, to also apply to pending cases where a detainee had been

determined to be an enemy combatant.

 128 S. Ct. at 2251. 16

Power to Issue Writs: The Act of 1789

– Habeas Corpus: Congressional and Judicial Control.

[P. 669, substitute for first sentence of section:]

The writ of habeas corpus [retain n.241] has a special status

because its suspension is forbidden, except in narrow circumstances, by Article I, § 9, cl. 2. The writ also has a venerable

common law tradition, long antedating its recognition in the

Judiciary Act of 1789, as a means “to relieve detention by 12

executive authorities without judicial trial.” Nowhere in the 13

Constitution, however, is the power to issue the writ vested in

the federal courts.

[P. 671, add to text at the end of section:]

For practical purposes, the issue appears to have been

resolved by Boumediene v. Bush, in which the Court held that 14

Congress’ attempt to eliminate all federal habeas jurisdiction

over “enemy combatant” detainees held at Guantanamo Bay15

violated the Suspension Clause. Although the Court did not

explicitly identify whether the underlying right to habeas that

was at issue arose from statute, common law, or the Constitution

itself, it did decline to infer “too much” from the lack of historical

examples of habeas being extended to enemy aliens held overseas. In Boumediene, the Court instead emphasized a “func- 16

tional” approach that considered the citizenship and status of the

detainee, the adequacy of the process through which the status

determination was made, the nature of the sites where appre-
ARTICLE III–JUDICIAL DEPARTMENT 41

 128 S. Ct. at 2258, 2259. 17

 Under the Detainee Treatment Act, Pub. L. 109-148, Title X, Congress granted 18

only a limited appeal right to determination made by the Executive Branch as to “(i)

whether the status determination of [a] Combatant Status Review Tribunal . . . was

consistent with the standards and procedures specified by the Secretary of Defense . . .

and (ii) to the extent the Constitution and laws of the United States are applicable,

whether the use of such standards and procedures to make the determination is

consistent with the Constitution and laws of the United States.” § 1005(e)(2)(C).

 128 S. Ct. at 2263, 2275. 19

 The Court focused in particular on the inability of the reviewing court to admit 20

and consider relevant exculpatory evidence that was not introduced in the prior

proceeding. The Court also listed other potential constitutional infirmities in the review

process, including the absence of provisions empowering the D.C. Circuit to order release

from detention, and not permitting petitioners to challenge the President's authority to

detain them indefinitely.

hension and detention took place, and any practical obstacles

inherent in resolving the prisoner’s entitlement to the writ.17

In further determining that the procedures afforded to the

detainees to challenge their detention in court were not adequate

substitutes for habeas, the Court noted the heightened due

process concerns when a detention is based principally on Executive Branch proceedings – here, Combatant Status Review

Tribunals or (CSRTs) – rather than proceedings before a court of

law. The Court also expressed concern that the detentions had, 18

in some cases, lasted as long as six years without significant

judicial oversight. The Court further noted the limitations at 19

the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case, the unavailability of

assistance of counsel, the inability of a detainee to access certain

classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While

reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process

for these decisions, assigned to the United States Court of

Appeals for the District of Columbia, did not contain the means

necessary to correct errors occurring in the CSRT process.20

– Habeas Corpus: The Process of the Writ.

[P. 671, add to text after n.254:]

The writ acts upon the custodian, not the prisoner, so the issue

under the jurisdictional statute is whether the custodian is
42 ARTICLE III–JUDICIAL DEPARTMENT

 Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973) (issue is 21

whether “the custodian can be reached by service of process”). See also Rasul v. Bush,

542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction of

habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba);

Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks

jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the

commander of the brig, not the Secretary of Defense, is the immediate custodian and

proper respondent).

 Cone v. Bell, 129 S. Ct. 1769, 1781 (2009). 22

 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522 23

(2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that because

greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an

(continued...)

within the district court’s jurisdiction.21

[P. 672, add to text after n.259:]

In addition, “[w]hen a state court declines to review the merits of

a petitioner's claim on the ground that it has done so already, it

creates no bar to federal habeas review. . . . A claim is procedurally barred when it has not been fairly presented to the state

courts for their initial consideration – not when the claim has

been presented more than once.”22

Section 2. Judicial Power and Jurisdiction

Clause 1. Cases and Controversies; Grants of Jurisdiction

JUDICIAL POWER AND JURISDICTION — CASES AND CONTROVERSIES

Substantial Interest: Standing

– Citizen Suits.

 [change this heading to “Generalized or Widespread Injuries”]

[P. 688, add to n.346, before the period at the end of penultimate

sentence:]

; Lance v. Coffman, 549 U.S. 437, 441 (2007) (per curiam)

[P. 688, add to text after n.346:]

Notwithstanding that a generalized injury that all citizens share

is insufficient to confer standing, where a plaintiff alleges that

the defendant’s action injures him in “a concrete and personal

way,” “it does not matter how many [other] persons have [also]

been injured. . . . Where a harm is concrete, though widely

shared, the Court has found injury in fact.”23
ARTICLE III–JUDICIAL DEPARTMENT 43

 (...continued) 23

insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s steadfast

refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts

that is both ‘actual’ and ‘imminent.’” Id. at 517, 521.

 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347-49 (2006) (standing denied to 24

taxpayer claim that state tax credit given to vehicle manufacturer violated the Commerce

Clause).

 Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007). 25

This decision does not affect Establishment Clause cases in which the plaintiff can allege

a personal injury. A plaintiff who challenges a government display of a religious object,

for example, need not sue as a taxpayer but may have standing “by alleging that he has

undertaken a ‘special burden’ or has altered his behavior to avoid the object that gives

him offense. . . . [I]t is enough for standing purposes that a plaintiff allege that he ‘must

come into direct and unwelcome contact with the religious display to participate fully as

[a] citizen[ ] . . . and to fulfill . . . legal obligations.’” Books v. Elkhart County, 410 F.3d

857, 861 (7th Cir. 2005). In Van Orden v. Perry, 545 U.S. 677. 682 (2005), the Court,

without mentioning standing, noted that the plaintiff “has encountered the Ten Commandments monument during his frequent visits to the [Texas State] Capitol grounds. 

His visits are typically for the purpose of using the law library in the Supreme Court

building, which is located just northwest of the Capitol building.”

– Taxpayer Suits.

[P. 688, add to n.348:]

In Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007), the

Court added that, “if every federal taxpayer could sue to challenge any Government

expenditure, the federal courts would cease to function as courts of law and would be cast

in the role of general complaint bureaus.”

[P. 690, add to n.352:]

The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc.,

127 S. Ct. 2553, 2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers] concerns.”

[P. 690, substitute for the sentence in the text after n.352:]

The Court also refused to create an exception for Commerce

Clause violations to the general prohibition on taxpayer standing.24

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the

expenditure of funds that is challenged was not specifically

authorized by Congress, but came from general executive branch

appropriations. Where expenditures “were not expressly 25

authorized or mandated by any specific congressional enactment,” a lawsuit challenging them “is not directed at an exercise

of congressional power and thus lacks the requisite ‘logical nexus’

between taxpayer status ‘and the type of legislative enactment
44 ARTICLE III–JUDICIAL DEPARTMENT

 127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred in 26

the judgment but would have overruled Flast. Justice Souter, joined by three other

justices, dissented because he saw no logic in the distinction the plurality drew, as the

plurality did not and could not have suggested that the taxpayers in Hein “have any less

stake in the outcome than the taxpayers in Flast.” Id. at 2584.

 342 U.S. at 434. 27

 342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); 28

quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).

 Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmental 29

group that was denied the opportunity to file comments with the United States Forest

Service regarding a Forest Service Action denied standing for lack of concrete injury);

Salazar v. Buono, 130 S. Ct. 1803 (2010) (plurality opinion) ("A party that obtains a

judgment in its favor acquires a 'judicially cognizable' interest in ensuring compliance

with that judgment"). 

attacked.’”26

[P. 690, add to n.353:]

In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006), the Court held that a

plaintiff’s status as a municipal taxpayer does not give him standing to challenge a state

tax credit.

[P. 690, substitute for final sentence of section:]

The taxpayer’s action in Doremus, the Court wrote, “is not a

direct dollars-and-cents injury but is a religious difference.”27

This rationale was similar to the spending program-regulatory

program distinction of Flast. But, even a dollar-and-cents injury

resulting from a state spending program will apparently not

constitute a direct dollars-and-cents injury. The Court in

Doremus wrote that a taxpayer challenging either a federal or a

state statute “must be able to show not only that the statute is

invalid but that he has sustained some direct injury as a result of

its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”28

– Constitutional Standards: Injury in Fact, Causation, and

Redressability.

[P. 691, in third line of n.356, delete the period after “(1992)” and

add:]

Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). 

[P. 691, add to text after n.363:]

“But deprivation of a procedural right without some concrete

interest that is affected by the deprivation – a procedural right in

vacuo – is insufficient to create Article III standing.”29
ARTICLE III–JUDICIAL DEPARTMENT 45

 Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008) 30

(payphone operators had assigned claims against long-distance carriers to “aggregators”

to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices Scalia,

Thomas, and Alito, stated that the aggregators lacked standing because they ”have

nothing to gain from their lawsuit.” Id. at 2549.

 128 S. Ct. at 2543. 31

[P. 692, add to text after n.367:]

Citing this holding, and historical precedent, the Court upheld

the standing of an assignee who had promised to remit the

proceeds of the litigation to the assignor. The Court noted that 30

“federal courts routinely entertain suits which will result in

relief for parties that are not themselves directly bringing suit.

Trustees bring suits to benefit their trusts; guardians at litem

bring suits to benefit their wards; receivers bring suit to benefit

their receiverships; assignees in bankruptcy bring suit to benefit

bankrupt estates; and so forth.”31

[P. 693, insert before the final sentence in n.370:]

Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (“deprivation of a

procedural right [the right to comment on federal agency proposed action] without some

concrete interest that is affected by the deprivation – a procedural right in vacuo – is

insufficient to create Article III standing”).

[P. 693, add to n.370:]

But see Davis v. Federal Election Commission, 128 S. Ct. 2759, 2769 (2008), in which the

Court held that “the injury required for standing need not be actualized. A party facing

prospective injury has standing to sue where the threatened injury is real, immediate,

and direct.” In this case, a statute provided that, if a political candidate declares that he

will “self-finance,” then his opponent, if he qualifies, may receive individual contributions

beyond the normal limit. A self-financing candidate challenged the statute after he had

declared himself to be self-financing, but before his opponent had qualified for the higher

contribution limit; the Court found that the self-financing candidate faced “a realistic and

impending threat of direct injury” adequate for standing.

[P. 694, add to n.372:]

However, in Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009), the Court

noted in dicta that, if a plaintiff is denied a procedural right, the fact that the right had

been accorded by Congress “can loosen the strictures of the redressability prong of our

standing inquiry.” Thus, standing may exist even though a court’s enforcing a procedural

right accorded by Congress, such as the right to comment on a proposed federal agency

action, will not guarantee the plaintiff success in persuading the agency to adopt the

plaintiff’s point of view.

– Standing to Assert the Constitutional Rights of Others.

[P. 698, add to n.396:]

Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004),

the Court finding that attorneys seeking to represent hypothetical indigent clients in
46 ARTICLE III–JUDICIAL DEPARTMENT

 Whorton v. Bockting, 549 U.S. 406, 416 (2007). 32

challenging procedures for appointing appellate counsel had “no relationship at all” with

such potential clients, let alone a “close” relationship.

The Requirement of a Real Interest

– Declaratory Judgments.

[P. 709, add to n.456:]

Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126

(2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’

reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28

U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its

license agreement before it can seek a declaratory judgment that the underlying patent is

invalid, unenforceable, or not infringed,” id. at 767).

[P. 709, add before the period at the end of n.458:]

(cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007))

– Mootness.

[P. 717, add before the period at the end of n.498:]

; Alvarez v. Smith, 130 S. Ct. 576 (2009)

– Retroactivity Versus Prospectivity.

[P. 722, add before the period at the end of n.530:]

(cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007))

[P. 722, after the citation to Penry in n.533, change the period to

a semicolon and add:]

Whorton v. Bockting, 549 U.S. 406, 416 (2007).

[P. 722, in line 12 of the text, after “will not be applied.”, add a

new footnote:]

The approach in state collateral review proceedings, however, may be different. The

Court has indicated that the general rule regarding denial of retroactive application of

“new rules” in federal collateral proceeding was principally based on an interpretation of

federal statutory law. State collateral review of cases brought under state law may be

more generous to the defendant. Danforth v. Minnesota, 128 S. Ct. 1029 (2008).

[P. 722, in line 12 of the text, after “will not be applied.”, add to

text:]

“A new rule applies retroactively in a collateral proceeding only if

(1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of

criminal procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding.”32
ARTICLE III–JUDICIAL DEPARTMENT 47

[P. 722, add to n.534:]

For recent application of the principles, see Schriro v. Summerlin, 542 U.S. 348 (2004)

(requirement that aggravating factors justifying death penalty be found by the jury was a

new procedural rule that does not apply retroactively).

Political Questions

– The Doctrine Reappears.

[P. 734, add to n.605:]

But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable standard has been found for

measuring burdens on representational rights imposed by political gerrymandering).

JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS

Cases Arising Under the Constitution, Laws, and Treaties of the

United States

– Federal Questions Resulting from Special Jurisdictional

Grants.

[P. 757, second paragraph of n.727, substitute for “hesitating” on

line 4 through “house)” on line 8:] 

refusing to apply Bivens when “any alternative, existing process for protecting the

interest” that is threatened exists, or when “any special factors counselling hesitation”

are present. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). See also Chappell v. Wallace,

462 U.S. 296, 298 (1983); Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487

U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v.

Malesko, 534 U.S. 61 (2001).

– Citizenship of Corporations

[P. 803, add to n.1013:]

 In Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010), the Court recounted the development of

the rules on corporate jurisdictional citizenship in deciding that a corporation's “principal

place of business” under the statute is its “nerve center,” the place where the corporation's officers direct, control, and coordinate the corporation's activities.
48 ARTICLE III–JUDICIAL DEPARTMENT

 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied, 335 33

U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir. 1948).

For later dicta, see Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Weinberger v. Salfi,

422 U.S. 749, 761-62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201-02, 204 (1977);

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); Bowen v. Michigan Academy

of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603

(1988); but see id. at 611-15 (Justice Scalia dissenting). Note the relevance of United

States v. Mendoza-Lopez, 481 U.S. 828 (1987).

 169 F.2d at 257. 34

 169 F.2d at 261-62. 35

Clause 2. Original and Appellate Jurisdiction

POWER OF CONGRESS TO CONTROL THE FEDERAL

COURTS

The Theory Reconsidered

– Express Constitutional Restrictions on Congress

[P. 830, delete from “While some” in line 13 of the section,

through the end of the section, and substitute the following,

which corrects the statement in the main volume that the

Portal-to-Portal Act was disapproved by the Court of Appeals:] 

The United States Court of Appeals for the Second Circuit

sustained the Act. The court noted that the withdrawal of 33

jurisdiction would be ineffective if the extinguishment of the

claims as a substantive matter were invalid. “We think . . . that

the exercise by Congress of its control over jurisdiction is subject

to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to

give, withhold, and restrict the jurisdiction of the courts other

than the Supreme Court, it must not so exercise that power as to

deprive any person of life, liberty, or property without due

process of law or to take private property without just compensation.” The Court, however, found that the Portal-to-Portal Act 34

“did not violate the Fifth Amendment in so far as it may have

withdrawn from private individuals . . . any rights . . . which

rested upon private contracts they had made. Nor is the Portal-to-Portal Act a violation of Article III of the Constitution or

an encroachment upon the separate power of the judiciary.”35
ARTICLE III–JUDICIAL DEPARTMENT 49

 Haywood v. Drown, 129 S. Ct. 2108, 2116 (2009) (striking down New York statute 36

that gave the state’s supreme courts – its trial courts of general jurisdiction – jurisdiction

over suits brought under 42 U.S.C. § 1983, except in the case of suits seeking money

damages from corrections officers, whether brought under federal or state law).

 129 S. Ct. at 2116 (New York statute found, “contrary to Congress’ judgment [in 37

42 U.S.C. § 1983,] that all persons who violate federal rights while acting under color of

state law shall be held liable for damages”).

 The doctrine derives its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 3 8

(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005) 39

(Rooker-Feldman has no application when federal court proceedings have been initiated

prior to state court proceedings; preclusion law governs in that situation).

FEDERAL-STATE COURT RELATIONS

The Autonomy of State Courts

– Use of State Courts in Enforcement of Federal Law.

[P. 836, add to text after n.1194:]

The fact that a state statute divests its courts of jurisdiction not only over a disfavored federal claim, but also over an

identical state claim, does not ensure that the “state law will be

deemed a neutral rule of judicial administration and therefore a

valid excuse for refusing to entertain a federal cause of action.”36

“Although the absence of discrimination [in its treatment of

federal and state law] is necessary to our finding a state law

neutral, it is not sufficient. A jurisdictional rule cannot be used

as a device to undermine federal law, no matter how evenhanded

it may appear.”37

Conflicts of Jurisdiction: Rules of Accommodation.

– Res Judicata

[P. 842, add to text at end of section:]

Closely related is the Rooker-Feldman doctrine, holding that

federal subject-matter jurisdiction of federal district courts does

not extend to review of state court judgments. The Supreme 38

Court, not federal district courts, has such appellate jurisdiction.

The doctrine thus prevents losers in state court from obtaining

district court review, but “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines

that allow federal courts to stay or dismiss proceedings in deference to state-court actions.”39
50 ARTICLE III–JUDICIAL DEPARTMENT

 130 U.S. 1 (2009). 40

 Justice Scalia, joined by Justice Thomas, dissented, writing, “This Court has 41

never held that the Constitution forbids the execution of a convicted defendant who has

had a full and fair trial but is later able to convince a habeas court that he is ‘actually’

innocent.” He also wrote that the defendant’s “claim is a sure loser” and that the

Supreme Court was sending the District Court “on a fool's errand.”

Conflicts of Jurisdiction: Federal Court Interference with State

Courts

– Comity

[P. 837, in eleventh line of n.1201, delete period, and add the

following:]

; Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010) (comity has particular force in

cases challenging constitutionality of state taxation of commercial activities). 

– Habeas Corpus: Scope of the Writ

[P. 855, add to the end of n.1296:]

This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007).

[P. 858, in the last line of the first paragraph on the page, change

“itself” to, “by this reasoning,” and add the following to the end

of the first paragraph on the page:]

Then, in In re Troy Anthony Davis, the Court found a death-row 40

convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition. Justice Stevens,

in a concurring opinion joined by Justices Ginsburg and Breyer,

noted that the fact that seven of the state’s key witnesses had

recanted their trial testimony, and that several people had

implicated the state’s principal witness as the shooter, made the

case “exceptional.”41

[P. 858, add to n.1312:]

In House v. Bell, 547 U.S. 518, 554-55 (2006), the Court declined to resolve the issue that

in Herrera it had assumed without deciding: that “a truly persuasive demonstration of

‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” See Eighth Amendment, Limitations on Habeas Corpus Review of Capital

Sentences.

[P. 859, add to n.1318 after sentence referencing Bell v. Cone]

See also Renico v. Lett, 130 S. Ct. 1855, 1864-66 (2010).
See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (stat- 1

utes); and Smithsonian Institution v. St. John, 214 U.S. 19 (1909) (state constitutional

provision). 

 Baker v. General Motors Corp., 522 U.S. 222, 232 (1998), quoted in Franchise Tax 2

Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Justice Nelson in the Dred Scott case drew

an analogy to international law, concluding that states, as well as nations, judge for

themselves the rules governing property and persons within their territories. Scott v.

Sandford, 60 U.S. (19 How.) 393, 460 (1857). “One State cannot exempt property from

taxation in another,” the Court concluded in Bonaparte v. Tax Court, 104 U.S. 592 (1882),

holding that no provision of the Constitution, including the Full Faith and Credit Clause,

enabled a law exempting from taxation certain debts of the enacting state to prevent

another state (the state in which the creditor resided) from taxing the debts. See also

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589-96 (1839); Kryger v. Wilson, 242 U.S.

171 (1916); and Bond v. Hume, 243 U.S. 15 (1917).

 Baker v. General Motors Corp., 522 U.S. at 232. 3

51

ARTICLE IV

Section 1. Full Faith and Credit

RECOGNITION OF RIGHTS BASED UPON CONSTITUTIONS,

STATUTES, COMMON LAW

Development of the Modern Rule

[P. 896, substitute for entire section:]

Although the language of section one suggests that the

same respect should be accorded to “public acts” that is accorded

to “judicial proceedings” (“full faith and credit shall be given in

each State to the public acts, records, and judicial proceedings of

every other State”), and the Court has occasionally relied on this

parity of treatment, the Court has usually differentiated “the 1

credit owed to laws (legislative measures and common law) and

to judgments.” The current understanding is that the Full Faith 2

and Credit Clause is “exacting” with respect to final judgments of

courts, but “is less demanding with respect to choice of laws.” 3

The Court has explained that where a statute or policy of

the forum state is set up as a defense to a suit brought under the

statute of another state or territory, or where a foreign statute is

set up as a defense to a suit or proceedings under a local statute,

the conflict is to be resolved, not by giving automatic effect to the
52 ARTICLE IV – STATES’ RELATIONS

 Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935); 4

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). When, in a state court, the validity of

an act of the legislature of another state is not in question, and the controversy turns

merely upon its interpretation or construction, no question arises under the Full Faith

and Credit Clause. See also Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914),

citing Glenn v. Garth, 147 U.S. 360 (1893), Lloyd v. Matthews, 155 U.S. 222, 227 (1894);

Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900); Allen v. Alleghany Co., 196

U.S. 458, 465 (1905); Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911); National Mut. B. &

L. Ass’n v. Brahan, 193 U.S. 635 (1904); Johnson v. New York Life Ins. Co., 187 U.S. 491,

495 (1903); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).

E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440 U.S. 410 5

(1979); Carroll v. Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. v. Industrial

Accident Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Industrial Accident

Comm’n, 294 U.S. 532 (1935).

 Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate Ins. 6

Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion)).

 Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 498, 499 (2003). 7

Full Faith and Credit Clause and thus compelling courts of each

state to subordinate their own statutes to those of others, but by

weighing the governmental interests of each jurisdiction. That 4

is, the Full Faith and Credit Clause, in its design to transform

the states from independent sovereigns into a single unified

Nation, directs that a state, when acting as the forum for litigation having multistate aspects or implications, respect the

legitimate interests of other states and avoid infringement upon

their sovereignty. But because the forum state is also a sovereign in its own right, in appropriate cases it may attach paramount importance to its own legitimate interests. In order for a 5

state’s substantive law to be selected in a constitutionally permissible manner, that state must have a significant contact or

significant aggregation of contacts, creating state interests, such

that choice of its law is neither arbitrary nor fundamentally

unfair. Once that threshold is met, the Court will not weigh the 6

competing interests. “[T]he question of which sovereign interest

should be deemed more weighty is not one that can be easily

answered,” the Court explained, “declin[ing] to embark on the

constitutional course of balancing coordinate States’ competing

interests to resolve conflicts of laws under the Full Faith and

Credit Clause.”7
ARTICLE IV–STATES’ RELATIONS 53

 “[A]bsence of an express statement . . . identifying out-of-state citizenship as a 8

basis for disparate treatment is not a sufficient basis for rejecting [a] claim.” Hillside

Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003).

Section 2. Interstate Comity

Clause 1. State Citizenship: Privileges and Immunities

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

Origin and Purpose

[P. 912, add to text at end of section:]

A violation can occur whether or not a statute explicitly discriminates against out-of-state interests.8

55

ARTICLE V

AMENDMENT OF THE CONSTITUTION

Proposing a Constitutional Amendment

– Proposals by Congress

[P. 941, substitute for n.20:]

In Hollingsworth v.Virginia, 3 U.S. (3 Dall.) 378 (1798), the Court rejected a challenge to

the Eleventh Amendment based on the argument that it had not been submitted to the

President for approval or veto. The Court' s brief opinion merely determined that the

Eleventh Amendment was "constitutionally adopted." Id. at 382. Apparently during oral

argument, Justice Chase opined that "[t]he negative of the President applies only to the

ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of

amendments to the Constitution." Id. at 381. See Seth Barrett Tillman, A Textualist

Defense of Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided,

and Why INS v. Chadha was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005), for

extensive analysis of what Hollingsworth's delphic pronouncement could mean.

Whatever the Court decided in Hollingsworth, it has since treated the issue as settled.

See Hawke v. Smith, 253 U.S. 221, 229 (1920) (in Hollingsworth, "this court settled that

the submission of a constitutional amendment did not require the action of the President"); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in Hollingsworth, "the Court held

Presidential approval was unnecessary for a proposed constitutional amendment . . .").

 In Haywood v. Drown, 129 S. Ct. 2108, 2116 (2009), the Court noted, "this case 1

does not require us to decide whether Congress may compel a State to offer a forum,

otherwise unavailable under state law, to hear suits brought pursuant to [a federal

statute]."

 [n.20 in main volume.] 2

See Haywood v. Drown, 129 S. Ct. 2108 (2009), discussed in Art. III, "Use of State 3

Courts in Enforcement of Federal Law," supra.

57

ARTICLE VI

Clause 2. Supremacy of the Constitution, Laws and Treaties

NATIONAL SUPREMACY

Obligation of State Courts Under the Supremacy Clause

[P. 963, substitute for sentence in text accompanying n.20:]

Although states may not have to specially create courts competent to hear federal claims or give courts authority specially, it 1

violates the Supremacy Clause for a state court to refuse to hear

a category of federal claims when the court entertains state law

actions of a similar nature, or sometimes even when it does not 2

entertain state law actions of a similar nature.3

59

AMENDMENTS TO THE CONSTITUTION

BILL OF RIGHTS

– The Fourteenth Amendment.

[P.1005, in line 16 of n.34, add after “(1968)”:]

McDonald v. Chicago, 130 S. Ct. 3020 (2010) (plurality opinion).

[P. 1007, in line 18 of n.37 (continued from previous page) delete

citations for “Right to keep and bear arms” and add;]

McDonald v. Chicago, 130 S. Ct. 3020 (2010)

 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). 1

 Van Orden v. Perry, 545 U.S. 677 (2005). 2

 545 U.S. at 868. The Court in its previous Ten Commandments case, Stone v. 3

Graham, 449 U.S. 39, 41 (1980) (invalidating display in public school classrooms) had

concluded that the Ten Commandments are "undeniably a sacred text," and the 2005

Court accepted that characterization. McCreary, 545 U.S. at 859.

 545 U.S. at 881. An "indisputable" religious purpose was evident in the resolu- 4

tions authorizing a second display, and the Court characterized statements of purpose

accompanying authorization of the third displays as "only . . . a litigating position." 545

(continued...)

61

FIRST AMENDMENT

RELIGION

Establishment of Religion

– Governmental Encouragement of Religion in Public Schools:

Prayers and Bible Readings.

[P. 1047, add to n.168:]

An opportunity to flesh out this distinction was lost when the Court dismissed for lack of

standing an Establishment Clause challenge to public school recitation of the Pledge of

Allegiance with the words “under God.” Elk Grove Unified School District v. Newdown,

542 U.S. 1 (2004).

– Religious Displays on Government Property.

[P. 1058, add to text at end of section:]

Displays of the Ten Commandments on government

property occasioned two decisions in 2005. As in Allegheny

County, a closely divided Court determined that one display

violated the Establishment Clause and one did not. And again,

context and imputed purpose made the difference. The Court

struck down display of the Ten Commandments in courthouses

in two Kentucky counties but held that a display on the grounds 1

of the Texas State Capitol was permissible. The displays in the 2

Kentucky courthouses originally "stood alone, not part of an

arguably secular display." Moreover, the history of the displays 3

revealed "a predominantly religious purpose" that had not been

eliminated by steps taken to give the appearance of secular

objectives.4
62 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 4

U.S. at 870, 871.

 Only Justice Breyer voted to invalidate the courthouse displays and uphold the 5

capitol grounds display. The other eight Justices were split evenly, four (Chief Justice

Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both displays,

and four (Justices Stevens, O’Connor, Souter, and Ginsburg) voting to invalidate both.

 545 U.S. at 700, 704, 703. 6

 545 U.S. at 702. In Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1140 7

(2009), Justice Scalia, in a concurring opinion joined by Justice Thomas, wrote that,

“[e]ven accepting the narrowest reading of the narrowest opinion necessary to the

judgment in Van Orden,” he would find that a Ten Commandments monument displayed

in a Utah public park for 38 years amidst 15 permanent displays would not violate the

Establishment Clause, even though the monument constituted government speech. The

majority opinion did not consider the question, but decided the case on free-speech

grounds. See The Public Forum, infra.

 Salazar v. Buono, 130 S. Ct. 1803 (2010). 8

 During the course of the litigation, Congress variously passed an appropriations 9

bill forbidding the use of governmental funds to remove the cross, designating the cross

and its adjoining land as a “national memorial," prohibiting the spending of governmental funds to remove the cross, and directing the Secretary of the Interior to transfer the

land to the Veterans of Foreign Wars (VFW) for as long as the property was maintained

(continued...)

There was no opinion of the Court in Van Orden. Justice

Breyer, the swing vote in the two cases, distinguished the Texas 5

Capitol grounds display from the Kentucky courthouse displays.

In some contexts, the Ten Commandments can convey a moral

and historical message as well as a religious one, the Justice

explained. Although it was “a borderline case” turning on “a

practical matter of degree,” the capitol display served “a primarily nonreligious purpose.” The monument displaying the Ten 6

Commandments was one of 17 monuments and 21 historical

markers on the Capitol grounds; it was paid for by a private,

civic, and primarily secular organization; and it had been in

place, unchallenged, for 40 years. Under the circumstances,

Justice Breyer thought it unlikely that the monument would be

understood to represent an attempt by government to favor

religion.7

The Court has also considered an Establishment Clause

challenge to the display of a Latin Cross – erected to honor

American soldiers who died in World War I – on federal land

located in a remote section of the Mojave Desert. The legal 8

proceedings leading up to the decision, however, were complicated by congressional attempts to influence the final disposition

of the case, including the attempted transfer of the federal land

in question to private hands. As a result, a splintered Court 9
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 63

 (...continued) 9

as a memorial commemorating World War I veterans. A federal court of appeals ordered

the removal of the cross, holding that a reasonable observer would perceive a cross on

federal land as governmental endorsement of religion, Buono v. Norton, 371 F.3d 543

(9th Cir. 2004), and the government did not seek review of this decision. Subsequently,

the court of appeals affirmed a lower court injunction against the transfer of land to the

VFW, holding that the underlying statute was an invalid attempt to keep the cross in its

existing location. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007).

 Justice Kennedy, joined in full by Chief Justice Roberts and in part by Justice 10

Alito, found that the plaintiff, based on the existing injunction, had standing to challenge

the land transfer. The case, however, was remanded to the district court to consider the

legitimate congressional interest in reconciling Establishment Clause concerns with

respect for the commemoration of military veterans, id. at 10-13, and to evaluate whether

the land transfer would lead a "reasonable observer" to perceive government endorsement of religion. Id.at 16-17. Justice Alito would have upheld the land transfer, suggesting that a reasonable observer deemed to be aware of the history and all other pertinent

facts relating to a challenged display would not find the transfer to be an endorsement of

religion. Id. at 6 (Alito, J., concurring in part and in judgement). Justice Scalia, joined by

Justice Thomas, held that the plaintiff had no standing to seek the expansion of the

existing injunction to the display of the cross on private lands. Id. at 3-6 (Scalia, J.,

concurring in judgement). 

 Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davey, 540 U.S. 712, 718 11

(2004); Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).

 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the 12

Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987)).

failed to reach the merits of the underlying challenge, and

instead remanded the case for further consideration. 10

FREE EXERCISE OF RELIGION

[P. 1060, add to text after n.234:]

“There is room for play in the joints productive of a benevolent

neutrality which will permit religious exercise to exist without

[governmental] sponsorship and without interference.”11

[P. 1061, add to n.236:]

Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a provision of the Religious Land Use

and Institutionalized Persons Act of 2000 that prohibits governments from imposing a

“substantial burden on the religious exercise” of an institutionalized person unless the

burden furthers a “compelling governmental interest”).

[P. 1061, add to text at end of section:]

Government need not, however, offer the same accommodations

to secular entities that it extends to religious practitioners in

order to facilitate their religious exercise; “[r]eligious accommodations . . . need not ‘come packaged with benefits to secular

entities.’” 12
64 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Locke v. Davey, 540 U.S. 712 (2004). 13

 540 U.S. at 720-21. Excluding theology students but not students training for 14

other professions was permissible, the Court explained, because “[t]raining someone to

lead a congregation is an essentially religious endeavor,” and the Constitution’s special

treatment of religion finds “no counterpart with respect to other callings or professions.”

Id. at 721.

 540 U.S. at 720-21 (distinguishing Church of the Lukumi Babalu Aye v. City of 15

Hialeah, 508 U.S. 520 (1993) (law aimed at restricting ritual of a single religious group);

McDaniel v. Paty, 435 U.S. 618 (1978) (law denying ministers the right to serve as

delegates to a constitutional convention); and Sherbert v. Verner, 374 U.S. 398 (1963)

(among the cases prohibiting denial of benefits to Sabbatarians)).

See, e.g., In re Young, 141 F.3d 854 (8th Cir. 1998), cert. denied, 525 U.S. 811 1 6

(1998) (RFRA is a valid exercise of Congress’ bankruptcy powers as applied to insulate a

debtor’s church tithes from recovery by the bankruptcy trustee); O’Bryan v. Bureau of

Prisons, 349 F.3d 399 (7th Cir. 2003) (RFRA may be applied to require the Bureau of

Prisons to accommodate religious exercise by prisoners); Kikumura v. Hurley, 242 F.3d

950 (10th Cir. 2001) (RFRA applies to Bureau of Prisons).

“Play in the joints” can work both ways, the Court ruled

in upholding a state’s exclusion of theology students from a

college scholarship program. Although the state could have 13

included theology students in its scholarship program without

offending the Establishment Clause, its choice not to fund

religious training did not offend the Free Exercise Clause even

though that choice singled out theology students for exclusion.14

Refusal to fund religious training, the Court observed, was “far

milder” than restrictions on religious practices that have been

held to offend the Free Exercise Clause.15

Free Exercise Exemption from General Governmental Requirements

[P. 1066, add to n.264:]

In 2004, the Court rejected for lack of standing an Establishment Clause challenge to

recitation of the Pledge of Allegiance in public schools. Elk Grove Unified School District

v. Newdow, 542 U.S. 1 (2004).

[P. 1075, substitute for final paragraph of section:]

Boerne did not close the books on Smith, however, or even

on RFRA. Although Boerne held that RFRA was not a valid

exercise of Fourteenth Amendment enforcement power as applied to restrict states, it remained an open issue whether RFRA

may be applied to the federal government, and whether its

requirements could be imposed pursuant to other powers.

Several lower courts answered these questions affirmatively,16
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 65

 Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) 17

(affirming preliminary injunction issued under RFRA against enforcement of the

Controlled Substances Act to prevent the drinking of a sacramental tea that contains a

hallucinogen regulated under the Act).

 Pub. L. 106-274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq. 18

 The Act requires that state and local zoning and landmark laws and regulations 19

which impose a substantial burden on an individual’s or institution’s exercise of religion

be measured by a strict scrutiny test, and applies the same strict scrutiny test for any

substantial burdens imposed on the exercise of religion by persons institutionalized in

state or locally run prisons, mental hospitals, juvenile detention facilities, and nursing

homes. Both provisions apply if the burden is imposed in a program that receives federal

financial assistance, or if the burden or its removal would affect commerce.

 544 U.S. 709 (2005). 20

 544 U.S. at 714. 21

 544 U.S. at 720. 22

and the Supreme Court has applied RFRA to the federal government without addressing any constitutional questions.17

Congress responded to Boerne by enacting a new law

purporting to rest on its commerce and spending powers. The

Religious Land Use and Institutionalized Persons Act

(RLUIPA) imposes the same strict scrutiny test struck down in 18

Boerne but limits its application to certain land use regulations

and to religious exercise by persons in state institutions. In 19

Cutter v. Wilkinson, the Court upheld RLUIPA’s prisoner 20

provision against a facial challenge under the Establishment

Clause, but it did not rule on congressional power to enact

RLUIPA. The Court held that RLUIPA “does not, on its face,

exceed the limits of permissible government accommodation of

religious practices.” Rather, the provision “fits within the 21

corridor” between the Free Exercise and Establishment Clauses,

and is “compatible with the [latter] because it alleviates exceptional government-created burdens on private religious

exercise.”22

FREEDOM OF EXPRESSION — SPEECH AND PRESS

The Doctrine of Prior Restraint

– Obscenity and Prior Restraint

[P. 1090, add to n.394 after citation to Fort Wayne Books:]

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 784 (2004) (“Where (as here and

as in FW/PBS) the regulation simply conditions the operation of an adult business on

compliance with neutral and nondiscretionary criteria . . . and does not seek to censor

content, an adult business is not entitled to an unusually speedy judicial decision of the

Freedman type.”);
66 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Virginia v. Hicks, 539 U.S. 113, 119-20, 124 (2003) (italics in original; citations 2 3

omitted) (upholding, as not addressed to speech, an ordinance banning from streets

within a low-income housing development any person who is not a resident or employee

and who “cannot demonstrate a legitimate business or social purpose for being on the

premises”). Virginia v. Hicks cited Broadrick v. Oklahoma, 413 U.S. 601 (1973), which, in

the majority opinion and in Justice Brennan’s dissent, id. at 621, contains extensive

discussion of the overbreadth doctrine. Other restrictive decisions are Arnett v. Kennedy,

(continued...)

Subsequent Punishment: Clear and Present Danger and Other

Tests

[P. 1107, change heading to “Modern Tests and Standards:

Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny,

and Effectiveness of Speech Restrictions”]

[P. 1108, add to text before comma preceding n.481:]

and indecency

[P. 1108, add to n.481:]

Reno v. ACLU, 521 U.S. 844, 870-874 (1997). In National Endowment for the Arts v.

Finley, 524 U.S. 569 (1998), the Court held that a “decency” criterion for the awarding of

grants, which “in a criminal statute or regulatory scheme . . . could raise substantial

vagueness concerns,” was not unconstitutionally vague in the context of a condition on

public subsidy for speech.

[P. 1108, add to n.484:]

But see Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184,

1190 (2008) (facial challenge to burden on right of association rejected “where the statute

has a ‘plainly legitimate sweep’”).

[P. 1108, substitute for rest of section after n.484:]

But, even in a First Amendment situation, the Court has

written, “there are substantial social costs created by the

overbreadth doctrine when it blocks application of a law to

constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now

swallow the social benefits of declaring a law ‘overbroad,’ we

have insisted that a law’s application to protected speech be

‘substantial,’ not only in an absolute sense, but also relative to

the scope of the law’s plainly legitimate applications, before

applying the ‘strong medicine’ of overbreadth invalidation. . . .

Rarely, if ever, will an overbreadth challenge succeed against a

law or regulation that is not specifically addressed to speech or to

conduct necessarily associated with speech (such as picketing or

demonstrating).”23
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 67

 (...continued) 23

416 U.S. 134, 158-64 (1974); Parker v. Levy, 417 U.S. 733, 757-61 (1974); and New York v.

Ferber, 458 U.S. 747, 766-74 (1982). Nonetheless, the doctrine continues to be used

across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809,

815-18 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem Inn,

422 U.S. 922, 932-34 (1975); Village of Schaumburg v. Citizens for a Better Environment,

444 U.S. 620, 633-39 (1980); Secretary of State of Maryland v. Joseph H. Munson Co., 467

U.S. 947 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to

“oppose, molest, abuse, or interrupt” police officer in performance of duty); Board of

Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all “First

Amendment activities” at airport); Reno v. ACLU, 521 U.S. 844, 874-879 (1997) (statute

banning “indecent” material on the Internet).

 Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002). 24

 Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989). 25

 Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 790 (1994) (parentheses 26

omitted). The Court, however, applied a rational basis standard to uphold a state statute

that banned the sale of sexually explicit material to minors. Ginsberg v. New York, 390

U.S. 629, 641 (1968). Of course, governmental restrictions on some speech, such as

obscenity and fighting words, receive no First Amendment scrutiny, except that

particular instances of such speech may not be discriminated against on the basis of

hostility “towards the underlying message expressed.” R.A.V. v. City of St. Paul, 505

U.S. 377, 386 (1992).

Out of a concern that is closely related to that behind the

overbreadth doctrine, the Court has insisted that when the

government seeks to carry out a permissible goal and it has

available a variety of effective means to do so, “[i]f the First

Amendment means anything, it means that regulating speech

must be a last – not first – resort.” Thus, the Court applies 24

“strict scrutiny” to content-based regulations of fully protected

speech; this means that it requires that such regulations “promote a compelling interest” and use “the least restrictive means

to further the articulated interest.” 25

With respect to most speech restrictions to which the

Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i.e., scrutiny that is “midway between the ‘strict

scrutiny’ demanded for content-based regulation of speech and

the ‘rational basis’ standard that is applied – under the Equal

Protection Clause – to government regulation of nonspeech

activities.” Intermediate scrutiny requires that the govern- 26

mental interest be “significant” or “substantial” or “important”

(but not necessarily “compelling”), and it requires that the

restriction be narrowly tailored (but not necessarily the least

restrictive means to advance the governmental interest). Speech

restrictions to which the Court does not apply strict scrutiny

include those that are not content-based (time, place, or manner
68 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

E.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (time, place, and manner 27

restriction upheld as “narrowly tailored to serve a significant government interest, and

leav[ing] open ample alternative channels of communication”); Ward v. Rock Against

Racism, 491 U.S. 781, 798-799 (1989) (incidental restriction upheld as “promot[ing] a

substantial governmental interest that would be achieved less effectively absent the

regulation”); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (campaign contribution ceiling “may

be sustained if the State demonstrates a sufficiently important interest and employs

means closely drawn to avoid unnecessary abridgment of associational freedom”); Board

of Trustees v. Fox, 492 U.S. 469, 480 (1989) (commercial speech restrictions need not be

“absolutely the least severe that will achieve the desired end,” but must exhibit a “‘fit’

between the legislature’s ends and the means chosen to accomplish those ends – a fit that

is not necessarily perfect, but reasonable . . .”) (internal quotation mark and citation

omitted)). But see Thompson v. Western States Medical Center, 535 U.S. 357, 371 (2002)

(commercial speech restriction struck down as “more extensive than necessary to serve”

the government’s interests).

 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis in original). 28

 Erie v. Pap’s A.M., 529 U.S. 277, 291 (2000) (upholding ban on nude dancing); 29

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (upholding zoning of “adult

motion picture theaters”). Zoning and nude dancing cases are discussed below under

“Non-obscene But Sexually Explicit and Indecent Expression.”

 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984). 30

 United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993). 31

restrictions; incidental restrictions) and those that restrict

categories of speech to which the Court accords less than full

First Amendment protection (campaign contributions; commercial speech). Note that time, place, and manner restrictions, or 27

incidental restrictions, may be content-based, but they will not

receive strict scrutiny if they “are justified without reference to

the content of the regulated speech.” Examples are bans on 28

nude dancing, and zoning restrictions on pornographic theaters

or bookstores, both of which receive intermediate scrutiny on the

ground that they are “aimed at combating crime and other

negative secondary effects,” and not at the content of speech.29

The Court uses tests closely related to one another in

these instances in which it does not apply strict scrutiny. It has

indicated that the test for determining the constitutionality of an

incidental restriction on speech “in the last analysis is little, if

any, different from the standard applied to time, place, or manner restrictions,” and that “the validity of time, place, or man- 30

ner restrictions is determined under standards very similar to

those applicable in the commercial speech context.”31

In addition, the Supreme Court generally requires – even

when applying less than strict scrutiny – that, “[w]hen the

Government defends a regulation on speech as a means to

redress past harms or prevent anticipated harms, it must do
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 69

 Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (federal “must- 32

carry” provisions, which require cable television systems to devote a portion of their

channels to the transmission of local broadcast stations, upheld as a content-neutral,

incidental restriction on speech, not subject to strict scrutiny). The Court has applied the

same principle in weighing the constitutionality of two other speech restrictions to which

it does not apply strict scrutiny: restrictions on commercial speech, Edenfield v. Fane,

507 U.S. 761, 770-771 (1993) (“a governmental body seeking to sustain a restriction on

commercial speech must demonstrate that the harms it recites are real”), and restrictions

on campaign contributions, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,

392 (2000) (“We have never accepted mere conjecture as adequate to carry a First

Amendment burden.”).

 Ginsberg v. New York, 390 U.S. 629, 641 (1968) (upholding ban on sale to minors 33

of “girlie” magazines, and noting that, although “studies all agree that a causal link

[between ‘minors’ reading and seeing sexual material’ and an impairment in their ‘ethical

and moral development’] has not been demonstrated, they are equally agreed that a

causal link has not been disproved either,” id. at 641-42). In a case involving a federal

statute that restricted “signal bleed” of sexually explicit programming on cable television,

a federal district court wrote, “We recognize that the Supreme Court’s jurisprudence does

not require empirical evidence. Only some minimal amount of evidence is required when

sexually explicit programming and children are involved.” Playboy Entertainment

Group, Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998), aff’d, 529 U.S. 803 (2000). In a

case upholding a statute that, to shield minors from “indecent” material, limited the

hours that such material may be broadcast on radio and television, a federal court of

appeals wrote, “Congress does not need the testimony of psychiatrists and social

scientists in order to take note of the coarsening of impressionable minds that can result

from a persistent exposure to sexually explicit material. . . .” Action for Children’s

Television v. FCC, 58 F.3d 654, 662 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043

(1996). A dissenting opinion complained, “[t]here is not one iota of evidence in the record

. . . to support the claim that exposure to indecency is harmful – indeed, the nature of the

alleged ‘harm’ is never explained.” Id. at 671 (Edwards, C.J., dissenting). 

more than simply ‘posit the existence of the disease sought to be

cured.’ It must demonstrate that the recited harms are real, not

merely conjectural, and that the regulation will in fact alleviate

these harms in a direct and material way.” The Court has held, 32

however, that to sustain a statute denying minors access to

sexually explicit material “requires only that we be able to say

that it was not irrational for the legislature to find that exposure

to material condemned by the statute is harmful to minors.” 33

In certain other contexts, the Court has relied on “common sense” rather than requiring the government to demonstrate that a recited harm was real and not merely conjectural.

For example, it held that a rule prohibiting high school coaches

from recruiting middle school athletes did not violate the First

Amendment, finding that it needed “no empirical data to credit

[the] common-sense conclusion that hard-sell [speech] tactics

directed at middle school students could lead to exploitation.
70 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S.291, 34

300 (2007).

 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 459 (2002) (Souter, J., 35

dissenting).

 Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). In 36

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), the

Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from

donors, but falsely represented that “a significant amount of each dollar donated would

be paid over to” a charitable organization, could be sued for fraud.

 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & 37

Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986), a Court plurality held that a

state could not require a privately owned utility company to include in its billing

envelopes views of a consumer group with which it disagrees.

. . .” On the use of common sense in free speech cases, Justice 34

Souter wrote: “It is not that common sense is always illegitimate

in First Amendment demonstration. The need for independent

proof varies with the point that has to be established . . . . But

we must be careful about substituting common assumptions for

evidence when the evidence is as readily available as public

statistics and municipal property evaluations, lest we find out

when the evidence is gathered that the assumptions are highly

debatable.”35

Freedom of Belief

– Flag Salute Cases 

[P. 1111, change heading to “Flag Salutes and Other Compelled

Speech”]

[P. 1111, add to n.501:]

The First Amendment is not violated when the government compels financial contributions to fund government speech, even if the contributions are raised through a targeted

assessment rather than through general taxes. Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 (2005).

[P. 1112, add to text at end of section:]

Other governmental efforts to compel speech have also

been held by the Supreme Court to violate the First Amendment;

these include a North Carolina statute that required professional

fundraisers for charities to disclose to potential donors the gross

percentage of revenues retained in prior charitable

solicitations, a Florida statute that required newspapers to 36

grant political candidates equal space to reply to the newspapers’

criticism and attacks on their records, an Ohio statute that 37
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 71

 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 38

 Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). 39

 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n. 14 (1985). 40

See Milavetz, Gallop & Milavetz v. United States, 130 S. Ct. 1324, 1339-41 (2010)

(requiring advertisement for certain "debt relief" businesses to disclose that the services

offered include bankruptcy assistance).

 Meese v. Keene, 481 U.S. 465, 480 (1987). 41

prohibited the distribution of anonymous campaign literature,38

and a Massachusetts statute that required private citizens who

organized a parade to include among the marchers a group

imparting a message – in this case support for gay rights – that

the organizers did not wish to convey. 39

By contrast, the Supreme Court has found no First

Amendment violation when government compels disclosures in

commercial speech, or when it compels the labeling of foreign

political propaganda. Regarding compelled disclosures in commercial speech, the Court held that an advertiser’s “constitutionally protected interest in not providing any particular factual

information in his advertising is minimal. . . . [A]n advertiser’s

rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing

deception of consumers. . . . The right of a commercial speaker

not to divulge accurate information regarding his services is not

. . . a fundamental right.” Regarding compelled labeling of 40

foreign political propaganda, the Court upheld a provision of the

Foreign Agents Registration Act of 1938 that required that, when

an agent of a foreign principal seeks to disseminate foreign

“political propaganda,” he must label such material with certain

information, including his identity, the principal’s identity, and

the fact that he has registered with the Department of Justice.

The Court found that “Congress did not prohibit, edit, or restrain

the distribution of advocacy materials. . . . To the contrary,

Congress simply required the disseminators of such material to

make additional disclosures that would better enable the public

to evaluate the import of the propaganda.”41

Right of Association

[P. 1116, add before period at the end of n.530:]

, and see the comparison of Ohralik and Bates in Tennessee Secondary School Athletic

Ass’n v. Brentwood Academy, 551 U.S. 291, 296-98 (2007) (“solicitation ban was more

akin to a conduct regulation than a speech restriction”)
72 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797-98 (2008) 42

(citations omitted). In Lopez Torres, the Court upheld a state statute that required

political parties to select judicial candidates at a convention of delegates chosen by party

members in a primary election, rather than to select candidates in direct primary

elections. The statute was challenged by party members who had not been selected and

who claimed “that the convention process that follows the delegate election does not give

(continued...)

[P. 1120, substitute for n.556:]

530 U.S. at 653. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547

U.S. 47, 69 (2006), the Court held that the Solomon Amendment’s forcing law schools to

allow military recruiters on campus does not violate the schools’ freedom of expressive

association because “[r]ecruiters are, by definition, outsiders who come onto campus for

the limited purpose of trying to hire students – not to become members of the school’s

expressive association. This distinction is critical. Unlike the public accommodations

law in Dale, the Solomon Amendment does not force a law school ‘to accept members it

does not desire.’” Rumsfeld is discussed below under “Government and the Power of the

Purse.” See also Andrew Koppelman and Tobias Barrington Wolff, A RIGHT TO DISCRIMINATE?: HOW THE CASE OF BOY SCOUTS OF AMERICAN V. JAMES DALE WARPED THE LAW OF

FREE ASSOCIATION (Yale University Press, 2009).

– Political Association

[P. 1121, add to n.561:]

California Democratic Party v. Jones, 530 U.S. 567, 577 (2000) (requirement of a

“blanket” primary, in which all registered voters, regardless of political affiliation, may

participate, unconstitutionally “forces political parties to associate with – to have their

nominees, and hence their positions, determined by – those who, at best, have refused to

affiliate with the party, and, at worst, have expressly affiliated with a rival.”); Clingman

v. Beaver, 544 U.S. 581 (2005) (Oklahoma statute that allowed only registered members

of a political party, and registered independents, to vote in the party’s primary does not

violate freedom of association; Oklahoma’s “semiclosed primary system” distinguished

from Connecticut’s closed primary that was struck down in Tashjian).

[P. 1121, add to text after n.561:]

If people have a First Amendment right to associate with

others to form a political party, then it follows that “[a] political

party has a First Amendment right to limit its membership as it

wishes, and to choose a candidate-selection process that will in

its view produce the nominee who best represents its political

platform. These rights are circumscribed, however, when the

State gives a party a role in the election process – as . . . by

giving certain parties the right to have their candidates appear

on the general-election ballot. Then, for example, the party’s

racially discriminatory action may become state action that

violates the Fifteenth Amendment. And then also the State

acquires a legitimate governmental interest in assuring the

fairness of the party’s nominating process, enabling it to prescribe what that process must be.”42
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 73

 (...continued) 42

them a realistic chance to secure the party’s nomination.” Id. at 799. The Court rejected

their challenge, holding that, although a state may require “party-candidate selection

through processes more favorable to insurgents, such as primaries,” id. at 799, the

Constitution does not demand that a state do so. “Party conventions, with their

attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an

accepted manner of selecting party candidates.” Id. at 799. The plaintiffs had an

associational right to join the party but not to have a certain degree of influence in the

party. Id. at 798.

 Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 43

1189 (2008). This was a 7-to-2 decision written by Justice Thomas, with Justices Scalia

and Kennedy dissenting.

 128 S. Ct. at 1192. 44

 128 S. Ct. at 1193. The Court saw “simply no basis to presume that a 45

well-informed electorate will interpret a candidate’s party preference designation to

mean that the candidate is the party’s chosen nominee or representative or that the

party associates with or approves of the candidate.” Id.

 A ballot could avoid confusion by, for example, “includ[ing] prominent disclaimers 46

explaining that party preference reflects only the self-designation of the candidate and

not an official endorsement by the party.” 128 S. Ct. at 1194. Justice Scalia, joined by

Justice Kennedy in dissent, wrote that “[a]n individual’s endorsement of a party shapes

the voter’s view of what the party stands for,” and that it is “quite impossible for the

ballot to satisfy a reasonable voter that the candidate is ‘not associated’ with the party for

which he has expressed a preference.” Id. at 1200.

A political party’s First Amendment right to limit its

membership as it wishes does not render invalid a state statute

that allows a candidate to designate his party preference on a

ballot, even when the candidate “is unaffiliated with, or even

repugnant to, the party” he designates. This is because the 43

statute in question “never refers to the candidates as nominees of

any party, nor does it treat them as such”; it merely allows them

to indicate their party preference. The Court acknowledged 44

that “it is possible that voters will misinterpret the candidates’

party-preference designations as reflecting endorsement by the

parties,” but “whether voters will be confused by the

party-preference designations will depend in significant part on

the form of the ballot.” If the form of the ballot used in a 45

particular election is such as to confuse voters, then an

as-applied challenge to the statute may be appropriate, but a

facial challenge, the Court held, is not.46

– Conflict Between Organization and Members

[P. 1125, add to n.580:]

A local union may also charge nonmembers a fee that goes to the national union to pay

for litigation expenses incurred on behalf of other local units, but only if (1) the litigation

is related to collective bargaining rather than political activity, and (2) the litigation
74 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 551 U.S. 177 (2007). 47

 551 U.S. at 181, citing 475 U.S. 292, 302, 304-310. 48

 551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990), and 49

adding emphasis..

 551 U.S. at 184. 50

 551 U.S. at 184 (citations omitted). 51

 129 S. Ct. 1093 (2009). 52

charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass, 129

S. Ct. 798, 802 (2009).

[P. 1125, add to text after n.583:]

In Davenport v. Washington Education Ass’n, the Court 47

noted that, although Chicago Teachers Union v. Hudson had “set

forth various procedural requirements that public-sector unions

collecting agency fees must observe in order to ensure that an

objecting nonmember can prevent the use of his fees for impermissible purposes,” it “never suggested that the First Amend- 48

ment is implicated whenever governments place limitations on a

union’s entitlement to agency fees above and beyond what Abood

and Hudson require. To the contrary, we have described Hudson

as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its

requirements under Abood.” Thus, the Court held in Davenport 49

that the State of Washington could prohibit “expenditure of a

nonmember’s agency fees for election-related purposes unless the

nonmember affirmatively consents.” The Court added that 50

“Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to

collective bargaining. Indeed, it is uncontested that it would be

constitutional for Washington to eliminate agency fees entirely.”51

In Ysursa v. Pocatello Education Ass’n, the Court upheld 52

an Idaho statute that prohibited payroll deductions for union

political activities. Because the statute did not restrict political

speech, but merely declined to subsidize it by providing for

payroll deductions, the state did not abridge the union’s First

Amendment right and therefore could justify the ban merely by

demonstrating a rational basis for it. The Court found that it

was “justified by the State’s interest in avoiding the reality or
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 75

 129 S. Ct. at 1098. The unions had argued that, even if the limitation was valid 53

as applied at the state level, it violated their First Amendment rights when applied to

local public employers. The Court held that a political subdivision, “created by the state

for the better ordering of government, has no privileges or immunities under the federal

constitution which it may invoke in opposition to the will of its creator.” Id. at 1101,

quoting Williams v. Mayor, 289 U.S. 36, 40 (1933).

 543 U.S. 77 (2010). 54

 The six-Justice majority also held that the statute at issue gave adequate notice 55

of what conduct was prohibited, a conclusion with which the dissenting Justices agreed,

and basic First Amendment rights of association and assembly were not implicated, a

conclusion about which the dissent was less sanguine. 130 S. Ct. 2705, 2718-22, 2730-31

(2010). See also 130 S. Ct. at 2732-33 (2010) (Breyer, J., dissenting).

 The majority purported to apply a level of scrutiny more rigorous than the 56

intermediate scrutiny test applied in cases in which conduct, rather than the content of

speech, is the primary target of regulation. 130 S. Ct. at 2724. The dissent found the

majority's analysis to be too deferential and insufficiently exacting, and also thought the

case might be susceptible to resolution on statutory grounds if remanded. 130 S. Ct. at

(continued...)

appearance of government favoritism or entanglement with

partisan politics.”53

[P.1140, add new topic to text after n.659:]

Material Support of Terrorist Organizations

Congress may bar supporting the legitimate activities of certain

foreign terrorist organizations through speech made to, under

the direction of, or in coordination with those groups. So held the

Court in Holder v. Humanitarian Law Project, a case challeng- 54

ing an effective prohibition on giving training in peaceful dispute

resolution, teaching how to petition the United Nations for relief,

providing legal expertise in negotiating peace agreements, and

the like. Without express reliance on wartime precedents, and 55

yet also without extended discussion of plaintiffs' free speech

interests, the Court emphasized findings by the political

branches that support meant to promote peaceful conduct can

nevertheless further terrorism by designated groups in multiple

ways. The Court also cited the narrowness of the proscription

imposed. Only carefully defined activities done in concert with

previously designated organizations were barred. Independent

advocacy and mere membership were not restricted. Given the

national security and foreign affairs concerns at stake, Congress

had adequately balanced the competing interests of individual

speech and government regulation, deference to the informed

judgment of the political branches being due even absent an

extensive record of concrete evidence. 56
76 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 56

2734-39 (Breyer, J., dissenting).

 543 U.S. 77 (2004) (per curiam). 57

 543 U.S. at 84. 58

 513 U.S. 454 (1995) (discussed under “Government as Employer: Political and 59

Other Outside Activities,” supra).

 543 U.S. at 84. 60

 543 U.S. at 80. 61

Particular Government Regulations That Restrict Expression

– Government as Employer: Free Expression Generally

[P. 1146, add to n.687:]

As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held

that there is no First Amendment protection at all for government employees when they

make statements pursuant to their official duties.

[P. 1148, add to text after n.699:]

In City of San Diego v. Roe, the Court held that a police 57

department could fire a police officer who sold a video on the

adults-only section of eBay that showed him stripping off a police

uniform and masturbating. The Court found that the officer’s

“expression does not qualify as a matter of public concern . . . and

Pickering balancing does not come into play.” The Court also 58

noted that the officer’s speech, unlike federal employees’ speech

in United States v. National Treasury Employees Union

(NTEU), was “linked to his official status as a police officer, and 59

designed to exploit his employer’s image,” and therefore “was

detrimental to the mission and functions of his employer.”60

Therefore, the Court had “little difficulty in concluding that the

City was not barred from terminating Roe under either line of

cases [i.e., Pickering or NTEU].” This leaves uncertain 61

whether, had the officer’s expression not been linked to his

official status, the Court would have overruled his firing under

NTEU or would have upheld it under Pickering on the ground

that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First

Amendment protection for government employees by holding

that there is no protection – Pickering balancing is not to be

applied – “when public employees make statements pursuant to

their official duties,” even if those statements are about matters
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 77

 547 U.S. 410, 421 (2006). 62

 547 U.S. at 421. However, “[s]o long as employees are speaking as citizens about 63

matters of public concern, they must face only those speech restrictions that are

necessary for their employers to operate efficiently and effectively.” Id. at 419. Such

necessity, however, may be based on a “common-sense conclusion” rather than on

“empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551

U.S. 291, 300 (2007) (citing Garcetti).

 The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), 64

for these points. In Givhan, the Court had upheld the First Amendment right of a public

school teacher to complain to the school principal about “employment policies and

practices at [the] school which [she] conceived to be racially discriminatory in purpose or

effect.” Id. at 413. The difference between Givhan and Ceballos was apparently that

Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were.

Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee.

See Ceballos, 547 U.S. at 420-21.

 547 U.S. at 421. 65

of public concern. In this case, a deputy district attorney had 62

presented his supervisor with a memo expressing his concern

that an affidavit that the office had used to obtain a search

warrant contained serious misrepresentations. The deputy

district attorney claimed that he was subjected to retaliatory

employment actions, and sued. The Supreme Court held “that

when public employees make statements pursuant to their

official duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” The 63

fact that the employee’s speech occurred inside his office, and the

fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection. Rather, the “controlling factor” was that his expressions 64

were made pursuant to his duties.” Therefore, another em- 65

ployee in the office, with different duties, might have had a First

Amendment right to utter the speech in question, and the deputy

district attorney himself might have had a First Amendment

right to communicate the information that he had in a letter to

the editor of a newspaper. In these two instances, a court would

apply Pickering balancing.

[P. 1149, add footnote after “restraint.” on line 8:]

In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not

touching upon a matter of public concern, is totally beyond the protection of the First

Amendment.” Rather, it was beyond First Amendment protection “absent the most

unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court, citing

Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public

concern, then “the employee has no First Amendment cause of action based on his or her

employer’s reaction to the speech.” 547 U.S. at 418.
78 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010). The Court did not 66

address the more difficult question raised by the school's written policy, which forbade

discrimination, among other things, based on religion or sexual orientation, because the

parties stipulated that in practice student groups were required to accept all students

who complied with neutral membership requirements (e.g., payment of dues). Id. at

11-12. Thus, the Court did not address whether the application of the narrower written

anti-discrimination policies constituted viewpoint discrimination against a student group

that required its members to adhere to its religious tenets, including the belief that

sexual activity should only occur in the context of marriage between a man and a woman.

Id. at 21-23 (Alito, J., dissenting).

 127 S. Ct. 2618 (2007). 67

 127 S. Ct. at 2624. 68

 127 S. Ct. at 2625. 69

 127 S. Ct. at 2636. 70

– Government as Educator.

[P.1152, add to text after n.716:]

On the other hand, a public university that imposed an "accept-all-comers" policy on student groups as a condition of

receiving the financial and other benefits of official school recognition did not impair a student religious group's right to expressive association because the school's policy was reasonable and

viewpoint neutral.66

[P. 1154, add to text after n.725:]

In Morse v. Frederick, the Court held that a school could 67

punish a pupil for displaying a banner that said, “BONG HiTS 4

JESUS,” because these words could reasonably be interpreted as

“promoting illegal drug use.” The Court indicated that it might 68

have reached a different result if the banner had addressed the

issue of “the criminalization of drug use or possession.” Justice 69

Alito, joined by Justice Kennedy, wrote a concurring opinion

stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public

school may restrict speech that a reasonable observer would

interpret as advocating illegal drug use and (b) it provides no

support for any restriction on speech that can plausibly be

interpreted as commenting on any political or social issue,

including speech on issues such as ‘the wisdom of the war on

drugs or of legalizing marijuana for medicinal use.’” As Morse 70

v. Frederick was a 5-to-4 decision, Justices Alito and Kennedy’s

votes were necessary for a majority and therefore should be read

as limiting the majority opinion with respect to future cases.
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 79

 424 U.S. at 22. 71

 424 U.S. at 25 (internal quotation marks omitted). 72

 128 S. Ct. 2759, 2771, 2772 (2008). The statute was § 319(a) of the Bipartisan 73

Campaign Reform Act of 2002 (BCRA), Pub. L. 107-155, 116 Stat. 109, 2 U.S.C.

§ 441a-1(a), which was part of the so-called “Millionaire’s Amendment.”

– Government as Regulator of the Electoral Process: Elections

[P. 1156, add to text after first full paragraph on page, and

change beginning of second paragraph as indicated:]

The Court in Buckley recognized that political contributions “serve[] to affiliate a person with a candidate” and

“enable[ ] like-minded persons to pool their resources in furtherance of common political goals.” Contribution ceilings, therefore,

“limit one important means of associating with a candidate or

committee . . . .” Yet “[e]ven a significant interference with 71

protected rights of political association may be sustained if the

State demonstrates a sufficiently important interest and employs

means closely drawn to avoid unnecessary abridgment of associational freedoms.”72

Applying this standard, the Buckley Court sustained the

contribution limitation as imposing . . . .

[P. 1158, add to text after n.743:]

The government not only may not limit the amount that a

candidate may spend out of his own resources, but, if a candidate

spends more than a particular amount, the government may not

penalize the candidate by authorizing the candidate’s opponent

to receive individual contributions at higher than the normal

limit. In Davis v. Federal Election Commission, the Court struck

down, as lacking a compelling governmental interest, a federal

statute that provided that, if a “self-financing” candidate for the

House of Representatives spends more than a specified amount,

then his opponent may accept more individual contributions than

otherwise permitted. The statute, the Court wrote, imposed “a

special and potentially significant burden” on a candidate “who

robustly exercises [his] First Amendment right.” Citing 73

Buckley, the Court stated that a burden “on the expenditure of

personal funds is not justified by any governmental interest in

eliminating corruption or the perception of corruption.” This is

because “reliance on personal funds reduces the threat of corrup-
80 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 128 S. Ct. at 2773 (emphasis in original). Justice Stevens, in the part of his 74

dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, found that the

Millionaire’s Amendment does not cause self-funding candidates “any First Amendment

injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the

contrary, it does no more than assist the opponent of a self-funding candidate in his

attempts to make his voice heard. . . . Enhancing the speech of the millionaire’s

opponent, far from contravening the First Amendment, actually advances its core

principles.” Id. at 2780.

 128 S. Ct. at 2773-74. The Court also struck down the disclosure requirements in 75

§ 319(b) of BCRA because they “were designed to implement the asymmetrical contribution limits provided for in § 319(a), and . . . § 319(a) violates the First Amendment.” Id.

at 2775.

 130 S. Ct. 2811 (2010). 76

Reed, 130 S. Ct at 2821. Five Justices joined the majority opinion written by 77

Chief Justice Roberts - Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor. One

might question, however, what level of scrutiny Justice Breyer would support, since he

also joined a concurrence by Justice Stevens, which suggested that the disclosure of the

name and addresses on the petitions is not "a regulation of pure speech," and consequently should be subjected to a lesser standard of review. 130 S. Ct. at 2829 (Stevens, J.,

concurring in part and in judgment). Justice Breyer, in his own concurrence, suggests

that "in practice [the standard articulated in both the majority and Justice Steven's

(continued...)

tion, and therefore . . . discouraging the use of personal funds[ ]

disserves the anticorruption interest.” Citing Buckley again, 74

the Court added that the governmental interest in equalizing the

financial resources of candidates does not provide a justification

for restricting expenditures, and, in fact, to restrict expenditures

“has ominous implications because it would permit Congress to

arrogate the voters’ authority to evaluate the strengths of candidates competing for office. . . . Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are

celebrities; some have the benefit of a well-known family name.

Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to the

outcome of an election.”75

[P. 1158, add the following paragraph after n.746]

The Court has apparently extended the reasoning of these

cases to include not just disclosure related to political contributions, but also to disclosure related to legally "qualifying" a

measure for the ballot. In Doe v. Reed, the Court found that 76

signing a petition to initiate a referendum was a protected form

of political expression, and that a state requirement to disclose

the names and addresses on those petitions to the public would

be subjected to "exacting scrutiny." The Court upheld the 77
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 81

 (...continued) 77

concurrence] has meant asking whether the statute burdens any one such interest in a

manner out of proportion to the statute's salutary effects upon the others." 130 S. Ct.

2822 (Breyer, J., concurring). Justice Scalia, on the other hand, questioned whether

"signing a petition that has the effect of suspending a law fits within 'freedom of speech'

at all." 130 S. Ct. at 2832 (Scalia, J., concurring in judgement). 

 130 S. Ct. at 2821(citation omitted). 78

 130 S. Ct. 876 (2010). 79

 539 U.S. 146 (2003). 80

 539 U.S. at 157. 81

 540 U.S. 93 (2003). 82

disclosure requirement on its face, finding that it furthered the

state’s interest in detecting fraud and mistake in the petitioning

process, while also providing for transparency and accountability. The case was remanded, however, to ascertain whether in

this particular instance (a referendum to overturn a law conferring rights to gay couples) there was a "reasonable probability"

that the compelled disclosures would subject the signatories to

threats, harassment, or reprisals from either government officials or private parties. 78

[P. 1160, add to text after n. 758:]

While the dissent's concerns were ultimately realized in Citizens

United v. FEC, it was only after many years of the Court either 79

distinguishing Bellotti or applying it narrowly.

[P. 1162, add to text at end of section:]

In FEC v. Beaumont, the Court held that the federal law 80

that bars corporations from contributing directly to candidates

for federal office may constitutionally be applied to nonprofit

advocacy corporations. Corporations may make such contributions only through PACs, and the Court in Beaumont wrote that,

in National Right to Work, it had “specifically rejected the

argument . . . that deference to congressional judgments about

proper limits on corporate contributions turns on details of

corporate form or the affluence of particular corporations.”81

Though nonprofit advocacy corporations, the Court held in

Massachusetts Citizens for Life, have a First Amendment right to

make independent expenditures, the same is not true for direct

contributions to candidates.

In McConnell v. Federal Election Commission, the Court 82

upheld against facial constitutional challenges key provisions of
82 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 540 U.S. at 133. 83

 540 U.S. at 123. 84

 540 U.S. at 204. 85

 540 U.S. at 190. 86

 540 U.S. at 141. 87

 540 U.S. at 136 (internal quotation marks omitted). 88

 540 U.S. at 136. 89

the Bipartisan Campaign Reform Act of 2002 (BCRA). A majority opinion coauthored by Justices Stevens and O’Connor upheld

two major provisions of BCRA: (1) the prohibition on “national

party committees and their agents from soliciting, receiving,

directing, or spending any soft money,” which is money donated 83

for the purpose of influencing state or local elections, or for

“mixed-purpose activities – including get-out-the-vote drives and

generic party advertising,” and (2) the prohibition on corpora- 84

tions and labor unions’ using funds in their treasuries to finance

“electioneering communications,” which BCRA defines as “any 85

broadcast, cable, or satellite communication” that “refers to a

clearly identified candidate for Federal Office,” made within 60

days before a general election or 30 days before a primary election. Electioneering communications thus include both “express

advocacy and so-called issue advocacy.”86

As for the soft-money prohibition on national party

committees, the Court applied “the less rigorous scrutiny applicable to contribution limits.” and found it “closely drawn to 87

match a sufficiently important interest.” The Court’s decision 88

to use less rigorous scrutiny, it wrote, “reflects more than the

limited burdens they [i.e., the contribution restrictions] impose

on First Amendment freedoms. It also reflects the importance of

the interests that underlie contribution limits – interests in

preventing ‘both the actual corruption threatened by large

financial contributions and the eroding of public confidence in

the electoral process through the appearance of corruption.’”89

As for the prohibition on corporations and labor unions’

using their general treasury funds to finance electioneering

communications, the Court applied strict scrutiny, but found a

compelling governmental interest in preventing “the corrosive

and distorting effects of immense aggregations of wealth that are

accumulated with the help of the corporate form and that have

little or no correlation to the public’s support for the corporation’s
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 83

 540 U.S. at 205. 90

 540 U.S. at 204. 91

 540 U.S. at 206. 92

 546 U.S. 410 (2006). 93

 551 U.S. 449 (2007). 94

 Only Justice Alito joined Parts III and IV of Chief Justice Roberts’ opinion, which 95

addressed the issue of as-applied challenges to BCRA. Justices Scalia (joined by Kennedy

and Thomas) concurred in the judgment, but would have overturned McConnell and

struck down BCRA’s limits on issue advocacy on its face.

 The suggestion was made that an “intent and effect” standard had been endorsed 96

by the Court in McConnell, which stated that “[t]he justifications for the regulation of

express advocacy apply equally to ads aired during those periods if the ads are intended

to influence the voters’ decisions and have that effect.” 540 U.S. at 206. While acknowledging that an evaluation of the “intent and effect” had been relevant to the rejection of a

facial challenge, Chief Justice Roberts’ opinion in WRTL II denied that such a standard

had been endorsed for as-applied challenges. 551 U.S. 464-69.

political ideals.” These corrosive and distorting effects result 90

both from express advocacy and from so-called issue advocacy.

The Court also noted that, because corporations and unions

“remain free to organize and administer segregated funds, or

PACs,” for electioneering communications, the provision was not

a complete ban on expression. In response to the argument 91

that the justifications for a ban on express advocacy did not

apply to issue advocacy, the Court found that the “argument fails

to the extent that the issue ads broadcast during the 30- and

60-day periods preceding federal primary and general elections

are the functional equivalent of express advocacy.”92

The limitations on electioneering communication, however, soon faced renewed scrutiny by the Court. In Wisconsin

Right to Life, Inc. v. Federal Election Comm’n (WRTL I), the 93

Court vacated a lower court decision that had denied plaintiffs

the opportunity to bring an as-applied challenge to BCRA’s

regulation of electioneering communications. Subsequently, in

Federal Election Commission v. Wisconsin Right to Life (WRTL

II), the Court considered what standard should be used for such 94

a challenge. Chief Justice Roberts, in the controlling opinion,95

rejected the suggestion that an issue ad broadcast during the

specified periods before elections should be considered the

“functional equivalent” of express advocacy if the “intent and

effect” of the ad was to influence the voter’s decision in an election. Rather, Chief Justice Roberts’ opinion held that an issue 96

ad is the functional equivalent of express advocacy only if the ad
84 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 551 U.S. at 469-70. 97

 130 S. Ct. 876 (2010). 98

See Buckley, 424 U.S. at 49 (First Amendment’s protections do not depend on the 99

speaker’s “financial ability to engage in public discussion.”); Davis v. Federal Election

Commission, 128 S. Ct. 2759 (2008) (invalidating the cap on contributions to one

candidate if the opponent made certain expenditures from personal funds). 

Citizens United, slip. op. at 34. 100

 130 S. Ct. at 905-06. 101

is “susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate.” 97

Then came the case of Citizens United v. FEC, which 98

significantly altered the Supreme Court's jurisprudence on

corporations and election law. In Citizens United, a non-profit

corporation released a film critical of then-Senator Hillary

Clinton, a candidate in the Democratic Party’s 2008 Presidential

primary elections, and sought to make it available to cable

television subscribers within 30 days of that primary. The case

began as another as-applied challenge to BCRA, but the Court

asked for reargument, and, in a 5-4 decision, not only struck

down the limitations on electioneering communication on its face

(overruling McConnell) but also rejected the use of the

antidistortion rationale (overruling Austin). 

In Citizens United, the Court argued that there was a

tension between the right of corporations to engage in political

speech, as articulated in Bellotti and its progeny, and the limitations on such speech allowed in Austin to avoid the disproportionate economic power of corporations. Reasoning that the Court

had rejected similar attempts to level the playing field among

differing voices with disparate economic resources, the Court 99

held that the premise that the First Amendment generally

prohibits the suppression of political speech based on the

speaker’s identity of necessity prevents distinctions based on

wealth. In particular, the Court noted that media corpora- 100

tions, although statutorily exempted from these restrictions, do

not receive special constitutional protection under the First

Amendment, and thus would be constitutionally vulnerable 101

under an antidistortion rationale.

The Court also held that the ability of a corporation to

form a PAC neither allowed that corporation to speak directly,

nor did it provide a sufficient alternative method of speech. The
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 85

 130 S. Ct. at 897. For example, a PAC must appoint a treasurer, keep detailed 102

records of persons making donations, preserve receipts for three years, must report

changes to its organizational statement within 10 days, and must file detailed monthly

reports with the FEC. Id. 

 For instance, while the Court in National Right to Work allowed restrictions on 103

corporate solicitation of other corporations for PAC funds, the Court might be disinclined

to allow restrictions on corporations soliciting other corporations for funds to use for

direct independent expenditures.

 130 S. Ct. at 913-14 (citations omitted). The Court had previously acknowledged 104

that as-applied challenges would be available to a group if it could show a “reasonable

probability” that disclosure of its contributors’ names would “subject them to threats,

harassment, or reprisals from either Government officials or private parties.” McConnell,

540 U.S. at 198 (quoting Buckley, 427 U.S. at 74). 

 548 U.S. 230 (2006). Justice Breyer wrote the plurality opinion, with only Chief 105

Justice Roberts joining it in full. Justice Alito joined the opinion as to the contribution

(continued...)

Court, found that PACs are burdensome alternatives that are

“expensive to administer and are subject to extensive regulation.” The Court noted that the difficulty in establishing a PAC 102

might explain why fewer than 2,000 of the millions of corporations in the country have PACs. Further, the Court argued that

even if a corporation did want to establish a PAC to speak to an

urgent issue, that such corporation might not be able to establish

one in time to address issues in a current campaign. 

While the holding of Citizens United would appear to

diminish the need for corporations to create PACs in order to

engage in political speech, it is not clear what level of regulation

will now be allowed over speech made directly by a corporation. The Court did uphold the requirements under BCRA that 103

electioneering communications funded by anyone other than a

candidate must include a disclaimer regarding who is responsible

for the content of the communication, and that the person making the expenditure must disclose to the FEC the amount of the

expenditure and the names of certain contributors. The Court

held that these requirements could be justified based on a

governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending, helping

citizens “make informed choices in the political marketplace,”

and facilitate the ability of shareholders to hold corporations

accountable for such political speech.104

In Randall v. Sorrell, a plurality of the Court struck down

a Vermont campaign finance statute’s limitations on both expenditures and contributions. As for the statute’s expenditure 105
86 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 105

limitations but not as to the expenditure limitations. Justice Alito and three other

Justices concurred in the judgment as to the limitations on both expenditures and

contributions, and three Justices dissented.

 548 U.S. at 248 (citation omitted). 106

 Although, as here, limits on contributions may be so low as to violate the First 107

Amendment, “there is no constitutional basis for attacking contribution limits on the

ground that they are too high. Congress has no constitutional obligation to limit

contributions at all . . . .” Davis v. Federal Election Commission, 128 S. Ct. 2759, 2771

(2008) (dictum).

 548 U.S. at 249 (citation omitted). The plurality noted that, “in terms of real 108

dollars (i.e., adjusting for inflation),” they were lower still. Id. at 250.

 548 U.S. at 253. 109

limitations, the plurality found Buckley to control and saw no

reason to overrule it and no adequate basis upon which to distinguish it. As for the statute’s contribution limitations, the plurality, following Buckley, considered whether the “contribution

limits prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy’; whether they magnify the

advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too

low and too strict to survive First Amendment scrutiny.” The 106

plurality found that they were. Vermont’s limit of $200 per 107

gubernatorial election “(with significantly lower limits for contributions to candidates for State Senate and House of Representatives) . . . are well below the limits this Court upheld in Buckley,”

and “are the lowest in the Nation.” But the plurality struck 108

down Vermont’s contribution limits “based not merely on the low

dollar amounts of the limits themselves, but also on the statute’s

effect on political parties and on volunteer activity in Vermont

elections.”109

– Government as Investigator: Reporter’s Privilege.

[P. 1165, substitute for n.783:]

Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s

opinion. Justice Powell, despite having joined the majority opinion, also submitted a

concurring opinion in which he suggested a privilege might be available if, in a particular

case, “the newsman is called upon to give information bearing only a remote and tenuous

relationship to the subject of the investigation, or if he has some other reason to believe

that his testimony implicates confidential source relationships without a legitimate need

of law enforcement.” 408 U.S. at 710. Justice Stewart’s dissenting opinion in Branzburg

referred to Justice Powell’s concurring opinion as “enigmatic.” Id. at 725. Judge Tatel of

the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Powell]

wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the

least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re:

Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J.,
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 87

 408 U.S. at 706. 110

E.g., Cal. Evid. Code § 1070; N.J. Rev. Stat. §§ 2A:84A-21, -21a, -29. The 111

reported cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr v.

Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Rosato v.

Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912

(1976). The greatest difficulty these laws experience, however, is the possibility of a

constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants.

See Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied sub nom. New York Times v.

New Jersey, 439 U.S. 997 (1978). See also, New York Times v. Jascalevich, 439 U.S.

1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating

stay). 

 Rule 501 also provides that, in civil actions and proceedings brought in federal 112

court under state law, the availability of a privilege shall be determined in accordance

with state law.

See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 113

2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17

(D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with

unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the

District of Columbia “is not of one mind on the existence of a common law privilege”).

concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005)

(Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted

material, 438 F.3d 1141 (D.C. Cir. 2006).

“[C]ourts in almost every circuit around the country interpreted Justice Powell’s

concurrence, along with parts of the Court’s opinion, to create a balancing test when

faced with compulsory process for press testimony and documents outside the grand jury

context.” Association of the Bar of the City of New York, The Federal Common Law of

Journalists’ Privilege: A Position Paper (2005) at 4-5. (citing examples).

[P. 1165, substitute for paragraph in text that begins “The

Court”:]

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters. Although efforts in Congress have failed, 49 states have 110

done so – 33 (plus the District of Columbia) by statute and 16 by

court decision, with Wyoming the sole holdout. As for federal 111

courts, Federal Rule of Evidence 501 provides that “the privilege

of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United

States in the light of reason and experience.” The federal 112

courts have not resolved whether the common law provides a

journalists’ privilege.113

– Government as Administrator of Prisons

[P. 1171, add to n.814:]

In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court applied Turner to uphold various

restrictions on visitation by children and by former inmates, and on all visitation except

attorneys and members of the clergy for inmates with two or more substance-abuse

violations; an inmate subject to the latter restriction could apply for reinstatement of
88 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 482 U.S. at 89. 114

 Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation marks 115

omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 89-90).

 490 U.S. 401, 411-14 (1989). Thornburgh v. Abbott noted that, if regulations 116

deny prisoners publications on the basis of their content, but the grounds on which the

regulations do so is content-neutral, e.g., to protect prison security, then the regulations

will be deemed neutral. Id. at 415-16.

 548 U.S. 521, 524-25 (2006). This was a 4-2-2 decision, with Justice Alito, who 117

had written the court of appeals decision, not participating.

 548 U.S. at 531. 118

visitation privileges after two years. “If the withdrawal of all visitation privileges were

permanent or for a much longer period, or if it were applied in an arbitrary manner to a

particular inmate, the case would present different considerations.” Id. at 137.

[P. 1171: substitute in text for material between n.814 and n.817:]

Four factors “are relevant in determining the reasonableness of a

regulation at issue.” “First, is there a valid, rational connec- 114

tion between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there

alternative means of exercising the right that remain open to

prison inmates? Third, what impact will accommodation of the

asserted constitutional right . . . have on guards and other

inmates, and on the allocation of prison resources generally?

And, fourth, are ready alternatives for furthering the governmental interest available?” Two years after Turner v. Safley, in 115

Thornburgh v. Abbott, the Court restricted Procunier v. Martinez

to the regulation of outgoing correspondence, finding that the

needs of prison security justify a more deferential standard for

prison regulations restricting incoming material, whether those

incoming materials are correspondence from other prisoners,

correspondence from nonprisoners, or outside publications.116

In Beard v. Banks, a plurality of the Supreme Court

upheld “a Pennsylvania prison policy that ‘denies newspapers,

magazines, and photographs’ to a group of specially dangerous

and recalcitrant inmates.” These inmates were housed in 117

Pennsylvania’s Long Term Segregation Unit and one of the

prison’s penological rationales for its policy, which the plurality

found to satisfy the four Turner factors, was to motivate better

behavior on the part of the prisoners by providing them with an

incentive to move back to the regular prison population.118

Applying the four Turner factors to this rationale, the plurality

found that (1) there was a logical connection between depriving

inmates of newspapers and magazines and providing an incen-
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 89

 548 U.S. 531-32. 119

 548 U.S. at 533. 120

 548 U.S. at 537 (Thomas, J., concurring), quoting Overton v. Bazzetta, 539 U.S. 121

at 139 (Thomas, J., concurring) (emphasis originally in Overton).

 539 U.S. 194, 199 (2003). 122

tive to improve behavior; (2) the Policy provided no alternatives

to the deprivation of newspapers and magazines, but this was

“not ‘conclusive’ of the reasonableness of the Policy”; (3) the

impact of accommodating the asserted constitutional right would

be negative; and (4) no alternative would “fully accommodate the

prisoner’s rights at de minimis cost to valid penological interests.” The plurality believed that its “real task in this case is 119

not balancing these factors, but rather determining whether the

Secretary shows more than simply a logical relation, that is,

whether he shows a reasonable relation” between the Policy and

legitimate penological objections, as Turner requires. The 120

plurality concluded that he had. Justices Thomas and Scalia

concurred in the result but would do away with Turner factors

because they believe that “States are free to define and redefine

all types of punishment, including imprisonment, to encompass

various types of deprivation – provided only that those deprivations are consistent with the Eighth Amendment.”121

– Government and Power of the Purse

[P. 1176, add to text at end of section:]

In United States v. American Library Association, Inc., a

four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality

summarized it, provides that a public school or “library may not

receive federal assistance to provide Internet access unless it

installs software to block images that constitute obscenity or

child pornography, and to prevent minors from obtaining access

to material that is harmful to them.” The plurality considered 122

whether CIPA imposes an unconstitutional condition on the

receipt of federal assistance by requiring public libraries (public

schools were not involved in the case) to limit their freedom of

speech if they accept federal funds. The plurality, citing Rust v.

Sullivan, found that, assuming that government entities have

First Amendment rights (it did not decide the question), CIPA

does not infringe them. This is because CIPA does not deny a
90 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 539 U.S. at 211. 123

 539 U.S. at 213 (emphasis in original). Other grounds for the plurality decision 124

are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and

“Internet as Public Forum.”

 547 U.S. 47, 51 (2006). 125

 547 U.S. at 60. The Court stated that Congress’ authority to directly require 126

campus access for military recruiters comes from its Article I, section 8, powers to

provide for the common defense, to raise and support armies, and to provide and

maintain a navy. Id. at 58.

 547 U.S. at 60. 127

benefit to libraries that do not agree to use filters; rather, the

statute “simply insist[s] that public funds be spent for the purposes for which they were authorized.” The plurality distin- 123

guished Legal Services Corporation v. Velazquez on the ground

that public libraries have no role comparable to that of legal aid

attorneys “that pits them against the Government, and there is

no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated

funds or other assistance.”124

In Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., the Supreme Court upheld the Solomon Amendment, which provides that, in the Court’s summary, “if any part

of an institution of higher education denies military recruiters

access equal to that provided other recruiters, the entire institution would lose certain federal funds.” FAIR, the group that 125

challenged the Solomon Amendment, is an association of law

schools that barred military recruiting on their campuses because of the military’s discrimination against homosexuals.

FAIR challenged the Solomon Amendment as violating the First

Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and

continuing to receive specified federal funding. The Court

concluded: “Because the First Amendment would not prevent

Congress from directly imposing the Solomon Amendment’s

access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” The Court 126

found that “[t]he Solomon Amendment neither limits what law

schools may say nor requires them to say anything. . . . It affects

what law schools must do – afford equal access to military

recruiters – not what they may or may not say.” The law 127

schools’ conduct in barring military recruiters, the Court found,

“is not inherently expressive,” and, therefore, unlike flag burn-
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 91

 547 U.S. at 64, 65. 128

 547 U.S. at 67. 129

 547 U.S. at 61, 62. 130

 547 U.S. at 63. 131

 547 U.S. at 65. 132

 547 U.S. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000). 133

 547 U.S. at 69. 134

ing, for example, is not “symbolic speech.” Applying the 128

O’Brien test for restrictions on conduct that have an incidental

effect on speech, the Court found that the Solomon Amendment

clearly “promotes a substantial government interest that would

be achieved less effectively absent the regulation.” 129

The Court also found that the Solomon Amendment did

not unconstitutionally compel schools to speak, or even to host or

accommodate the government’s message. As for compelling

speech, law schools must “send e-mails and post notices on behalf

of the military to comply with the Solomon Amendment. . . . This

sort of recruiting assistance, however, is a far cry from the

compelled speech in Barnette and Wooley. . . . [It] is plainly

incidental to the Solomon Amendment’s regulation of conduct.”130

As for forcing one speaker to host or accommodate another, “[t]he

compelled-speech violation in each of our prior cases . . . resulted

from the fact that the complaining speaker’s own message was

affected by the speech it was forced to accommodate.” By 131

contrast, the Court wrote, “Nothing about recruiting suggests

that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools

may say about the military’s policies.” Finally, the Court 132

found that the Solomon Amendment was not analogous to the

New Jersey law that had required the Boy Scouts to accept a

homosexual scoutmaster, and that the Supreme Court struck

down as violating the Boy Scouts’ “right of expressive association.” Recruiters, unlike the scoutmaster, are “outsiders who 133

come onto campus for the limited purpose of trying to hire

students – not to become members of the school’s expressive

association.”134

Government Regulation of Communications Industries

– Commercial Speech.

[P. 1179, add to text after n.856:]
92 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 135

298 (2007).

 Edenfield v. Fane, 507 U.S. at 774, quoting In re R.M.J., 455 U.S. at 203, and 136

quoted in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S.

291, 298 (2007).

Similarly, the Court upheld a rule prohibiting high school

coaches from recruiting middle school athletes, finding that “the

dangers of undue influence and overreaching that exist when a

lawyer chases an ambulance are also present when a high school

coach contacts an eighth grader.”135

[P. 1179, add to text after n.858:]

A ban on personal solicitation is “justified only in situations ‘inherently conducive to

overreaching and other forms of misconduct.’”136

[P. 1179, add to n.862:]

In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. dismissed, 539 U.S. 654 (2003), Nike

was sued for unfair and deceptive practices for allegedly false statements it made

concerning the working conditions under which its products were manufactured. The

California Supreme Court ruled that the suit could proceed, and the Supreme Court

granted certiorari, but then dismissed it as improvidently granted, with a concurring and

two dissenting opinions. The issue left undecided was whether Nike’s statements,

though they concerned a matter of public debate and appeared in press releases and

letters rather than in advertisements for its products, should be deemed “‘commercial

speech’ because they might affect consumers’ opinions about the business as a good

corporate citizen and thereby affect their purchasing decisions.” Id. at 657 (Stevens, J.,

concurring). Nike subsequently settled the suit.

– Radio and Television.

[P. 1192, delete final sentence in text, including n.926, and add

new footnote at the end of what will become the final sentence

in the text:]

438 U.S. at 750. Subsequently, the FCC began to apply its indecency standard to fleeting

uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals

for the Second Circuit found this practice arbitrary and capricious under the Administrative Procedure Act, but the Supreme Court disagreed and upheld the FCC policy without

reaching the First Amendment question. FCC v. Fox Television Stations, Inc., 129 S. Ct.

1800 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and

remanded, 129 S. Ct. 2176 (2009) (invalidating, on non-constitutional grounds, a fine

against CBS for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenths

of a second during a Super Bowl halftime show). The Supreme Court vacated and

remanded this decision to the Third Circuit for further consideration in light of FCC v.

Fox Television Stations, Inc. Decisions regarding legislation to ban “indecent” expression

in broadcast and cable media as well as in other contexts are discussed under

“Non-obscene But Sexually Explicit and Indecent Expression,” infra.
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 93

See United States v. Stevens, 130 S. Ct. 1577 (2010) (striking down a federal law 137

that makes it a felony to knowingly create, sell, or possess a depiction of animal cruelty).

In Stevens, the Court suggested that while new categories of unprotected speech may be

identified in the future, such categories as already exist have long-established roots in

First Amendment law. For instance, child pornography, which appears to be a relatively

recently identified category of unprotected speech, see New York v. Ferber, 458 U.S. 747

(1982), is "intrinsically related" to the sexual abuse of children, and thus falls into the

previously existing category of speech facilitating criminal activity. Id. at 8.

 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume 138

an intent to intimidate from the fact that a defendant burned a cross. The state must

prove that he did, as “a burning cross is not always intended to intimidate,” but may

constitute a constitutionally protected expression of opinion. 538 U.S. at 365-66.

 538 U.S. at 362-63. 139

Government Restraint of Content of Expression

[P. 1196, add to text after n.944:]

Although, as discussed below, there are certain categories of

speech that fall outside of First Amendment scrutiny, such as

obscenity or defamation, the Court is generally reluctant to add

new exceptions.137

– Group Libel, Hate Speech.

[P. 1206, add to text at end of section:]

In Virginia v. Black, the Court held that its opinion in

R.A.V. did not make it unconstitutional for a state to prohibit

burning a cross with the intent of intimidating any person or

group of persons. Such a prohibition does not discriminate on 138

the basis of a defendant’s beliefs – “as a factual matter it is not

true that cross burners direct their intimidating conduct solely to

racial or religious minorities. . . . The First Amendment permits

Virginia to outlaw cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of

intimidation. Instead of prohibiting all intimidating messages,

Virginia may choose to regulate this subset of intimidating

messages. . . .”139

– Child Pornography. 

[P. 1231, substitute for n.1142:]

535 U.S. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the

PROTECT Act, Pub. L. 108-21, 117 Stat. 650 (2003), which, despite the decision in that

case, defined “child pornography” so as to continue to prohibit computer-generated child

pornography (but not other types of child pornography produced without an actual

minor). 18 U.S.C. § 2256(8(B). In United States v. Williams, 128 S. Ct. 1830, 1836 (2008),
94 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 128 S. Ct. 1830 (2008). 140

 18 U.S.C. § 2252A(a)(3)(B). 141

 128 S. Ct. at 1839. 142

 128 S. Ct. at 1841, 1842, 1843. Justice Souter, in a dissenting opinion joined by 143

Justice Ginsburg, agreed that “Congress may criminalize proposals unrelated to any

extant image,” but disagreed with respect to “proposals made with regard to specific,

existing [constitutionally protected] representations.” Id. at 1849. Justice Souter

believed that, “if the Act stands when applied to identifiable, extant [constitutionally

protected] pornographic photographs, then in practical terms Ferber and Free Speech

Coalition fall. They are left as empty as if the Court overruled them formally . . . .” Id. at

1854. Justice Scalia’s opinion for the majority replied that this “is simply not true . . . .

Simulated child pornography will be as available as ever, so long as it is offered and

sought as such, and not as real child pornography. . . . There is no First Amendment

exception from the general principle of criminal law that a person attempting to commit a

crime need not be exonerated because he has a mistaken view of the facts.” Id. at 1844-

45.

the Court, without addressing the PROTECT Act’s new definition, cited Ashcroft v. Free

Speech Coalition with approval.

[P. 1231, add to text after n.1142:]

In United States v. Williams, the Supreme Court upheld 140

a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material “in a manner

that reflects the belief, or that is intended to cause another to

believe, that the material” is child pornography that is obscene or

that depicts an actual minor (i.e., is child pornography that is not

constitutionally protected). Under the provision, in other 141

words, “an Internet user who solicits child pornography from an

undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises

virtual child pornography as depicting actual children also falls

within the reach of the statute.” The Court found that these 142

activities are not constitutionally protected because “[o]ffers to

engage in illegal transactions [as opposed to abstract advocacy of

illegality] are categorically excluded from First Amendment

protection,” even “when the offeror is mistaken about the factual

predicate of his offer,” such as when the child pornography that

one offers to buy or sell does not exist or is constitutionally

protected.143

– Non-obscene but Sexually Explicit and Indecent Expression.

[P. 1234. add to text after n.1254:]

Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 95

 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote 144

that blocking and filtering software is not a less restrictive alternative because “it is part

of the status quo” and “[i]t is always less restrictive to do nothing than to do something.”

Id. at 684. In addition, Breyer asserted, “filtering software depends upon parents willing

to decide where their children will surf the Web and able to enforce that decision.” Id.

The majority opinion countered that Congress “may act to encourage the use of filters,”

and “[t]he need for parental cooperation does not automatically disqualify a proposed less

restrictive alternative.” Id. at 669.

 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), 145

aff’d sub nom., American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008),

cert. denied, 129 S. Ct. 1032 (2009) .

 539 U.S. 194, 199 (2003). 146

 539 U.S. at 203. 147

 539 U.S. at 205. 148

the case for trial. The Supreme Court found that the district

court had not abused its discretion in granting the preliminary

injunction, because the government had failed to show that

proposed alternatives to COPA would not be as effective in

accomplishing its goal. The primary alternative to COPA, the

Court noted, is blocking and filtering software. Filters are less

restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at

the source.” Subsequently, the district court found COPA to 144

violate the First Amendment and issued a permanent injunction

against its enforcement; the Third Circuit affirmed, and the

Supreme Court denied certiorari.145

In United States v. American Library Association, a fourJustice plurality of the Supreme Court upheld the Children’s

Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive

federal assistance to provide Internet access unless it installs

software to block images that constitute obscenity or child

pornography, and to prevent minors from obtaining access to

material that is harmful to them.” The plurality asked 146

“whether libraries would violate the First Amendment by employing the filtering software that CIPA requires.” Does CIPA, 147

in other words, effectively violate library patrons’ rights? The

plurality concluded that it does not, after finding that “Internet

access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum,” and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering

requirements are constitutional.148
96 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 539 U.S. at 208. 149

 539 U.S. at 209. Justice Kennedy, concurring, noted that, “[i]f some libraries do 150

not have the capacity to unblock specific Web sites or to disable the filter . . . that would

be the subject for an as-applied challenge, not the facial challenge made in this case.” Id.

at 215. Justice Souter, dissenting, noted that “the statute says only that a library ‘may’

unblock, not that it must.” Id. at 233.

 539 U.S. at 212. 151

The plurality acknowledged “the tendency of filtering

software to ‘overblock’ – that is, to erroneously block access to

constitutionally protected speech that falls outside the categories

that software users intend to block.” It found, however, that, 149

“[a]ssuming that such erroneous blocking presents constitutional

difficulties, any such concerns are dispelled by the ease with

which patrons may have the filtering software disabled.”150

The plurality also considered whether CIPA imposes an

unconstitutional condition on the receipt of federal assistance –

in other words, does it violate public libraries’ rights by requiring

them to limit their freedom of speech if they accept federal

funds? The plurality found that, assuming that government

entities have First Amendment rights (it did not decide the

question), “CIPA does not ‘penalize’ libraries that choose not to

install such software, or deny them the right to provide their

patrons with unfiltered Internet access. Rather, CIPA simply

reflects Congress’ decision not to subsidize their doing so.”151

Speech Plus – The Constitutional Law of Leafleting, Picketing,

and Demonstrating

– The Public Forum.

[P. 1243, add footnote to the end of the second sentence in the

paragraph that begins on the page:]

“[A]lthough a park is a traditional public forum for speeches and other transitory

expressive acts, the display of a permanent monument in a public park is not a form of

expression to which forum analysis applies. Instead, the placement of a permanent

monument in a public park is best viewed as a form of government speech and is

therefore not subject to scrutiny under the Free Speech Clause.” Pleasant Grove City,

Utah v. Summum, 129 S. Ct. 1125, 1129 (2009).

[P. 1245, substitute for final paragraph of section:]

In United States v. American Library Association, Inc., a

four-Justice plurality of the Supreme Court found that “Internet

access in public libraries is neither a ‘traditional’ nor a ‘desig-
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 97

 539 U.S. 194, 205 (2003). 152

 539 U.S. at 199. 153

 539 U.S. at 206. 154

 539 U.S. at 206 (citation omitted). 155

 A federal court of appeals wrote: “Aspects of cyberspace may, in fact, fit into the 156

public forum category, although the Supreme Court has also suggested that the category

is limited by tradition. Compare Forbes, 523 U.S. at 679 (“reject[ing] the view that

(continued...)

nated’ public forum.” The plurality therefore did not apply 152

“strict scrutiny” in upholding the Children’s Internet Protection

Act, which, as the plurality summarized it, provides that a public

school or “library may not receive federal assistance to provide

Internet access unless it installs software to block images that

constitute obscenity or child pornography, and to prevent minors

from obtaining access to material that is harmful to them.”153

The plurality found that Internet access in public libraries is not

a “traditional” public forum because “[w]e have ‘rejected the view

that traditional public forum status extends beyond its historical

confines.’” And Internet access at public libraries is not a 154

“designated” public forum because “[a] public library does not

acquire Internet terminals in order to create a public forum for

Web publishers to express themselves, any more than it collects

books in order to provide a public forum for the authors of books

to speak. It provides Internet access, not to ‘encourage a diversity of views from private speakers,’ but for the same reasons it

offers other library resources: to facilitate research, learning, and

recreational pursuits by furnishing materials of requisite and

appropriate quality.”155

Nevertheless, although Internet access in public libraries

is not a public forum, and particular Web sites, like particular

newspapers, would not constitute public fora, the Internet as a

whole might be viewed as a public forum, despite its lack of a

historic tradition. The Supreme Court has not explicitly held

that the Internet as a whole is a public forum, but, in Reno v.

ACLU, which struck down the Communications Decency Act’s

prohibition of “indecent” material on the Internet, the Court

noted that the Internet “constitutes a vast platform from which

to address and hear from a worldwide audience of millions of

readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’

information.”156
98 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 156

traditional public forum status extends beyond its historic confines” [to a public television

station]) with Reno v. ACLU, 521 U.S. 844, 851-53 (1997) (recognizing the communicative

potential of the Internet, specifically the World Wide Web).” Putnam Pit, Inc. v. City of

Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (alternate citations to Forbes and Reno

omitted). In Putnam Pit, the city denied a private Web site’s request that the city’s Web

site establish a hyperlink to it, even though the city’s Web site had established

hyperlinks to other private Web sites. The court of appeals found that the city’s Web site

was a nonpublic forum, but that even nonpublic fora must be viewpoint neutral, so it

remanded the case for trial on the question of whether the city’s denial of a hyperlink had

discriminated on the basis of viewpoint.

– Door-to-Door Solicitation.

[P. 1262, add to n.1312:]

In Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003), the Court held

unanimously that the First Amendment does not prevent a state from bringing fraud

actions against charitable solicitors who falsely represent that a “significant” amount of

each dollar donated would be used for charitable purposes.
 E. Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998); R. 1

Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized

Militia?, 83 TEX. L. REV. 237 (2004); E. Volokh, “Necessary to the Security of a Free State,”

83 NOTRE DAME L. REV. 1 (2007); Note, What Did “Bear Arms” Mean in the Second

Amendment?, 6 GEORGETOWN J. L. & PUB. POLICY (2008).

 128 S. Ct. 2783 (2008). 2

 The “right of the people,” for instance, was found in other places in the Constitu- 3

tion to speak to individual rights, not to collective rights (those that can only be exercised

by participation in a corporate body). 128 S. Ct. at 2790-91.

 128 S. Ct. at 2791-97. 4

 128 S. Ct. at 2799-2800. Similarly, the phrase “security of a free state” was found 5

to refer not to the defense of a particular state, but to the protection of the national

polity. 128 S. Ct. at 2800-01.

99

SECOND AMENDMENT

BEARING ARMS

In General

[P. 1275, add at the end of the section:]

It was not until 2008 that the Supreme Court definitively

came down on the side of an “individual rights” theory. Relying

on new scholarship regarding the origins of the Amendment, the 1

Court in District of Columbia v. Heller confirmed what had been 2

a growing consensus of legal scholars – that the rights of the

Second Amendment adhered to individuals. The Court reached

this conclusion after a textual analysis of the Amendment, an 3

examination of the historical use of prefatory phrases in statutes,

and a detailed exploration of the 18th century meaning of

phrases found in the Amendment. Although accepting that the

historical and contemporaneous use of the phrase “keep and bear

Arms” often arose in connection with military activities, the

Court noted that its use was not limited to those contexts.4

Further, the Court found that the phrase “well regulated Militia”

referred not to formally organized state or federal militias, but to

the pool of “able-bodied men” who were available for conscription. Finally, the Court reviewed contemporaneous state consti- 5

tutions, post-enactment commentary, and subsequent case law to

conclude that the purpose of the right to keep and bear arms
100 AMENDMENT 2–BEARING ARMS

 128 S. Ct. at 2818. 6

 128 S. Ct. at 2817 n.27 (discussing non-application of rational basis review). See 7

id. at 2850-51 (Breyer, J., dissenting).

 130 S. Ct. 3020 (2010). 8

 The portion of the opinion finding incorporation was authored by Justice Alito, 9

and joined by Chief Justice Roberts, Justice Scalia and Justice Kennedy. Justice Thomas

declined to join the plurality's opinion as regards incorporation under the Due Process

Clause. Instead, Justice Thomas, alone among the Justices, would have found that the

Second Amendment is applicable to the states under the Privileges or Immunities

Clause. For a more detailed discussion of incorporation and the Privileges or Immunities

Clause, see supra Bill of Rights, Fourteenth Amendment and Fourteenth Amendment,

(continued...)

extended beyond the context of militia service to include

self-defense.

Using this “individual rights theory,” the Court struck

down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be

dissembled or bound by a trigger lock at all times. The Court

rejected the argument that handguns could be banned as long as

other guns (such as long-guns) were available, noting that, for a

variety of reasons, handguns are the “most popular weapon

chosen by Americans for self-defense in the home.” Similarly, 6

the requirement that all firearms be rendered inoperable at all

times was found to limit the “core lawful purpose of self-defense.”

However, the Court specifically stated (albeit in dicta) that the

Second Amendment did not limit prohibitions on the possession

of firearms by felons and the mentally ill, penalties for carrying

firearms in schools and government buildings, or laws regulating

the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and

unusual weapons” that would not be affected by its decision. The

Court, however, declined to establish the standard by which

future gun regulations would be evaluated. And, more impor- 7

tantly, because the District of Columbia is a federal enclave, the

Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not

apply to the states.

The latter issue was addressed in McDonald v. Chicago,

8

where a plurality of the Court, overturning prior precedent,

found that the Second Amendment is incorporated through the

Fourteenth Amendment and is thus enforceable against the

states. Relevant to this question, the Court examined whether 9
AMENDMENT 2–BEARING ARMS 101

 (...continued) 9

Privileges or Immunities.

 Duncan v. Louisiana, 391 U. S. 145, 149 (1968). 10

 Washington v. Glucksberg, 521 U. S. 702, 721 (1997)(internal quotation marks 11

omitted).

 McDonald, 130 S. Ct. At 3036 (noting that Blackstone had asserted that the right 12

to keep and bear arms was “one of the fundamental rights of Englishmen”).

 130 S. Ct. at 3037-38. 13

 130 S. Ct. at 3132-3133 (Breyer, J., dissenting). 14

the right to keep and bear arms is “fundamental to our scheme of

ordered liberty” or “deeply rooted in this Nation’s history and 10

tradition.” The Court, relying on historical analysis set forth 11

previously in Heller, noted the English common law roots of the

right to keep arms for self-defense and the importance of the 12

right to the American colonies, the drafters of the Constitution.

and the states as a bulwark against over-reaching federal authority. Noting that by the 1850s the perceived threat that the 13

National Government would disarm the citizens had largely

faded, the Court suggested that the right to keep and bear arms

became valued principally for purposes of self-defense, so that

the passage of Fourteenth Amendment, in part, was intended to

protect the right of ex-slaves to keep and bear arms. While it was

argued by the dissent that this protection would most logically be

provided by the Equal Protection Clause, not by the Due Process

Clause, the plurality also found enough evidence of 14

then-existent concerns regarding the treatment of blacks by the

state militia to conclude that the right to bear arms was also

intended to protect against generally-applicable state regulation.

 City of Ontario v. Quon, 130 S. Ct. 2619, 2629 (2010) The Court cautioned that “[a] 1

broad holding concerning employees' privacy expectations vis-a-vis employer-provided

technological equipment might have implications for future cases that cannot be

predicted.” Id. at 2630.

103

FOURTH AMENDMENT

SEARCH AND SEIZURE

History and Scope of the Amendment

– Scope of the Amendment.

[P. 1285, change the period in line 4 of n.22 to a semicolon and

add:]

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (warrantless entry into a home when

police have an objectively reasonable basis for believing that an occupant is seriously

injured or imminently threatened with such injury); Michigan v. Fisher, 130 S. Ct. 546

(2009) (applying Brigham City).

[P. 1285, add to end of n.22:]

Arizona v. Gant, 129 S. Ct. 1710 (2009) (search of vehicle incident to arrest where

arrestee had no access to vehicle).

– The Interest Protected.

[P.1290, add to the text after n.48:]

In the context of norms for the use of rapidly evolving communications devices, the Court was reluctant to consider “the whole

concept of privacy expectations” at all, preferring other decisional

grounds: “The judiciary risks error by elaborating too fully on the

Fourth Amendment implications of emerging technology before

its role in society has become clear.” 1

[P. 1291, change the first period in line 5 of n.53 to a semicolon

and add:]

Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam).

– Arrests and Other Detentions.

[P. 1292, add to n.61 after citation to Terry v. Ohio:]

Kaupp v. Texas, 538 U.S. 626 (2003).
104 AMENDMENT 4–SEARCHES AND SEIZURES

 Virginia v. Moore, 128 S. Ct. 1598 (2008). 2

– Searches and Inspections in Noncriminal Cases.

[P.1298, add to the beginning of n.89:]

; City of Ontario v. Quon, 130 S. Ct. 2619 (2010) (reasonableness test for obtaining and

reviewing transcripts of on-duty text messages of police officer using government-issued

equipment).

[P. 1293, add to n.61:]

Scott v. Harris, 550 U.S. 372 (2007) (police officer’s ramming fleeing motorist’s car from

behind in attempt to stop him).

[P. 1293, add new footnote after “person,” in second line on

page:]

The justification must be made to a neutral magistrate, not to the arrestee. There is no

constitutional requirement that an officer inform an arrestee of the reason for his arrest.

Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense for which there is probable

cause to arrest need not be closely related to the offense stated by the officer at the time

of arrest).

[P. 1293, add to n.62:]

Los Angeles County v. Rettele, 550 U.S. 609 (2007) (where deputies executing a search

warrant did not know that the house being searched had recently been sold, it was

reasonable to hold new homeowners, who had been sleeping in the nude, at gunpoint for

one to two minutes without allowing them to dress or cover themselves, even though the

deputies knew that the homeowners were of a different race from the suspects named in

the warrant).

[P. 1293, add to text at the end of the only full paragraph on the

page:]

Even when an arrest for a minor offense is prohibited by state

law, the arrest will not violate the Fourth Amendment if it was

based on probable cause.2

[P. 1294, add to n.69 after citation to Taylor v. Alabama:]

Kaupp v. Texas, 538 U.S. 626 (2003).

Searches and Seizures Pursuant to Warrant

– Probable Cause.

[P. 1301, add to n.101:]

An “anticipatory” warrant does not violate the Fourth Amendment as long as there is

probable cause to believe that the condition precedent to execution of the search warrant

will occur and that, once it has occurred, “there is a fair probability that contraband or

evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S.

90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory

warrant is ‘a warrant based upon an affidavit showing probable cause that at some future

time (but not presently) certain evidence of a crime will be located at a specified place.’”
AMENDMENT 4–SEARCHES AND SEIZURES 105

 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not 3

describe the items to be seized was “plainly invalid”; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is

insufficient). United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language

of the Fourth Amendment “specifies only two matters that must be ‘particularly

describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be

seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an

anticipatory warrant be set forth in the warrant itself.”

 United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after 4

officers executing a warrant to search for drugs knocked, announced “police search

warrant,” and waited 15-20 seconds with no response).

547 U.S. at 94.

– Particularity.

[P. 1304, add to text at end of section:]

The purpose of the particularity requirement extends beyond

prevention of general searches; it also assures the person whose

property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows,

therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear

in documents incorporated by reference in the warrant and

actually shown to the person whose property is to be searched.3

Execution of Warrants

[P. 1311, add to text after n.168:]

Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is

not a prompt response.4

[P. 1312, add to n.173:]

But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that

passengers in car often have “common enterprise,” and noting that the tip in Di Re

implicated only the driver).

[P. 1312, add to n.175:]

In Los Angeles County v. Rettele, 550 U.S. 609 (2007), the Court found no Fourth

Amendment violation where deputies did not know that the suspects had sold the house

that deputies had a warrant to search. The deputies entered the house and found the

new owners, of a different race from the suspects, sleeping in the nude. The deputies

held the new owners at gunpoint for one to two minutes without allowing them to dress

or cover themselves. As for the difference in race, the Court noted that, “[w]hen the

deputies ordered [Caucasian] respondents from their bed, they had no way of knowing

whether the African-American suspects were elsewhere in the house.” Id. at 1992. As for

not allowing the new owners to dress or cover themselves, the Court quoted its statement

in Michigan v. Summers that “[t]he risk of harm to both the police and the occupants is
106 AMENDMENT 4–SEARCHES AND SEIZURES

 Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (also upholding questioning the 5

handcuffed detainee about her immigration status).

 Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). 6

 542 U.S. at 186. 7

minimized if the officers routinely exercise unquestioned command of the situation.” Id.

at 1993 (quoting 452 U.S. at 702-03).

[P. 1312, add to text after n.175:]

For the same reasons, officers may use “reasonable force,”

including handcuffs, to effectuate a detention.5

Valid Searches and Seizures Without Warrants

– Detention Short of Arrest: Stop-and-Frisk.

[P. 1315, change the period at the end of n.189 (which begins on

p. 1314) to a semicolon and add:]

Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, officer may frisk

(patdown for weapons) both the driver and any passengers whom he reasonably

concludes “might be armed and presently dangerous”).

[P. 1315, add to text after first sentence of paragraph that begins

on page, and begin new paragraph with second sentence, as

indicated:]

The Court provided a partial answer in 2004, when it upheld a

state law that required a suspect to disclose his name in the

course of a valid Terry stop. Questions about a suspect’s iden- 6

tity “are a routine and accepted part of many Terry stops,” the

Court explained.7

After Terry, the standard for stops . . . .

[P. 1318, add to n.208:]

See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus

search in which one officer stationed himself in the front of the bus and one in the rear,

while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his traveling companion, the

defendant had consented to the search of his person.

[P. 1319, add to n.213:]

Cf. Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car

following a routine traffic stop does not offend the Fourth Amendment if the duration of

the stop is justified by the traffic offense).
AMENDMENT 4–SEARCHES AND SEIZURES 107

 Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for a 8

minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause).

 Arizona v. Gant, 129 S. Ct. 1710, 1718 (2009). 9

 129 S. Ct. 1710 (2009). 10

 “To read Belton as authorizing a vehicle search incident to every recent occu- 11

pant's arrest would . . . untether the rule from the justifications underlying the Chimel

exception . . . .” 129 S. Ct. at 1719.

 129 S. Ct. at 1723. Justice Alito, in a dissenting opinion joined by Chief Justice 12

Roberts and Justice Kennedy and in part by Justice Breyer, wrote that “there can be no

doubt that” the majority had overruled Belton. Id. at 1726..

 Brendlin v. California, 551 U.S. 249, 263 (2007). 13

– Search Incident to Arrest.

[P. 1319, add to text after n.216:]

The Court has even upheld a search incident to an illegal (albeit

not unconstitutional) arrest.8

[P. 1322, add to text after n.234:]

Belton was “widely understood to allow a vehicle search incident

to the arrest of a recent occupant even if there is no possibility

the arrestee could gain access to the vehicle at the time of the

search.” In Arizona v. Gant, however, the Court disavowed 9 10

this understanding of Belton and held that “[p]olice may search 11

a vehicle incident to a recent occupant's arrest only if the

arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that

the vehicle contains evidence of the offense of arrest.”12

– Vehicular Searches.

[P. 1324, add to n.244 after parenthetical that ends with “Mexican ancestry”:]

But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable suspicion justified stop

by border agents of vehicle traveling on unpaved backroads in an apparent effort to evade

a border patrol checkpoint on the highway).

[P. 1324, add to text after n.245:]

If police stop a vehicle, then the vehicle’s passengers as well as

its driver are deemed to have been seized from the moment the

car comes to a halt, and the passengers as well as the driver may

challenge the constitutionality of the stop. Likewise, a police 13

officer may frisk (patdown for weapons) both the driver and any

passengers whom he reasonably concludes “might be armed and
108 AMENDMENT 4–SEARCHES AND SEIZURES

 Arizona v. Johnson, 129 S. Ct. 781, 786 ( 2009). 14

 Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passengers 15

based on officers finding $783 in glove compartment and cocaine hidden beneath back

seat armrest, and on driver and passengers all denying ownership of the cocaine).

 Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defendant’s 16

residence based on his estranged wife’s consent was unreasonable and invalid as applied

to a physically present defendant who expressly refused to permit entry). The Court in

(continued...)

presently dangerous.” 14

[P. 1325, add to n.247:]

See also United States v. Flores-Montano, 541 U.S. 149 (2004) (upholding a search at the

border involving disassembly of a vehicle’s fuel tank).

[P. 1325, add to n.248:]

Edmond was distinguished in Illinois v. Lidster, 540 U.S. 419 (2004), upholding use of a

checkpoint to ask motorists for help in solving a recent hit-and-run accident that had

resulted in death. The public interest in solving the crime was deemed “grave,” while the

interference with personal liberty was deemed minimal.

[P. 1325, add to n.250:]

And, because there also is no legitimate privacy interest in possessing contraband, and

because properly conducted canine sniffs are “generally likely, to reveal only the presence

of contraband,” police may conduct a canine sniff around the perimeter of a vehicle

stopped for a traffic offense. Illinois v. Caballes, 543 U.S. 405, 409 (2005).

[P. 1325, add to n.252 after citation to New York v. Belton:]

Thornton v. United States, 541 U.S. 615 (2004) (the Belton rule applies regardless of

whether the arrestee exited the car at the officer’s direction, or whether he did so prior to

confrontation); Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009) (the Belton rule applies

“only if the arrestee is within reaching distance of the passenger compartment at the

time of the search or it is reasonable to believe that the vehicle contains evidence of the

offense of arrest”);

[P. 1326, add to end of sentence in text containing n.258:]

, or unless there is individualized suspicion of criminal activity

by the passengers.15

– Consent Searches.

[P. 1328, add to n. 271:]

United States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated

that bus passenger consented to search even though officer did not explicitly state that

passenger was free to refuse permission).

[P. 1329, add to text at end of section:]

If, however, one occupant consents to a search of shared premises, but a physically present co-occupant expressly objects to

the search, the search is unreasonable.16
AMENDMENT 4–SEARCHES AND SEIZURES 109

 (...continued) 16

Randolph admitted that it was “drawing a fine line,” id. at 121, between situations where

the defendant is present and expressly refuses consent, and that of United States v.

Matlock, 415 U.S. 164, 171 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), where

the defendants were nearby but were not asked for their permission. In a dissenting

opinion, Chief Justice Roberts observed that the majority’s ruling “provides protection on

a random and happenstance basis, protecting, for example, a co-occupant who happens to

be at the front door when the other occupant consents to a search, but not one napping or

watching television in the next room.” Id. at 127.

 129 S. Ct. 2633 (2009). 17

 129 S. Ct. at 2641. 18

 129 S. Ct. at 2641. 19

 129 S. Ct. at 2642. 20

– Border Searches.

[P. 1330, add to n.283 after citation to United States v. Cortez:]

, and United States v. Arvizu, 534 U.S. 266 (2002)

– Public Schools.

[P. 1333, add to n.301:]

The Court has further elaborated that this “reasonable suspicion” standard is met if there

is a “moderate chance” of finding evidence of wrongdoing. Safford Unified School District

#1 v. Redding, 129 S. Ct. 2633, 2639 (2009).

[P. 1333, add to end of section:]

In Safford Unified School District #1 v. Redding, a 17

student found in possession of prescription ibuprofen pills at

school stated that the pills had come from another student,

13-year-old Savana Redding. The Court found that the first

student’s statement was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution, and that this

suspicion was enough to justify a search of Savana’s backpack

and outer clothing. School officials, however, had also “directed 18

Savana to remove her clothes down to her underwear, and then

‘pull out’ her bra and the elastic band on her underpants” – an 19

action that the Court thought could fairly be labeled a strip

search. Taking into account that “adolescent vulnerability

intensifies the patent intrusiveness of the exposure” and that,

according to a study, a strip search can “result in serious emotional damage,” the Court found that the search violated the

Fourth Amendment. “Because there were no reasons to suspect 20

the drugs presented a danger or were concealed in her underwear,” the Court wrote, “the content of the suspicion failed to
110 AMENDMENT 4–SEARCHES AND SEIZURES

 129 S. Ct. at 2637, 2642. Justice Thomas dissented from the finding of a Fourth 21

Amendment violation.

See “Alternatives to the Exclusionary Rule,” infra. Justices Stevens and 22

Ginsburg dissented from the grant of qualified immunity.

 130 S. Ct. 2619 (2010). 23

 In Quon, a police officer was dismissed after a review of the transcripts of his 24

on-duty text messages revealed that a large majority of his texting was not related to

work, and some messages were sexually explicit.

 130 S. Ct. at 2631. 25

match the degree of intrusion.” But, even though the Court 21

found that the search had violated the Fourth Amendment, it

found that the school officials who conducted the search were

protected from liability through qualified immunity, because the

law prior to Redding was not clearly established.22

– Government Offices.

[P.1333, add following paragraph to text at end of the section:]

In City of Ontario v. Quon, the Court bypassed adopting an 23

approach for determining a government employee's reasonable

expectation of privacy, an issue unresolved in O'Connor. Rather,

the Quon Court followed the “special needs” holding in O'Connor

and found that, even assuming a reasonable expectation of

privacy, a city's warrantless search of the transcripts of a police

officer's on-duty text messages on city equipment was reasonable

because it was justified at its inception by noninvestigatory

work-related purposes and was not excessively intrusive. A 24

jury had found the purpose of the search to be to determine

whether the city's contract with its wireless service provider was

adequate, and the Court held that “reviewing the transcripts was

reasonable because it was an efficient and expedient way to

determine whether [the officer's] overages were the result of

work-related messaging or personal use.” 25

– Prisons and Regulation of Probation

[P. 1333, change heading to “Prisons and Regulation of Probation

and Parole”]

[P. 1334, add to text at end of section:]

A warrant is also not required if the purpose of a search of a

probationer is to investigate a crime rather than to supervise
AMENDMENT 4–SEARCHES AND SEIZURES 111

 United States v. Knights, 534 U.S. 112 (2005) (probationary status informs both 26

sides of the reasonableness balance).

 Samson v. California, 547 U.S. 843, 850 (2006) (internal quotation marks 27

altered).

 547 U.S. at 852. The parole condition at issue in Samson required prisoners to 28

“agree in writing to be subject to a search or seizure by a parole officer or other peace

officer at any time of the day or night, with or without a search warrant and with or

without cause.” Id. at 846, quoting Cal. Penal Code Ann. § 3067(a).

 536 U.S. 822 (2002). 29

 536 U.S. at 831. 30

 536 U.S. at 831. 31

 536 U.S. at 836. 32

probation.26

“[O]n the ‘continuum’ of state-imposed punishments . . . ,

parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation

is to imprisonment.” The Fourth Amendment, therefore, is not 27

violated by a warrantless search of a parolee that is predicated

upon a parole condition to which a prisoner agreed to observe

during the balance of his sentence.28

– Drug Testing.

[P. 1336, add to text after n.322:]

Seven years later, the Court in Board of Education v.

Earls extended Vernonia to uphold a school system’s drug 29

testing of all junior high and high school students who participated in extra-curricular activities. The lowered expectation of

privacy that athletes have “was not essential” to the decision in

Vernonia, Justice Thomas wrote for a 5-4 Court majority.30

Rather, that decision “depended primarily upon the school’s

custodial responsibility and authority.” Another distinction was 31

that, although there was some evidence of drug use among the

district’s students, there was no evidence of a significant problem,

as there had been in Vernonia. Rather, the Court referred to “the

nationwide epidemic of drug use,” and stated that there is no

“threshold level” of drug use that need be present. Because the 32

students subjected to testing in Earls had the choice of not participating in extra-curricular activities rather than submitting to

drug testing, the case stops short of holding that public school

authorities may test all junior and senior high school students for

drugs. Thus, although the Court’s rationale seems broad enough
112 AMENDMENT 4–SEARCHES AND SEIZURES

 Drug testing was said to be a “reasonable” means of protecting the school board’s 33

“important interest in preventing and deterring drug use among its students,” and the

decision in Vernonia was said to depend “primarily upon the school’s custodial responsibility and authority.” 536 U.S. at 838, 831.

 Concurring Justice Breyer pointed out that the testing program “preserves an 34

option for a conscientious objector,” who can pay a price of nonparticipation that is

“serious, but less severe than expulsion.” 536 U.S. at 841. Dissenting Justice Ginsburg

pointed out that extracurricular activities are “part of the school’s educational program”

even though they are in a sense “voluntary.” “Voluntary participation in athletics has a

distinctly different dimension” because it “expose[s] students to physical risks that

schools have a duty to mitigate.” Id. at 845, 846.

 536 U.S. at 831-32. The best the Court could do to support this statement was to 35

assert that “some of these clubs and activities require occasional off-campus travel and

communal undress,” to point out that all extracurricular activities “have their own rules

and requirements,” and to quote from general language in Vernonia. Id. Dissenting

Justice Ginsburg pointed out that these situations requiring a change of clothes on

occasional out-of-town trips are “hardly equivalent to the routine communal undress

associated with athletics.” Id. at 848.

 Pearson v. Callahan, 129 S. Ct. 808, 822 (2009), quoted in Safford Unified School 36

District #1 v. Redding, 129 S. Ct. 2633, 2643 (2009). In Saucier v. Katz, 533 U.S. 194

(2001), the Court had mandated a two-step procedure to determine whether an officer

has qualified immunity: first, a determination whether the officer's conduct violated a

constitutional right, and then a determination whether the right was clearly established.

In Pearson, the Court held “that, while the sequence set forth [in Saucier] is often

appropriate, it should no longer be regarded as mandatory. The judges of the district

(continued...)

to permit across-the-board testing, Justice Breyer’s concurrence, 33

emphasizing among other points that “the testing program avoids

subjecting the entire school to testing,” raises some doubt on this 34

score. The Court also left another basis for limiting the ruling’s

sweep by asserting that “regulation of extracurricular activities

further diminishes the expectation of privacy among schoolchildren.” 35

Enforcing the Fourth Amendment: The Exclusionary Rule

– Alternatives to the Exclusionary Rule.

[P. 1344, add to the end of n.356, before the period:]

(cited with approval in Scott v. Harris, 550 U.S. 372, 381 (2007), in which a police officer’s

ramming a fleeing motorist’s car from behind in an attempt to stop him was found

reasonable)

[P. 1344, in text after n.360, replace “Federal officers are entitled

to qualified immunity based on” with:]

Such “good faith” claims, however, are not based on the subjective

intent of the officer. Instead, officers are entitled to qualified

immunity “where clearly established law does not show that the

search violated the Fourth Amendment,” or where they had 36
AMENDMENT 4–SEARCHES AND SEIZURES 113

 (...continued) 36

courts and the courts of appeals should be permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand.” 129 S. Ct. at 818. See

also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

 The “knock and announce” requirement is codified at 18 U.S.C. § 3109, and the 37

Court has held that the rule is also part of the Fourth Amendment reasonableness

inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995). 

 Hudson v. Michigan, 547 U.S. 586 (2006). Writing for the majority, Justice Scalia 38

explained that the exclusionary rule was inappropriate because the purpose of the

knock-and-announce requirement was to protect human life, property, and the homeowner’s privacy and dignity; the requirement has never protected an individual’s interest

in preventing seizure of evidence described in a warrant. Id. at 594. Furthermore, the

Court believed that the “substantial social costs” of applying the exclusionary rule would

outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The

Court also reasoned that other means of deterrence, such as civil remedies, were

available and effective, and that police forces have become increasingly professional and

respectful of constitutional rights in the past half-century. Id. at 599. Justice Kennedy

wrote a concurring opinion emphasizing that “the continued operation of the exclusionary

rule . . . is not in doubt.” Id. at 603. In dissent, Justice Breyer asserted that the

majority’s decision “weakens, perhaps destroys, much of the practical value of the

Constitution’s knock-and-announce protection.” Id. at 605.

 129 S. Ct. 695 (2009). Herring was a five-to-four decision, with two dissenting 39

opinions.

[P. 1344, add to n.361 after citation to Saucier v. Katz:]

See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a “hazy border

between excessive and acceptable force,” an officer’s misunderstanding as to her authority

to shoot a suspect attempting to flee in a vehicle was not unreasonable).

– Narrowing Application of the Exclusionary Rule

[P. 1354, add to text after n.409:]

In addition, a violation of the “knock-and-announce” procedure

that police officers must follow to announce their presence before

entering a residence with a lawful warrant does not require 37

suppression of the evidence gathered pursuant to the warrant.38

[P. 1355, add to text after n.417:]

The Court also applied Leon to allow the admission of

evidence obtained incident to an arrest that was based on a

mistaken belief that there was probable cause to arrest, where the

mistaken belief had resulted from a negligent bookkeeping error

by a police employee other than the arresting officer. In Herring

v. United States, a police employee had failed to remove from the 39

police computer database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed that the arrest warrant remained in
114 AMENDMENT 4–SEARCHES AND SEIZURES

 129 S. Ct. at 698. 40

 129 S. Ct. at 703, 702. Justice Ginsburg, in a dissent joined by Justices Stevens, 41

Souter, and Breyer, stated that “the Court’s opinion underestimates the need for a

forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement.”

Id. at 706. Justice Ginsburg added that the majority’s suggestion that the exclusionary

rule “is capable of only marginal deterrence when the misconduct at issue is merely

careless, not intentional or reckless . . . runs counter to a foundational premise of tort law

– that liability for negligence, i.e., lack of due care, creates an incentive to act with

greater care.” Id. at 708. Justice Breyer, in a dissent joined by Justice Souter, noted

that, although the Court had previously held that recordkeeping errors made by a court

clerk do not trigger the exclusionary rule, Arizona v. Evans, 514 U.S. 1 (1995), he

believed that recordkeeping errors made by the police should trigger the rule, as the

majority’s “case-by-case, multifactored inquiry into the degree of police culpability” would

be difficult for the courts to administer. Id. at 711.

See Leon, 468 U.S. 897, 926 (1984) (articulating, in dicta, an “intentional or 42

reckless” misconduct standard for obviating “good faith” reliance on an invalid warrant).

effect. The Court upheld the admission of evidence because the

error had been “the result of isolated negligence attenuated from

the arrest.” Although the Court did “not suggest that all 40

recordkeeping errors by the police are immune from the

exclusionary rule,” it emphasized that, “[t]o trigger the

exclusionary rule, police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable

that such deterrence is worth the price paid by the justice system.

As laid out in our cases, the exclusionary rule serves to deter

deliberate, reckless, or grossly negligent conduct, or in some

circumstances recurring or systemic negligence.”41

Herring is significant because previous cases applying the

good-faith exception to the exclusionary rule have involved

principally Fourth Amendment violations not by the police, but by

other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police

employee other than the arresting officer, the introduction of a

balancing test to evaluate police conduct raises the possibility

that even Fourth Amendment violations caused by the negligent

actions of an arresting officer might in the future evade the

application of the exclusionary rule.42
AMENDMENT 4–SEARCHES AND SEIZURES 115

[P. 1356, add to n.420 (which begins on p. 1355) before the citation

to United States v. Ross:]

Arizona v. Gant, 129 S. Ct. 1710, 1723 ((2009) (the Belton rule applies “only if the arrestee

is within reaching distance of the passenger compartment at the time of the search or it is

reasonable to believe that the vehicle contains evidence of the offense of arrest”).

 Yeager v. United States, 129 S. Ct. 2360, 2365, 2366 (2009), quoting Crist v. Bretz, 1

437 U.S. 28, 33 (1978).

 United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting a 2

federal officer after tribal conviction for “violence to a policeman”). The Court concluded

that Congress has power to recognize tribal sovereignty to prosecute non-member

Indians, that Congress had done so, and that consequently the tribal prosecution was an

exercise of tribal sovereignty, not an exercise of delegated federal power on which a

finding of double jeopardy could be based.

 United States v. Martin Linen Supply Co., 430 U.S. 564, 570-72 (1977); Sanabria 3

v. United States, 437 U.S. 54, 63-65 (1978); Finch v. United States, 433 U.S. 676 (1977).

 In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged that 4

the trial judge’s action in acquitting was “based upon an egregiously erroneous foundation,” but it was nonetheless final and could not be reviewed. Id. at 143. 

FIFTH AMENDMENT

DOUBLE JEOPARDY

Development and Scope

[P. 1367, add before the final sentence in n.39:]

Yeager v. United States, 129 S. Ct. 2360, 2365, 2366 (2009).

[P. 1367, add to text after n. 39:]

A second “vitally important interest[ ]” embodied in the Double

Jeopardy Clause “is the preservation of ‘the finality of judgments.’”1

[P. 1370, delete period in text before n.58 and add:]

, and to permit a federal prosecution after a conviction in an

Indian tribal court for an offense stemming from the same conduct.2

Reprosecution Following Mistrial

[P. 1374, add to n.75:]

See Renico v. Lett, 130 S. Ct. 1855 (2010) (in a habeas review case, discussing the broad

deferrence given to trial judge's decision to declare a mistrial because of jury deadlock).

See also Yeager v. United States, 129 S. Ct. 2360 (2009).

Reprosecution Following Acquittal

– Acquittal by the Trial Judge

[P. 1379, substitute for first paragraph of section:]

When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury verdict

does. There is no possibility of retrial for the same offense. But 3 4

it may be difficult at times to determine whether the trial judge’s
118 AMENDMENT 5–RIGHTS OF PERSONS

 As a general rule a state may prescribe that a judge’s midtrial determination of 5

the sufficiency of the prosecution’s proof may be reconsidered. Smith v. Massachusetts,

543 U.S. 462 (2005) (Massachusetts had not done so, however, so the judge’s midtrial

acquittal on one of three counts became final for double jeopardy purposes when the

prosecution rested its case).

 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 6

 430 U.S. at 570-76. See also United States v. Scott, 437 U.S. 82, 87-92 (1978); 7

Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency

of evidence is acquittal).

 437 U.S. 54 (1978). 8

See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on 9

erroneous interpretation of precedent).

action was in fact an acquittal or whether it was a dismissal or

some other action, which the prosecution may be able to appeal or

the judge may be able to reconsider. The question is “whether 5

the ruling of the judge, whatever its label, actually represents a

resolution, correct or not, of some or all of the factual elements of

the offense charged.” Thus, an appeal by the government was 6

held barred in a case in which the deadlocked jury had been

discharged, and the trial judge had granted the defendant’s

motion for a judgment of acquittal under the appropriate federal

rule, explicitly based on the judgment that the government had

not proved facts constituting the offense. Even if, as happened in 7

Sanabria v. United States, the trial judge erroneously excludes 8

evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced

thereby is final and unreviewable.9

Reprosecution Following Conviction

– Sentence Increases.

[P. 1385, add to n.134:]

But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death penalty

in a retrial when defendant appealed following discharge of the sentencing jury under a

statute authorizing discharge based on the court’s “opinion that further deliberation would

not result in a unanimous agreement as to the sentence, in which case the court shall

sentence the defendant to life imprisonment”).

“For the Same Offense”

– The “Same Transaction” Problem.

[P. 1391, add to n.163:]

The term “collateral estoppel” has been replaced by “issue preclusion,” which also includes

the doctrine formerly known as “direct estoppel.” Taylor v. Sturgell, 128 S. Ct. 2161, 2171

n.5 (2008), quoted in Bobby v. Bies, 129 S. Ct. 2145, 2149 n.1 (2009).
AMENDMENT 5 – RIGHTS OF PERSONS 119

 129 S. Ct. 2360, 2367 (2009). 10

 129 S. Ct. at 2367. 11

 The Court drew an analogy between its finding that this logical inconsistency 12

does not affect the preclusive force of the acquittals under the Double Jeopardy Clause,

and Justice Holmes’ holding, in Dunn v. United States, 284 U.S. 390, 393 (1932), “that a

logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn

the validity of either verdict.” 129 S. Ct. at 2362.

 129 S. Ct. at 2368. 13

[P. 1391, add to n.164:]

In Bobby v. Bies, 129 S. Ct. 2145 (2009), the Court noted that “issue preclusion is a plea

available to prevailing parties. The doctrine bars relitigation of determinations necessary

to the ultimate outcome of a prior proceeding.” Id. at 2149. “In addition, even where the

core requirements of issue preclusion are met, an exception to the general rule may apply

when a ‘change in [the] applicable legal context’ intervenes.” Id. at 2152, quoting

Restatement (Second) of Judgments, § 28, Comment c.

[P. 1391, add to text after n.166:]

Yeager v. United States, unlike Ashe, “entail[ed] a trial 10

that included multiple counts rather than a trial for a single

offense. And, while Ashe involved an acquittal for that single

offense, this case [Yeager] involves an acquittal on some counts

and a mistrial declared on others. The reasoning in Ashe is

nevertheless controlling because, for double jeopardy purposes,

the jury's inability to reach a verdict on [some] counts was a

nonevent and the acquittals on the [other] counts are entitled to

the same effect as Ashe’s acquittal.” The lower court in Yeager

had “reasoned that the hung counts must be considered to determine what issues the jury decided in the first trial. Viewed in

isolation, the [lower] court explained, the acquittals . . . would

preclude retrial because [of the facts that the jury would have had

to have found in light of its acquittals]. Viewed alongside the

hung counts, however, the acquittals appeared less decisive,”11

because, if the jury had actually found the facts implied by its

acquittals, then it would have acquitted on the hung counts as

well. In other words, its having acquitted on some counts and not

on others was logically inconsistent. The Supreme Court, 12

however, found that nothing should be inferred from the failure to

acquit on some counts, because “there is no way to decipher what

a hung count represents. . . . A host of reasons – sharp disagreement, confusion about the issues, exhaustion after a long trial, to

name but a few – could work alone or in tandem to cause a jury to

hang. . . . Accordingly, we hold that the consideration of hung

counts has no place in the issue-preclusion analysis.”13
120 AMENDMENT 5–RIGHTS OF PERSONS

 Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought by 14

suspect interrogated in hospital but not prosecuted).

 129 S. Ct. 1558 (2009). 15

 129 S. Ct. at 1571. 16

SELF-INCRIMINATION

Development and Scope

[P. 1396, change period in text before n.185 to comma and add in

text after n.185:]

, and there can be no valid claim if there is no criminal prosecution.14

[P. 1399, add to n.203:]

See also Fry v. Pliler, 551 U.S. 112, 114 (2007) (the “substantial and injurious effect

standard” is to be applied in federal habeas proceedings even “when the state appellate

court failed to recognize the error and did not review it for harmlessness under the

‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California”).

Confessions: Police Interrogation, Due Process, and Self-Incrimination

– McNabb-Mallory Doctrine

[P. 1414, add to text after n.281:]

In Corley v. United States, the Court held that this legislation 15

merely limited, and did not eliminate, McNabb-Mallory’s

exclusionary rule. Thus, confessions within six hours of arrest are

admissible to the extent permitted by the statute and Rules of

Evidence, whereas, “[i]f the confession occurred before presentment and beyond six hours . . . , the court must decide whether

delaying that long was unreasonable or unnecessary under the

McNabb-Mallory cases, and if it was, the confession is to be

suppressed.”16
AMENDMENT 5 – RIGHTS OF PERSONS 121

 130 S. Ct. 2250 (2010). 17

 130 S. Ct. at 2261-62. 18

– Miranda v. Arizona.

[P. 1425, add to n.340:]

Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court determination that teenager

brought to police station by his parents was not “in custody” was not “unreasonable” for

purposes of federal habeas review).

[P. 1427, add to n.352:]

Even where warnings were not the “clearest possible formulation of Miranda

right-to-counsel advisement,” the Court found them acceptable as "sufficiently comprehensive and comprehensible when given a commonsense reading.” Florida v. Powell, 130 S. Ct.

1195, 1205 (2010) (emphasis in original) (upholding warning of a right to talk to a lawyer

before answering any questions, coupled with advice that the right could be invoked at any

time during police questioning, as adequate to inform a suspect of his right to have a

lawyer present during questioning). 

[P. 1429, add to n.363:]

Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600 (2004), however, when the

failure to warn prior to the initial questioning was a deliberate attempt to circumvent

Miranda by use of a two-step interrogation technique, and the police, prior to eliciting the

statement for the second time, did not alert the suspect that the first statement was likely

inadmissible.

[P. 1429, add to text after n. 363:]

In Berghuis v. Thompkins, citing the societal benefit of

requiring an accused to invoke Miranda rights unambiguously, the Court refocused its Miranda waiver analysis to

whether a suspect understood his rights. There, a suspect 17

refused to sign a waiver form, remained largely silent during

the ensuing 2-hour and 45-minute interrogation, but then

made an incriminating statement. The five-Justice majority

found that the suspect had failed to invoke his right to

remain silent and also implicitly had waived the right.

According to the Court, though a statement following silence

alone may not be adequate to show a waiver, the prosecution

may show an implied waiver by demonstrating that a suspect understood the Miranda warnings given him and

subsequently made an uncoerced statement. Further, once 18

a suspect has knowingly and voluntarily waived his Miranda

rights, police officers may continue questioning until and
122 AMENDMENT 5–RIGHTS OF PERSONS

 Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that “maybe I 1 9

should talk to a lawyer,” uttered after Miranda waiver and after an hour and a half of

questioning, did not constitute such a clear request for an attorney when, in response to a

direct follow-up question, he said “no, I don’t want a lawyer”).

 United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, 20

described as a “nontestimonial fruit” of an unwarned statement). See also Michigan v.

Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant’s

statement elicited without proper Miranda warning). Note too that confessions may be

the poisonous fruit of other constitutional violations, such as illegal searches or arrests.

E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979);

Taylor v. Alabama, 457 U.S. 687 (1982).

See discussion under Art. I, § 8, cl. 4, “The Power of Congress to Exclude Aliens.” 21

unless the suspect clearly invokes them later. 19

[P. 1429, add to n.365:]

See also Harrison v. United States, 392 U.S. 219 (1968) (rejecting as tainted the prosecution’s use at the second trial of defendant’s testimony at his first trial rebutting confessions

obtained in violation of McNabb-Mallory).

[P. 1429, substitute for clause in text containing n.367:]

On the other hand, the “fruits” of such an unwarned confession or

admission may be used in some circumstances if the statement

was voluntary.20

DUE PROCESS

Procedural Due Process

– Aliens: Entry and Deportation

[P. 1443, add as first sentence of section:]

The Court has frequently said that Congress exercises “sovereign”

or “plenary” power over the substance of immigration law, and

this power is at its greatest when it comes to exclusion of aliens.21

[P. 1444, add as first sentence of only paragraph beginning on

page:]

Procedural due process rights are more in evidence when it comes

to deportation or other proceedings brought against aliens already

within the country.
AMENDMENT 5 – RIGHTS OF PERSONS 123

 538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be “no 22

longer practically attainable,” and detention therefore “no longer [bore] a reasonable

relation to the purpose for which the individual was committed.” 538 U.S. at 527.

 538 U.S. at 528. There was disagreement among the Justices as to whether 23

existing procedures afforded the alien an opportunity for individualized determination of

danger to society and risk of flight.

 542 U.S. 507 (2004). 24

 In response to the September 11, 2001, terrorist attacks on New York City’s 25

World Trade Center and the Pentagon in Washington, D.C., Congress passed the

“Authorization for Use of Military Force,” Pub. L. 107-40, 115 Stat. 224 (2001), which

served as the basis for military action against the Taliban government of Afghanistan

and the al Qaeda forces that were harbored there. 

 There was no opinion of the Court in Hamdi. Rather, a plurality opinion, 26

authored by Justice O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy and

Justice Breyer) relied on the statutory “Authorization for Use of Military Force” to

support the detention. Justice Thomas also found that the Executive Branch had the

power to detain the petitioner, but he based his conclusion on Article II of the Constitution.

[P. 1445, add to text after n.444:]

In Demore v. Kim, however, the Court indicated that its holding 22

in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a determination of

removability, the Court reaffirmed Congress’ broad powers over

aliens. “[W]hen the Government deals with deportable aliens, the

Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.”23

– Judicial Review of Administrative or Military Proceedings.

[P. 1446, add to text after only full paragraph on page:]

Failure of the Executive Branch to provide for any type of

proceeding for prisoners alleged to be “enemy combatants,”

whether in a military tribunal or a federal court, was at issue in

Hamdi v. Rumsfeld. During a military action in Afghanistan, 24 25

a United States citizen, Yaser Hamdi, was taken prisoner. The

Executive Branch argued that it had authority to detain Hamdi as

an “enemy combatant,” and to deny him meaningful access to the

federal courts. The Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan.26

However, the Court ruled that the government may not detain the

petitioner indefinitely for purposes of interrogation, but must give

him the opportunity to offer evidence that he is not an enemy

combatant. At a minimum, the petitioner must be given notice of

the asserted factual basis for holding him, must be given a fair
124 AMENDMENT 5–RIGHTS OF PERSONS

 542 U.S. 533, 539 (2004). Although only a plurality of the Court voted for both 27

continued detention of the petitioner and for providing these due process rights, four

other Justices would have extended due process at least this far. Justice Souter, joined

by Justice Ginsburg, while rejecting the argument that Congress had authorized such

detention, agreed with the plurality as to the requirement of providing minimal due

process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgement).

Justice Scalia, joined by Justice Stevens, denied that such congressional authorization

was possible without a suspension of the writ of habeas corpus, and thus would have

required a criminal prosecution of the petitioner. Id. at 554 (dissenting).

 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. at 28

242 n.2 (Justice Scalia dissenting).

 545 U.S. 469 (2005). 29

chance to rebut that evidence before a neutral decision-maker,

and must be allowed to consult an attorney. 27

NATIONAL EMINENT DOMAIN POWER

Public Use

[P. 1464, add new footnote on line 3 after “determination.”:]

Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be “rationally

related to a conceivable public purpose.” Id. at 490 (Justice Kennedy concurring).

[P. 1465, add to text after n.575:]

Subsequently, the Court put forward an added indicium of “public

use”: whether the government purpose could be validly achieved

by tax or user fee.28

[P. 1466, add new footnote at end of sentence beginning “For

‘public use’”:]

Most recently, the Court equated public use with “public purpose.” Kelo v. City of New

London, 545 U.S. 469, 480 (2005).

[P. 1466, add to text at end of section:]

The expansive interpretation of public use in eminent

domain cases may have reached its outer limit in Kelo v. City of

New London. There, a five-Justice majority upheld as a public 29

use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered,

areawide redevelopment plan adopted by a municipality to

invigorate a depressed economy. The Court saw no principled

way to distinguish economic development from the economic

purposes endorsed in Berman and Midkiff, and stressed the

importance of judicial deference to the legislative judgment as to

public needs. At the same time, the Court cautioned that private-to-private condemnations of individual properties, not part of
AMENDMENT 5 – RIGHTS OF PERSONS 125

 545 U.S. at 487. 30

 Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and 31

Chief Justice Rehnquist.

 545 U.S. at 501. 32

an “integrated development plan . . . raise a suspicion that a

private purpose [is] afoot.” A vigorous four-justice dissent 30

countered that localities will always be able to manufacture a

plausible public purpose, so that the majority opinion leaves the

vast majority of private parcels subject to condemnation when a

higher-valued use is desired. Backing off from the Court’s past 31

endorsements in Berman and Midkiff of a public use/police power

equation, the dissenters referred to the “errant language” of these

decisions, which was “unnecessary” to their holdings.32

Just Compensation

[P. 1467, add to n.584 after first citation:]

The owner’s loss, not the taker’s gain, is the measure of such compensation. Brown v.

Legal Found. of Washington, 538 U.S. 216, 236 (2003).

When Property is Taken

[P. 1473, add the following note to the sentence at the end of the

section:]

The Court has not yet determined whether the actions of a court may give rise to a taking.

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection,

Justice Scalia, joined by three other Justices, recognized that a court could effect a taking

through a decision that contravened established property law. 130 S. Ct. 2592 (2010).

Justice Kennedy and Justice Breyer, each joined by one other Justice, wrote concurring

opinions finding that the case at hand did not require the Court to determine whether, or

when, a judicial decision on the rights of a property owner can violate the Takings Clause.

Though all eight participating Justices agreed on the result in Stop the Beach Renourishment, Inc, the viability and dimensions of a judicial takings doctrine thus remains

unresolved.

– Regulatory Takings.

[P. 1483, substitute for n.683:]

Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra’s sharp physical-regulatory dichotomy is hard

to reconcile with dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005), to the

effect that the Penn Central regulatory takings test, like the physical occupation rule of

Loretto, “aims to identify regulatory actions that are functionally equivalent to the classic

taking in which government directly appropriates private property or ousts the owner

from his domain."
126 AMENDMENT 5–RIGHTS OF PERSONS

 544 U.S. 528 (2005). 33

 544 U.S. at 542. 34

 483 U.S. 825 (1987). 35

 483 U.S. at 837. Justice Scalia, author of the Court’s opinion in Nollan, amplified 36

his views in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1

(1988), explaining that “common zoning regulations requiring subdividers to observe

lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in

accord with [constitutional requirements] because the proposed property use would

otherwise be the cause of” the social evil (e.g., congestion) that the regulation seeks to

remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual

tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to

impose on a few individuals public burdens that “should be borne by the public as a

whole.” 485 U.S. at 20, 22.

 512 U.S. 374 (1994). 37

[Pp. 1485-86, substitute for paragraph that begins on page 1485

and for first paragraph that begins on page 1486:]

The first prong of the Agins test, asking whether land use

controls “substantially advance legitimate governmental interests,” has now been erased from takings jurisprudence, after a

quarter-century run. The proper concern of regulatory takings

law, said Lingle v. Chevron U.S.A. Inc., is the magnitude, 33

character, and distribution of the burdens that a regulation

imposes on property rights. In “stark contrast,” the “substantially

advances” test addresses the means-end efficacy of a regulation,

more in the nature of a due process inquiry. As such, it is not a 34

valid takings test.

A third type of inverse condemnation, in addition to

regulatory and physical takings, is the exaction taking. A

two-part test has emerged. The first part debuted in Nollan v.

California Coastal Commission, and holds that in order not to be 35

a taking, an exaction condition on a development permit approval

(requiring, for example, that a portion of a tract to be subdivided

be dedicated for public roads) must substantially advance a

purpose related to the underlying permit. There must, in short,

be an “essential nexus” between the two; otherwise the condition

is “an out-and-out plan of extortion.” The second part of the 36

exaction-takings test, announced in Dolan v. City of Tigard,

37

specifies that the condition, to not be a taking, must be related to

the proposed development not only in nature, per Nollan, but also

in degree. Government must establish a “rough proportionality”

between the burden imposed by such conditions on the property

owner, and the impact of the property owner’s proposed develop-
AMENDMENT 5 – RIGHTS OF PERSONS 127

 526 U.S. 687 (1999). 38

 A strong hint that monetary exactions are indeed outside Nollan/Dolan was 39

provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining that these

decisions were grounded on the doctrine of unconstitutional conditions as applied to

easement conditions that would have been per se physical takings if condemned directly.

 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). The other two decisions 40

are Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).

ment on the community – at least in the context of adjudicated

(rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the

breadth of what became known as the “heightened scrutiny” test.

The stakes were plainly high in that the test, where it applies,

lessens the traditional judicial deference to local police power and

places the burden of proof as to rough proportionality on the

government. In City of Monterey v. Del Monte Dunes at Monterey,

Ltd., the Court unanimously confined the Dolan rough propor- 38

tionality test, and, by implication, the Nollan nexus test, to the

exaction context that gave rise to those cases. Still unclear,

however, is whether the Court meant to place outside Dolan

exactions of a purely monetary nature, in contrast with the

physically invasive dedication conditions involved in Nollan and

Dolan.

39

The announcement following Penn Central of the above per

se rules in Loretto (physical occupations), Agins and Lucas (total

elimination of economic use), and Nollan/Dolan (exaction conditions) prompted speculation that the Court was replacing its ad

hoc Penn Central approach with a more categorical takings

jurisprudence. Such speculation was put to rest, however, by

three decisions from 2001 to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn

Central as the dominant mode of analysis for inverse condemnation claims, confining the Court’s per se rules to the “relatively

narrow” physical occupation and total wipeout circumstances, and

the “special context” of exactions.40

[P. 1490, add to text at end of section:]

The requirement that state remedies be exhausted before

bringing a federal taking claim to federal court has occasioned

countless dismissals of takings claims brought initially in federal

court, while at the same time posing a bar under doctrines of
128 AMENDMENT 5–RIGHTS OF PERSONS

 545 U.S. 323 (2005). 41

 28 U.S.C. § 1738. The statute commands that “judicial proceedings . . . shall have 42

the same full faith and credit in every court within the United States . . . as they have by

law or usage in the courts of such State . . . .” The statute has been held to encompass

the doctrines of claim and issue preclusion. 

See England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). 43

 545 U.S. at 348 (Chief Justice Rehnquist, and Justices O’Connor, Kennedy, and 44

Thomas).

preclusion to filing first in state court, per Williamson County,

then relitigating in federal court. The effect in many cases is to

keep federal takings claims out of federal court entirely – a

consequence the plaintiffs’ bar has long argued could not have

been intended by the Court. In San Remo Hotel, L.P. v. City and

County of San Francisco, the Court unanimously declined to 41

create an exception to the federal full faith and credit statute42

that would allow relitigation of federal takings claims in federal

court. Nor, said the Court, may an England reservation of the

federal taking claim in state court be used to require a federal 43

court to review the reserved claim, regardless of what issues the

state court may have decided. While concurring in the judgment,

four Justices asserted that the state-exhaustion prong of Williamson County “may have been mistaken.”44
 Vermont v. Brillon, 129 S. Ct. 1283, 1292 (2009) (citation omitted). 1

 Washington v. Recuenco, 548 U.S. 212, 220 (2006). Apprendi is discussed in the 2

next section.

129

SIXTH AMENDMENT

RIGHT TO A SPEEDY AND PUBLIC TRIAL

Speedy Trial

– When the Right is Denied.

[Page 1497: add to text six lines from the bottom of the page, after

"conclusive.":]

In addition, delay caused by assigned counsel should generally be

attributed to the defendant, not to the state. However, “[d]elay

resulting from a systemic ‘breakdown in the public defender

system’ could be charged to the State.”1

– Public Trial.

[ Page 1499: add to n. 48}

Relying on Waller and First Amendment precedent, the Court similarly held that an

accused's Sixth Amendment right to a public trial had been violated when a trial court

closed jury selection proceedings without having first explored alternatives to closure on

its own initiative. Presley v. Georgia, 130 S. Ct. 721 (2010) (per curiam). 

RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

– The Attributes and Function of the Jury.

[P. 1505, add to text at end of section:]

Subsequently, the Court held that, just as failing to prove materiality to the jury beyond a reasonable doubt can be harmless error,

so can failing to prove a sentencing factor to the jury beyond a

reasonable doubt. “Assigning this distinction constitutional

significance cannot be reconciled with our recognition in Apprendi

that elements and sentencing factors must be treated the same

for Sixth Amendment purposes.”2
130 AMENDMENT 6–RIGHTS OF ACCUSED

 Ford v. Wainwright, 477 U.S. 399, 416-417 (1986); Atkins v. Virginia, 536 U.S. 3

304, 317 (2002); Schriro v. Smith, 546 U.S. 6, 7 (2005). See Eighth Amendment, “Limitations on Capital Punishment: Diminished Capacity,” infra.

 In Washington v. Recuenco, however, the Court held that “[f]ailure to submit a 4

sentencing factor to the jury, like failure to submit an element [of a crime] to the jury, is

not structural error,” entitling the defendant to automatic reversal, but can be harmless

error. 548 U.S. 212, 222 (2006).

 In James v. United States, 550 U.S. 192 (2007), the Court found no Sixth 5

Amendment issue raised when it considered “the elements of the offense . . . without

inquiring into the specific conduct of this particular offender.” Id. at 1594 (emphasis in

original). The question before the Court was whether, under federal law, attempted

burglary, as defined by Florida law, “presents a serious potential risk of physical injury to

another” and therefore constitutes a “violent felony,” subjecting the defendant to a longer

sentence. Id. at 1591. In answering this question, the Court employed the “categorical

approach” of looking only to the statutory definition and not considering the “particular

facts disclosed by the record of conviction.” Id. at 1593-94. Thus, “the Court [was]

engaging in statutory interpretation, not judicial factfinding,” and “[s]uch analysis raises

no Sixth Amendment issue.” Id. at 1600.

 For instance, the Court held that whether a defendant “visibly possessed a gun” 6

during a crime may be designated by a state as a sentencing factor, and determined by a

judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79

(1986). After resolving the issue under the Due Process Clause, the Court dismissed the

Sixth Amendment jury trial claim as “merit[ing] little discussion.” Id. at 93. For more on

the due process issue, see the discussion in the main text under “Proof, Burden of Proof,

and Presumptions.”

– Criminal Proceedings to Which the Guarantee Applies.

[P. 1506, add to text at end of first full paragraph:]

The Court has consistently held, however, that a jury is not

required for purposes of determining whether a defendant is

insane or mentally retarded and consequently not eligible for the

death penalty.3

[P. 1506-1507, substitute for final two paragraphs of section:]

Within the context of a criminal trial, what factual issues

are submitted to the jury has traditionally been determined by

whether the fact to be established is an element of a crime or

instead is a sentencing factor. Under this approach, the right to 4

a jury extends to the finding of all facts establishing the elements

of a crime, but sentencing factors may be evaluated by a judge.5

Evaluating the issue primarily under the Fourteenth Amendment’s Due Process Clause, the Court initially deferred to Congress and the states on this issue, allowing them broad leeway in

determining which facts are elements of a crime and which are

sentencing factors.6

Breaking with this tradition, however, the Court in

Apprendi v. New Jersey held that a sentencing factor cannot be
AMENDMENT 6–RIGHTS OF ACCUSED 131

 530 U.S. 466, 490 (2000). 7

 530 U.S. at 494. “[M]erely because the state legislature placed its hate crime 8

sentence enhancer within the sentencing provisions of the criminal code does not mean

that the finding of a biased purpose to intimidate is not an essential element of the

offense.” Id. at 495 (internal quotation omitted).

 530 U.S. at 490. 9

 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally 10

considered a part of sentencing, and a judge may find the existence of previous valid

convictions even if the result is a significant increase in the maximum sentence available.

Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the

United States is subject to a maximum sentence of two years, but upon proof of a felony

record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20

(1992) (if the prosecutor has the burden of establishing a prior conviction, a defendant

can be required to bear the burden of challenging its validity).

 536 U.S. 584 (2002). 11

 Walton v. Arizona, 497 U.S. 639 (1990). Ring also appears to overrule some other 12

decisions on the same issue, such as Spaziano v. Florida, 468 U.S. 447 (1984), and

Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (per curiam), and undercuts the

reasoning of another. See Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court

may reweigh aggravating and mitigating factors and uphold imposition of death penalty

even though jury relied on an invalid aggravating factor).

 “Because Arizona’s enumerated aggravating factors operate as ‘the functional 13

equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that

they be found by a jury.” 536 U.S. at 609. The Court rejected Arizona’s request that it

recognize an exception for capital sentencing in order not to interfere with elaborate

(continued...)

used to increase the maximum penalty imposed for the underlying

crime. “The relevant inquiry is one not of form, but of effect.” 7 8

Apprendi had been convicted of a crime punishable by imprisonment for no more than ten years, but had been sentenced to 12

years based on a judge's findings, by a preponderance of the

evidence, that enhancement grounds existed under the state’s

hate crimes law. “[A]ny fact that increases the penalty for a crime

beyond the prescribed statutory maximum,” the Court concluded,

“must be submitted to a jury, and proved beyond a reasonable

doubt.” The one exception the Apprendi Court recognized was for 9

sentencing enhancements based on recidivism.10

Apprendi’s importance soon became evident as the Court

applied its reasoning in other situations. In Ring v. Arizona, the 11

Court, overruling precedent, applied Apprendi to invalidate an 12

Arizona law that authorized imposition of the death penalty only

if the judge made a factual determination as to the existence of

any of several aggravating factors. Although Arizona required

that the judge's findings as to aggravating factors be made beyond

a reasonable doubt, and not merely by a preponderance of the

evidence, the Court ruled that those findings must be made by a

jury. 13
132 AMENDMENT 6–RIGHTS OF ACCUSED

 (...continued) 13

sentencing procedures designed to comply with the Eighth Amendment. Id. at 605-07.

 542 U.S. 296 (2004). 14

 542 U.S. at 303-304 (italics in original; citations omitted). 15

 543 U.S. 220 (2005). 16

 543 U.S. at 244. 17

 543 U.S. at 233. 18

 543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989), the 19

Court also rejected a separation-of-powers argument. Id. at 754-55.

In Blakely v. Washington, the Court sent shock waves 14

through the federal as well as state sentencing systems when it

applied Apprendi to invalidate a sentence imposed under Washington State’s sentencing statute. Blakely, who pled guilty to an

offense for which the “standard range” under the state’s sentencing law was 49 to 53 months, was sentenced to 90 months based

on the judge’s determination – not derived from facts admitted in

the guilty plea – that the offense had been committed with

“deliberate cruelty,” a basis for an “upward departure” under the

statute. The 90-month sentence was thus within a statutory

maximum, but the Court made “clear . . . that the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant. In other words, the

relevant ‘statutory maximum’ is not the maximum sentence a

judge may impose after finding additional facts, but the maximum

he may impose without any additional findings.” 15

Then, in United States v. Booker, the Court held that the 16

same principles limit sentences that courts may impose under the

federal Sentencing Guidelines. As the Court restated the principle in Booker, “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Attempts to distinguish Blakely were re- 17

jected. Because the Sentencing Reform Act made application of

the Guidelines “mandatory and binding on all judges,” the Court 18

concluded that the fact that the Guidelines were developed by the

Sentencing Commission rather than by Congress “lacks constitutional significance. The mandatory nature of the Guidelines was 19
AMENDMENT 6–RIGHTS OF ACCUSED 133

 There were two distinct opinions of the Court in Booker. The first, authored by 20

Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the same

Justices who comprised the five-Justice Blakely majority), applied Blakely to find a Sixth

Amendment violation; the other, authored by Justice Breyer, and joined by Chief Justice

Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the Blakely dissenters joined

by Justice Ginsburg), set forth the remedy.

 543 U.S. at 259. 21

 543 U.S. at 245-246 (statutory citations omitted). 22

 549 U.S. 270 (2007). 23

 549 U.S. at 278-79, quoting California Rules 4.420(b), 4.408(a). 24

 In Booker, the Court substituted a “reasonableness” standard for the statutory de 25

novo appellate review standard that it struck down. 543 U.S. at 262.

also important to the Court’s formulation of a remedy. Rather 20

than engrafting a jury trial requirement onto the Sentencing

Reform Act, the Court instead invalidated two of its provisions,

one making application of the Guidelines mandatory, and one

requiring de novo review for appeals of departures from the

mandatory Guidelines, and held that the remainder of the Act

could remain intact. As the Court explained, this remedy “makes 21

the Guidelines effectively advisory. It requires a sentencing court

to consider Guidelines ranges, but it permits the court to tailor

the sentence in light of other statutory concerns as well.”22

In Cunningham v. California, the Court considered 23

whether California’s determinate state sentencing law, yet

another style of legislative effort intended to regularize criminal

sentencing, survived the Booker-Blakely line of cases. That law

required that the trial judge in the case sentence the defendant to

12 years in prison unless the judge found one or more additional

“circumstances in aggravation,” in which case the sentence would

be 16 years. Although such aggravating circumstances could

include specific factual findings made by a judge under a “preponderance of the evidence” standard in apparent violation of Booker

and Blakely, the court was also free to consider “additional

criteria reasonably related to the decision being made.” The 24

state argued that this latter provision of the Rule was consistent

with a still-undeveloped holding by the Court in Booker that even

the now-advisory federal sentencing guidelines would remain

subject to appellate review to determine “reasonableness.” The 25

Court rejected this argument, finding that the discretion afforded

the trial court by the California law did not eliminate the uncon-
134 AMENDMENT 6–RIGHTS OF ACCUSED

26 “The reasonableness requirement that Booker anticipated for the federal system

operates within the Sixth Amendment constraints delineated in our precedent, not as a

substitute for those constraints.” 549 U.S. at 292-93. The Court also rejected the

argument that the discretion given to the judge made the California system “advisory”

and thus consistent with the remedy established in Booker. Id. at 292.

 Prior to its decision in Apprendi, the Court had held that factors determinative of 27

minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79

(1986). Although the vitality of McMillan was put in doubt by Apprendi, McMillan was

subsequently reaffirmed in Harris v. United States, 536 U.S. 545, 568-69 (2002). Five

Justices in Harris thought that factfinding required for imposition of mandatory

minimums fell within Apprendi’s reasoning, but one of the five, Justice Breyer, concurred

in the judgment on practical grounds despite his recognition that McMillan was not

“easily” distinguishable “in terms of logic.” 536 U.S. at 569. Justice Thomas’ dissenting

opinion, id. at 572, joined by Justices Stevens, Souter, and Ginsburg, elaborated on the

logical inconsistency, and suggested that the Court’s deference to Congress’ choice to

treat mandatory minimums as sentencing factors made avoidance of Apprendi a matter

of “clever statutory drafting.” Id. at 579.

 Oregon v. Ice, 129 S. Ct. 711 (2009). 28

 Most states follow the common-law tradition of giving judges unfettered 29

discretion over the matter, while some states presume that sentences will run consecutively but allow judges to order concurrent sentences upon finding cause to do so. “It is

undisputed,” the Court noted, “that States may proceed on [either of these] two tracks

without transgressing the Sixth Amendment.” 129 S. Ct. at 714.

 129 S. Ct. at 720 (Scalia, J., dissenting). 30

 129 S. Ct. at 717. The Court also noted other decisions judges make that are 31

likely to evade the strictures of Apprendi, including determining the length of supervised

release, attendance at drug rehabilitation programs, terms of community service, and

(continued...)

stitutional requirement that the court make the factual findings

that imposed a higher prison term. 26

The Court, however, has refused to apply Apprendi’s

principles to judicial factfinding that supports imposition of

mandatory minimum sentences. The Court has also refused to 27

extend Apprendi to a judge’s decision to impose sentences for

discrete crimes consecutively rather than concurrently. The 28

Court explained that, when a defendant has been convicted of

multiple offenses, each involving discrete sentencing prescriptions, the states apply various rules regarding whether a judge

may impose the sentences consecutively or concurrently. The 29

rule that was before the Court in Oregon v. Ice presumed that

sentences will run concurrently but to allow judges to impose

consecutive sentences upon finding certain facts, such as that the

defendant’s crimes caused “separate harms” to the victim. The 30

Court held that “twin considerations – historical practice and

respect for state sovereignty – counsel against extending

Apprendi’s rule” to preclude judicial factfinding in this situation

as well.31
AMENDMENT 6–RIGHTS OF ACCUSED 135

 (...continued) 31

imposition of fines and orders of restitution. Id. at 719. Justice Scalia, joined by Chief

Justice Roberts and Justices Souter and Thomas, dissented, finding the majority's

applying Apprendi “only to the length of a sentence for an individual crime and not to the

total sentence for a defendant . . . a strange exception to the treasured right of trial by

jury.” Id. at 720.

 551 U.S. 338, 341 (2007). The Court emphasized that it was upholding “an 32

appellate court presumption. Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption

applies only on appellate review. . . . [T]he sentencing court does not enjoy the benefit of

a legal presumption that the Guidelines sentence should apply.” Id. at 2465, quoted in

part in Nelson v. United States, 129 S. Ct. 891 (2009) (per curiam), where the Court

added, “The Guidelines are not only not mandatory on sentencing courts; they are also

not to be presumed reasonable.” Id. at 892 (emphasis in original).

 551 U.S. at 352, 353 (emphasis in original). The Court added: “The fact that we 33

permit courts of appeals to adopt a presumption of reasonableness does not mean that

courts may adopt a presumption of unreasonableness. . . . [A]ppellate courts may not

presume that every variance from the advisory Guidelines is unreasonable. . . . Several

courts of appeals have also rejected a presumption of unreasonableness. . . . However, a

number of circuits adhere to the proposition that the strength of the justification needed

to sustain an outside-Guidelines sentence varies in proportion to the degree of the

variance. . . . We will consider that approach next Term in United States v. Gall, No.

06-7949.” Id. at 2467.

In Rita v. United States, the Court upheld the application,

by federal courts of appeals, of the presumption “that a sentence

imposed within a properly calculated United States Sentencing

Guidelines range is a reasonable sentence.” Even if “the pre- 32

sumption increases the likelihood that the judge, not the jury, will

find ‘sentencing facts,’” the Court wrote, it “does not violate the

Sixth Amendment. This Court’s Sixth Amendment cases do not

automatically forbid a sentencing court to take account of factual

matters not determined by a jury and to increase the sentence in

consequence. Nor do they prohibit the sentencing judge from

taking account of the Sentencing Commission’s factual findings or

recommended sentences. See Cunningham v. California . . . .

The Sixth Amendment question, the Court has said, is whether

the law forbids a judge to increase a defendant’s sentence unless

the judge finds facts that the jury did not find (and the offender

did not concede). . . . A nonbinding appellate presumption that a

Guidelines sentence is reasonable does not require the judge to

impose that sentence. Still less does it forbid the sentencing

judge from imposing a sentence higher than the Guidelines

provide for the jury-determined facts standing alone.”33
136 AMENDMENT 6–RIGHTS OF ACCUSED

 128 S. Ct. 586 (2007) (upholding a sentence of probation where the Guidelines 34

had recommended imprisonment).

 128 S. Ct. at 591. “As explained in Rita and Gall, district courts must treat the 35

Guidelines as the ‘starting point and the initial benchmark.’” Kimbrough v. United

States, 128 S. Ct. 558 (2007) (upholding lower-than-Guidelines sentence for trafficker in

crack cocaine, where sentence “is based on a disagreement with the sentencing disparity

for crack and powder cocaine offenses”). A district court judge may determine “that, in

the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the

objectives of sentencing.” Kimbrough, 128 S. Ct. at 564.

 128 S. Ct. at 595. Justice Alito, dissenting, wrote, “we should not forget [that] . . . 36

Booker and its antecedents are based on the Sixth Amendment right to trial by jury. . . .

It is telling that the rules set out in the Court’s opinion in the present case have nothing

to do with juries or factfinding and, indeed, that not one of the facts that bears on

petitioner’s sentence is disputed. What is at issue, instead, is the allocation of the

authority to decide issues of substantive sentencing policy, an issue on which the Sixth

Amendment says absolutely nothing. The yawning gap between the Sixth Amendment

and the Court’ opinion should be enough to show that the Blakely-Booker line of cases has

gone astray.” Id. at 605 (Alito, J., dissenting).

 129 S. Ct. 840 (2009) (per curiam). 37

 129 S. Ct. at 842, 843-44. 38

In United States v. Gall, the Court held that, “while the 34

extent of the difference between a particular sentence and the

recommended Guidelines range is surely relevant, courts of

appeals must review all sentences – whether inside, just outside,

or significantly outside the Guidelines range – under a deferential

abuse-of-discretion standard.” The Court rejected “an appellate 35

rule that requires ‘extraordinary’ circumstances to justify a

sentence outside the Guidelines range,” and also rejected “the use

of a rigid mathematical formula that uses the percentage of a

departure as the standard for determining the strength of the

justifications required for a specific sentence.” These approaches,

the Court said, “come too close to creating an impermissible

presumption of unreasonableness for sentences outside the

Guidelines range.”36

Subsequently, in Spears v. United States, the Court, 37

emphasizing that the Guidelines “are advisory only,” clarified

“that district courts are entitled to reject and vary categorically

from the . . . Guidelines based on a policy disagreement with those

Guidelines.” In Spears, a district court had given a defendant a 38

sentence significantly below the Guidelines for distribution of

crack cocaine, noting that the Guidelines required 100 times more

powder cocaine than crack cocaine to trigger a particular sentencing range. The Supreme Court held that, if a sentencing court

believes “that the 100-to-1 ratio embodied in the sentencing

guidelines for the treatment of crack cocaine versus powder
AMENDMENT 6–RIGHTS OF ACCUSED 137

 129 S. Ct. at 842. 39

 Dillon v. United States, 130 S. Ct. 2683 (2010). 40

 551 U.S. 1 (2007). 41

cocaine creates ‘an unwarranted disparity within the meaning of

[18 U.S.C.] § 3553(a),’” then it may vary downward from the

Guidelines even when the particular defendant “presents no

special mitigating circumstances” to justify a lower sentence.39

The Booker line of cases addresses the role of the Sentencing Guidelines in imposing and reviewing individual sentences.

Booker, however, did not overturn the Sentencing Reform Act in

its entirety, nor did it abolish the Guidelines themselves. One set

of provisions left intact directed the Sentencing Commission to

review the Guidelines periodically, authorized it to reduce the

Guidelines range for individual offenses and make the reduced

ranges retroactive, but also generally foreclosed a court from then

reducing a sentence previously imposed to one less than the

minimum contained in the amended Guideline range. In Dillon v.

United States, the Court distinguished this sentence modifica- 40

tion process from a sentencing or resentencing, and upheld

mandatory limits on judicial reductions of sentences under it.

Impartial Jury

[P. 1509, add to n. 91:]

To show that underrepresentation resulted from systematic exclusion requires rigorous

evidence beyond merely pointing to a single factor or a host of factors that might have

caused fewer members of a distinct group to have been included. Berghuis v. Smith, 130 S.

Ct. 1382 (2010).

[P.1510, add to end of n 98:]

Important factors to be considered, however, include the size and characteristics of the

community in which the crime occurred; whether the publicity was blatantly prejudicial;

the time elapsed between the publicity and the trial; and whether the jurors' verdict

supported the theory of prejudice. Skilling v. U.S., 130 S. Ct. 2896 (2010).

[P. 1511, add to text after n.110:]

In Uttecht v. Brown, the Court summed up four principles 41

that it derived from Witherspoon and Witt [cited in the main

volume at n.105]: “First a criminal defendant has the right to an

impartial jury drawn from a venire that has not been tilted in

favor of capital punishment by selective prosecutorial challenges

for cause. Second, the State has a strong interest in having jurors

who are able to apply capital punishment within the framework
138 AMENDMENT 6–RIGHTS OF ACCUSED

 551 U.S. at 9 (citations omitted). Deference was the focus of Uttecht v. Brown, as 42

the Court, by a 5-to-4 vote, reversed the Ninth Circuit and affirmed a death sentence,

finding that the Ninth Circuit had neglected to accord the deference it owed to the trial

court’s finding that a juror was not substantially impaired. The Court concluded: “Courts

reviewing claims of Witherspoon-Witt error . . . , especially federal courts considering

habeas petitions, owe deference to the trial court, which is in a superior position to

determine the demeanor and qualifications of a potential juror.” Id. at 22. The reason

that federal courts of appeals owe special deference when considering habeas petitions is

that the Antiterrorism and Effective Death Penalty Act of 1996 “provide[s] additional,

and binding, directions to accord deference.” Id. at 10. The dissent, written by Justice

Stevens and joined by Justices Souter, Ginsburg, and Breyer, noted that the juror whose

exclusion for cause was challenged had “repeatedly confirmed” that, despite his “general

reservations” about the death penalty, he would be able to vote for it. Id. at 37. Even

under the standard of review imposed by the Antiterrorism and Effective Death Penalty

Act of 1996, “[w]hile such testimony might justify a peremptory challenge, until today not

one of the many cases decided in the wake of Witherspoon v. Illinois has suggested that

such a view would support a challenge for cause. . . . In its opinion, the Court blindly

accepts the state court’s conclusory statement that [the juror’s] views would have

‘substantially impaired’ his ability to follow the court’s instructions without examining

what that term means in practice and under our precedents.” Id. at 37, 38 (citation to

Witherspoon omitted).

 448 U.S. 56 (1980). The witness was absent from home and her parents testified 43

they did not know where she was or how to get in touch with her. The state’s sole effort

to locate her was to deliver a series of subpoenas to her parents’ home. Over the

objection of three dissenters, the Court held this to be an adequate basis to demonstrate

her unavailability. Id. at 74-77.

state law prescribes. Third, to balance these interests, a juror

who is substantially impaired in his or her ability to impose the

death penalty under the state-law framework can be excused for

cause; but if the juror is not substantially impaired, removal for

cause is impermissible. Fourth, in determining whether the

removal of a potential juror would vindicate the State’s interest

without violating the defendant’s right, the trial court makes a

judgment based in part on the demeanor of the juror, a judgment

owed deference by reviewing courts.”42

[P. 1513, in second line of the paragraph that begins on the page,

add footnote after comma:]

“This Court has long recognized that peremptory challenges are not of federal constitutional dimension.” Rivera v. Illinois, 129 S. Ct. 1446, 1450 (2009) (internal quotation

marks omitted) (state trial court's erroneous denial of a defendant’s peremptory challenge

does not warrant reversal of conviction if all seated jurors were qualified and unbiased). 

CONFRONTATION

[P. 1522, substitute for both paragraphs on page:]

In Ohio v. Roberts, a Court majority adopted the reliabil- 43

ity test for satisfying the confrontation requirement through use
AMENDMENT 6–RIGHTS OF ACCUSED 139

 “[O]nce a witness is shown to be unavailable . . . , the Clause countenances only 44

hearsay marked with such trustworthiness that ‘there is no material departure from the

reason of the general rule.’” 448 U.S. at 65 (quoting Snyder v. Massachusetts, 291 U.S.

97, 107 (1934)). The Court indicated that reliability could be inferred without more if the

evidence falls within a firmly rooted hearsay exception.

 Applying Roberts, the Court held that the fact that defendant’s and codefendant’s 45

confessions “interlocked” on a number of points was not a sufficient indicium of reliability, since the confessions diverged on the critical issues of the respective roles of the two

defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts was narrowed in United States

v. Inadi, 475 U.S. 387 (1986), which held that the rule of “necessity” is confined to use of

testimony from a prior judicial proceeding, and is inapplicable to co-conspirators’

out-of-court statements. See also White v. Illinois, 502 U.S. 346, 357 (1992) (holding

admissible “evidence embraced within such firmly rooted exceptions to the hearsay rule

as those for spontaneous declarations and statements made for medical treatment”); and

Idaho v. Wright, 497 U.S. 805, 822-23 (1990) (insufficient evidence of trustworthiness of

statements made by child sex crime victim to her pediatrician; statements were admitted

under a “residual” hearsay exception rather than under a firmly rooted exception).

 541 U.S. 36 (2004). 46

 541 U.S. at 60-61. 47

 541 U.S. at 63. 48

 541 U.S. at 68-69. 49

 541 U.S. at 54, 59. 50

of a statement by an unavailable witness. Over the course of 24 44

years, Roberts was applied, narrowed, and finally overruled in 45

Crawford v. Washington. The Court in Crawford rejected 46

reliance on “particularized guarantees of trustworthiness” as

inconsistent with the requirements of the Confrontation Clause.

The Clause “commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.” Reliability is an “amorphous” 47

concept that is “manipulable,” and the Roberts test had been

applied “to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” “Where testimonial 48

statements are at issue, the only indicium of reliability sufficient

to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.”49

Crawford represented a decisive turning point by clearly

stating the basic principles to be used in Confrontation Clause

analysis. “Testimonial evidence” may be admitted against a

criminal defendant only if the declarant is available for

cross-examination at trial, or, if the declarant is unavailable even

though the government has made reasonable efforts to procure his

presence, the defendant has had a prior opportunity to

cross-examine as to the content of the statement.50

What statements are “testimonial”? In Crawford, the
140 AMENDMENT 6–RIGHTS OF ACCUSED

 541 U.S. at 51-2 (internal quotation marks and citations omitted), quoted in 51

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009).

 541 U.S. at 68. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542, 2530, 52

2531 (2009), the Court concluded that “little more than the application of our holding in

Crawford v. Washington” was needed to find subject to the right of confrontation

“affidavits reporting the results of forensic analysis which showed that material seized by

the police and connected to the defendant was cocaine”; the analysts were required to

testify in person even though state law declared their affidavits “prima facie evidence of

the composition, quality, and the net weight of the narcotic . . . analyzed.”

 Giles v. California, 128 S. Ct. 2678, 2682, 2683 (2008). 53

 128 S. Ct. at 2683. 54

Court wrote: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional

equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to

cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially; extrajudicial

statements . . . contained in formalized testimonial material, such

as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would

be available for use at a later trial.” The Court added that it 51

would “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’” but, “[w]hatever else the term

covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations.” 52

The only exceptions to the right of confrontation that the

Court has acknowledged are the two that existed under common

law at the time of the founding: “declarations made by a speaker

who was both on the brink of death and aware that he was dying,”

and “statements of a witness who was ‘detained’ or ‘kept away’ by

the ‘means or procurement’ of the defendant.” The second of 53

these exceptions applies “only when the defendant engaged in

conduct designed to prevent the witness from testifying.” Thus, 54

in a trial for murder, the question arose whether statements

made by the victim to a police officer three weeks before she was

murdered, that the defendant had threatened her, could be

admitted. The state court had admitted them on the basis that

the defendant’s having murdered the victim had made the victim

unavailable to testify, but the Supreme Court reversed, holding

that, unless the testimony had been confronted or fell within the
AMENDMENT 6–RIGHTS OF ACCUSED 141

 128 S. Ct. at 2686. 55

 547 U.S. 813 (2006). 56

 547 U.S. at 822. 57

 547 U.S. at 828-29. Thus, where police responding to a domestic violence report 58

interrogated a woman in the living room while her husband was being questioned in the

kitchen, there was no present threat to the woman, so such information as was solicited

was testimonial. Id. at 830 (facts of Hammon v. Indiana, considered together with

Davis).

dying declaration exception, it could not be admitted “on the basis

of a prior judicial assessment that the defendant is guilty as

charged,” for to admit it on that basis it would “not sit well with

the right to trial by jury.”55

In Davis v. Washington, the Court began to explore the 56

parameters of Crawford by considering when a police interrogation is “testimonial” for purposes of the Confrontation Clause.

Davis involved a 911 call in which a woman described being

assaulted by a former boyfriend. A tape of that call was admitted

as evidence of a felony violation of a domestic no-contact order,

despite the fact that the woman in question did not testify.

Although again declining to establish all the parameters of when

a response to police interrogation is testimonial, the Court held

that statements to the police are nontestimonial when made

under circumstances that “objectively indicat[e] that the primary

purpose of the interrogation is to enable police assistance to meet

an ongoing emergency.” Statements made after such an emer- 57

gency has ended, however, would be treated as testimonial and

could not be introduced into evidence.58

ASSISTANCE OF COUNSEL

Development of an Absolute Right to Counsel at Trial

– Johnson v. Zerbst

[P. 1528, add to n.208:]

A waiver must be knowing, voluntary, and intelligent, but need not be based on a full and

complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004)

(holding that warnings by trial judge detailing risks of waiving right to counsel are not

constitutionally required before accepting guilty plea from uncounseled defendant).

– Protection of the Right to Retained Counsel.

[P. 1531, add to text after n.229:]

Where the right to be assisted by counsel of one’s choice is

wrongly denied, a Sixth Amendment violation occurs regardless of
142 AMENDMENT 6–RIGHTS OF ACCUSED

 United States v. Gonzalez-Lopez, 548 U.S. 140, 144-45 (2006). 59

 Arizona v. Fulminante, 499 U.S. 279, 307-310 (1991). 60

Gonzalez-Lopez, 548 U.S. at 148-49. The Court noted that an important compo- 61

nent of the finding that denial of the right to choose one’s own counsel was a “structural

defect” was the difficulty of assessing the effect of such denial on a trial’s outcome. Id. at

149 n.4.

 There is no obligation to present on appeal all nonfrivolous issues requested by 62

the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his

professional judgment in determining which issues are best raised on appeal).

whether the alternate counsel retained was effective, or whether

the denial caused prejudice to the defendant. Further, because 59

such a denial is not a “trial error” (a constitutional error that

occurs during presentation of a case to the jury), but a “structural

defect” (a constitutional error that affects the framework of the

trial), the Court had held that the decision is not subject to a 60

“harmless error” analysis.61

– Effective Assistance of Counsel.

[P. 1535, add new footnote after “virtually unchallengeable,” in

sentence ending with n.252:]

Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference

to attorney’s choice of tactics for closing argument).

[P. 1535, substitute for n.252:]

Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts

could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors); Schriro v. Landrigan, 550 U.S. 465 (2007)

(federal district court was within its discretion to conclude that attorney’s failure to

present mitigating evidence made no difference in sentencing). But see Wiggins v. Smith,

539 U.S. 510 (2003) (attorney’s failure to pursue defendant’s personal history and present

important mitigating evidence at capital sentencing was objectively unreasonable);

Rompilla v. Beard, 545 U.S. 374 (2005) (attorneys’ failure to consult trial transcripts from

a prior conviction that the attorneys knew the prosecution would rely on in arguing for the

death penalty was inadequate); Porter v. McCollum, 130 S. Ct. 447 (2009) (per curiam)

(attorney's failure to interview witnesses or search records in preparation for penalty

phase of capital murder trial constituted ineffective assistance of counsel); See also Sears

v. Upton, 130 S. Ct. 3259 (2010). 

[P. 1535, change period in text before n.252 to comma and add to

text after n.252:]

and decisions selecting which issues to raise on appeal. Provid- 62

ing effective assistance is not limited to a single path. No detailed

rules or guidelines for adequate representation are appropriate:

“Any such set of rules would interfere with the constitutionally
AMENDMENT 6–RIGHTS OF ACCUSED 143

 466 U.S. at 689. Strickland observed that "American Bar Association standards 63

and the like" may reflect prevailing norms of practice, "but they are only guides." Id. at

688. Subsequent cases also cite ABA standards as touchstones of prevailing norms of

practice. E.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545

U.S. 374, 387 (2005). But in Bobby v. Van Hook, the Court held that the Sixth Circuit had

erred in assessing an attorney's conduct in the 1980s under 2003 ABA guidelines, and

also noted that its holding “should not be regarded as accepting the legitimacy of a less

categorical use of the [2003] Guidelines to evaluate post-2003 representation.” 130 S. Ct.

13, 17 n.1 (2009) (per curiam).

Strickland, 466 U.S. at 693. See also Porter v. McCollum, 130 S. Ct. 447 (2009). 64

 Sears v. Upton, 130 S. Ct. 3259 (2010) (counsel presented evidence of supportive 65

family ties as a mitigating factor in the penalty phase of a capital case, but a fuller

investigation by counsel would have uncovered evidence of physical abuse, pronounced

brain damage, and significantly diminished mental functioning).

E.g., Smith v. Spisak, 130 S. Ct. 676, 685-88 (2010). See also Hill v. Lockhart, 474 66

U.S. 52, 60 (1985).

protected independence of counsel and restrict the wide latitude

counsel must have in making tactical decisions.” 63

[P. 1535, add to n. 254, after “Accord,”]

Wong v. Belmontes, 130 S. Ct. 383 (2009) (per curiam); 

[P. 1535, add to text after n. 253]

This standard does not require that “a defendant show that

counsel's deficient conduct more likely than not altered the

outcome in the case.” Also, presentation of a plausible mitigation 64

theory supported by evidence does not foreclose prejudice based

on counsel's earlier failure to have conducted an adequate mitigation investigation. Nevertheless, defendants frequently fall short 65

on the prejudice requirement, with the Court posing it as a

threshold matter and failing to find how other representation

could have made a significant difference.66

[P. 1536, add to n.254:]

Compare Sears v. Upton, 130 S. Ct. 3259 (2010).

[P. 1536, add to n.260:]

In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), the Supreme Court noted that

it has never ruled on whether, during a plea hearing at which the defendant pleads guilty,

defense counsel’s being linked to the courtroom by speaker phone, rather than being

physically present, is likely to result in such poor performance that Cronic should apply.

The fact that the Court has never ruled on the question means that “it cannot be said that

the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’” and, as a

consequence, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254(d)(1), the defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v.

Musladin, 549 U.S. 70, 77 (2006), as to which see “Limitations on Habeas Corpus Review of

Capital Sentences” under Eighth Amendment).
144 AMENDMENT 6–RIGHTS OF ACCUSED

 130 S. Ct. 14731 (2010). 67

 130 S. Ct. at 1481. 68

 130 S. Ct. at 1484-86. 69

Strickland and Cronic were decided the same day, and the Court’s opinion in 70

each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. The

Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for

“claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666 n.41. The narrow

reach of Cronic has been illustrated by subsequent decisions. Not constituting per se

ineffective assistance is a defense counsel’s failure to file a notice of appeal, or in some

circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega,

(continued...)

[P. 1536, substitute for n.261:]

Cronic, 466 U.S. at 659 n.26.

[P. 1536, add to the end of the section:]

Criminal prosecutions in the United States most commonly result

in guilty pleas. In considering a plea, an accused is clearly entitled to advice of counsel on the prospect of conviction at trial and

the extent of punishment that might be imposed. In Padilla v.

Kentucky, however, the Court held that defense counsel's Sixth

Amendment duty to a client considering a plea goes beyond advice

on issues directly before the criminal court to reach advice on

deportation. Because of its severity, historic association with 67

the criminal justice system, and increasing certainty following

conviction and imprisonment, deportation was found to be of a

“unique nature”: the Court pointedly stated that it was not

addressing whether distinguishing between direct and collateral

consequences of conviction was appropriate in bounding defense

counsel's constitutional duty in a criminal case. Further, the 68

Court held that defense counsel failed to meet prevailing professional norms in representing to Padilla that he did not have to

worry about deportation because of the length of his legal residency in the U.S. The Court emphasized that this conclusion was

not based on the attorney's mistaken advice, but rather on a

broader obligation to inform a noncitizen client whether a plea

carries a risk of deportation. Silence is not an option. On the 69

issue of prejudice to Padilla from ineffective assistance, the Court

sent the case back to lower courts for further findings. 

[P. 1536, change the period in text before n.261 to a comma, and

add after new comma:]

and consequently most claims of inadequate representation are to

be measured by the Strickland standard.70
AMENDMENT 6–RIGHTS OF ACCUSED 145

 (...continued) 70

528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). See

also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant

has failed to consent to a tenable strategy counsel has adequately disclosed to and

discussed with him). A standard somewhat different from Cronic and Strickland governs

claims of attorney conflict of interest. See discussion of Cuyler v. Sullivan under

“Protection of Right to Retained Counsel,” supra.

 Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) (right to appointed counsel 71

attaches even if no public prosecutor, as distinct from a police officer, is aware of that

initial proceeding or involved in its conduct).

 128 S. Ct. at 2592. 72

 128 S. Ct. at 2592 (Alito, J., concurring). Justice Alito’s concurrence, joined by 73

Chief Justice Roberts and Justice Scalia, was not necessary for the majority opinion in

Rothgery, but the majority noted that it had not decided “whether the 6-month delay in

(continued...)

– Self-Representation.

[P. 1536, add to n.262 after initial citation:]

An invitation to overrule Faretta because it leads to unfair trials was declined in Indiana

v. Edwards, 128 S. Ct. 2379, 2388 (2008).

[P. 1536, add to n.262 before sentence beginning with “Related”:]

The Court, however, has not addressed what state aid, such as access to a law library,

might need to be made available to a defendant representing himself. Kane v. Garcia

Espitia, 546 U.S. 9 (2005) (per curiam).

[P. 1537, add footnote at end of the sentence that ends on third

line of the page:]

The fact that a defendant is mentally competent to stand trial does not preclude a court

from finding him not mentally competent to represent himself at trial. Indiana v.

Edwards, 128 S. Ct. 2379 (2008). Mental competence to stand trial, however, is sufficient

to ensure the right to waive the right to counsel in order to plead guilty. Godinez v.

Moran, 509 U.S. 389, 398 (1993).

Right to Assistance of Counsel in Nontrial Situations

– Judicial Proceedings Before Trial.

[P. 1537, add to the beginning of the section:]

Even a preliminary hearing where no government prosecutor is present can trigger the right to counsel. “[A] criminal 71

defendant’s defendant’s initial appearance before a judicial officer,

where he learns the charges against him and his liberty is subject

to restriction, marks the start of adversary judicial proceedings

that trigger attachment of the Sixth Amendment right to counsel.” “Attachment,” however, may signify “nothing more than 72

the beginning of the defendant’s prosecution [and] . . . not mark

the beginning of a substantive entitlement to the assistance of

counsel.” Thus, counsel need only be appointed “as far in 73
146 AMENDMENT 6–RIGHTS OF ACCUSED

 (...continued) 73

appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and

have no occasion to consider what standards should apply in deciding this.” Id.

 128 S. Ct. at 2595 (Alito, J. concurring). 74

 129 S. Ct. 2079, 2090 (2009). 75

advance of trial, and as far in advance of any pretrial ‘critical

stage,’ as necessary to guarantee effective assistance at trial.”74

– Custodial Interrogation.

[P. 1538, add to n.274:]

 In Kansas v. Ventris, 129 S. Ct. 1841, 1846 (2009), the Court “conclude[d] that the Massiah

right is a right to be free of uncounseled interrogation, and is infringed at the time of the

interrogation,” not merely if and when the defendant’s statement is admitted into

evidence.

[P. 1539, add new footnote at end of paragraph continued from

page 1538:]

The different issues in Fifth and Sixth Amendment cases were summarized in Fellers v.

United States, 540 U.S. 519 (2004), holding that absence of an interrogation is irrelevant

in a Massiah-based Sixth Amendment inquiry.

[P. 1539, add to n.278, before “But cf.”:]

Accord, Kansas v. Ventris, 129 S. Ct. 1841, 1844 ( 2009).

[P. 1540, add to text after n.284:]

In Montejo v. Louisiana, the Court overruled Michigan v. 75

Jackson, finding that the Fifth Amendment’s “Miranda-EdwardsMinnick line of cases” constitutes sufficient protection of the right

to counsel. In Montejo, the defendant had not actually requested

a lawyer, but had stood mute at a preliminary hearing at which

the judge ordered the appointment of counsel. Later, before

Montejo had met his attorney, two police detectives read him his

Miranda rights and he agreed to be interrogated. Michigan v.

Jackson had prohibited waivers of the right to counsel after a

defendant’s assertion of the right to counsel, so the Court in

Montejo was faced with the question of whether Michigan v.

Jackson applied where an attorney had been appointed in the

absence of such an assertion.

The Court in Montejo noted that “[n]o reason exists to

assume that a defendant like Montejo, who has done nothing at

all to express his intentions with respect to his Sixth Amendment

rights, would not be perfectly amenable to speaking with the
AMENDMENT 6–RIGHTS OF ACCUSED 147

 129 S. Ct. at 2086-87. 76

 129 S. Ct. at 2088, 2083. 77

 129 S. Ct. at 2088, 2087. 78

 129 S. Ct. at 2089, 2090. 79

 Justice Stevens, joined by Justices Souter and Ginsburg, and by Justice Breyer 80

except for footnote 5, dissented. He wrote, “The majority’s analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests the decision sought

to protect. . . . [T]he Jackson opinion does not even mention the anti-badgering considerations that provide the basis for the Court’s decision today. Instead, Jackson relied

primarily on cases discussing the broad protections guaranteed by the Sixth Amendment

right to counsel – not its Fifth Amendment counterpart. Jackson emphasized that the

purpose of the Sixth Amendment is to ‘protec[t] the unaided layman at critical confrontations with his adversary,’ by giving him ‘the right to rely on counsel as a medium

between him[self] and the State' . . . Once Jackson is placed in its proper Sixth Amendment context, the majority’s justifications for overruling the decision crumble.” 129 S. Ct.

at 2096, 2097 (internal quotation marks and citations omitted). Justice Stevens added,

“Even if Jackson had never been decided, it would be clear that Montejo’s Sixth Amendment rights were violated. . . . Because police questioned Montejo without notice to, and

outside the presence of, his lawyer, the interrogation violated Montejo’s right to counsel

even under pre-Jackson precedent.” Id. at 2099.

police without having counsel present.” But, to apply Michigan 76

v. Jackson only when the defendant invokes his right to counsel

“would be unworkable in more than half the States of the Union,”

where “appointment of counsel is automatic upon a finding of

indigency” or may be made “sua sponte by the court” “On the 77

other hand, eliminating the invocation requirement would render

the rule easy to apply but depart fundamentally from the Jackson

rationale,” which was “to prevent police from badgering defendants into changing their minds about their rights” after they had

invoked them. Moreover, the Court found, Michigan v. Jackson 78

achieves little by way of preventing unconstitutional conduct.

Without Jackson, there would be “few if any” instances in which

“fruits of interrogations made possible by badgering-induced

involuntary waivers are ever erroneously admitted at trial. . . .

The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. . . . Under

the Miranda-Edwards-Minnick line of cases (which is not in

doubt), a defendant who does not want to speak to the police

without counsel present need only say as much when he is first

approached and given the Miranda warnings. At that point, not

only must the immediate contact end, but ‘badgering‘ by later

requests is prohibited.” Thus, the Court in Montejo overruled 79

Michigan v. Jackson.80
148 AMENDMENT 6–RIGHTS OF ACCUSED

[P. 1541, change the period at the end of n.278 to a semicolon and add:]

Kansas v. Ventris, 129 S. Ct. 1841, 1846 ( 2009) (statement made to informant planted in

defendant's holding cell admissible for impeachment purposes because “[t]he interests

safeguarded by . . . exclusion are 'outweighed by the need to prevent perjury and to assure

the integrity of the trial process”).
 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 327 n.8 (2007). 1

 551 U.S. at 327. 2

 551 U.S. at 328 (quoting Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 3

315, 320 (1902)).

149

SEVENTH AMENDMENT

TRIAL BY JURY IN CIVIL CASES

Application of the Amendment

– Procedures Limiting Jury’s Role.

[P. 1557, add to text after n.61:]

“In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury's judgment without

violating the Seventh Amendment.” Thus, in order to screen out 1

frivolous complaints or defenses, Congress “has power to prescribe

what must be pleaded to state the claim, just as it has the power

to determine what must be proved to prevail on the merits. It is

the federal lawmaker's prerogative, therefore, to allow, disallow,

or shape the contours of – including the pleading and proof

requirements for . . . private actions.” A “heightened pleading 2

rule simply ‘prescribes the means of making an issue,’ and . . . ,

when ‘[t]he issue [is] made as prescribed, the right of trial by jury

accrues.’”3

 128 S. Ct. 1520 (2008). 1

 128 S. Ct. at 1530-31. The plurality opinion was written by Chief Justice Roberts 2

and joined by Justices Kennedy and Alito. There were five concurring opinions (one of

them by Justice Alito) and a dissenting opinion by Justice Ginsburg, joined by Justice

Souter.

 128 S. Ct. at 1532. Justice Thomas, joined by Justice Scalia, would have found 3

that “a method of execution violates the Eighth Amendment only if it is deliberately

designed to inflict pain.” Id. at 1556. Justice Ginsburg, joined by Justice Souter in

dissent, would have found that a method of execution violates the Eighth Amendment if

it “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Id. at 1567. Justice Breyer agreed with the Eighth Amendment standard that Justice

Ginsburg would have applied, but he concurred with the plurality because he could not

find sufficient evidence that the three-drug protocol violated that standard. Id. at 1563.

Thus, while Justices Scalia and Thomas’ standard would result in Eighth Amendment

violations in fewer situations than the plurality’s would, Justices Ginsburg, Souter, and

Breyer’s standard would result in violations in more situations than the plurality’s

would. Justice Stevens remained neutral as to the appropriate standard. Although

concluding that capital punishment itself violates the Eighth Amendment, he found that,

under existing precedents, “whether as interpreted by the Chief Justice or Justice

(continued...)

151

EIGHTH AMENDMENT

CRUEL AND UNUSUAL PUNISHMENTS

Application and Scope

[P. 1572, add to text after n.53:]

In Baze v. Rees, a Court plurality upheld capital punish- 1

ment by a three-drug lethal injection protocol, despite the risk

that the protocol will not be properly followed and that severe

pain will result. The plurality found that, although “subjecting

individuals to a risk of future harm – not simply actually inflicting pain – can qualify as cruel and unusual punishment . . . , the

conditions presenting the risk must be ‘sure or very likely to cause

serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on such a claim there

must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading

that they were ‘subjectively blameless for purposes of the Eighth

Amendment.’” The presence of an “unnecessary” or “untoward” 2

risk of harm that can be eliminated by adopting alternative

procedures, the plurality found, is insufficient to render the

three-drug protocol unconstitutional. Instead, for the protocol to

be unconstitutional, an “alternative procedure must be feasible,

readily implemented, and in fact significantly reduce a substantial risk of severe pain.”3
152 AMENDMENT 8–PUNISHMENT FOR CRIME

 (...continued) 3

Ginsburg,” the petitioners failed to prove that the protocol violated the Eighth Amendment. Id. at 1552.

 130 S. Ct. 1 (2009). 4

Capital Punishment

[P. 1574, add to text after n.60:]

Then, in In re Troy Anthony Davis, the Court found a death-row 4

convict with a claim of actual innocence to be entitled to a district

court determination of his habeas petition. Justice Stevens, in a

concurring opinion joined by Justices Ginsburg and Breyer,

“refuse[d] to endorse” Justice Scalia's reasoning (in a dissent

joined by Justice Thomas) that would read the Constitution to

permit the execution of a convict “who possesses new evidence

conclusively and definitively proving, beyond any scintilla of

doubt, that he is an innocent man.”

[P. 1574, delete closed parenthesis at the end of n.62 and add to

n.62:]

and announcing that, “[f]rom this day forward, I no longer shall tinker with the machinery

of death,” id. at 1145). Justice Stevens has also concluded that the death penalty violates

the Eighth Amendment, but, because of his wish “to respect precedents that remain a part

of our law,” he does not constitute an automatic vote against challenged death sentences.

Baze v. Rees, 128 S. Ct. 1520, 1552 (2008) (finding the death penalty to violate the Eighth

Amendment but concurring with the Court plurality that Kentucky’s lethal injection

protocol does not violate the Eighth Amendment). In Thompson v. McNeil, 129 S. Ct.

1299 (2009), Justice Stevens dissented from a denial of certiorari where the defendant had

spent 32 years on death row; Justice Stevens found “such delays . . . unacceptably cruel.”

Id. at 1300. Justice Breyer dissented separately, and Justice Thomas concurred in the

denial of certiorari.

– General Validity and Guiding Principles.

[P. 1576, n.74, insert after citation to Coker v. Georgia:]

Kennedy v. Louisiana, 128 S. Ct. 2461 (2008) (rape of an eight-year-old child);

[P. 1577, n.74, substitute for “18 U.S.C. § 1472”:]

49 U.S.C. § 46502

[P. 1577, add to n.74:]

But the treason statute also constitutes a crime against the state, which may be significant. In Kennedy v. Louisiana, 128 S. Ct. 2641, 2659 (2008), in overturning a death

sentence imposed for the rape of a child, the Court wrote, “Our concern here is limited to

crimes against individual persons. We do not address, for example, crimes defining and

punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses

against the State.”
AMENDMENT 8–PUNISHMENT FOR CRIME 153

– Implementation of Procedural Requirements.

[P. 1581, add to n.91:]

Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a

narrowing construction because it had done so numerous times).

[P. 1583, add to n.99:]

Although, under the Eighth and Fourteenth Amendments, the state must bear the burden

“to prove the existence of aggravating circumstances, a defendant’s constitutional rights

are not violated by placing on him the burden of proving mitigating circumstances

sufficiently substantial to call for leniency.” Walton v. Arizona, 497 U.S. 639, 650 (1990)

(plurality). A fortiori, a statute “may direct imposition of the death penalty when the State

has proved beyond a reasonable doubt that mitigators do not outweigh aggravators,

including where the aggravating circumstances and mitigating circumstances are in

equipoise.” Kansas v. Marsh, 548 U.S. 163, 173 (2006).

[P. 1585, insert before the final sentence (which begins “But cf.”)

of n.110 (which begins on p. 1584):]

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (jury must be

permitted to consider the defendant’s evidence of childhood

neglect and mental illness damage outside of the context of

assessment of future dangerousness); Brewer v. Quarterman, 550

U.S. 286 (2007) (same).

[P. 1585, add to n.114:]

Nor did a court offend the Constitution by instructing the jury to consider “[a]ny other

circumstance which extenuates the gravity of the crime,” without specifying that such

circumstance need not be a circumstance of the crime, but could include “some likelihood

of future good conduct.” This was because the jurors had heard “extensive forward-looking evidence," and it was improbable that they would believe themselves barred

from considering it. Ayers v. Belmontes, 549 U.S. 7, 10, 15, 16 (2006).

[P. 1585, add to n.116]

Compare Smith v. Spisak, 130 S. Ct. 676, 681-84 (2010) (distinguishing jury instructions

in Mills from instructions directing each juror to independently assess any mitigating

factors before the jury as a whole balanced the weight of mitigating evidence against each

aggravating factor, with unanimity required before balance in favor of an aggravating

factor may be found).

[P. 1586, add to text after paragraph carried over from page

1585:]

What is the effect on a death sentence if an “eligibility

factor” (a factor making the defendant eligible for the death

penalty) or an “aggravating factor” (a factor, to be weighed

against mitigating factors, in determining whether a defendant

who has been found eligible for the death penalty should receive

it) is found invalid? In Brown v. Sanders, the Court announced

“the following rule: An invalidated sentencing factor (whether an

eligibility factor or not) will render the sentence unconstitutional
154 AMENDMENT 8–PUNISHMENT FOR CRIME

 546 U.S. 212, 220 (2006). In some states, “the only aggravating factors permitted 5

to be considered by the sentencer [are] the specified eligibility factors.” Id. at 217. These

are known as weighing states; non-weighing states, by contrast, are those that permit

“the sentencer to consider aggravating factors different from, or in addition to, the

eligibility factors.” Id. Prior to Brown v. Sanders, in weighing states, the Court deemed

“the sentencer’s consideration of an invalid eligibility factor” to require “reversal of the

sentence (unless a state appellate court determined the error was harmless or reweighed

the mitigating evidence against the valid aggravating factors).” Id.

 546 U.S. 517, 523 (2006). 6

 546 U.S. at 524, 526 (Court’s emphasis deleted in part). 7

 546 U.S. at 526. 8

by reason of its adding an improper element to the aggravation

scale in the weighing process unless one of the other sentencing

factors enables the sentencer to give aggravating weight to the

same facts and circumstances.”5

[P. 1586, add to text after first full paragraph:]

In Oregon v. Guzek, the Court could “find nothing in the

Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce,” at sentencing, new evidence, available

to him at the time of trial, “that shows he was not present at the

scene of the crime.” Although “the Eighth and Fourteenth 6

Amendments require that the sentencer . . . not be precluded from

considering, as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than

death,” such evidence is a traditional concern of sentencing

because it tends to show “how, not whether,” the defendant

committed the crime. Alibi evidence, by contrast, concerns 7

“whether the defendant committed the basic crime,” and “thereby

attacks a previously determined matter in a proceeding [i.e.,

sentencing] at which, in principle, that matter is not at issue.”8

– Limitations on Capital Punishment: Proportionality

[P. 1587, insert new paragraph at the beginning of the section:]

The Court has also considered whether, based on the

nature of the underlying offense (or, as explored in the next topic,

the capacity of the defendant), the imposition of capital punishment may be inappropriate in particular cases. “[T]he Eighth

Amendment’s protection against excessive or cruel and unusual

punishments flows from the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the]

offense.’ Whether this requirement has been fulfilled is deter-
AMENDMENT 8–PUNISHMENT FOR CRIME 155

 Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008). 9

 128 S. Ct. at 2675 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501 U.S. 10

957, 990 (1991)).

 128 S. Ct. 2641 (2008). Justice Kennedy’s opinion was joined by Justices Stevens, 11

Souter, Ginsburg, and Breyer. Justice Alito filed a dissenting opinion, in which Chief

Justice Roberts and Justices Scalia and Thomas joined.

 The Court noted, however, that “[o]ur concern here is limited to crimes against 12

individual persons. We do not address, for example, crimes defining and punishing

treason, espionage, terrorism, and drug kingpin activity, which are offenses against the

State.” 128 S. Ct. at 2659.

 128 S. Ct. 2641, 2649, 2653. The Court noted that, since Gregg, it had “spent 13

more than 32 years articulating limiting factors that channel the jury’s discretion to

avoid the death penalty's arbitrary imposition in the case of capital murder. Though that

practice remains sound, beginning the same process for crimes for which no one has been

executed in more than 40 years would require experimentation in an area where a failed

experiment would result in the execution of individuals undeserving of the death penalty.

Evolving standards of decency are difficult to reconcile with a regime that seeks to

expand the death penalty to an area where standards to confine its use are indefinite and

obscure.” Id. at 2661.

 127 S. Ct. 2842 (2007). 14

mined not by the standards that prevailed when the Eighth

Amendment was adopted in 1791 but by the norms that ‘currently

prevail.’ The Amendment ‘draw[s] its meaning from the evolving

standards of decency that mark the progress of a maturing society.’” However, the “Court has . . . made it clear that ‘[t]he 9

Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered

beliefs and responding to changed social conditions.’”10

[P. 1588, substitute for the first word on the page (“The”):]

In Kennedy v. Louisiana, the Court held that this was true even 11

when the rape victim was a child. In Coker, the 12

[P. 1588, add to text after n.131:]

 In Kennedy v. Louisiana, the Court found that both “evolving

standards of decency” and “a national consensus” preclude the

death penalty for a person who rapes a child.13

–Limitations on Capital Punishment: Diminished Capacity.

[P. 1590, add to text after n.138:]

In Panetti v. Quarterman, the Court considered two of the 14

issues raised, but not clearly answered, in Ford: what definition of

insanity should be used in capital punishment cases, and what

process must be afforded to the defendant to prove his incapacity.

Although the court below had found that it was sufficient to
156 AMENDMENT 8–PUNISHMENT FOR CRIME

 In Panetti, the defendant, despite apparent mental problems, was found to 15

understand both his imminent execution and the fact that the State of Texas intended to

execute him for having murdered his mother-in-law and father-in-law. It was argued,

however, that defendant, suffering from delusions, believed that the stated reason for his

execution was a “sham” and that the state wanted to execute him “to stop him from

preaching.”

 127 S. Ct. at 2858. 16

 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright. 17

 546 U.S. 6, 7 (2005) (per curiam). 18

 546 U.S. at 7. 19

establish competency that a defendant know that he is to be

executed and the reason why, the Court in Panetti rejected these

criteria, and sent the case back to the lower court for it to consider

whether the defendant had a rational understanding of the

reasons the state gave for an execution, and how that reflected on

his competency. The Court also found that the failure of the 15

state to provide the defendant an adequate opportunity to respond

to the findings of two court-appointed mental health experts

violated due process.16

[P. 1590, add to n.139:]

See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should be

admissible for mitigating purposes without being screened on basis of severity of disability).

[P. 1591, add to text after n.143:]

In Atkins, the Court wrote, “As was our approach in Ford

v. Wainwright with regard to insanity, ‘we leave to the State[s]

the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’” In 17

Schriro v. Smith, the Court again quoted this language, holding

that “[t]he Ninth Circuit erred in commanding the Arizona courts

to conduct a jury trial to resolve Smith’s mental retardation

claim.” States, the Court added, are entitled to “adopt[ ] their 18

own measures for adjudicating claims of mental retardation,”

though “those measures might, in their application, be subject to

constitutional challenge.”19

[P. 1591, substitute for first two sentences of first full paragraph:]

The Court’s conclusion that execution of juveniles constitutes cruel and unusual punishment evolved in much the same

manner. Initially, a closely divided Court invalidated one statutory scheme that permitted capital punishment to be imposed for

crimes committed before age 16, but upheld other statutes autho-
AMENDMENT 8–PUNISHMENT FOR CRIME 157

 536 U.S. at 314, n.18. 20

 543 U.S. 551 (2005). The case was decided by 5-4 vote. Justice Kennedy wrote 21

the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer.

Justice O’Connor, who had joined the Court’s 6-3 majority in Atkins, wrote a dissenting

opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice

Thomas.

 Dissenting in Simmons, Justice O’Connor disputed the consistency of the trend, 22

pointing out that since Stanford two states had passed laws reaffirming the

permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.

 543 U.S. at 564. The Stanford Court had been split over the appropriate scope of 23

inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would have

focused almost exclusively on an assessment of what the state legislatures and Congress

have done in setting an age limit for application of capital punishment. 492 U.S. at 377

(“A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative

acts (laws and the application of laws) that the people have approved.”). The Stanford

dissenters would have broadened this inquiry with a proportionality review that

(continued...)

rizing capital punishment for crimes committed by 16- and 17-

year-olds.

[P. 1591, substitute for rest of paragraph in text following n.148:]

Although the Court in Atkins v. Virginia contrasted the

national consensus said to have developed against executing the

mentally retarded with what it saw as a lack of consensus regarding execution of juvenile offenders over age 15, less than three 20

years later the Court held that such a consensus had developed.

The Court’s decision in Roper v. Simmons drew parallels with 21

Atkins. A consensus had developed, the Court held, against the

execution of juveniles who were age 16 or 17 when they committed their crimes. Since Stanford, five states had eliminated

authority for executing juveniles, and no states that formerly

prohibited it had reinstated the authority. In all, 30 states

prohibited execution of juveniles: 12 that prohibited the death

penalty altogether, and 18 that excluded juveniles from its reach.

This meant that 20 states did not prohibit execution of juveniles,

but the Court noted that only five of these states had actually

executed juveniles since Stanford, and only three had done so in

the 10 years immediately preceding Simmons. Although the pace

of change was slower than had been the case with execution of the

mentally retarded, the consistent direction of change toward

abolition was deemed more important.22

As in Atkins, the Simmons Court relied on its “own independent judgment” in addition to its finding of consensus among

the states. Three general differences between juveniles and 23
158 AMENDMENT 8–PUNISHMENT FOR CRIME

 (...continued) 23

considers the defendant’s culpability as one aspect of the gravity of the offense, that

considers age as one indicator of culpability, and that looks to other statutory age

classifications to arrive at a conclusion about the level of maturity and responsibility that

society expects of juveniles. 492 U.S. at 394-96. The Atkins majority adopted the

approach of the Stanford dissenters, conducting a proportionality review that brought

their own “evaluation” into play along with their analysis of consensus on the issue of

executing the mentally retarded.

 543 U.S. at 569, 570. 24

 543 U.S. at 570. 25

 543 U.S. at 572-573. Strongly disagreeing, Justice O’Connor wrote that “an 26

especially depraved juvenile offender may . . . be just as culpable as many adult offenders

considered bad enough to deserve the death penalty. . . . [E]specially for 17-year-olds . . .

the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree,

rather than of kind.” Id. at 600.

 543 U.S. at 578 (noting “the stark reality that the United States is the only 27

country in the world that continues to give official sanction to the juvenile death

penalty,” id. at 575).

 Citing as precedent Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion); 28

Atkins, 536 U.S. at 317, n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 (1982);

(continued...)

adults make juveniles less morally culpable for their actions.

Because juveniles lack maturity and have an underdeveloped

sense of responsibility, they often engage in “impetuous and

ill-considered actions and decisions.” Juveniles are also more

susceptible than adults to “negative influences” and peer pressure. Finally, the character of juveniles is not as well formed, and

their personality traits are “more transitory, less fixed.” For 24

these reasons, irresponsible conduct by juveniles is “not as morally reprehensible,” they have “a greater claim than adults to be

forgiven,” and “a greater possibility exists that a minor’s character deficiencies will be reformed. Because of the diminished 25

culpability of juveniles, the penological objectives of retribution

and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical

rule over individualized assessment of each offender’s maturity,

explaining that “[t]he differences between juvenile and adult

offenders are too marked and well understood to risk allowing a

youthful person to receive the death penalty despite insufficient

culpability.”26

The Simmons Court found confirmation for its holding in

“the overwhelming weight of international opinion against the

juvenile death penalty.” Although “not controlling,” the rejection 27

of the juvenile death penalty by other nations and by international authorities was “instructive,” as it had been in earlier

cases, for Eighth Amendment interpretation.28
AMENDMENT 8–PUNISHMENT FOR CRIME 159

 (...continued) 28

Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 (1988) (plurality opinion); and

Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion). 

 130 S. Ct. 1 (2009). 29

 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, 30

noted that the fact that seven of the state’s key witnesses had recanted their trial

testimony, and that several people had implicated the state's principal witness as the

shooter, made the case “exceptional.” Justices Scalia, joined by Justice Thomas,

dissented.

– Limitations on Habeas Corpus Review of Capital Sentences.

[P. 1594. In fourth line of the text, delete “has flatly”]

[P. 1595, add to text after n.159:]

Then, in In re Troy Anthony Davis, the Court found a death-row 29

convict with a claim of actual innocence to be entitled to a district

court determination of his habeas petition.30

[P. 1594, delete everything after the citation in n.161, and add a

new footnote at end of the second sentence (which ends with

“applies”) of the paragraph in the text:]

The “new rule” limitation was suggested in a plurality opinion in Teague, and a Court

majority in Penry and later cases adopted it. In Danforth v. Minnesota, 128 S. Ct. 1029,

1033 (2008), the Court held that Teague does not “constrain[ ] the authority of state courts

to give broader effect to new rules of criminal procedure than is required by that opinion.”

[P. 1594, add to n.162 after initial citation:]

In Whorton v. Bockting, 549 U.S. 406, 416 (2007), the Court stated that the two exceptions

– the situations in which “[a] new rule applies retroactively in a collateral proceeding” –

are when “(1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal

procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

See also Saffle v. Parks, 494 U.S. 484, 494, 495 (1990). The second exception was at issue

in Sawyer v. Smith, 497 U.S. 227 (1990), in which the Court held the exception inapplicable to the Caldwell v. Mississippi rule that the Eighth Amendment is violated by prosecutorial misstatements characterizing the jury’s role in capital sentencing as merely

recommendatory. It is “not enough,” the Court in Sawyer explained, “that a new rule is

aimed at improving the accuracy of a trial. More is required. A rule that qualifies under

this exception must not only improve accuracy, but also ‘alter our understanding of the

bedrock procedural elements’ essential to the fairness of a proceeding.” Id. at 242.

[P. 1595, add to n.167:]

Accord, House v. Bell, 547 U.S. 518, 554-55 (2006) (defendant failed to meet Herrera

standard but nevertheless put forward enough evidence of innocence to meet the less

onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which “held that prisoners

asserting innocence as a gateway to [habeas relief for claims forfeited under state law]

must establish that, in light of new evidence, ‘it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.’” Id. at 2076-2077,

quoting Schlup v. Delo, 513 U.S. at 327.) The Court here distinguished “freestanding”

claims under Herrera from “gateway” claims under Schlup, the difference apparently being

that success on a freestanding claim results in the overturning of a conviction, whereas

success on a gateway claim results in a remand to the trial court to hear the claim. See

also Article III, “Habeas Corpus: Scope of the Writ.”
160 AMENDMENT 8–PUNISHMENT FOR CRIME

 130 S. Ct. 1 (2009). 31

 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, 32

“refuse[d] to endorse” Justice Scalia's reasoning (in a dissent joined by Justice Thomas)

that would read the Constitution to permit the execution of a convict “who possesses new

evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an

innocent man.”

 Fry v. Pliler, 551 U.S. 112, 114 (2007). 33

 549 U.S. 70 (2006). 34

 Estelle v. Williams, 425 U.S. 501, 512 (1976). 35

 549 U.S. at 77 (quoting from 28 U.S.C. § 2254(d)(1)). 36

[P. 1595, substitute for the final sentence on the page (including

n.169):]

In In re Troy Anthony Davis, however, the Court found a 31

death-row convict with a claim of actual innocence to be entitled

to a District Court determination of his habeas petition.32

[P. 1596, add to text after n.172:]

Further, the “substantial and injurious effect standard” is to be

applied in federal habeas proceedings even “when the state

appellate court failed to recognize the error and did not review it

for harmlessness under the ‘harmless beyond a reasonable doubt’

standard set forth in Chapman v. California. . . .”33

[P. 1596, add to n.172:]

In Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), the Court held that a reviewing

court should apply Brecht’s “substantial and injurious effect” standard where conviction

was based on a general verdict after jury had been instructed on alternative theories of

guilt and may have relied on an invalid one.

[P. 1596, add to text after n.176:]

In Carey v. Musladin, Court noted that it had previously held 34

that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed

in identifiable prison clothes,” but that it had never ruled on the 35

effect on a defendant’s fair trial rights of spectator conduct. In

Carey, the spectator conduct that allegedly affected the defendant’s right to a fair trial consisted of members of the victim’s

family wearing buttons with the victim’s photograph. Given the

lack of holdings from the Court on the question of spectator

conduct, the Court in Carey found that “it cannot be said that the

state court unreasonabl[y] appli[ed] clearly established Federal

law” in denying the defendant relief. Consequently, the 36

Antiterrorism and Effective Death Penalty Act of 1996 precluded

habeas relief. Similarly, because the Supreme Court has never
AMENDMENT 8–PUNISHMENT FOR CRIME 161

 Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), quoting Carey v. 37

Musladin, 549 U.S. 70, 77 (2006) (under the Antiterrorism and Effective Death Penalty

Act of 1996, 28 U.S.C. § 2254(d)(1), defendant not entitled to habeas relief).

 Ewing v. California, 538 U.S. 11 (2003). 38

 538 U.S. at 29-30. 39

 538 U.S. at 31. 40

 538 U.S. at 32. The dissenting Justices thought that the sentence was invalid 41

under the Harmelin test used by the plurality, although they suggested that the Solem v.

Helm test would have been more appropriate for a recidivism case. See 538 U.S. at 32,

n.1 (opinion of Justice Stevens).

 Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to 42

impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two petty

thefts with a prior conviction.

ruled on whether, during a plea hearing at which the defendant

pleads guilty, defense counsel’s being linked to the courtroom by

speaker phone, rather than being physically present, is likely to

result in such poor performance that the Cronic standard for

ineffective assistance of counsel should apply, the Court again

could not say “that the state court ‘unreasonabl[y] appli[ed]

clearly established Federal law.’”37

Proportionality

[P. 1601, add to text at end of section:]

Twelve years after Harmelin the Court still could not

reach a consensus on rationale for rejecting a proportionality

challenge to California’s “three-strikes” law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing

three golf clubs valued at $399 apiece. A plurality of three 38

Justices (O’Connor, Kennedy, and Chief Justice Rehnquist)

determined that the sentence was “justified by the State’s public

safety interest in incapacitating and deterring recidivist felons,

and amply supported by [the petitioner’s] long, serious criminal

record,” and hence was not the “rare case” of “gross

disproportional[ity].” The other two Justices voting in the 39

majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological

goal is incapacitation rather than retribution, and Justice 40

Thomas, who asserted that the Cruel and Unusual Punishments

Clause “contains no proportionality principle.” Not surprisingly, 41

the Court also rejected a habeas corpus challenge to California’s

“three-strikes” law for failure to clear the statutory hurdle of

establishing that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.” Justice 42
162 AMENDMENT 8–PUNISHMENT FOR CRIME

 538 U.S. at 72. 43

 130 S. Ct. 2011 (2010). 44

 130 S. Ct. at 2034. The opinion distinguishes life without parole from a life 45

sentence. An offender need not be guaranteed eventual release under the Graham

holding, just a realistic opportunity for release based on conduct during confinement.

See 543 U.S. 551 (2005). Concurring in the judgment in Graham, Chief Justice 46

Roberts resolved the case under a proportionality test, finding the majority's categorical

restriction to be unwise and unnecessary in Graham's circumstances. 130 S. Ct. at 2036-

42 (Roberts, C.J., concurring).

 130 S. Ct. at 2033. 47

O’Connor’s opinion for a five-Justice majority explained, in

understatement, that the Court’s precedents in the area “have not

been a model of clarity . . . that have established a clear or consistent path for courts to follow.” 43

Declaring that “[t]he concept of proportionality is central to the

Eighth Amendment,” Justice Kennedy, writing for a five-Justice

majority in Graham v. Florida, held that “[t]he Constitution 44

prohibits the imposition of a life without parole sentence on a

juvenile offender who did not commit homicide.” Justice Ken- 45

nedy characterized proportionality cases as falling within two

general types. The first type comprises challenges to the length of

actual sentences imposed as being grossly disproportionate, and

such challenges are resolved under approaches taken in Solem,

Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically

impermissible, but categorical restrictions had theretofore been

limited to imposing the death penalty on those with diminished

capacity. In Graham, Justice Kennedy broke new ground and

recognized a categorical restriction on life without parole for

nonhomicide offenses by juveniles, citing considerations and

applying analysis similar to those used in his juvenile capital

punishment opinion in Roper. In considering objective indicia of 46

a national consensus on the sentence, the Graham opinion looked

beyond statutory authorization — thirty-seven states and the

District of Columbia permitted life without parole for some

juvenile nonhomicide offenders — to actual imposition, which was

rare outside Florida. Justice Kennedy also found support “in the

fact that, in continuing to impose life without parole sentences on

juveniles who did not commit homicide, the United States adheres

to a sentencing practice rejected the world over.” After finding 47

that a consensus had developed against the sentencing practice at

issue, Justice Kennedy expressed an independent judgment that

imposing life without parole on juveniles for nonhomicide offenses
AMENDMENT 8–PUNISHMENT FOR CRIME 163

 For a parallel discussion in Roper, see 543 U.S. 551, 568–75 (2005). 48

 In dissent, Justice Thomas, joined by Justice Scalia and, in part, by Justice Alito, 49

questioned both the basis and the reach of the majority opinion. In addition to strongly

objecting to adopting any categorical rule in a nonhomicide context, Justice Thomas

pointedly criticized the conclusion that the legislative and judicial records established a

consensus against imposing life without parole on juvenile offenders in nonhomicide

cases. He also disparaged the majority's independent judgment on the morality and

justice of the sentence as wrongfully pre-empting the political process. 130 S. Ct. at 2043-

58 (Thomas, J., dissenting). 

failed to serve legitimate penological goals adequately. Factors 48

in reaching this conclusion included the severity of the sentence,

the relative culpability of juveniles, and the prospect for their

rehabilitation. 49

Prisons and Punishment

[P. 1601, add to n.200:]

See also Overton v. Bazzetta, 539 U.S. 126 (2003) (rejecting a challenge to a two-year

withdrawal of visitation as punishment for prisoners who commit multiple substance

abuse violations, characterizing the practice as “not a dramatic departure from accepted

standards for conditions of confinement,” but indicating that a permanent ban “would

present different considerations”).

[P. 1601, add to n.201:]

In Erickson v. Pardus, 551 U. S. 89 (2007) (per curiam), the Court overturned a lower

court’s dismissal, on procedural grounds, of a prisoner’s claim of having been denied

medical treatment, with life-threatening consequences. Justice Thomas, however,

dissented on the ground “that the Eighth Amendment’s prohibition on cruel and unusual

punishment historically concerned only injuries relating to a criminal sentence. . . . But

even applying the Court’s flawed Eighth Amendment jurisprudence, I would draw the line

at actual, serious injuries and reject the claim that exposure to the risk of injury can

violate the Eighth Amendment.” Id. at 95 (internal quotation marks omitted).

[P. 1602, add to n.204:]

In upholding capital punishment by a three-drug lethal injection protocol, despite the risk

that the protocol will not be properly followed and consequently result in severe pain, a

Court plurality found that, although “subjecting individuals to a risk of future harm – not

simply actually inflicting pain – can qualify as cruel and unusual punishment . . . , the

conditions presenting the risk must be ‘sure or very likely to cause serious illness and

needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on

such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable

risk of harm’ that prevents prison officials from pleading that they were ‘subjectively

blameless for purposes of the Eighth Amendment.’” Baze v. Rees, 128 S. Ct. 1520, 1530-31

(2008) (emphasis added by the Court). This case is also discussed, supra, under Eighth

Amendment, “Application and Scope.”

[P. 1602, add to n.206:]

Accord Wilkins v. Gaddy, 130 S. Ct. 1175 (2010) (per curiam).

165

TENTH AMENDMENT

RESERVED POWERS

Effect of Provision on Federal Powers

– Federal Regulations Affecting State Activities and Instrumentalities

[P. 1620, add to n.71:] 

“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the States. . . .” Id. at 156 (quoted with

approval in Watters v. Wachovia Bank, N.A., 550 U.S. 1, 22 (2007), which held that a

national bank’s state-chartered subsidiary real estate lending business is subject to

federal, not state, law).

See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446-48 (2004) 1

(exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge a

debt owed to a state does not infringe the state’s sovereignty); California v. Deep Sea

Research, Inc., 523 U.S. 491, 507-08 (1998) (despite state claims to title of a ship-wrecked

vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction

where the res is not in the possession of the sovereign).

 Central Virginia Community College v. Katz, 546 U.S. 356, 362-63 (2006). 2

 A “preferential transfer” was defined as the transfer of a property interest from an 3

insolvent debtor to a creditor, which occurred on or within 90 days before the filing of a

bankruptcy petition, and which exceeds what the creditor would have been entitled to

receive under such bankruptcy filing. 11 U.S.C. § 547(b).

167

ELEVENTH AMENDMENT

STATE SOVEREIGN IMMUNITY

Suits Against States

[P. 1636, add to text at end of section:]

In some of these cases, the state’s immunity is either waived or

abrogated by Congress. In other cases, the 11th Amendment does

not apply because the procedural posture is such that the Court

does not view the suit as being against a state. As discussed

below, this latter doctrine is most often seen in suits to enjoin

state officials. However, it has also been invoked in bankruptcy

and admiralty cases, where the res, or property in dispute, is in

fact the legal target of a dispute.1

The application of this last exception to the bankruptcy

area has become less relevant, because even when a bankruptcy

case is not focused on a particular res, the Court has held that a

state’s sovereign immunity is not infringed by being subject to an

order of a bankruptcy court. “The history of the Bankruptcy

Clause, the reasons it was inserted in the Constitution, and the

legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it

was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena.” Thus, where a federal 2

law authorized a bankruptcy trustee to recover “preferential

transfers” made to state educational institutions, the court held 3

that the sovereign immunity of the state was not infringed despite

the fact that the issue was “ancillary” to a bankruptcy court’s in
168 AMENDMENT 11–SUITS AGAINST STATES

 546 U.S. at 373. 4

rem jurisdiction.4

[P. 1639, add to n.80 after citation to Mt. Healthy City Bd. of

Education v. Doyle:]

; Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006)

– Congressional Withdrawal of Immunity

[P. 1639, add to n.85:]

 See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree).

Suits Against State Officials

[P. 1648, add new footnote at end of first paragraph:]

In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree

regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst,

arguing that unless an actual violation of federal law had been found by a court, such court

would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion,

declined to so extend the 11th Amendment, noting, among other things, that the principles

of federalism were served by giving state officials the latitude and discretion to enter into

enforceable consent decrees. Id. at 442.
 478 U.S. 186 (1986). 1

 The Court upheld the statute only as applied to the plaintiff, who was a homosex- 2

ual, 478 U.S. at 188 (1986), and thus rejected an argument that there is a “fundamental

right of homosexuals to engage in acts of consensual sodomy.” Id. at 192-93. In a

dissent, Justice Blackmun indicated that he would have evaluated the statute as applied

to both homosexual and heterosexual conduct, and thus would have resolved the broader

issue not addressed by the Court – whether there is a general right to privacy and

autonomy in matters of sexual intimacy. Id. at 199-203 (Justice Blackmun dissenting,

joined by Justices Brennan, Marshall and Stevens) .

 539 U.S. 558 (2003) (overruling Bowers). 3

169

FOURTEENTH AMENDMENT

Section 1. Rights Guaranteed

DUE PROCESS OF LAW

Definitions

– “Liberty”.

[P. 1682, add to n.57:]

But see Chavez v. Martinez, 538 U.S. 760 (2003) (case remanded to federal circuit court to

determine whether coercive questioning of severely injured suspect gave rise to a

compensable violation of due process).

Fundamental Rights (Noneconomic Substantive Due Process)

– Development of the Right of Privacy.

[P. 1767, Substitute for portion of paragraph following n.552:]

However, in Bowers v. Hardwick, the Court majority rejected a 1

challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as

unmarried couples. Then, in Lawrence v. Texas, the Supreme 2 3

Court reversed itself, holding that a Texas statute making it a

crime for two persons of the same sex to engage in intimate sexual

conduct violates the Due Process Clause. 

– Abortion.

[P. 1778, add new footnote at the end of the final paragraph in

the section:]

As to the question of whether an abortion statute that is unconstitutional in some

instances should be struck down in application only or in its entirety, see Ayotte v. Planned

Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to parental

notification restrictions based on lack of emergency health exception remanded to

determine legislative intent regarding severability of those applications).
170 AMENDMENT 14–RIGHTS GUARANTEED

 550 U.S. 124 (2007). 4

 Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia, 5

Thomas, and Alito, while Justice Ginsburg authored a dissenting opinion, which was

joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring

opinion, joined by Justice Scalia, calling for overruling Casey and Roe.

 18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of 6

the statute was a fine and/or imprisonment for not more than 2 years. In addition, the

physician could be subject to a civil suit by the father (or maternal grandparents, where

the mother is a minor) for money damages for all injuries, psychological and physical,

occasioned by the violation of this section, and statutory damages equal to three times

the cost of the partial-birth abortion.

 550 U.S. at 150. 7

 550 U.S. at 148-150. 8

 As in Stenberg, the statute provided an exception for threats to the life of a 9

woman.

[P. 1778, add to text at end of section:]

Only seven years later, however, the Supreme Court

decided Gonzales v. Carhart, which, while not formally overrul- 4

ing Stenberg, appeared to signal a change in how the Court would

analyze limitations on abortion procedures. Of perhaps the

greatest significance is that Gonzales was the first case in which

the Court upheld a statutory prohibition on a particular method of

abortion. In Gonzales, the Court, by a 5-4 vote, upheld a federal 5

criminal statute that prohibited an overt act to “kill” a fetus

where it had been intentionally “deliver[ed] . . . [so that] in the

case of a head-first presentation, the entire fetal head is outside

the body of the mother, or, in the case of breech presentation, any

part of the fetal trunk past the navel is outside the body of the

mother.” The Court distinguished this federal statute from the 6

Nebraska statute that it had struck down in Stenberg, holding

that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The

Court found that the federal statute was not unconstitutionally

vague because it provided “anatomical landmarks” that provided

doctors with a reasonable opportunity to know what conduct it

prohibited. Further, the scienter requirement (that delivery of 7

the fetus to these landmarks before fetal demise be intentional)

was found to alleviate vagueness concerns.8

In a departure from the reasoning of Stenberg, the Court

held that the failure of the federal statute to provide a health

exception was justified by congressional findings that such a 9

procedure was not necessary to protect the health of a mother.

Noting that the Court has given “state and federal legislatures

wide discretion to pass legislation in areas where there is medi-
AMENDMENT 14–RIGHTS GUARANTEED 171

 550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg 10

had allowed a facial challenge to the failure of Nebraska to provide a health exception to

its prohibition on intact dilation and excavation abortions. 530 U.S. at 929-38.

 550 U.S. at 168. 11

 550 U.S. at 160. 12

 539 U.S. 558 (2003). 13

cal and scientific uncertainty,” the Court held that, at least in

the context of a facial challenge, such an exception was not

needed where “[t]here is documented medical disagreement

whether the Act’s prohibition would ever impose significant

health risks on women.” The Court did, however, leave open 10

the possibility that as-applied challenges could still be made in

individual cases.11

As in Stenberg, the prohibition considered in Gonzales

extended to the performance of an abortion before the fetus was

viable, thus directly raising the question of whether the statute

imposed an “undue burden” on the right to obtain an abortion.

Unlike the statute in Stenberg, however, the ban in Gonzales was

limited to the far less common “intact dilation and excavation”

procedure, and consequently did not impose the same burden as

the Nebraska statute. The Court also found that there was a

“rational basis” for the limitation, including governmental

interests in the expression of “respect for the dignity of human

life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the

political and legal systems, the medical profession, expectant

mothers, and society as a whole of the consequences that follow

from a decision to elect a late-term abortion.”12

– Privacy After Roe: Informational Privacy, Privacy of the Home

or Personal Autonomy?

[P. 1784, substitute for final sentence of paragraph carried over

from p. 1783:]

Although Bowers has since been overruled by Lawrence v. Texas13

based on precepts of personal autonomy, the latter case did not

appear to signal the resurrection of the doctrine of protecting

activities occurring in private places.
172 AMENDMENT 14–RIGHTS GUARANTEED

 431 U.S. 678 (1977). 14

 431 U.S. at 684-91. The opinion of the Court on the general principles drew the 15

support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White

concurred in the result in the voiding of the ban on access to adults while not expressing

an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban

on access to adults was void but concurred in an opinion significantly more restrained

than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice

Rehnquist, id. at 717, dissented.

The limitation of the number of outlets to adults “imposes a significant burden

on the right of the individuals to use contraceptives if they choose to do so” and was

unjustified by any interest put forward by the state. The prohibition on sale to minors

was judged not by the compelling state interest test, but instead by inquiring whether

the restrictions serve “any significant state interest . . . that is not present in the case of

an adult.” This test is “apparently less rigorous” than the test used with adults, a

distinction justified by the greater governmental latitude in regulating the conduct of

children and the lesser capability of children in making important decisions. The

attempted justification for the ban was rejected. Doubting the permissibility of a ban on

access to contraceptives to deter minors’ sexual activity, the Court even more doubted,

because the state presented no evidence, that limiting access would deter minors from

engaging in sexual activity. Id. at 691-99. This portion of the opinion was supported by

only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and

Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than

the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702,

717.

 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and 1 6

joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The

Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun

(continued...)

[P. 1784, substitute for second full paragraph and all remaining

paragraphs within the topic:]

Despite the limiting language of Roe, the concept of

privacy still retains sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v.

Population Services International, recognition of the “constitu- 14

tional protection of individual autonomy in matters of childbearing” led the Court to invalidate a state statute that banned the

distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. The Court significantly extended 15

the Griswold-Baird line of cases so as to make the “decision

whether or not to beget or bear a child” a “constitutionally

protected right of privacy” interest that government may not

burden without justifying the limitation by a compelling state

interest and by a regulation narrowly drawn to protect only that

interest or interests. 

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick, where the Court 16
AMENDMENT 14–RIGHTS GUARANTEED 173

 (...continued) 16

dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens,

joined by Justices Brennan and Marshall, added a separate dissenting opinion.

 “[N]one of the rights announced in those cases bears any resemblance to the 17

claimed constitutional right of homosexuals to engage in acts of sodomy.” 478 U.S. at 190-

91.

 Justice White’s opinion for the Court in Hardwick sounded the same opposition to 18

“announcing rights not readily identifiable in the Constitution’s text” that underlay his

dissents in the abortion cases. 478 U.S. at 191. The Court concluded that there was no

“fundamental right [of] homosexuals to engage in acts of consensual sodomy” because

homosexual sodomy is neither a fundamental liberty “implicit in the concept of ordered

liberty” nor is it “deeply rooted in this Nation’s history and tradition.” 478 U.S. at 191-92.

 478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified this 19

theme, concluding that constitutional protection for “the act of homosexual sodomy . . .

would . . . cast aside millennia of moral teaching.” Id. at 197. Justice Powell cautioned

that Eighth Amendment proportionality principles might limit the severity with which

states can punish the practices (Hardwick had been charged but not prosecuted, and had

initiated the action to have the statute under which he had been charged declared

unconstitutional). Id.

 The Court voiced concern that “it would be difficult . . . to limit the claimed right 20

to homosexual conduct while leaving exposed to prosecution adultery, incest, and other

sexual crimes even though they are committed in the home.” 478 U.S. at 195-96.

Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217-18) suggested that

these crimes are readily distinguishable.

 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, 21

prohibits the practices regardless of the sex or marital status of the participants. See id.

at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy

cases clearly bar a state from prohibiting sodomy by married couples, and that Georgia

had not justified selective application to homosexuals. Id. at 219. Justice Blackmun

would instead have addressed the issue more broadly as to whether the law violated an

individual’s privacy right “to be let alone.” The privacy cases are not limited to protection

of the family and the right to procreation, he asserted, but instead stand for the broader

principle of individual autonomy and choice in matters of sexual intimacy. 478 U.S. at

204-06. This position was rejected by the majority, however, which held that the thrust

of the fundamental right of privacy in this area is one functionally related to “family,

(continued...)

by a 5-4 vote roundly rejected the suggestion that the privacy

cases protecting “family, marriage, or procreation” extend protection to private consensual homosexual sodomy, and also re- 17

jected the more comprehensive claim that the privacy cases

“stand for the proposition that any kind of private sexual conduct

between consenting adults is constitutionally insulated from

state proscription.” Heavy reliance was placed on the fact that 18

prohibitions on sodomy have “ancient roots,” and on the fact that

half of the states still prohibited the practice. The privacy of 19

the home does not protect all behavior from state regulation, and

the Court was “unwilling to start down [the] road” of immunizing

“voluntary sexual conduct between consenting adults.” Interest- 20

ingly, Justice Blackmun, in dissent, was most critical of the

Court’s framing of the issue as one of homosexual sodomy, as the

sodomy statute at issue was not so limited.21
174 AMENDMENT 14–RIGHTS GUARANTEED

 (...continued) 21

marriage, or procreation.” 478 U.S. at 191. See also Paul v. Davis, 424 U.S. 693, 713

(1976).

 539 U.S. 558 (2003). 22

 539 U.S. at 567. 23

 539 U.S. at 567. 24

 The Court noted with approval Justice Stevens’ dissenting opinion in Bowers v. 25

Hardwick stating “that a governing majority in a State has traditionally viewed a

particular practice as immoral is not a sufficient reason for upholding a law prohibiting

the practice; neither history nor tradition could save a law prohibiting miscegenation

from constitutional attack.” 539 U.S. at 577-78, citing Bowers v. Hardwick, 478 U.S. at

216.

Yet, Lawrence v. Texas, by overruling Bowers, brought 22

the outer limits of noneconomic substantive due process into

question by once again using the language of “privacy” rights.

Citing the line of personal autonomy cases starting with

Griswold, the Court found that sodomy laws directed at homosexuals “seek to control a personal relationship that, whether or

not entitled to formal recognition in the law, is within the liberty

of persons to choose without being punished as criminals. . . .

When sexuality finds overt expression in intimate conduct with

another person, the conduct can be but one element in a personal

bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this

choice.” 23

Although it quarreled with the Court’s finding in Bowers

v. Hardwick that the proscription against homosexual behavior

had “ancient roots,” the Lawrence Court did not attempt to

establish that such behavior was in fact historically condoned.

This raises the question as to what limiting principles are

available in evaluating future arguments based on personal

autonomy. While the Court does seem to recognize that a State

may have an interest in regulating personal relationships where

there is a threat of “injury to a person or abuse of an institution

the law protects,” it also seems to reject reliance on historical 24

notions of morality as guides to what personal relationships are

to be protected. Thus, the parameters for regulation of sexual 25

conduct remain unclear.

For instance, the extent to which the government may

regulate the sexual activities of minors has not been estab-
AMENDMENT 14–RIGHTS GUARANTEED 175

 The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality 26

opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no

barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.

 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 27

431 U.S. at 684-85.

 In the same Term the Court significantly restricted its equal protection doctrine 28

of “fundamental” interests – compelling interest justification by holding that the “key” to

discovering whether an interest or a relationship is a “fundamental” one is not its social

significance, but is whether it is “explicitly or implicitly guaranteed by the Constitution.”

San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). That this limitation has

not been honored with respect to equal protection analysis or due process analysis can be

easily discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court),

with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

lished. Analysis of this question is hampered, however, because 26

the Court has still not explained what about the particular facets

of human relationships – marriage, family, procreation – gives

rise to a protected liberty, and how indeed these factors vary

significantly enough from other human relationships. The

Court’s observation in Roe v. Wade “that only personal rights

that can be deemed ‘fundamental’ are included in this guarantee

of personal privacy,” occasioning justification by a “compelling”

interest, little elucidates the answers. 27 28

Despite the Court’s decision in Lawrence, there is a

question as to whether the development of noneconomic substantive due process will proceed under an expansive right of “privacy” or under the more limited “liberty” set out in Roe. There

still appears to be a tendency to designate a right or interest as a

right of privacy when the Court has already concluded that it is

valid to extend an existing precedent of the privacy line of cases.

Because much of this protection is also now accepted as a “liberty” protected under the due process clauses, however, the

analytical significance of denominating the particular right or

interest as an element of privacy seems open to question.

PROCEDURAL DUE PROCESS: CIVIL

Generally

– The Requirements of Due Process.

[P. 1796, add to text after n.697:]

This may include an obligation, upon learning that an attempt at

notice has failed, to take “reasonable followup measures” that
176 AMENDMENT 14–RIGHTS GUARANTEED

 Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to 29

notify a property owner that his property would be sold unless he satisfied a tax

delinquency, was returned by the post office marked “unclaimed”; the state should have

taken additional reasonable steps to notify the property owner, as it would have been

practicable for it to have done so.)

 129 S. Ct. 2252, 2259 (2009) (citations omitted). 30

 129 S. Ct. at 2259, quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927). 31

 129 S. Ct. at 2259 (citations omitted). 32

 129 S. Ct. at 2259-60, 2261. 33

 129 S. Ct. at 2262 (citations omitted). 34

 129 S. Ct. at 2264. 35

may be available.29

[P. 1798, add to text after n.710:]

Sometimes, to ensure an impartial tribunal, the Due Process

Clause requires a judge to recuse himself from a case. In

Caperton v. A. T. Massey Coal Co., Inc., the Court noted that

“most matters relating to judicial disqualification [do] not rise to

a constitutional level,” and that “matters of kinship, personal

bias, state policy, [and] remoteness of interest, would seem

generally to be matters merely of legislative discretion.” The 30

Court added, however, that “[t]he early and leading case on the

subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself

when he has ‘a direct, personal, substantial, pecuniary interest’

in a case.” In addition, although “[p]ersonal bias or prejudice 31

‘alone would not be sufficient basis for imposing a constitutional

requirement under the Due Process Clause,’” there “are circumstances ‘in which experience teaches that the probability of

actual bias on the part of the judge or decisionmaker is too high

to be constitutionally tolerable.’” These circumstances include 32

“where a judge had a financial interest in the outcome of a case”

or “a conflict arising from his participation in an earlier proceeding.” In such cases, “[t]he inquiry is an objective one. The Court 33

asks not whether the judge is actually, subjectively biased, but

whether the average judge in his position is ‘likely’ to be neutral,

or whether there is an unconstitutional ‘potential for bias.’” In 34

Caperton, a company appealed a jury verdict of $50 million, and

its chairman spent $3 million to elect a justice to the Supreme

Court of Appeals of West Virginia at a time when “[i]t was

reasonably foreseeable . . . that the pending case would be before

the newly elected justice.” This $3 million was more than the 35

total amount spent by all other supporters of the justice and
AMENDMENT 14–RIGHTS GUARANTEED 177

 129 S. Ct. at 2263-64. Chief Justice Roberts, joined by Justices Scalia, Thomas, 36

and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any

limited way,” “provides no guidance to judges and litigants about when recusal will be

constitutionally required,” and “will inevitably lead to an increase in allegations that

judges are biased, however groundless those charges may be.” Id. at 2267. The majority

countered that “[t]he facts now before us are extreme in any measure.” Id. at 2265.

 545 U.S. 748 (2005). 37

 545 U.S. at 759. The Court also noted that the law did not specify the precise 38

means of enforcement required; nor did it guarantee that, if a warrant were sought, it

would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.”

Id. at 763.

three times the amount spent by the justice’s own committee.

The justice was elected, declined to recuse himself, and joined a

3-to-2 decision overturning the jury verdict. The Supreme Court,

in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that

there is a serious risk of actual bias – based on objective and

reasonable perceptions – when a person with a personal stake in

a particular case had a significant and disproportionate influence

in placing the judge on the case by raising funds or directing the

judge’s election campaign when the case was pending or imminent.”36

The Procedure Which is Due Process

– The Property Interest.

[P. 1804, add to text after n.747:]

The further one gets from traditional precepts of property,

the more difficult it is to establish a due process claim based on

entitlements. In Town of Castle Rock v. Gonzales, the Court 37

considered whether police officers violated a constitutionally

protected property interest by failing to enforce a restraining

order obtained by an estranged wife against her husband, despite

having probable cause to believe the order had been violated.

While noting statutory language that required that officers

either use “every reasonable means to enforce [the] restraining

order” or “seek a warrant for the arrest of the restrained person,”

the Court resisted equating this language with the creation of an

enforceable right, noting a long-standing tradition of police

discretion coexisting with apparently mandatory arrest

statutes. Finally, the Court even questioned whether finding 38

that the statute contained mandatory language would have

created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the
178 AMENDMENT 14–RIGHTS GUARANTEED

 545 U.S. at 764-65. 39

 538 U.S. 715 (2003). 40

benefits of the governmental enforcement scheme.39

– The Liberty Interest.

[P. 1807, add new footnote to end of second paragraph:]

In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 6-7 (2003), holding that the

state’s posting on the Internet of accurate information regarding convicted sex offenders

did not violate their due process rights, the Court stated that Paul v. Davis “held that

mere injury to reputation, even if defamatory, does not constitute the deprivation of a

liberty interest.”

[P. 1809, add to n.770:]

Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with

attendant loss of parole eligibility and with only annual status review, constitutes an

“atypical and significant hardship”).

– When Process is Due.

[P. 1815, add to text after n.801:]

A delay in processing a claim for recovery of money paid to the

government is unlikely to rise to the level of a violation of due

process. In City of Los Angeles v. David, a citizen paid a 40

$134.50 impoundment fee to retrieve an automobile that had

been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to

obtain a hearing until 27 days after his car had been towed. The

Court held that the delay was reasonable, as the private interest

affected – the temporary loss of the use of the money – could be

compensated by the addition of an interest payment to any

refund of the fee. Further factors considered were that a 30-day

delay was unlikely to create a risk of significant factual errors,

and that shortening the delay significantly would be administratively burdensome for the city.

Jurisdiction

– Notice: Service of Process.

[P. 1834, add to the beginning of n.903:]

Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s

certified letter, intended to notify a property owner that his property would be sold unless

he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the

state should have taken additional reasonable steps to notify the property owner, as it

would have been practicable for it to have done so.
AMENDMENT 14–RIGHTS GUARANTEED 179

 Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages 41

award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).

 544 U.S. 622 (2005). 42

Power of the States to Regulate Procedure

– Costs, Damages, and Penalties.

[P. 1838, add to n.932 after citation to BMW v. Gore:]

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (applying BMW v. Gore

guideposts to hold that a $145 million judgment for refusing to settle an insurance claim

was excessive, in part because it included consideration of conduct occurring in other

states as well as conduct bearing no relation to the plaintiffs’ harm). 

[P. 1838, add to n.933:]

The Court has suggested that awards exceeding a single-digit ratio between punitive and

compensatory damages would be unlikely to pass scrutiny under due process, and that

the greater the compensatory damages, the less this ratio should be. State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424 (2003).

[P. 1838, add to text after n.933:]

In addition, the “Due Process Clause forbids a State to use a

punitive damages award to punish a defendant for injury that it

inflicts upon nonparties . . . .”41

PROCEDURAL DUE PROCESS – CRIMINAL

The Elements of Due Process

– Fair Trial.

[P. 1855, in n.1025, insert before period preceding penultimate

sentence (which begins “Similarly”):]

; Middleton v. McNeil, 541 U.S. 43 (2004) (state courts could assume that an erroneous

jury instruction was not reasonably likely to have misled a jury where other instructions

made correct standard clear)

[P. 1856, add to the end of n.1028:]

Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of private-actor courtroom conduct – in this case, members of victim’s family wearing buttons

with the victim’s photograph – has never been addressed by the Supreme Court and

therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations

on Habeas Corpus Review of Capital Sentences).

[P. 1856, add to text after n.1028:]

The use of visible physical restraints, such as shackles,

leg irons or belly chains, in front of a jury, has been held to raise

due process concerns. In Deck v. Missouri, the Court noted a 42

rule dating back to English common law against bringing a
180 AMENDMENT 14–RIGHTS GUARANTEED

 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in 43

dictum, that “no person should be tried while shackled and gagged except as a last

resort.”

 544 U.S. at 630, 631 (internal quotation marks omitted). 44

defendant to trial in irons, and a modern day recognition that

such measures should be used “only in the presence of a special

need.” The Court found that the use of visible restraints during 43

the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel,

and “affronts the dignity and decorum of judicial proceedings.”44

Even where guilt has already been adjudicated, and a jury is

considering the application of the death penalty, the latter two

considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge

has made particularized findings that security or flight risk

requires it, can such restraints be used.

[P. 1856, add to n.1030, before period preceding final sentence:]

; Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of

third-party guilt can be excluded if there is strong forensic evidence establishing

defendant’s culpability)

– Prosecutorial Misconduct.

[P. 1857, add to n.1037:]

Nor has it been settled whether inconsistent prosecutorial theories in separate cases can

be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court

remanded case to determine whether death sentence was based on defendant’s role as

shooter because subsequent prosecution against an accomplice proceeded on the theory

that, based on new evidence, the accomplice had done the shooting).

[P. 1858, add to n.1040:]

In Cone v. Bell, 129 S. Ct. 1769, 1784, 1786 (2009), the Court emphasized the distinction

between the materiality of the evidence with respect to guilt and the materiality of the

evidence with respect to punishment, and concluded that, although the evidence that had

been suppressed was not material to the defendant's conviction, the lower courts had

erred in failing to assess its effect with respect to the defendant's capital sentence.

[P. 1858, add new footnote after the words “prosecutor withheld

it” four lines from bottom of page:]

A statement by the prosecution that it will “open its files” to the defendant appears to

relieve the defendant of his obligation to request such materials. See Strickler v. Greene,

527 U.S. 263, 283-84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

[P. 1859, add to n.1044:]

Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of

cocaine 11 years after an arrest, the defendant having fled prosecution during the

intervening years, does not violate due process).
AMENDMENT 14–RIGHTS GUARANTEED 181

 Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam), quoting 45

Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995).

 548 U.S. 735 (2006). 46

[P. 1859, add to text after n.1049:]

The Supreme Court has also held that “Brady suppression

occurs when the government fails to turn over even evidence that

is ‘known only to police investigators and not to the prosecutor.’

. . . ‘[T]he individual prosecutor has a duty to learn of any

favorable evidence known to others acting on the government’s

behalf in the case, including the police.’”45

[P. 1859, add to n.1049:]

See also Banks v. Dretke, 540 U.S. 668, 692-94 (2004) (failure of prosecution to correct

perjured statement that witness had not been coached and to disclose that separate

witness was a paid government informant established prejudice for purposes of habeas

corpus review).

– Proof, Burden of Proof, and Presumptions.

[P. 1861, add new footnote following “constitute the crime

charged” in first sentence of first full paragraph of text:]

Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases

both involved defendants convicted under state statutes that were subsequently

interpreted in a way that would have precluded their conviction. The Court remanded

the cases to determine if the new interpretation was in effect at the time of the previous

convictions, in which case those convictions would violate due process.

[P. 1862, add to n.1063:]

See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal

firearms case to prove her duress defense by a preponderance of evidence did not violate

due process). In Dixon, the prosecution had the burden of proving all elements of two

federal firearms violations, one requiring a “willful” violation (having knowledge of the

facts that constitute the offense) and the other requiring a “knowing” violation (acting

with knowledge that the conduct was unlawful). Although establishing other forms of

mens rea (such as “malicious intent”) might require that a prosecutor prove that a

defendant’s intent was without justification or excuse, the Court held that neither of the

forms of mens rea at issue in Dixon contained such a requirement. Consequently, the

burden of establishing the defense of duress could be placed on the defendant without

violating due process. 

[P. 1862, add to text after n.1064:]

Despite the requirement that states prove each element of

a criminal offense, criminal trials generally proceed with a

presumption that the defendant is sane, and a defendant may be

limited in the evidence that he may present to challenge this

presumption. In Clark v. Arizona, the Court considered a rule 46

adopted by the Supreme Court of Arizona that prohibited the use

of expert testimony regarding mental disease or mental capacity
182 AMENDMENT 14–RIGHTS GUARANTEED

 548 U.S. at 770, 774. 47

 Clark v. Arizona, 548 U.S. 735 (2006). 48

M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “[T]o establish a defence on 49

the ground of insanity, it must be clearly proved that, at the time of the committing of

the act, the party accused was laboring under such a defect of reason, from disease of the

mind, as not to know the nature and quality of the act he was doing; or, if he did know it,

that he did not know he was doing what was wrong.” 8 Eng. Rep. at 722.

See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease 50

was, in truth, the acting power within [the defendant] which he could not resist, then he

will not be responsible.”).

See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease 51

which irresistibly impelled him to kill his wife – if the killing was the product of mental

disease in him – he is not guilty; he is innocent – as innocent as if the act had been

produced by involuntary intoxication, or by another person using his hand against his

utmost resistance.”).

to show lack of mens rea, ruling that the use of such evidence

could be limited to an insanity defense. In Clark, the Court

weighed competing interests to hold that such evidence could be

“channeled” to the issue of insanity due to the controversial

character of some categories of mental disease, the potential of

mental-disease evidence to mislead, and the danger of according

greater certainty to such evidence than experts claim for it.47

– The Problem of the Incompetent or Insane Defendant or

Convict.

[P. 1865, add to n.1076:]

The standard for competency to stand trial is whether the defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the

proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam),

cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a

defendant is mentally competent to stand trial does not preclude a court from finding him

not mentally competent to represent himself at trial. Indiana v. Edwards, supra.

[P. 1865, add to text after n.1078:]

Where a defendant is found competent to stand trial, a

state appears to have significant discretion in how it takes

account of mental illness or defect at the time of the offense in

determining criminal responsibility. The Court has identified 48

several tests that are used by states in varying combinations to

address the issue: the M’Naghten test (cognitive incapacity or

moral incapacity), volitional incapacity, and the irresist- 49 50

ible-impulse test. “[I]t is clear that no particular formulation 51

has evolved into a baseline for due process, and that the insanity

rule, like the conceptualization of criminal offenses, is substan-
AMENDMENT 14–RIGHTS GUARANTEED 183

Clark, 548 U.S. 752. In Clark, the Court considered an Arizona statute, based on 52

the M’Naghten case, that was amended to eliminate the defense of cognitive incapacity.

The Court noted that, despite the amendment, proof of cognitive incapacity could still be

introduced as it would be relevant (and sufficient) to prove the remaining moral

incapacity test. Id. at 753.

 477 U.S. at 416-17. 53

 536 U.S. at 317 (citation omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 54

416-17 (1986)). The Court quoted this language again in Schriro v. Smith, holding that

“[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to

resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam). States, the

Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of

mental retardation,” though “those measures might, in their application, be subject to

constitutional challenge.” Id.

 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he 55

presented a risk of serious harm to himself or others).

 539 U.S. 166 (2003). 56

 For instance, if the defendant is likely to remain civilly committed absent 57

medication, this would diminish the government’s interest in prosecution. 539 U.S. at

180.

tially open to state choice.”52

[P. 1866, add to text after n.1085:]

The Court, however, left “to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction upon

its execution of sentences.”53

In Atkins v. Virginia, the Court held that the Eighth

Amendment also prohibits the state from executing a person who

is mentally retarded, and added, “As was our approach in Ford v.

Wainwright with regard to insanity, ‘we leave to the State[s] the

task of developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.’”54

Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be

incompetent to stand trial. In Washington v. Harper, the Court 55

had found that an individual has a significant “liberty interest”

in avoiding the unwanted administration of antipsychotic drugs.

In Sell v. United States, the Court found that this liberty 56

interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial.

First, however, the government must engage in a fact-specific

inquiry as to whether this interest is important in a particular

case. Second, the court must find that the treatment is likely to 57

render the defendant competent to stand trial without resulting

in side effects that will interfere with the defendant’s ability to

assist counsel. Third, the court must find that less intrusive
184 AMENDMENT 14–RIGHTS GUARANTEED

 District Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 58

2308 (2009).

 129 S. Ct. at 2312. 59

 129 S. Ct. at 2323 (citation omitted). Justice Stevens, in a dissenting opinion 60

joined by Justices Ginsburg and Breyer and in part by Justice Souter, concluded, “[T]here

is no reason to deny access to the evidence and there are many reasons to provide it, not

least of which is a fundamental concern in ensuring that justice has been done in this

(continued...)

treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of

the drugs is in the patient’s best medical interests.

– Guilty Pleas.

[P. 1868, substitute for final sentence of n.1092:]

However, this does not mean that a court accepting a guilty plea must explain all the

elements of a crime, as it may rely on counsel’s representations to the defendant.

Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was

done by someone else, guilty plea to aggravated manslaughter was still valid, as such

charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431

U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had

been told not to allude to existence of a plea bargain in court, and such plea bargain was

not honored).

– Corrective Process: Appeals and Other Remedies

[P. 1873, add to text at end of section:]

The Court has held, however, that the Due Process Clause

does not provide convicted persons a right to postconviction

access to the state’s evidence for DNA testing. Chief Justice 58

Roberts, in a five-to-four decision, noted that 46 states had

enacted statutes dealing specifically with access to DNA evidence, and that the federal government had enacted a statute

that allows federal prisoners to move for court-ordered DNA

testing under specified conditions. Even the states that had not

enacted statutes dealing specifically with access to DNA evidence

must, under the Due Process Clause, provide adequate

postconviction relief procedures. The Court, therefore, saw “no

reason to constitutionalize the issue.” It also expressed concern 59

that “[e]stablishing a freestanding right to access DNA evidence

for testing would force us to act as policymakers . . . . We would

soon have to decide if there is a constitutional obligation to

preserve forensic evidence that might later be tested. If so, for

how long? Would it be different for different types of evidence?

Would the State also have some obligation to gather such evidence in the first place? How much, and when?”60
AMENDMENT 14–RIGHTS GUARANTEED 185

 (...continued) 60

case.” Id. at 2339-40.

 Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax 6 1

prison, with attendant loss of parole eligibility and with only annual status review,

constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld

Ohio’s multi-level review process, despite the fact that a prisoner was provided only

summary notice as to the allegations against him, a limited record was created, the

prisoner could not call witnesses, and reevaluation of the assignment only occurred at

one 30-day review and then annually. Id. at 219-20.

– Rights of Prisoners

[P. 1874, add to n.1132:]

There was some question as to the standard to be applied to racial discrimination in

prisons after Turner v. Safley, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499

(2005), however, the Court held that discriminatory prison regulations would continue to

be evaluated under a “strict scrutiny” standard, which requires that regulations be

narrowly tailored to further compelling governmental interests. Id. at 509-13 (striking

down a requirement that new or transferred prisoners at the reception area of a

correctional facility be assigned a cellmate of the same race for up to 60 days before they

are given a regular housing assignment).

[P. 1875, add to n.1136:]

See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation

by unrelated children or children over whom a prisoner’s parental rights have been

terminated, and all regular visitation for a period following a prisoner’s violation of

substance abuse rules). 

[P. 1875, add new footnote to end of fifth sentence of first full

paragraph:]

For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to

communicate through other visitors, by letter, or by phone. 539 U.S. at 135.

[P. 1877, add new paragraph to text after n.1148, consisting of

the following sentence followed by the material through n.1149:]

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest,

although the due process requirements to protect this interest

are limited.61

– The Problem of the Juvenile Offender.

[P. 1883, add to n.1174:]

In Safford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009), the Court found

unreasonable a strip search of a 13-year-old girl suspected of possessing ibuprofen. See

Fourth Amendment, “Public Schools,” supra. 

 
186 AMENDMENT 14–RIGHTS GUARANTEED

 The Supreme Court has recognized successful equal protection claims brought by 62

a class-of-one, where a plaintiff alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for that difference.

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (village’s demand

for an easement as a condition of connecting the plaintiff’s property to the municipal

water supply was irrational and wholly arbitrary). However, the class-of-one theory,

which applies with respect to legislative and regulatory action, does not apply in the

public employment context. Engquist v. Oregon Department of Agriculture, 128 S. Ct.

2146, 2149 (2008) (allegation that plaintiff was fired not because she was a member of an

identified class but simply for “arbitrary, vindictive, and malicious reasons” does not

state an equal protection claim). In Engquist, the Court noted that “the government as

employer indeed has far broader powers than does the government as sovereign,” id. at

2151 (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994)), and that it is a “common-sense realization” that government offices could not function if every employment

decision became a constitutional matter. Id. at 2151, 2156.

EQUAL PROTECTION OF THE LAWS

Scope and Application

– State Action.

[P. 1893, add to n.1223:]

But see City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 (2003)

(ministerial acts associated with a referendum repealing a low-income housing ordinance

did not constitute state action, as the referendum process was facially neutral, and the

potentially discriminatory repeal was never enforced).

Equal Protection: Judging Classifications by Law

– Traditional Standards: Restrained Review

[P. 1906, in fifth line of section, substitute for the period after

“well”:]

, including so-called “class-of-one” challenges.62

TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND RELATED EXERCISES OF THE POLICE POWERS

Taxation

– Classification for Purposes of Taxation.

[P. 1923, add to n.1390 after the paragraph on “Electricity”:]

Gambling: slot machines on excursion river boats are taxed at a maximum rate

of 20 percent, while slot machines at a racetrack are taxed at a maximum rate of 36

percent. Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003).

[P. 1924, add before period at end of n.1391:]

; Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003) 

 
AMENDMENT 14–RIGHTS GUARANTEED 187

 Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of the 6 3

case was that, in a habeas corpus action, the Ninth Circuit “panel majority improperly

substituted its evaluation of the record for that of the state trial court.” Id. at 337-38.

Justice Breyer, joined by Justice Souter, concurred but suggested “that legal life without

peremptories is no longer unthinkable” and “that we should reconsider Batson’s test and

the peremptory challenge system as a whole.” Id. at 344.

 Rice v. Collins, 546 U.S. at 338 (citations omitted). “[O]nce it is shown that a 64

discriminatory intent was a substantial or motivating factor in an action taken by a state

actor, the burden shifts to the party defending the action to show that this factor was not

determinative. We have not previously applied this rule in a Batson case, and we need

not decide here whether that standard governs in this context. . . . [Nevertheless,] a

peremptory strike shown to have been motivated in substantial part by a discriminatory

intent could not be sustained based on any lesser showing by the prosecution.” Snyder v.

Louisiana, 128 S. Ct. 1203, 1212 (2008) (citation omitted). To rule on a Batson objection

based on a prospective juror's demeanor during voir dire, it is not necessary that the

ruling judge have observed the juror personally. That a judge who observed a prospective

juror should take those observations into account, among other things, does not mean

that a demeanor-based explanation for a strike must be rejected if the judge did not

observe or cannot recall the juror's demeanor. Thaler v. Haynes, 130 S. Ct. 2141 (2010).

EQUAL PROTECTION AND RACE

Juries

[P. 1958, add new footnote at end of first sentence of second full

paragraph:]

476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a “wide

variety of evidence, so long as the sum of proffered facts gives rise to an inference of

discriminatory purpose.” Id. at 93-94. A state, however, cannot require that a defendant

prove a prima facie case under a “more likely than not” standard, as the function of the

Batson test is to create an inference and shift the burden to the state to offer race-neutral

reasons for the peremptory challenges. Only then does a court weigh the likelihood that

racial discrimination occurred. Johnson v. California, 543 U.S. 499 (2005).

[P. 1958, add to text after n.1594:]

In fact, “[a]lthough the prosecutor must present a comprehensible reason, ‘[t]he [rebuttal] does not demand an explanation that

is persuasive, or even plausible’; so long as the reason is not

inherently discriminatory, it suffices.” Such a rebuttal having 63

been offered, “the court must then determine whether the defendant has carried his burden of proving purposeful discrimination.

This final step involves evaluating ‘the persuasiveness of the

justification’ proffered by the prosecutor, but the ‘ultimate

burden of persuasion regarding racial motivation rests with, and

never shifts from, the opponent of the strike.’” “On appeal, a 64

trial court’s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous,” but, on more than one
188 AMENDMENT 14–RIGHTS GUARANTEED

 Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008) (Supreme Court found prosecu- 65

tion’s race-neutral explanation for its peremptory challenge of a black juror to be

implausible, and found explanation’s “implausibility . . . reinforced by prosecution’s

acceptance of white jurors” whom prosecution could have challenged for the same reason

that it claimed to have challenged the black juror, id. at 1211). In Miller-El v. Dretke, 545

U.S. 231 (2005), the Court found discrimination in the use of peremptory strikes based on

numerous factors, including the high ratio of minorities struck from the venire panel (of

20 blacks, nine were excused for cause and ten were peremptorily struck). Other factors

the Court considered were the fact that the race-neutral reasons given for the peremptory strikes of black panelists “appeared equally on point as to some white jurors who

served,” id. at 241; the prosecution used “jury shuffling” (rearranging the order of panel

members to be seated and questioned) twice when blacks were at the front of the line; the

prosecutor asked different questions of black and white panel members; and there was

evidence of a long-standing policy of excluding blacks from juries.

 539 U.S. 306 (2003). 66

 539 U.S. 244 (2003). 67

occasion, the Supreme Court has reversed trial courts’ findings of

no discriminatory intent.65

Permissible Remedial Utilization of Racial Classifications

[P. 1970, add to text at end of section:]

By applying strict scrutiny, the Court was in essence

affirming Justice Powell’s individual opinion in Bakke, which

posited a strict scrutiny analysis of affirmative action. There

remained the question, however, whether the Court would

endorse Justice Powell’s suggestion that creating a diverse

student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It

engendered some surprise, then, that the Court essentially

reaffirmed Justice Powell’s line of reasoning in the cases of

Grutter v. Bollinger and Gratz v. Bollinger. 66 67

 In Grutter, the Court considered the admissions policy of

the University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in his file (e.g., grade point average, Law School

Admissions Test score, personal statement, recommendations)

and on “soft” variables (e.g., strength of recommendations,

quality of undergraduate institution, difficulty of undergraduate

courses). The policy also considered “racial and ethnic diversity

with special reference to the inclusion of students from groups

which have been historically discriminated against, like African-Americans, Hispanics and Native Americans . . . .” While

the policy did not limit diversity to “ethnic and racial” classifications, it did seek a “critical mass” of minorities so that those
AMENDMENT 14–RIGHTS GUARANTEED 189

 539 U.S. at 323-26. 68

 539 U.S. at 335. 69

 539 U.S. at 272-73. 70

 438 U.S. at 317. 71

students would not feel isolated.68

The Grutter Court found that student diversity provided

significant benefits, not just to the students who otherwise might

not have been admitted, but also to the student body as a whole.

These benefits include “cross-racial understanding,” the breakdown of racial stereotypes, the improvement of classroom discussion, and the preparation of students to enter a diverse

workforce. Further, the Court emphasized the role of education

in developing national leaders. Thus, the Court found that such

efforts were important to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.” As the university did not 69

rely on quotas, but rather relied on “flexible assessments” of a

student’s record, the Court found that the university’s policy was

narrowly tailored to achieve the substantial governmental

interest of achieving a diverse student body.

The law school’s admission policy, however, can be contrasted with the university’s undergraduate admission policy. In

Gratz, the Court evaluated the undergraduate program’s “selection index,” which assigned applicants up to 150 points based on

a variety of factors similar to those considered by the Law

School. Applicants with scores over 100 were usually admitted,

while those with scores of less than 100 fell into categories that

could result in either admittance, postponement, or rejection. Of

particular interest to the Court was the fact that an applicant

was entitled to 20 points based solely upon membership in an

underrepresented racial or ethnic minority group. The policy

also included the “flagging” of certain applications for special

review, and underrepresented minorities were among those

whose applications were flagged. 70

The Court in Gratz struck down this admissions policy,

relying again on Justice Powell’s opinion in Bakke. While Justice

Powell had thought it permissible that “race or ethnic background . . . be deemed a ‘plus’ in a particular applicant’s file,”71

the system he envisioned involved individualized consideration of

all elements of an application to ascertain how the applicant

would contribute to the diversity of the student body. According
190 AMENDMENT 14–RIGHTS GUARANTEED

 438 U.S. at 284-85. 72

 127 S. Ct. 2738 (2007). Another case involving racial diversity in public schools, 7 3

Meredith v. Jefferson County Board of Education, was argued separately before the Court

on the same day, but the two cases were subsequently consolidated and both were

addressed in the cited opinion.

 In Seattle, students could choose among 10 high schools in the school district, 74

but, if an oversubscribed school was not within 10 percentage points of the district’s

overall white/nonwhite racial balance, the district would assign students whose race

would serve to bring the school closer to the desired racial balance. 127 S. Ct. at 2747.

In Jefferson County, assignments and transfers were limited when such action would

cause a school’s black enrollment to fall below 15 percent or exceed 50 percent. Id. at

2749.

 Chief Judge Roberts’ opinion, joined fully by Justices Scalia, Thomas and Alito, 75

announced the judgment of the Court, while Justice Kennedy, who joined portions of the

Chief Justice’s opinion, filed an opinion concurring in part and concurring in the

judgment. Justice Thomas filed a concurring opinion, while Justice Stevens and Justice

Breyer (joined by Justice Steven, Souter and Ginsburg) authored dissents. 

to the majority opinion in Gratz, the undergraduate policy did

not provide for such individualized consideration. Instead, by

automatically distributing 20 points to every applicant from an

underrepresented minority group, the policy effectively admitted

every qualified minority applicant. Although it acknowledged

that the volume of applications could make individualized

assessments an “administrative challenge,” the Court found that

the policy was not narrowly tailored to achieve the university’s

asserted compelling interest in diversity.72

While institutions of higher education were striving to

increase racial diversity in their student populations, state and

local governments were engaged in a similar effort with respect

to elementary and secondary schools. Whether this goal could be

constitutionally achieved after Grutter and Gratz, however,

remained unclear, especially as the type of individualized admission considerations found in higher education are less likely to

have useful analogies in the context of public school assignments.

Thus, for instance, in Parents Involved in Community Schools v.

Seattle School District No. 1, the Court rejected plans in both 73

Seattle, Washington and Jefferson County, Kentucky, that, in

order reduce what the Court found to be “de facto” racial imbalance in the schools, used “racial tiebreakers” to determine school

assignments. As in Bakke, numerous opinions by a fractured 74

Court led to an uncertain resolution of the issue. 75

In an opinion by Chief Justice Roberts, a majority of the

Court in Parents Involved in Community Schools agreed that the

plans before the Court did not include the kind of individualized
AMENDMENT 14–RIGHTS GUARANTEED 191

 127 S. Ct. at 2753-54. The Court also noted that, in Grutter, the Court had relied 76

upon “considerations unique to institutions of higher education.” Id. at 2574 (finding

that, as stated in Grutter, 539 U.S. at 329, because of the “expansive freedoms of speech

and thought associated with the university environment, universities occupy a special

niche in our constitutional tradition”).

 In his analysis of whether the plans were narrowly tailored to the governmental 77

interest in question, Justice Kennedy focused on a lack of clarity in the administration

and application of Kentucky’s plan and the use of the “crude racial categories” of “white”

and “non-white” (which failed to distinguish among racial minorities) in the Seattle plan.

127 S. Ct. at 2790-91.

 127 S. Ct. at 2760-61. Some other means suggested by Justice Kennedy (which 78

by implication could be constitutionally used to address racial imbalance in schools)

included strategic site selection for new schools, the redrawing of attendance zones, the

allocation of resources for special programs, the targeted recruiting of students and

faculty, and the tracking of enrollments, performance, and other statistics by race.

 Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court 79

decides a case and no single rationale enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those Members who concurred in the

judgment on the narrowest grounds . . . .”).

considerations that had been at issue in the university admissions process in Grutter, but rather focused primarily on racial

considerations. Although a majority of the Court found the 76

plans unconstitutional, only four Justices (including the Chief

Justice) concluded that alleviating “de facto” racial imbalance in

elementary and secondary schools could never be a compelling

governmental interest. Justice Kennedy, while finding that the

school plans at issue were unconstitutional because they were

not narrowly tailored, suggested in separate concurrence that 77

relieving “racial isolation” could be a compelling governmental

interest. The Justice even envisioned the use of plans based on

individual racial classifications “as a last resort” if other means

failed. As Justice Kennedy’s concurrence appears to represent 78

a narrower basis for the judgment of the Court than does Justice

Roberts’ opinion, it appears to represent, for the moment, the

controlling opinion for the lower courts.79

THE NEW EQUAL PROTECTION

Fundamental Interests: The Political Process

– Voter Qualifications

[P. 1997, add a new footnote at the end of the first paragraph of

the section:]

See also Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam) (vacating an injunction

against “requiring voters to present proof of citizenship when they register to vote and to

present identification when they vote on election day,” but expressing no opinion on the

constitutionality of the requirement).
192 AMENDMENT 14–RIGHTS GUARANTEED

 Crawford v. Marion County Election Board, 128 S. Ct. 1610, 1621 (2008) 80

(plurality). See Fourteenth Amendment, “Voting,” infra.

 541 U.S. 267 (2004). 81

 541 U.S. at 285-86. 82

 541 U.S. at 281-90. 83

 541 U.S. at 271 (noting that Article I, § 4 provides that Congress may alter state 84

laws regarding the manner of holding elections for Senators and Representatives).

[P. 1998, add to text after n.1776:]

By contrast, the Court upheld a statute that required voters to

present a government-issued photo identification in order to vote,

as the state had not “required voters to pay a tax or a fee to

obtain a new photo identification.” The Court added that, although obtaining a government-issued photo identification is an

“inconvenience” to voters, it “surely does not qualify as a substantial burden.”80

– Apportionment and Districting

[P. 2012, add to text after n.1841:]

In the following years, however, litigants seeking to apply

Davis against alleged partisan gerrymandering were generally

unsuccessful. Then, when the Supreme Court revisited the issue

in 2004, it all but closed the door on such challenges. In Vieth v.

Jubelirer, a four-Justice plurality would have overturned Davis 81

v. Bandemer’s holding that challenges to political gerrymandering are justiciable, but five Justices disagreed. The plurality

argued that partisan considerations are an intrinsic part of

establishing districts, that no judicially discernable or manage- 82

able standards exist to evaluate unlawful partisan gerrymandering, and that the power to address the issue of political gerry- 83

mandering resides in Congress.84

Of the five Justices who believed that challenges to

political gerrymandering are justiciable, four dissented, but

Justice Kennedy concurred with the four-Justice plurality’s

holding, thereby upholding Pennsylvania’s congressional redistricting plan against a political gerrymandering challenge.

Justice Kennedy agreed that the lack” of any agreed upon model

of fair and effective representation” or “substantive principles of

fairness in districting” left the Court with “no basis on which to

define clear, manageable, and politically neutral standards for

measuring the particular burden a given partisan classification
AMENDMENT 14–RIGHTS GUARANTEED 193

 541 U.S. at 307-08 (Justice Kennedy, concurring). 85

 541 U.S. at 306 (Justice Kennedy, concurring). Although Justice Kennedy 86

admitted that no workable model had been proposed either to evaluate the burden

partisan districting imposed on representational rights or to confine judicial intervention

once a violation has been established, he held out the possibility that such a standard

may emerge, based on either equal protection or First Amendment principles.

 548 U.S. 399, 417 (2006). The design of one congressional district was held to 87

violate the Voting Rights Act because it diluted the voting power of Latinos. Id. at 423-

443.

 548 U.S. at 414. 88

 548 U.S. at 418, 417. 89

 548 U.S. at 418. 90

 548 U.S. at 419. 91

imposes on representational rights.” But, though he concurred 85

in the holding, Justice Kennedy held out hope that judicial relief

from political gerrymandering may be possible “if some limited

and precise rationale were found” to evaluate partisan redistricting. Davis v. Bandemer was thus preserved.86

In League of United Latin American Citizens v. Perry, a

widely splintered Supreme Court plurality largely upheld a

Texas congressional redistricting plan that the state legislature

had drawn mid-decade, seemingly with the sole purpose of

achieving a Republican congressional majority. The plurality 87

did not revisit the justiciability question, but examined “whether

appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander

violates the Constitution.” The plurality was “skeptical . . . of a 88

claim that seeks to invalidate a statute based on a legislature’s

unlawful motive but does so without reference to the content of

the legislation enacted.” For one thing, although “[t]he legislature does seem to have decided to redistrict with the sole purpose

of achieving a Republican congressional majority, . . . partisan

aims did not guide every line it drew.” Apart from that, the 89

“sole-motivation theory” fails to show what is necessary to

identify an unconstitutional act of partisan gerrymandering: “a

burden, as measured by a reliable standard, on the complainants’

representational rights.” Moreover, “[t]he sole-intent standard 90

. . . is no more compelling when it is linked to . . . mid-decennial

legislation. . . . [T]here is nothing inherently suspect about a

legislature’s decision to replace mid-decade a court-ordered plan

with one of its own. And even if there were, the fact of

mid-decade redistricting alone is no sure indication of unlawful

political gerrymanders.” The plurality also found “that 91
194 AMENDMENT 14–RIGHTS GUARANTEED

 548 U.S. at 420-21. 92

 548 U.S. at 422. 93

 128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief 94

Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was

joined by Justices Thomas and Alito, and Justices Souter, Ginsburg, and Breyer

dissented.

 128 S. Ct. at 1622, 1621. 95

 128 S. Ct. at 1616. 96

mid-decade redistricting for exclusively partisan purposes” did

not in this case “violate[ ] the one-person, one-vote requirement.” Because ordinary mid-decade districting plans do not 92

necessarily violate the one-person, one-vote requirement, the

only thing out of the ordinary with respect to the Texas plan was

that it was motivated solely by partisan considerations, and the

plurality had already rejected the sole-motivation theory.93

League of United Latin American Citizens v. Perry thus left

earlier Court precedent essentially unchanged. Claims of unconstitutional partisan gerrymandering are justiciable, but a reliable measure of what constitutes unconstitutional partisan

gerrymandering remains to be found.

Poverty and Fundamental Interests: The Intersection of Due

Process and Equal Protection

– Voting.

[P. 2028, add to text after n.1917:]

In Crawford v. Marion County Election Board, however, 94

a Court plurality held that a state may require citizens to present a government-issued photo identification in order to vote.

Although Justice Stevens’ plurality opinion acknowledged “the

burden imposed on voters who cannot afford . . . a birth certificate” (but added that it was “not possible to quantify . . . the

magnitude of the burden on this narrow class of voters”), it noted

that the state had not “required voters to pay a tax or a fee to

obtain a new photo identification,” and that “the

photo-identification cards issued by Indiana’s BMV are also

free.” Justice Stevens also noted that a burden on voting 95

rights, “[h]owever slight . . . must be justified by relevant and

legitimate state interests ‘sufficiently weighty to justify the

limitation,’ and he found three state interests that were suffi- 96

ciently weighty: election modernization (i.e., complying with

federal statutes that require or permit the use of state motor

vehicle driver’s license applications to serve various purposes
AMENDMENT 14–RIGHTS GUARANTEED 195

 “A facial challenge must fail where the statute has a plainly legitimate sweep.” 97

128 S. Ct. at 1623 (internal quotation marks omitted).

 128 S. Ct. at 1624. “[A]ll of the Republicans in the [Indiana] General Assembly 98

voted in favor of [the statute] and the Democrats were unanimous in opposing it.” Id. at

1623.

 128 S. Ct. at 1625, 1626. 99

 128 S. Ct. at 1627, 1643 (citations omitted). 100

connected with voter registration), deterring and detecting voter

fraud, and safeguarding voter confidence. Justice Stevens’

opinion, therefore, rejected a facial challenge to the statute,97

finding that, even though it was “fair to infer that partisan

considerations may have played a significant role in the decision

to enact” the statute, the statute was “supported by valid neutral

justifications.” Justice Scalia, in his concurring opinion, would 98

not only have upheld the statute on its face, but would have

ruled out as-applied challenges as well, on the ground that “[t]he

Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation,” and, “without proof of discriminatory intent, a generally applicable law with disparate impact

is not unconstitutional.” Justice Souter, in his dissenting 99

opinion, found the statute unconstitutional because “a State may

not burden the right to vote merely by invoking abstract interests, be they legitimate or even compelling, but must make a

particular, factual showing that threats to its interests outweigh

the particular impediments it has imposed. . . . The Indiana

Voter ID Law is thus unconstitutional: the state interests fail to

justify the practical limitations placed on the right to vote, and

the law imposes an unreasonable and irrelevant burden on

voters who are poor and old.”100

Section 5. Enforcement

Generally

[P. 2037, delete sole full paragraph (to be inserted in next section)]

State Action

[P. 2041, in text after n.1978, insert sole full paragraph deleted

from p. 2037]

Congressional Definition of Fourteenth Amendment Rights

[P. 2047, add to text at end of section:]
196 AMENDMENT 14–RIGHTS GUARANTEED

 538 U.S. 721 (2003). 101

 Statutory classifications that distinguish between males and females are subject 102

to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197-199 (1976); they must be

substantially related to the achievement of important governmental objectives, United

States v. Virginia, 518 U.S. 515, 533 (1996).

 538 U.S. at 736. 103

 541 U.S. 509 (2004). 104

The Court’s most recent decisions in this area, however,

seem to de-emphasize the need for a substantial legislative

record when the class being discriminated against is protected by

heightened scrutiny of the government’s action. In Nevada

Department of Human Resources v. Hibbs, the Court consid- 101

ered the recovery of monetary damages against states under the

Family and Medical Leave Act. This Act provides, among other

things, that both male and female employees can take up to

twelve weeks of unpaid leave to care for a close relative with a

serious health condition. Noting that the Fourteenth Amendment

could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent

gender-based discrimination in the workplace tracing to the

historic stereotype that women are the primary caregivers.

Congress had documented historical instances of discrimination

against women by state governments, and had found that women

were provided maternity leave more often than men were provided paternity leave.

Although there was a relative absence of proof that states

were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held

Congress to a high standard for justifying legislation attempting

to remedy classifications subject only to rational basis review.

“Because the standard for demonstrating the constitutionality of

a gender-based classification is more difficult to meet than our

rational basis test . . . it was easier for Congress to show a 102

pattern of state constitutional violations.” Consequently, the 103

Court upheld an across-the-board, routine employment benefit

for all eligible employees as a congruent and proportional response to the gender stereotype.

Applying the same approach, the Court in Tennessee v.

Lane held that Congress could authorize damage suits against 104

a state for failing to provide disabled persons physical access to

its courts. Title II of the Americans with Disabilities Act (ADA)
AMENDMENT 14–RIGHTS GUARANTEED 197

 42 U.S.C. § 12132. 105

 531 U.S. 356 (2001). 106

See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal 107

defendant has a right to be present at all stages of a trial where his absence might

frustrate the fairness of the proceedings).

 541 U.S. at 531, 524. 108

 541 U.S. at 541-542 (Rehnquist, C.J., dissenting). 109

 541 U.S. at 524-525. Justice Rehnquist, in dissent, disputed Congress’ reliance 110

on evidence of disability discrimination in the provision of services administered by local,

not state, governments, as local entities do not enjoy the protections of sovereign

immunity. Id. at 542-43. The majority, in response, noted that local courts are generally

treated as arms of the state for sovereign immunity purposes, Mt. Healthy City Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977), and that the action of non-state actors had

previously been considered in such pre-Boerne cases as South Carolina v. Katzenbach,

383 U.S. 301, 312-15 (1966).

provides that no qualified person shall be excluded or denied the

benefits of a public program by reason of a disability, but since 105

disability is not a suspect class, the application of Title II

against states would seem suspect under the reasoning of

Garrett. Here, however, the Court evaluated the case as a limit 106

on access to court proceedings, which, in some instances, has

been held to be a fundamental right subject to heightened scrutiny under the Due Process Clause.107

Reviewing the legislative history of the ADA, the Court

found that Title II, as applied, was a “congruent and proportional” response to a congressional finding of “a backdrop of

pervasive unequal treatment in the administration of state

services and programs, including systematic deprivations of

fundamental rights.” However, as pointed out by both the 108

majority and by Justice Rehnquist in dissent, the deprivations

relied upon by the majority were not limited to instances of

imposing unconstitutional deprivations of court access to disabled persons. Rather, in an indication of a more robust 109

approach where protection of fundamental rights is at issue, the

majority also relied more broadly on a history of state limitations

on the rights of the disabled in areas such as marriage and

voting, and on limitations of access to public services beyond the

use of courts. 110

Congress’ authority under § 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity is

strongest when a state’s conduct at issue in a case is alleged to

have actually violated a constitutional right. In United States v.
198 AMENDMENT 14–RIGHTS GUARANTEED

 546 U.S. 151 (2006). 111

 “While the Members of this Court have disagreed regarding the scope of 112

Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment,

no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the

Amendment by creating private remedies against the States for actual violations of those

provisions.” 546 U.S. at 158 (citations omitted).

Georgia, a disabled state prison inmate who used a wheelchair 111

for mobility alleged that his treatment by the state of Georgia

and the conditions of his confinement violated, among other

things, Title II of the ADA and the Eighth Amendment (as

incorporated by the Fourteenth Amendment). A unanimous

Court found that, to the extent that the prisoner’s claims under

Title II for money damages were based on conduct that independently violated the provisions of the Fourteenth Amendment, they

could be applied against the state. In doing so, the Court declined to apply the congruent and proportional response test,

distinguishing the cases applying that standard (discussed

above) as not generally involving allegations of direct constitutional violations.112
199

ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE

OR IN PART BY THE SUPREME COURT OF THE UNITED

STATES

[This entry should follow # 121 in the main volume:]

Act of February 7, 1972, Federal Election Campaign Act, (Pub. L.

92-225, Title III, § 316, as added Pub.L. 94-283, Title I, § 112(2),

90 Stat. 490, 2 U.S.C. § 441b).

Federal law prohibiting corporations from using their

general treasury funds to make independent expenditures for an

“electioneering communication” or for speech expressly advocating the election or defeat of a candidate is invalidated. Disclaimers indicating who is responsible for political advertising and

requiring the disclosure of campaign information to the FEC are

upheld. 

Citizens United v. FEC, 558 U.S. __, No. 08–205, slip op. (2010)

Justices concurring: Kennedy, Roberts, C.J., Scalia, Alito, Thomas.

Justices dissenting: Stevens, Ginsburg, Breyer, Sotomayor.

[These entries should follow # 158 in the main volume:]

159. Act of December 9, 1999 (Pub. L. 106-152, § 1(a), 113 Stat.

1732, 18 U.S.C. § 48).

Federal law which criminalized the commercial creation, sale, or

possession of depictions of animal cruelty struck down. Despite

an exemption for depictions with “serious religious, political,

scientific, educational, journalistic, historical, or artistic value,”

the law was found to reach protected First Amendment speech. 

United States v. Stevens, 559 U.S. __, No. 08–769, slip op (2010)

Justices concurring: Roberts, C.J., Stevens, Scalia, Kennedy, Thomas,

Ginsburg, Breyer, Sotomayor.

Justices dissenting: Alito.

160. Act of March 27, 2002, the Bipartisan Campaign Reform Act

of 2002, Pub. L. 107-155, §§ 213, 318; 2 U.S.C. §§ 315(d)(4),441k.

Section 213 of the Bipartisan Campaign Reform Act of

2002 (BCRA), which amended the Federal Election Campaign

Act of 1971 (FECA) to require political parties to choose between

coordinated and independent expenditures during the

post-nomination, pre-election period, is unconstitutional because

it burdens parties’ right to make unlimited independent expenditures. Section 318 of BCRA, which amended FECA to prohibit

persons “17 years old or younger” from contributing to candidates

or political parties, is invalid as violating the First Amendment

rights of minors.
200 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

McConnell v. FEC, 540 U.S. 93 (2003).

Justices concurring on § 213: Stevens, O’Connor, Souter, Ginsburg,

Breyer.

Justices dissenting on § 213: Kennedy, Rehnquist, C.J., Scalia,

Thomas.

Justices unanimous in concurring on § 318.

161. Act of March 27, 2002, the Bipartisan Campaign Reform Act

of 2002, Pub. L. 107-155, § 203; 2 U.S.C. § 441b(b)(2).

In McConnell v. FEC, 540 U.S. 93 (2003), the Court held

that § 203 was not facially overbroad, but in Wisconsin Right to

Life, Inc. v. Federal Election Comm’n, 546 U.S. 410 (2006), the

Court holds that § 203 is unconstitutional as applied to issue ads

that mention a candidate for federal office, when such ads are

not the “functional equivalent” of express advocacy for or against

the candidate.

Federal Election Commission v. Wisconsin Right to Life, Inc., 127 S.

Ct. 2652 (2007).

Justices concurring: Roberts, C.J., Alito, Scalia, Kennedy, and Thomas.

Justices dissenting: Souter, Stevens, Ginsburg, and Breyer.

162. Act of March 27, 2002, the Bipartisan Campaign Reform Act

2002, Pub. L. 107-155, § 319(a) and (b); 2 U.S.C. § 441a-1(a) and

(b).

A subsection of BCRA providing that, if a “self-financing”

candidate for the House of Representatives spends more than a

specified amount, then his opponent may accept more contributions than otherwise permitted, violates the First Amendment.

A subsection with disclosure requirements designed to implement the asymmetrical contribution limits also violates the First

Amendment.

Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008).

Justices concurring: Alito, Roberts, C.J., Scalia, Kennedy, and Thomas.

Justices dissenting (except as to standing and mootness): Stevens,

Souter, Ginsburg, and Breyer.

163. Act of July 30, 2002 (Pub. L. 107-204, Title I, §§ 101(e)(6),

107(d)(3), 116 Stat. 750; 15 U.S.C.S. §§ 7211(e)(6) and

7217(d)(3)).

 Two provisions of the Sarbanes-Oxley Act, providing that

members of the Public Company Accounting Oversight Board

could only be removed by the Commissioners of the Securities

and Exchange Commission "for good cause shown" and "in

accordance with" specified procedures, violated the Constitution's
ACTS OF CONGRESS HELD UNCONSTITUTIONAL 201

separation of powers. Because the removal decision was vested in

Commissioners who themselves were protected from removal by

the President absent a showing of "inefficiency, neglect of duty,

or malfeasance in office," the Court held that the dual for-cause

limitations on the removal of Board members withdrew from the

President any decision on whether that good cause existed.

Free Enterprise Fund v. Public Company Accounting Oversight Board,

561 U.S. __, No. 08-861, slip op. (June 28, 2010).

Justices concurring: Roberts, C.J., Scalia, Thomas, Kennedy, Alito.

Justices dissenting: Stevens, Breyer, Ginsburg, Sotomayor.

164. Act of April 30, 2003 (Pub. L. 108-21, § 401(a)(1), 401(d)(2),

117 Stat. 667, 670; 18 U.S.C. §§ 3553(b)(1), 3742(e)).

Two provisions of the Sentencing Reform Act, one that

makes the Guidelines mandatory and one that sets forth standards governing appeals of departures from the mandatory

Guidelines, are invalidated. The Sixth Amendment right to a

jury trial limits sentence enhancements that courts may impose

pursuant to the Guidelines.

United States v. Booker, 543 U.S. 220 (2005).

Justices concurring: Breyer, O'Connor, Kennedy, Ginsburg, Rehnquist,

C.J..

Justices dissenting: Stevens, Souter, Scalia, Thomas.

165. Act of December 30, 2005 (Pub. L. 109-148, § 1005(e)(1), 119

Stat. 2742; 28 U.S.C. § 2241(e)(1)).

A provision of the Detainee Treatment Act eliminating

federal habeas jurisdiction over alien detainees held at

Guantanamo Bay, Cuba is invalidated as a violation of the

Suspension Clause [Article I, § 9, clause 2]. As the detainees

disputed their enemy status, their ability to dispute their status

had been limited, and they were held in a location under the de

facto jurisdiction of the United States, the Suspension Clause

was in full effect regarding their detention.

Boumediene v. Bush, 553 U.S. 723 (2008).

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer.

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito.

203

STATE CONSTITUTIONAL OR STATUTORY PROVISIONS AND

MUNICIPAL ORDINANCES HELD UNCONSTITUTIONAL OR

HELD TO BE PREEMPTED BY FEDERAL LAW

I. STATE LAWS HELD UNCONSTITUTIONAL

936. Stogner v. California, 539 U.S. 607 (2003).

A California statute that permits resurrection of an

otherwise time-barred criminal prosecution for sexual abuse of a

child, and that was itself enacted after the pre-existing limitations period had expired for the crimes at issue, violates the Ex

Post Facto Clause of Art. I, § 10, cl. 1.

Justices concurring: Breyer, Stevens, O’Connor, Souter, Ginsburg.

Justices dissenting: Kennedy, Scalia, Thomas, Rehnquist, C.J.

937. Virginia v. Black, 538 U.S. 343 (2003).

The provision of Virginia’s cross-burning statute stating

that a cross burning “shall be prima facie evidence of an intent to

intimidate” is unconstitutional. 

Justices concurring: O’Connor, Stevens, Breyer, Rehnquist, C.J.

Justices concurring specially: Souter, Kennedy, Ginsburg.

Justices dissenting: Scalia, Thomas.

938. Lawrence v. Texas, 539 U.S. 558 (2003).

A Texas statute making it a crime for two people of the

same sex to engage in sodomy violates the Due Process Clause of

the Fourteenth Amendment. The right to liberty protected by the

Due Process Clause includes the right of two adults, “with full

and mutual consent from each other, [to] engag[e] in sexual

practices common to a homosexual lifestyle.”

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer.

Justice concurring specially: O’Connor.

Justices dissenting: Scalia, Thomas, Rehnquist, C.J.

939. Blakely v. Washington, 542 U.S. 296 (2004).

Washington State’s sentencing law, which allows a judge

to impose a sentence above the standard range if he finds “substantial and compelling reasons justifying an exceptional sentence,” is inconsistent with the Sixth Amendment right to trial

by jury. 

Justices concurring: Scalia, Stevens, Souter, Thomas, and Ginsburg.

Justices dissenting: O’Connor, Breyer, Kennedy, Rehnquist, C.J.
204 STATE ACTS HELD UNCONSTITUTIONAL

940. Granholm v. Heald, 544 U.S. 460 (2005).

Michigan and New York laws that allow in-state wineries

to sell wine directly to consumers but prohibit or discourage

out-of-state wineries from doing so discriminate against interstate commerce in violation of the Commerce Clause, and are not

authorized by the Twenty-first Amendment.

Justices concurring: Kennedy, Scalia, Souter, Ginsburg, and Breyer.

Justices dissenting: Stevens, O’Connor, Thomas, Rehnquist, C.J.

941. Halbert v. Michigan, 545 U.S. 605 (2005).

A Michigan statute making appointment of appellate

counsel discretionary with the court for indigent criminal defendants who plead nolo contendere or guilty is unconstitutional to

the extent that it deprives indigents of the right to the appointment of counsel to seek “first-tier review” in the Michigan Court

of Appeals. 

Justices concurring: Ginsburg, Stevens, O’Connor, Kennedy, Souter,

and Breyer.

Justices dissenting: Thomas, Scalia, and Rehnquist, C.J.

942. Roper v. Simmons, 543 U.S. 551 (2005).

Missouri’s law setting the minimum age at 16 for persons

eligible for the death penalty violates the Eighth Amendment’s

ban on cruel and unusual punishment as applied to persons who

were under 18 at the time they committed their offense.

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, and Breyer.

Justices dissenting: O’Connor, Scalia, Thomas, and Rehnquist.

943. Jones v. Flowers, 547 U.S. 220 (2006).

Arkansas statute violated due process when interpreted

not to require the Arkansas Commissioner of State Lands to take

additional reasonable steps to notify a property owner of intent

to sell the property to satisfy a tax delinquency, after the initial

notice was returned by the Post Office unclaimed.

Justices concurring: Roberts, C.J., Stevens, Souter, Ginsburg, and

Breyer.

Justices dissenting: Thomas, Scalia, Kennedy.

944. Randall v. Sorrell, 548 U.S. 230 (2006).

Vermont campaign finance statute’s limitations on both

expenditures and contributions violated freedom of speech.

Justices concurring: Breyer, Roberts, C.J., Alito, Kennedy, Thomas,

Scalia.
STATE ACTS HELD UNCONSTITUTIONAL 205

Justices dissenting: Stevens, Souter, Ginsburg.

945. Abdul-Kabir v. Quarterman, 550 U.S. 233, 237 (2007).

Texas capital sentencing statute impermissibly prevented

sentencing “jurors from giving meaningful consideration to

constitutionally relevant mitigating evidence.”

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito.

946. Brewer v. Quarterman, 550 U.S. 286, 288 (2007).

“Texas capital sentencing statute impermissibly prevented

sentencing jury from giving meaningful consideration to constitutionally relevant mitigating evidence.”

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito.

947. Kennedy v. Louisiana, 128 S. Ct. 2641, 2641 (2008)

Louisiana’s statute that permits the death penalty for

rape of a child under 12 is unconstitutional because the Eighth

Amendment bars “the death penalty for the rape of a child where

the crime did not result, and was not intended to result, in the

death of the victim.”

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer.

Justices dissenting: Alito, Roberts, C.J., Scalia, Thomas.

948. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

A District of Columbia statute that banned virtually all

handguns, and required that any other type of firearm in the

home be dissembled or bound by a trigger lock at all times

violates the Second Amendment, which the Court held to protect

individuals’ right to bear arms.

Justices concurring: Scalia, Roberts, C.J., Kennedy, Thomas, Alito.

Justices dissenting: Stevens, Souter, Ginsburg, Breyer.

II. ORDINANCES

123. Polar Tankers, Inc. v. City of Valdez, Alaska, 129 S. Ct. 2277 

(2009). Alaska city’s “ordinance imposing a personal property tax

upon ‘[b]oats and vessels of at least 95 feet in length’ that regularly travel to the City, are kept or used within the City, or which

annually take on at least $1 million worth of cargo or engage in

other business transactions of comparable value in the City,”

violates the Tonnage Clause (Art. I, § 10, cl. 3).
206 STATE ACTS HELD UNCONSTITUTIONAL

Justices concurring: Breyer, Scalia, Kennedy, Ginsburg, Alito

Justices concurring specially: Roberts, C.J., Thomas 

Justices dissenting: Stevens, Souter

124. McDonald v. City of Chicago, 561 U.S.__, No. 08-1521 (2010)

A Chicago ordinance effectively banning handgun possession by

almost all private citizens who reside in the city, and an Oak

Park, Illinois ordinance that makes it “unlawful for any person to

possess ... any firearm” including handguns, violate the Second

Amendment. A plurality of the Court found that the Second

Amendment is fully applicable to the states through the Fourteenth Amendment, as self-defense through use of firearms is

"fundamental to the Nation's scheme of ordered liberty," and

handguns are the preferred firearm for protection of one's home

and family. Justice Thomas found that the Second Amemdnent

was applicable to the states under the Privileges or Immunities

Clause.

Justices concurring: Alito, Roberts, C.J., Scalia, Kennedy.

Justices concurring specially: Thomas.

Justices dissenting: Stevens, Breyer, Ginsburg, Sotomayor.

III. STATE AND LOCAL LAWS HELD PREEMPTED BY FEDERAL LAW

225. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003).

Alabama’s usury statute is preempted by sections 85 and

86 of the National Bank Act as applied to interest rates charged

by national banks.

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg,

Breyer, and Rehnquist, C.J.

Justices dissenting: Scalia and Thomas.

226. American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003).

California’s Holocaust Victim Insurance Relief Act, which

requires any insurance company doing business in the state to

disclose information about policies it or “related” companies sold

in Europe between 1920 and 1945, is preempted as interfering

with the Federal Government’s conduct of foreign relations.

Justices concurring: Souter, O’Connor, Kennedy, Breyer, and

Rehnquist, C.J. 

Justices dissenting: Ginsburg, Stevens, Scalia, and Thomas.

227. Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).

Suits brought in state court alleging that HMOs violated

their duty under the Texas Health Care Liability Act “to exercise
STATE ACTS HELD UNCONSTITUTIONAL 207

ordinary care when making health care treatment decisions” are

preempted by ERISA § 502(a), which authorizes suit “to recover

benefits due [a participant] under the terms of his plan.”

228. Gonzales v. Raich, 545 U.S. 1 (2005).

California law allowing use of marijuana for medical

purposes is preempted by the Controlled Substances Act’s categorical prohibition of the manufacture and possession of marijuana.

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: O’Connor, Thomas, Rehnquist, C.J.

229. Arkansas Department of Health and Human Services v. Ahlborn,

547 U.S. 268 (2006).

Arkansas statute that imposes lien on tort settlements in

an amount equal to Medicaid costs, even when Medicaid costs

exceed the portion of the settlement that represents medical

costs, is preempted by the Federal Medicaid law insofar as the

Arkansas statute applies to amounts other than medical costs.

230. League of United Latin American Citizens v. Perry, 548 U.S. 399

(2006).

Part III of the opinion found a Texas redistricting statute

to violate the federal Voting Rights Act because it diluted the

voting power of Latinos.

Justices concurring in Part III: Kennedy, Stevens, Souter, Ginsburg,

Breyer.

Justice dissenting from Part III: Roberts, C.J., Alito, Scalia, Thomas.

231. Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007).

A national bank’s state-chartered subsidiary real estate

lending business is subject to federal, not state, law.

Justices concurring: Ginsburg, Alito, Breyer, Kennedy, Souter.

Justices dissenting: Stevens, Roberts, C.J., Scalia.

232. Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).

The Federal Food, Drug, and Cosmetic Act bars common-law claims challenging the safety and effectiveness of medical devices that have been given premarket approval by the FDA.

Justices concurring: Scalia, Roberts, C.J., Kennedy, Souter, Thomas,

Breyer, Alito, Stevens.

Justice dissenting: Ginsburg.

233. Rowe v. New Hampshire Motor Transportation Association, 128 S.

Ct. 989 (2008).

The federal Motor Carrier Act of 1980, which prohibits

states from enacting any law related to a motor carrier price,
208 STATE ACTS HELD UNCONSTITUTIONAL

route, or service, preempts two provisions of a Maine statute that

regulate the delivery of tobacco to customers within the state.

234. Haywood v. Drown, 129 S. Ct. 2108 (2009).

New York statute that gave the state’s supreme courts –

its trial courts of general jurisdiction – jurisdiction over suits

brought under 42 U.S.C. § 1983, except in the case of suits seeking money damages from corrections officers, was preempted

because it was “contrary to Congress’ judgment that all persons

who violate federal rights while acting under color of state law

shall be held liable for damages.”

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: Thomas, Roberts, C.J., Scalia, Alito.
209

SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT

DECISION

Overruling Case

221. Lapides v. Board of Regents, 535 U.S. 613 (2002).

Overruled Case(s)

Ford Motor Co. v. Department

of Treasury of Indiana, 323 U.S.

459 (1945).

222. Atkins v. Virginia, 536 U.S.

304 (2002).

Penry v. Lynaugh, 492 U.S. 302

(1989).

223. Ring v. Arizona, 536 U.S.

584 (2002).

Walton v. Arizona, 497 U.S. 639

(1990).

224. Lawrence v. Texas, 539

U.S. 558 (2003).

Bowers v. Hardwick, 478 U.S.

186 (1986).

225. Crawford v. Washington,

541 U.S. 36 (2004).

Ohio v. Roberts, 448 U.S. 56

(1980).

226. Roper v. Simmons, 543 U.S.

551 (2005).

Stanford v. Kentucky, 492 U.S.

361 (1989).

227. Central Virginia Community College v. Katz, 546 U.S.

356 (2006).

Hoffman v. Connecticut Dep’t of

Income Maintenance, 492 U.S.

96 (1989).

228. Parents Involved in Community Schools v. Seattle School

District No. 1, 127 S. Ct. 2738

(2007).

School Comm. of Boston v. Bd.

of Education, 389 U.S. 572

(1968).

229. Gonzales v. Carhart, 550

U.S. 124 (2007).

Stenberg v. Carhart, 530 U.S.

914 (2000).

230. Pearson v. Callahan, 129

S.Ct. 808 (2009).

231. Montejo v. Louisiana, 129

S. Ct. 2079 (2009).

Saucier v. Katz, 533 U.S. 194

(2001).

Michigan v. Jackson, 475 U.S.

625 (1986).
210 SUPREME COURT DECISIONS OVERRULED

232. Citizens United v. Federal

Election Campaign, 558 U.S. __,

No. 08-205, slip op.(2010).

233. McDonald v. Chicago, 561

U.S. __, No. 08-1521, slip op.

(2010).

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652

(1990); McConnell v. Federal

Election Comm’n, 540 U. S. 93,

203–209 (2003).

United States v. Cruikshank, 92

U.S. 542 (1876); Presser v.

Illinois,116 U.S. 252 (1886);

Miller v. Texas, 153 U. S. 535

(1894).
211

TABLE OF CASES

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153, 205

Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995). . . . . . . . . . . . . . . . . . . . . . 69

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 206

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935). . . . . . . . . . . . . . . . . . 52

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).. . . . . . . . . . . . . . . . . . . . . . 61

Allen v. Alleghany Co., 196 U.S. 458 (1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Almendarez-Torres v. United States, 523 U.S. 224 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Alvarez v. Smith, 130 S. Ct. 576 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007).. . . . . . . . . . . . 78

American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . 95

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). . . . . . . . . . . . . . . . . . . . . . . . 29, 31-32, 206

American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545 U.S. 429 (2005). . . . . . . . . . . . . 10

Apprendi v. New Jersey, 530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129-135

Arizona v. Evans, 514 U.S. (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Arizona v. Fulminante, 499 U.S. 279 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Arizona v. Gant, 129 S. Ct. 1710 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 107-108, 115

Arizona v. Johnson, 129 S. Ct. 781 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 108

Arkansas Dep’t of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006). . . . . . . . . . . . . 207

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998). . . . . . . . . . . . 97, 98

Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006). ................. 5

Arnett v. Kennedy, 416 U.S. 134 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Ashcroft v. ACLU, 542 U.S. 656 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94

Ashe v. Swenson, 397 U.S. 436 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Atkins v. Virginia, 536 U.S. 304 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 156-159, 183, 209

Ayers v. Belmontes, 549 U.S. 7 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006). . . . . . . . . . . . . . 169

Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984). ..................................... 9

Baker v. General Motors Corp., 522 U.S. 222 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Banks v. Dretke, 540 U.S. 668 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180, 181

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bates v. State Bar of Arizona, 433 U.S. 350 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 187
212 TABLE OF CASES

Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Baze v. Rees, 128 S. Ct. 1520 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 152, 163

Beard v. Banks, 548 U.S. 521 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Bell v. Cone, 543 U.S. 447 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 153

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Berghuis v. Smith,, 130 S. Ct. 1382 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Berman v. Parker, 348 U.S. 26 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 125

Bigelow v. Virginia, 421 U.S. 809 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). . . . . . . . . . . . . . . . . . . . . . . 47

Blackledge v. Allison, 431 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Blakely v. Washington, 542 U.S. 296 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132-133, 136, 203

Bloomer v. McQuewan, 55 U.S. (14 How.) 539 (1852). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

BMW v. Gore, 517 U.S. 599 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . 67

Board of Education v. Earls, 536 U.S. 822 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Board of Trustees v. Fox, 492 U.S. 469 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Board of Trustees v. Garrett, 531 U.S. 356 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

Bobby v. Bies, 129 S. Ct. 2145 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Bobby v. Van Hook, 130 S. Ct. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Bonaparte v. Tax Court, 104 U.S. 592 (1882). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Bond v. Hume, 243 U.S. 15 (1917). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Books v. Elkhart County, 410 F.3d 857 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Boumediene v. Bush, 128 S. Ct. 2229 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986). . . . . . . . . . . . . . . . . . . . 48

Bowers v. Hardwick, 478 U.S. 186 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 171,174,209

Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. 465 (1888).......................... 8

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 91

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). . . . . . . . . . . . . . . . . . . . . . 24, 42

Bradshaw v. Stumpf, 545 U.S. 175 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180, 184

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Bradley v. Fisher, 80 U.S. 335 (1872). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Brady v. Maryland, 373 U.S. 83 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Branzburg v. Hayes, 408 U.S. 665 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Breard v. Greene, 523 U.S. 371 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Brecht v. Abrahamson, 507 U.S. 619 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Brendlin v. California, 551 U.S. 249 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Brewer v. Quarterman, 550 U.S. 286 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153, 205

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Broadrick v. Oklahoma, 413 U.S. 601 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 66

Brosseau v. Haugen, 543 U.S. 194 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Brown v. Illinois, 422 U.S. 590 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Brown v. Legal Found. of Washington, 538 U.S. 216 (2003). . . . . . . . . . . . . . . . . . . . . . . . . 124, 125

Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827). .................................... 8

Brown v. Sanders, 546 U.S. 212 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152,154

Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986). ......... 9

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68,79, 80, 84, 85, 86

Bunkley v. Florida, 538 U.S. 835 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Bush v. Lucas, 462 U.S. 367 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 127

C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . 10

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Caldwell v. Mississippi, 472 U.S. 320 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

California v. Deep Sea Research, Inc., 523 U.S. 491 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

California Democratic Party v. Jones, 530 U.S. 567 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Caperton v. A. T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009). . . . . . . . . . . . . . . . . . . . . . . 175-176

Caplin & Drysdale v. United States, 491 U.S. 617 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Carey v. Musladin, 549 U.S. 70 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 160, 161, 179
TABLE OF CASES 213

Carey v. Population Services International, 431 U.S. 678 (1977). . . . . . . . . . . . . . . . . 172, 174, 175

Carroll v. Lanza, 349 U.S. 408 (1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Central Virginia Community College v. Katz, 546 U.S. 356 (2006).. . . . . . . . . . . . . . . . . . . 167, 209

Chapman v. California, 386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 160

Chappell v. Wallace, 462 U.S. 296 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Chavez v. Martinez, 538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 169

Cheney v. United States District Court, 542 U.S. 367 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887). . . . . . . . . . . . . . . . . . . . . . . . . . 51

Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Chinese Exclusion Case, 130 U.S. 581 (1889).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . 65

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003). ..................................... 7

Citizens United v. FEC, 130 S. Ct. 876 (2010)... . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 84-85, 199, 210

City of Boerne v. Flores, 521 U.S. 507 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65, 197

City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 (2003). . . . . . . . . . . 185

City of Houston v. Hill, 482 U.S. 451 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

City of Indianapolis v. Edmond, 531 U.S. 32 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 70

City of Los Angeles v. David, 538 U.S. 715 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). . . . . . . . . . . . . . . 127

City of Ontario v. Quon, 130 S. Ct. 2619 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 104, 110

City of San Diego v. Roe, 543 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Civil Serv. Corp. v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973). . . . . . . . . . . . . . . . . . 32

Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917). . ............................ 9

Clark v. Allen, 331 U.S. 503 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Clark v. Arizona, 548 U.S. 735 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 182

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).. . . . . . . . . . . . . . . . . . . . . . 68

Clemons v. Mississippi, 494 U.S. 738 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Clingman v. Beaver, 544 U.S. 581 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Clinton v. Jones, 520 U.S. 681 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Coker v. Georgia, 433 U.S. 584 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 155

Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cone v. Bell, 129 S. Ct. 1769 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 180

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). . . . . . . . . . . . . . . . . . . . . . . 177

Connick v. Myers, 461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Corley v. United States, 129 S. Ct. 1558 (2009)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 64

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 

Craig v. Boren, 429 U.S. 190 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008). . . . . . . . . . . . . . . . . . . 191, 194

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 140, 141, 209

Crosby v. National Foreign Trade Council, 530 U.S. 363 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Cunningham v. California, 549 U.S. 270 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 135

Cutter v. Wilkinson, 544 U.S. 709 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 65

Cuyler v. Sullivan, 446 U.S. 335 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44

Dames & Moore v. Regan, 453 U.S. 654 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Danforth v. Minnesota,128 S. Ct. 1029 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 126

Davenport v. Washington Education Ass’n, 551 U. S.177 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . 74

Davis v. Bandemer, 478 U.S. 109 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008). . . . . . . . . . . . . . . 45, 79, 84, 86, 201

Davis v. Washington, 547 U.S. 813 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Davis v. United States, 512 U.S. 452 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Deck v. Missouri, 544 U.S. 622 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Demore v. Kim, 538 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
214 TABLE OF CASES

Department of Revenue v. Beam Distillers, 377 U.S. 341 (1964). .......................... 9

Department of Revenue of Kentucky v. Davis, 128 S. Ct. 1801 (2008). . . . . . . . . . . . . . . . . . . . . . 11

Devenpeck v. Alford, 543 U.S. 146 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Dillon v. United States, 130 S. Ct. 2683 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

District Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009).. . . 185

District of Columbia v. Heller, 128 S. Ct. 2759 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 101, 205

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).. . . . . . . . . . . . . . . . . . . . 49

Dixon v. United States, 548 U.S. 1 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Dobbert v. Florida, 432 U.S. 282 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Dolan v. City of Tigard, 512 U.S. 374 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126-127

Doran v. Salem Inn, 422 U.S. 922 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Doremus v. Board of Education, 342 U.S. 429 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 

Dunaway v. New York, 442 U.S. 200 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Dunn v. United States, 284 U.S. 390 (1932).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Duro v. Reina, 495 U.S. 676 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Dusky v. United States, 362 U.S. 402 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Edenfield v. Fane, 507 U.S. 761 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 92

Edwards v. California, 314 U.S. 160 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Eisenstadt v. Baird, 405 U.S. 438 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Eldred v. Ashcroft, 537 U.S. 186 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 64

Employment Division v. Smith, 494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). . . . . . . . . . . . . . . . . . . . . 128

Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146 (2008). . . . . . . . . . . . . . . . . . . . 186

Enmund v. Florida, 458 U.S. 782 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Erickson v. Pardus, 551 U.S. 89 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Erie v. Pap’s A.M., 529 U.S. 277 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Estelle v. Williams, 425 U.S. 501 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Eunson v. Dodge, 85 U.S. (18 Wall.) 414 (1873). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Ewing v. California, 538 U.S. 11 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Ex parte Quirin, 317 U.S. 1 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). . . . . . . . . . . . . . . . . . . . 49

Faretta v. California, 422 U.S. 806 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 196

Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

FDIC v. Meyer, 510 U.S. 471 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 81

Federal Election Commission v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986). . . . . . . . . . . . 81

Federal Election Commission v. National Right to Work, 459 U.S. 197 (1982). . . . . . . . . . . . 81, 85

Federal Election Commission v. Wisc. Right to Life, 127 S. Ct. 2652 (2007) . . . . . . . . . . . . 83, 200

Fellers v. United States, 540 U.S. 519 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315 (1902). . . . . . . . . . . . . . . . . . . . . . 149

Finch v. United States, 433 U.S. 676 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Fiore v. White, 528 U.S. 23 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . 186

Flast v. Cohen, 392 U.S. 83 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44

Florida v. Bostick, 501 U.S. 429 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Florida v. Nixon, 543 U.S. 175 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Florida v. Powell, 130 S. Ct. 1195 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Fong Foo v. United States, 369 U.S. 141 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945). . . . . . . . . . . . . . . . 209

Ford v. Wainwright, 477 U.S. 399 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 156, 183, 148

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52

Free Enterprise Fund v. Public Company Accounting Oversight Bd.,

130 S. Ct. 3138 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 201, 202
TABLE OF CASES 215

Freedman v. Maryland, 380 U.S. 51 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Frew v. Hawkins, 540 U.S. 431 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Frisby v. Schultz, 487 U.S. 474 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Fry v. Pliler, 551 U.S. 112 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 160

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Garcetti v. Ceballos, 547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-77

Georgia v. Randolph, 547 U.S. 103 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Giles v. California, 128 S. Ct. 2678 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Ginsberg v. New York, 390 U.S. 629 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 69

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . 77

Glenn v. Garth, 147 U.S. 360 (1893). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Godinez v. Moran, 509 U.S. 389 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Gonzales v. Carhart, 550 U.S. 124 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170-171, 209

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).. . . . . . . . . . . 66

Gonzales v. Raich, 545 U.S. 1 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 207

Graham v. John Deere Co., 383 U.S. 1 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Graham v. Florida, 130 S. Ct. 2011 (2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Granholm v. Heald, 544 U.S. 460 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 204

Gratz v. Bollinger, 539 U.S. 244 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188-190

Gregg v. Georgia, 428 U.S. 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Griswold v. Connecticut, 381 U.S. 479 (1965).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

Groh v. Ramirez, 540 U.S. 551 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Grutter v. Bollinger, 539 U.S. 306 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188-190

Halbert v. Michigan, 545 U.S. 605 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21, 24, 35, 40

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 123

Harlow v. Fitzgerald, 457 U.S. 800 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Harmelin v. Michigan, 501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 161-162

Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985). . . . . . . . . . . . . . . . . . . . . 15

Harris v. United States, 536 U.S. 545 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Harrison v. United States, 392 U.S. 219 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124-125

Hawke v. Smith, 253 U.S. 221 (1920). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 55

Haywood v. Drown, 129 S. Ct. 2108 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 57, 208

Healy v. The Beer Institute, 491 U.S. 324 (1989)........................................ 9

Hedgpeth v. Pulido, 129 S. Ct. 530 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587 (2007). . . . . . . . . . . . . . . . . . . 43, 44

Herrera v. Collins, 506 U.S. 390 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 159

Herring v. United States, 129 S. Ct. 695 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113-114

Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Hildwin v. Florida, 490 U.S. 638 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 53

Hines v. Davidowitz, 312 U.S. 52 (1941).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96 (1989). . . . . . . . . . . . . . . . . 209

Holden v. Minnesota, 137 U.S. 483 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Holder v. Humanitarian Law Project, 543 U.S. 77 (2010)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 55

Holmes v. Hurst, 174 U.S. 82 (1899).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Holmes v. South Carolina, 547 U.S. 319 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

House v. Bell, 547 U.S. 518 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 159

Hudson v. Michigan, 547 U.S. 586 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). . . . . . . . . . . . . . . . . . . . . . . 71

Hutto v. Finney, 437 U.S. 678 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Idaho v. Wright, 497 U.S. 805 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003). . . . . . . . . . . . . . 70, 98

Illinois v. Allen, 397 U.S. 337 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Illinois v. Caballes, 543 U.S. 405 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
216 TABLE OF CASES

Illinois v. Fisher, 540 U.S. 544 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Illinois v. Gates, 462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Illinois v. Lidster, 540 U.S. 419 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Illinois v. Rodriguez, 497 U.S. 177 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Indiana v. Edwards, 128 S. Ct. 2379 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 182

Ingartua-De La Rosa v. United States, 417 F.3d 145 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 28

In re Rahrer, 140 U.S. 545 (1891). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re R.M.J., 455 U.S. 191 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

In re Troy Anthony Davis, 130 S. Ct. 1 (2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 152, 159

In re Young, 141 F.3d 854 (8th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006). . . . . . . . . . . . . . . 86, 87

INS v. Chadha, 462 U.S. 919 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 55

INS v. St. Cyr, 533 U.S. 289 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Iowa v. Tovar, 541 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

James v. United States, 550 U.S. 192 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Jinks v. Richland County, 538 U.S. 456 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Johnson v. California, 543 U.S. 499 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 186

Johnson v. Eisentrager, 339 U.S. 763 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Johnson v. New York Life Ins. Co., 187 U.S. 491 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Johnson v. Robison, 415 U.S. 361 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Johnson v. Zerbst 304 U.S. 458 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Jones v. Barnes, 463 U.S. 745 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Jones v. Flowers, 547 U.S. 220 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 178, 204

Kane v. Garcia Espitia, 546 U.S. 9 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Kansas v. Marsh, 548 U.S. 163 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Kansas v. Ventris, 129 S. Ct. 1841 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146, 148

Kaupp v. Texas, 538 U.S. 626 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 104

Keller v. State Bar of Cal., 496 U.S. 1 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Kelo v. City of New London, 545 U.S. 469 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 155, 205

Kidd v. Pearson, 128 U.S. 1 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Kimbrough v. United States, 128 S. Ct. 558 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

Kirk v. Louisiana, 536 U.S. 635 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Kolovrat v. Oregon, 366 U.S. 187 (1961).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Kowalski v. Tesmer, 543 U.S. 123 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Kryger v. Wilson, 242 U.S. 171 (1916). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Kyles v. Whitley, 514 U.S. 419 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Lance v. Coffman, 549 U.S. 437 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Lapides v. Board of Regents, 535 U.S. 613 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

Lawrence v. Texas, 539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 169, 171, 174-175, 203, 209

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006). . . . . . . . . 3, 193-194, 207

Lee v. Illinois, 476 U.S. 530 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Leisy v. Hardin, 135 U.S. 100 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Lindsey v. Washington, 301 U.S. 397 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 126, 127

Lloyd v. Matthews, 155 U.S. 222 (1894). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Locke v. Davey, 540 U.S. 712 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Locke v. Karass, 129 S. Ct. 798 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Lockyer v. Andrade, 538 U.S. 63 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). . . . . . . . . . . . . . . . 125, 127

Los Angeles County v. Rettele, 550 U.S. 609 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 105

Lozada v. Deeds, 498 U.S. 430 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . 127

Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
TABLE OF CASES 217

Mallory v. United States, 354 U.S. 449 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 122

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

Maryland v. Pringle, 540 U.S. 366 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 108

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . 42

Massachusetts v. Mellon, 262 U.S. 447 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Massiah v. United States, 377 U.S. 201 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Matter of Farber, 394 A.2d 330 (N.J. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

McConnell v. Federal Election Commission, 540 U.S. 93 (2003). . . . . . . . . . . . . . 81, 83-85, 200, 210

McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McDaniel v. Paty, 435 U.S. 618 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

McDonald v. Chicago, 130 S. Ct. 3020 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 100-101, 206, 210

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

McMillan v. Pennsylvania, 477 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 134

McNabb v. United States, 318 U.S. 332 (1943).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 122

Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498 (2008).. . . . . . . . . . . . . . . . . . . 10

Medellin v. Texas, 128 S. Ct. 1346 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-28

Medellin v. Texas, 129 S. Ct. 360 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 46

Medley, Petitioner, 134 U.S. 160 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Meese v. Keene, 481 U.S. 465 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).. . . . . . . . . . . . . . . . . . 15

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Michigan v. Fisher, 130 S. Ct. 546 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Michigan v. Jackson, 475 U.S. 625 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146-147, 209

Michigan v. Summers, 452 U.S. 692 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Michigan v. Tucker, 417 U.S. 433 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Middleton v. McNeil, 541 U.S. 43 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Milavetz, Gallop & Milavetz v. United States, 130 S. Ct. 1324 (2010). . . . . . . . . . . . . . . . . . . . . . 71

Miller-El v. Dretke, 545 U.S. 231 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Miranda v. Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Missouri v. Seibert, 542 U.S. 600 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Mistretta v. United States, 488 U.S. 361 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

M’Naghten’s Case, 8 Eng. Rep. 718 (1843). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Montejo v. Louisiana, 129 S. Ct. 2079 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146-147, 209

Morse v. Frederick, 127 S. Ct. 2618 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Muehler v. Mena, 544 U.S. 93 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Mugler v. Kansas, 123 U.S. 623 (1887). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Munaf v. Geren, 128 S. Ct. 2207 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 46

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . 66

National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999). . . . . . . . . . . . . . . . . . . . . 31

National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Nelson v. United States, 129 S. Ct. 890 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003). . . . . . . . . . . . . . . . . . . . . . . . 195

Nevada v. Hall, 440 U.S. 410 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

New York v. Belton, 453 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107-108, 115

New York v. Ferber, 458 U.S. 747 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 93

New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791 (2008).. . . . . . . . . . . . . . . . . . . . 72

New York Times v. Jascalevich, 439 U.S. 1301 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . 69

Nollan v. California Coastal Commission, 483 U.S. 825 (1987). . . . . . . . . . . . . . . . . . . . . . . . 126-127

Northern Insurance Company of NY v. Chatham County, 547 U.S. 189 (2006). . . . . . . . . . . . . . 168

O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
218 TABLE OF CASES

Ohio v. Roberts, 448 U.S. 56 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138-139, 209

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Oregon v. Elstad, 470 U.S. 298 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Oregon v. Ice, 129 S. Ct. 711 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Oregon v. Guzek, 546 U.S. 517 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Overton v. Bazzetta, 539 U.S. 126 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 89, 163, 185

Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939). . . . . . . . . . . . . . 52

Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986). . . . . . . . . . . . . . . . . . . . 70

Padilla v. Kentucky, 130 S. Ct. 14731 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Palazzolo v. Rhode Island, 533 U.S. 606 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Panetti v. Quarterman, 127 S. Ct. 2842 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155-156

Parents Involved in Community Schools v. Seattle School District No. 1, 

127 S. Ct. 2738 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 209

Parke v. Raley, 506 U.S. 20 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Parker v. Levy, 417 U.S. 733 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Paul v. Davis, 424 U.S. 693 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 177

Pearson v. Callahan, 129 S. Ct. 808 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 209

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).. . . . . . . . . . . . . . . . . . . . 125, 127

Pennell v. City of San Jose, 485 U.S. 1 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). . . . . . . . . . . . . . . . . . . 168

Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).. . . . . . . . . . . . . . . . . . . 53

Penry v. Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 159, 209

Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003). . . . . . . . . . . . . . . 10

Philip Morris USA v. Williams, 549 U.S. 346 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Pickering v. Board of Education, 391 U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77

Pierce County v. Guillen, 537 U.S. 129 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pierson v. Ray, 386 U.S. 547 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992).. . . . . . . . . . . . . . . . . . 171

Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702 (D. Del. 1998). . . . . . . . . . . . . . . 70

Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125 (2009). . . . . . . . . . . . . . . . . . . . . . . . 63, 97

Polar Tankers, Inc. v. City of Valdez, Alaska, 129 S. Ct. 2277 (2009). . . . . . . . . . . . . . . . . 19-20, 205

Porter v. McCollum, 130 S. Ct. 447 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142-143

Presley v. Georgia, 130 S. Ct. 721 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Procunier v. Martinez, 416 U.S. 396 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Pulliam v. Allen, 466 U.S. 522 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Purcell v. Gonzalez, 549 U.S. 1 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . 98

Queen v. Oxford, 173 Eng. Rep. 941 (1840). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 93

Randall v. Brigham, 74 U.S. 523 (1869). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Randall v. Sorrell, 548 U.S. 230 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 204

Rasul v. Bush, 542 U.S. 466 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-25, 40-42

Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). . . . . . . . . . . . . . . . . . . . . . 188-190

Renico v. Lett, 130 S. Ct. 1855 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 117

Reno v. ACLU, 521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67, 97, 98

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Rhodes v. Iowa, 170 U.S. 412 (1898).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Rice v. Collins, 546 U.S. 333 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). . . . . . . . . . . . . . . . . 70

Ring v. Arizona, 536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 209

Rita v. United States, 551 U.S. 338 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 136

Rivera v. Illinois, 129 S. Ct. 1446 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Roe v. Flores-Ortega, 528 U.S. 470 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Robertson v. United States ex rel. Watson, 130 S. Ct. 2184 (2010). . . . . . . . . . . . . . . . . . . . . . . . . 39

Roe v. Wade, 410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 171, 175
TABLE OF CASES 219

Rompilla v. Beard, 545 U.S. 374 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Roper v. Simmons, 543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 162-163, 204, 209

Rosato v. Superior Court, 124 Cal. Rptr. 427 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Rowe v. New Hampshire Motor Transportation Association, 128 S. Ct. 989 (2008). . . . . . . . . . . 207

Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). . . . . . . . . . . . 72, 90

Rumsfeld v. Padilla, 542 U.S. 426 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 42

Rust v. Sullivan, 500 U.S. 173 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Sable Communications of California v. FCC, 492 U.S. 115 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . 67

Sabri v. United States, 541 U.S. 600 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

Saffle v. Parks, 494 U.S. 484 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Safford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009). . . . . . . . . . . . . 109, 112, 185

Salazar v. Buono, 130 S. Ct. 1803 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 62

Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005).. . . . . . . . . . . . 128

Sanabria v. United States, 437 U.S. 54 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Saucier v. Katz, 533 U.S. 194 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 113, 209

Sawyer v. Smith, 497 U.S. 227 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Schlup v. Delo, 513 U.S. 298 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

School Comm. of Boston v. Bd. of Education, 389 U.S. 572 (1968). . . . . . . . . . . . . . . . . . . . . . . . 209

Schriro v. Landrigan, 550 U.S. 465 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Schriro v. Summerlin, 542 U.S. 348 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Schriro v. Smith, 546 U.S. 6 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 156, 183

Schweiker v. Chilicki, 487 U.S. 412 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Scott v. Harris, 550 U.S. 372 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 112

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984). . . . . . . . . . . . . . . 67

Sears v. Upton, 130 S. Ct. 3259 (2010)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 143

Seese v. Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Sell v. United States, 539 U.S. 166 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Sherbert v. Verner, 374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Skilling v. U.S., 130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Smalis v. Pennsylvania, 476 U.S. 140 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Smith v. Doe, 538 U.S. 84 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Smith v. Massachusetts, 543 U.S. 462 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Smith v. Spisak, 130 S. Ct. 676 (2010)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 153

Smithsonian Institution v. St. John, 214 U.S. 19 (1909). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Snyder v. Louisiana, 128 S. Ct. 1203 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Snyder v. Massachusetts, 291 U.S. 97 (1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Solem v. Helm, 463 U.S. 277 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161-162

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984). . . . . . . . . . . . . . . . . . . . . . 13

South Carolina v. Katzenbach, 383 U.S. 301 (1966).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Spaziano v. Florida, 468 U.S. 447 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Spears v. United States, 129 S. Ct. 840 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sprint Communications Co. v. APCC Services, Inc., 128 S. Ct. 2531 (2008).. . . . . . . . . . . . . . . . . 45

Stanford v. Kentucky, 492 U.S. 361 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157-158, 209

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). . . . . . . . . . . . . . . . . . . . . . . . 179

State v. Jones, 50 N.H. 369 (1871). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Stenberg v. Carhart, 530 U.S. 914 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170-171, 209

Stogner v. California, 539 U.S. 607 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 203

Stone v. Graham, 449 U.S. 39 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 

130 S. Ct. 2592 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 143
220 TABLE OF CASES

Strickler v. Greene, 527 U.S. 263 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Stump v. Sparkman, 435 U.S. 349 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . 45, 105

Supreme Court of Virginia v. Consumers Union of the U.S., 446 U.S. 719 (1980) . . . . . . . . . . . . 39

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 

535 U.S. 302 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 72

Taylor v. Alabama, 457 U.S. 687 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 123

Taylor v. Sturgell, 128 S. Ct. 2161 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Teague v. Lane, 489 U.S. 288 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). . . . . . . . . . . . . . . . . . . . . . . . 149

Tenet v. Doe, 544 U.S. 1 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Tennard v. Dretke, 542 U.S. 274 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 

551 U.S. 291 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 71, 77, 91

Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004).. . . . . . . . . . . . . . . . . . . . . . . 167

Tennessee v. Lane, 541 U.S. 509 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

Territory of Guam v. Olsen, 431 U.S. 195 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Terry v. Ohio, 392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 106

Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Thaler v. Haynes, 130 S. Ct. 2141 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Thompson v. McNeil, 129 S. Ct. 1299 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

Thompson v. Oklahoma, 487 U.S. 815 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Thompson v. Western States Medical Center, 535 U.S. 357 (2002).. . . . . . . . . . . . . . . . . . . . . 67, 68

Thornburgh v. Abbott, 490 U.S. 401 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Thornton v. United States, 541 U.S. 615 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Totten v. United States, 92 U.S. 105 (1875). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Turner v. Safley, 482 U.S. 78 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87-89, 184

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 

550 U.S. 330 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United Public Workers v. Mitchell, 330 U.S. 75 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. American Library Assoc., Inc., 539 U.S. 194 (2003). . . . . . . . . . . . . . . . . 89, 95, 97

United States v. Arvizu, 534 U.S. 266 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 109

United States v. Bajakajian, 524 U.S. 321 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

United States v. Banks, 540 U.S. 31 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

United States v. Belmont, 301 U.S. 324 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

United States v. Booker, 543 U.S. 220 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . 132, 133, 134-137, 201

United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 144, 145, 161

United States v. Comstock, 130 S. Ct. 1949 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

United States v. Darby, 312 U.S. 100 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Di Re, 332 U.S. 581 (1948).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

United States v. Drayton, 536 U.S. 194 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 108

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

United States v. Flores-Montano, 541 U.S. 49 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

United States v. Gall, 128 S. Ct. 586 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

United States v. Georgia, 546 U.S. 151 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

United States v. Grubbs, 547 U.S. 90 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

United States v. Inadi, 475 U.S. 387 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

United States v. Knights, 534 U.S. 112 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

United States v. Lara, 541 U.S. 193 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 117

United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114

United States v. Lopez, 514 U.S. 549 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). . . . . . . . . . . . . . . . . . . . . . . . . 118

United States v. Matlock, 415 U.S. 164 (1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
TABLE OF CASES 221

United States v. Mendoza-Lopez, 481 U.S. 828 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

United States v. Morrison, 529 U.S. 598 (2000). ....................................... 7

United States v. National Treasury Employees Union, 513 U.S. 454 (1995). . . . . . . . . . . . . . . . 76

United States v. Nixon, 418 U.S. 683 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. One Bag of Paradise Feathers, 256 F. 301 (2d Cir. 1919).. . . . . . . . . . . . . . . . . 28

United States v. O’Brien, 391 U.S. 367 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

United States v. Patane, 542 U.S. 630 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

United States v. Pink, 315 U.S. 203 (1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

United States v. Reynolds, 345 U.S. 1 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Scott, 437 U.S. 82 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

United States v. Stevens, 130 S. Ct. 1577 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 199

United States v. Virginia, 518 U.S. 515 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

United States v. Williams, 128 S. Ct. 1830 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94

Uttecht v. Brown, 551 U.S. 1 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 138

Van Orden v. Perry, 545 U.S. 677 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 61, 62

Vermont v. Brillon, 129 S. Ct. 1283 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 111-112

Vieth v. Jubelirer, 541 U.S. 267 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 47, 192

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). . . . . . . . . . . 67

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Virginia v. Black, 538 U.S. 343 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 203

Virginia v. Hicks, 539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Virginia v. Moore, 128 S. Ct. 1598 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 107

Wainwright v. Witt, 469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Walton v. Arizona, 497 U.S. 639 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 153, 209

Walz v. Tax Comm’n, 397 U.S. 664 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Ward v. Rock Against Racism, 491 U.S. 781 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Washington v. Harper, 494 U.S. 210 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Washington v. Recuenco, 548 U.S. 212 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Washington State Grange v. Washington State Rep. Party, 128 S. Ct. 1184 (2008) . . . . . . . 66, 73

Waters v. Churchill, 511 U.S. 661 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 207

Webster v. Doe, 486 U.S. 592 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 47

Weinberger v. Salfi, 422 U.S. 749 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . 91

Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Whitney v. Robertson, 124 U.S. 190 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

White v. Illinois, 502 U.S. 346 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Whorton v. Bockting, 549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 50, 159

Wickard v. Filburn, 317 U.S. 111 (1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Wiggins v. Smith, 539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Wilkie v. Robbins, 127 S. Ct. 2588 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Wilkins v. Gaddy, 130 S. Ct. 1175 (2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

Wilkinson v. Austin, 545 U.S. 209 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 185

Williamson Cty. Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). . . . . . . . . 128

Wilson v. Arkansas, 514 U.S. 927 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U.S. 410 (2006) . . . . . . . . 83, 200

Witherspoon v. Illinois, 391 U.S. 510 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137-138

Woodford v. Visciotti, 537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Wong v. Belmontes, 130 S. Ct. 383 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). ..................................... 8

Wooley v. Maynard, 430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Wright v. Van Patten, 128 S. Ct. 743 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 161

Yarborough v. Alvarado, 541 U.S. 652 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Yarborough v. Gentry, 540 U.S. 1 (2003) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Ybarra v. Illinois, 444 U.S. 85 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Yeager v. United States, 129 S. Ct. 2360 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 119

Youngblood v. West Virginia, 547 U.S. 867 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
222 TABLE OF CASES

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ysursa v. Pocatello Education Ass’n, 129 S. Ct. 1093 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Zablocki v. Redhail, 434 U.S. 374 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

Zadvydas v. Davis, 533 U.S. 678 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 72

Zschernig v. Miller, 389 U.S. 429 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32
223

INDEX

Abortion

"partial birth" abortion, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

Administrative Procedure Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Affirmative action

college admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188-191

Alcohol prohibition

Eighteenth Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

interstate commerce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Twenty-first Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Aliens

deportation, due process protections.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122-123

exclusion of.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Appointments Clause

inferior offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Arrest

arrestee’s right to be told reason for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

custody, what constitutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

police ramming car constituting arrest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 112

prohibited by state law, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Association, freedom of

blanket primaries.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

designating party preference.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

political parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Authorization for Use of Military Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 123

Bipartisan Campaign Reform Act of 2002

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Bivens actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Bribery

of state and local officials, Congress' power to prohibit. .......................... 5

Campaign finance regulation

campaign contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

First Amendment validity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82

Capital punishment

actual innocence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 159

aggravating factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 142, 153

application of new rules of criminal procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

by lethal injection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 163

diminished capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

evidence of childhood neglect.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

evidence of low intelligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

evidence, introduction of new. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 159

for rape of child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 155

habeas corpus limits on challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154-155, 159

insanity, evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

jury selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Justices Blackmun's and Stevens' opposition to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
224 INDEX

juveniles, execution of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

mental retardation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

of innocent persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

offenses against the state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 155

Child Online Protection Act

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Child Pornography

constitutionality of banning ads for protected speech. . . . . . . . . . . . . . . . . . . . . . . . . . . 94

PROTECT Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Children’s Internet Protection Act

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 95

Collateral estoppel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Commerce

foreign commerce, preemption of state regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

original package doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

with Indian tribes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Confession

fruits of.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Confrontation Clause

application to forensic analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

reliability test.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

statement of unavailable witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 141

testimonial evidence, what constitutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 141

Congress

commerce power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fourteenth Amendment enforcement powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195-197

spending power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Consent decrees

state’s sovereign immunity claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Copyrights and patents

Copyright Term Extension Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Copyrights and patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Counsel, assistance of

attachment of right not equivalent to entitlement to.. . . . . . . . . . . . . . . . . . . . . . . . . . 145

counsel linked to courtroom by speaker phone.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

denial as "structural defect". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

failure to present mitigating evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

mental competence to represent oneself.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

preliminary hearing, right at. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

time that infringement occurs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

waiver of right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 146

Cruel and unusual punishment

32 years on death row. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

denial of medical treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

evolving standards of decency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

execution for rape of child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 155

lethal injection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 163

proportionality, three-strikes law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Declaratory Judgment Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 46

Dormant Commerce Clause

government waste facilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Double jeopardy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

after acquittal by judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

dual sovereign rule, tribal and Federal prosecutions.. . . . . . . . . . . . . . . . . . . . . . . . . . 117

effect of inconsistent verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Due process, procedural

access to DNA evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

burden of proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

delay in processing fines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
INDEX 225

enemy combatants, right to hearing on status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

insanity, evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

notice requirement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 178

requiring recusal of judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

sex offenders, Internet posting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Due process, substantive

compelled medication.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

compensable violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 177

liberty, autonomy interests, sexual privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 173-175

liberty, reputation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

punitive damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

unwanted antipsychotic drugs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Education

college admissions, affirmative action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189

Eleventh Amendment

validity of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Enemy combatants

detention, rights to hearing on status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 123

military commissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Equal Protection

affirmative action, college admissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

class of one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

jury selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

prison restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

racial imbalance in schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

state action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Establishment Clause

latin cross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

taxpayer standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Ten Commandments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62

Ex post facto laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Megan's law not ex post facto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

revival of action after limitations period has run. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Exclusionary rule

Miranda warning sufficiency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

mistake based on recordkeeping error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

prepresentment confessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Executive agreements

status as law of land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Executive privilege

Vice-presidential task force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fair trial

burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

physical restraints, use of in front of jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

prosecutorial misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

spectator conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

suppression of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Foreign relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

preemptive scope of federal power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

Free Exercise of Religion

refusal to fund religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Religious Land Use and Institutionalized Persons Act. . . . . . . . . . . . . . . . . . . . . . . 63, 65

Full faith and credit

application to laws versus judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

conflict of laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

taking of property claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
226 INDEX

Gerrymandering

partisan gerrymandering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

partisan, justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 192

Guantanamo detainees

federal court jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

habeas corpus limits on challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

military commissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Habeas corpus

Antiterrorism and Effective Death Penalty Act of 1996.. . . . . . . . . . . . . . . . . . . . 138, 143

federal court jurisdiction, prisoners at Guantanamo Bay. . . . . . . . . . . . . . . . . . . . . 24, 42

jurisdiction, location of prisoner's custodian.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

substantial and injurious effect standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Suspension Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40

Hatch Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Highway checkpoints

soliciting aid in crime solving. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Holocaust Victim Insurance Relief Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Homosexual conduct

prohibition, denial of due process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Individuals with Disabilities Education Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Insanity defense

tests of insanity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

International Court of Justice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Internet usage

in public libraries, constitutionality of restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Issue preclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Judicial Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Judicial immunity from suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

not from award of attorney's fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Jury trial, right to

capital sentencing, factual findings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 131

concurrent sentencing, factual findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

enhanced sentencing, factual basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

on question of statutory interpretation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

sentencing factor, proof of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129-130, 133, 135

Seventh Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Law enforcement officer immunity from suit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 112

Libraries

restrictions on Internet access, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Marijuana

use for medical purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Megan’s Law

constitutionality, Ex Post Facto Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Military commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 24

Native Americans

tribal courts, "dual sovereignty," double jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

tribal sovereignty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Necessary and Proper Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

civil commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

legislation protecting spending power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Orders, Resolutions, and Votes Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

Overruled decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Peremptory challenges

not of constitutional dimension.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Pledge of Allegiance

dismissal of challenge for lack of standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Portal-to-Portal Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Preemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

foreign relations, state laws impinging on federal powers.. . . . . . . . . . . . . . . . . . . . . 29-31
INDEX 227

state laws conflicting with executive agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31

President

foreign relations powers, executive agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

power to detain enemy combatants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Prisons

discrimination, racial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

speech restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

visitation rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 163, 185

Privacy

abortion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

sexual autonomy, homosexual conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 172-174

Punitive damages

excessive, due process violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

ratio to compensatory damages, due process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

Racial discrimination

burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Recess appointments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Recusal of judge

required by due process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Religion

Religious Freedom Restoration Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Religious Land Use and Institutionalized Persons Act. . . . . . . . . . . . . . . . . . . . . . . . . . 65

theology students, exclusion from scholarship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Retroactivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Right to bear arms.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Right to vote

voter identification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 194

Rooker-Feldman doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Search and seizure

"common enterprise". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

anticipatory warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

arrest for minor offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

automobile passengers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

automobile search, canine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 108

drug testing in schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

government employee texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 110

highway checkpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

holding wrong homeowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 105

knock-and-announce procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 113

objection by co-occupant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

particularity requirement, warrants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

probation supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

student rights, strip search. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 185

Terry stop, identity request.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

use of reasonable force.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

vehicle arrestee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 107, 115

vehicle passengers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-107

warrant, particularity requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

warrantless entry.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Second Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Self-incrimination

Miranda warning, two-step questioning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Self-representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Sentencing Guidelines, federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

variation based on policy disagreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

September 11, 2001 attack. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sex Discrimination

Nineteenth Amendment (right to vote).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sixth Amendment
228 INDEX

effective counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

public trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Speech

"adult" business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

campaign finance restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 79, 81-85

censorship of Internet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 95

charitable solicitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Child Online Protection Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Children’s Internet Protection Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 95

commercial speech.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 92

compelled speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 91

cross burning prohibition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

disclosed petition signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

facial challenges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

government employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

government speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

harm caused by, not merely conjectural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

harm caused by, shown by common sense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

incidental restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

indecent material, evidence of harm.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

indecent material, fleeting broadcasts of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

intermediate scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

internet restrictions, libraries and schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 95, 96

journalists' privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

material support of terrorists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

narrow tailoring requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

overbreadth doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66-67

prison restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

public forum doctrine, Internet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

public forum doctrine, monument in park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

strict scrutiny.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

student rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

time, place, manner restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

unconstitutional conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 89-91, 96

union dues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-74

union's entitlement to agency fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

vagueness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Speedy trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Spending power

prohibition on bribing state and local officials. ................................. 5

Standing to sue

deprivation of procedural right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

generalized injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

non-actualized injury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

of assignee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

taxpayer standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44

State court enforcement of federal law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

States

immunity from suit in federal courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

Supremacy Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

executive agreements as preempting conflicting state laws. . . . . . . . . . . . . . . . . . . . . . 28

Taking of property

exhaustion of state remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

judicial taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

just compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

public use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

regulatory.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125-126

Taxation

out-of-state business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
INDEX 229

Three-strikes law

not cruel and unusual punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Tonnage Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Treaties

as domestic law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

as self-executing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

determining their meaning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Unconstitutional conditions

not imposed by Children's Internet Protection Act.. . . . . . . . . . . . . . . . . . . . . . . . . . 89, 96

not imposed by Solomon Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Webb-Kenyon Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8