This publication supplements Senate Document 112–9, The Constitution of the 

United States of America: Analysis and Interpretation—it should be inserted 

into the pocket on the inside back cover of that volume 

113th Congress DOCUMENT " SENATE ! 2d Session No. 113–24 

THE CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA 

ANALYSIS AND INTERPRETATION 

2014 SUPPLEMENT 

ANALYSIS OF CASES DECIDED BY THE SUPREME 

COURT OF THE UNITED STATES TO JULY 1, 2014 

PREPARED BY THE

CONGRESSIONAL RESEARCH SERVICE

LIBRARY OF CONGRESS

LARRY M. EIG

KATE M. MANUEL

TRAVIS H. MALLEN

ANDREW NOLAN

KENNETH R. THOMAS

EDITORS

U.S. GOVERNMENT PRINTING OFFICE 

90–714 WASHINGTON : 2014 

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CONTENTS

Page

Article I—Legislative Department ........................................................................................... 1

Article II—Executive Department ............................................................................................ 5

Article III—Judicial Department ............................................................................................. 9

Article IV—States’ Relations .................................................................................................... 17

First Amendment—Establishment of Religion ........................................................................ 19

Fourth Amendment—Search and Seizures ............................................................................. 25

Fifth Amendment—Rights of Persons ..................................................................................... 29

Sixth Amendment—Rights of Accused in Criminal Prosecutions ......................................... 35

Eighth Amendment—Further Guarantees in Criminal Cases .............................................. 37

Fourteenth Amendment—Rights Guaranteed ......................................................................... 39

Fifteenth Amendment—Right of Citizens to Vote .................................................................. 45

Acts of Congress held unconstitutional in whole or in part by the Supreme Court of the

United States .......................................................................................................................... 51

State constitutional and statutory provisions and municipal ordinances held unconstitutional or held to be preempted by federal law .................................................................... 53

Table of cases ............................................................................................................................. 55

Index ........................................................................................................................................... 59

I

ARTICLE I

Section 5. Powers and Duties of the Houses

Clauses 1–4. Judging Elections

POWERS AND DUTIES OF THE HOUSES

Rules of Proceedings

[P. 134, delete last sentence at end of section and replace with the

following:]

The constitutionality of the filibuster has been challenged in court

several times, but those cases have never reached the merits of the

issue.1 More recently, the Senate interpreted its rules to require only

a simple majority to invoke cloture on most nominations.2

Section 8. Powers of Congress

Clause 3. Power to Regulate Commerce

THE COMMERCE CLAUSE AS A RESTRAINT ON STATE

POWERS

Doctrinal Background

—The State Proprietary Activity (Market Participant) Exception

[P. 238, delete period at end of n.975 and add:]

; see also McBurney v. Young, 569 U.S. ___, No. 12–17, slip op. at 14 (2013) (to the

extent that the Virginia Freedom of Information Act created a market for public

documents in Virginia, the Commonwealth was the sole manufacturer of the product, and therefore did not offend the Commerce Clause when it limited access to

those documents under the Act to citizens of the Commonwealth).

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption

—The Standards Applied

[P. 275, delete period at end of n.1157 and add:]

Nw., Inc. v. Ginsberg, 572 U.S. ___, No. 12–462, slip op. (2014) (holding that the

Airline Deregulation Act’s preemption provision applied to state common law claims,

1 See, e.g., Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014); Judicial Watch,

Inc. v. U.S. Senate, 432 F.3d 359 (D.C. Cir. 2005); Page v. Shelby, 995 F. Supp. 23

(D.D.C. 1998). The constitutionality of the filibuster has been a subject of debate for

legal scholars. See, e.g., Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA. L. REV. PENNUMBRA 245 (2010).

2 159 CONG. REC. S8416–S8418 (daily ed. Nov. 21, 2013).

1
including an airline customer’s claim for breach of the implied covenant of good faith

and fair dealing). But see Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. ___, No.

12–52, slip op. (2013) (provision of Federal Aviation Administration Authorization

Act of 1994 preempting state law “related to a price, route, or service of any motor

carrier . . . with respect to the transportation of property” held not to preempt state

laws on the disposal of towed vehicles by towing companies).

[P. 283, add to n.1193:]

See also Wos v. E.M.A., 568 U.S. ___, No. 12–98, slip op. (2013) (North Carolina

statute allowing the state to collect up to one-third of the amount of a tort settlement as reimbursement for state paid medical expenses under Medicaid held to conflict effectively with anti-lien provisions of the federal Medicaid statute where settlement designated an amount less than one-third as medical expenses award).

[P. 284, insert new paragraph before the first full paragraph:]

The Court reached a similar result in Mutual Pharmaceutical

Co. v. Bartlett.

3 There, the Court again faced the question of whether

the FDA labeling requirements preempted state tort law in a case

involving sales by a generic drug manufacturer. The lower court had

held that it was not impossible for the manufacturer to comply with

both the FDA’s labeling requirements and state law that required

stronger warnings regarding the drug’s safety because the manufacturer could simply stop selling the drug. The Supreme Court rejected the “stop-selling rationale” because that rationale “would render impossibility pre-emption a dead letter and work a revolution

in . . . pre-emption case law.” 4

[P. 284, in the first sentence of the first full paragraph, after “Pliva,

Inc. v. Mensing” add:]

and Mutual Pharmaceutical Co. v. Bartlett

[P. 285, delete period at end of first sentence, second paragraph of

n.1202 and add:]

; Hillman v. Maretta, 569 U.S. ___, No. 11–1221, slip op. (2013) (state law cause of

action against ex-spouse for life insurance proceeds paid under a designation of beneficiary in a federal employee policy held to be preempted by federal employee insurance statute giving employees the right to designate a beneficiary; beyond administrative convenience, Congress intended that the proceeds actually belong to named

beneficiary).

Clause 18. Necessary and Proper Clause

NECESSARY AND PROPER CLAUSE

Definition of Punishment and Crimes

3 570 U.S. ___, No. 12–142, slip op. (2013).

4 Id. at 1–2.
[P. 379, add footnote to text after last complete sentence:]

Where an ex-convict was released subject to legal requirements related to his previous conviction, the Court has found little difficulty in those requirements being modified after his release under a subsequently enacted statute. In United States v.

Kebodeaux, 570 U.S. ___, No. 12–418, slip op. (2013), the Court found that a sex

offender, convicted by the Air Force in a special court-martial, had, upon his release, been subject to state sex offender registration laws, violation of which was

prohibited under the Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103–322, 108 Stat. 2038–2042. Kebodeaux was

later convicted of failing to register under the “very similar” provisions of the laterenacted Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109–

24, Title I, 120 Stat. 590, 42 U.S.C. §§ 16901 et seq., which had superseded the Jacob Wetterling Act. The Court found Congress was well within its authority under

the Necessary and Proper Clause to have modified the Wetterling Act’s registration

requirements, and Kebodeaux was properly subject to SORNA requirements, even if

they were enacted after his release.

Section 10. Powers Denied to the States

Clause 1. Treaties, Coining Money, Impairing Contracts, Etc.

Ex Post Facto Laws

—Changes in Punishment

[P. 406, add to text after n.2023:]

The Court adopted similar reasoning regarding changes in the U.S.

Sentencing Guidelines: even though the Guidelines are advisory only,

an increase in the applicable sentencing range is ex post facto if

applied to a previously committed crime because of a significant risk

of a lengthier sentence being imposed.5

5 Peugh v. United States, 569 U.S. ___, No. 12–62, slip op. (2013).

ARTICLE II

Section 2. Powers and Duties of the President

Clause 3. Vacancies During Recess of Senate

RECESS APPOINTMENTS

[P. 591, after final paragraph, substitute as the remainder of the

section:]

Two fundamental textual issues arise in interpreting the Recess Appointments Clause. The first is the meaning of the phrase

“the Recess of the Senate.” As the Senate may recess both between

and during its annual sessions, the time period during which the

President may make a recess appointment is not clearly answered

by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that “may happen” during the

recess of the Senate. If the words “may happen” are interpreted to

refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries

the Supreme Court did not address either of these issues,1

leaving

it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause.2

The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel

Canning.

3 With respect to the meaning of the phrase “Recess of the

Senate,” the Court concluded that the phrase applied to both intersession recesses and intra-session recesses. In so holding, the Court,

1 See NLRB v. Noel Canning, 573 U.S. ___, No. 12–1281, slip op. at 9 (2014).

2 For lower court decisions on the Recess Appointments Clause, see, e.g., In re

Farrow, 3 Fed. 112 (C.C.N.D. Ga. 1880); United States v. Allocco, 305 F.2d 704, 712

(2d Cir. 1962), cert. denied, 371 U.S. 964 (1963); United States v. Woodley, 751 F.2d

1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); Evans v.

Stephens, 387 F.3d 1220, 1226–27 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005).

For prior executive branch interpretations of the Recess Appointments Clause, see

Op. Att’y Gen. 631, 633–34 (1823); 2:525 (1832), 3:673 (1841), 4:361 (1845), 4:523

(1846), 10:356 (1862), 11:179 (1865), 12:32 (1866), 12:455 (1868), 14:563 (1875), 15:207

(1877), 16:523 (1880), 18:28 (1884), 19:261 (1889), 22:82 (1898), 23:599 (1901), 26:234

(1907), 30:314 (1914), 33:20 (1921), 41:463 (1960); 3 Op. OLC 314, 316 (1979); 6 Op.

OLC 585, 586 (1982); 13 Op. OLC 271 (1989); 16 Op. OLC 15 (1992); 20 Op. OLC

124, 161 (1996); 25 Op. OLC 182 (2001). For the early practice on recess appointments, see G. HAYNES, THE SENATE OF THE UNITED STATES 772–78 (1938).

3 573 U.S. ___, No. 12–1281, slip op. (2014).

5
finding the text of the Constitution ambiguous,4 relied on (1) a pragmatic interpretation of the Clause that would allow the President

to ensure the “continued functioning” of the federal government when

the Senate is away,5 and (2) “long settled and established [historical] practice” of the President making intra-session recess appointments.6 The Court declined, however, to say how long a recess must

be to fall within the Clause, instead holding that historical practice

counseled that a recess of more than three days but less than ten

days is “presumptively too short” to trigger the President’s appointment power under the Clause.7 With respect to the phrase “may

happen,” the majority, again finding ambiguity in the text of the

Clause,8 held that the Clause applied both to vacancies that first

come into existence during a recess and to vacancies that initially

occur before a recess but continue to exist during the recess.9 In so

holding, the Court again relied on both pragmatic concerns 10 and

historical practice.11

Even under a broad interpretation of the Recess Appointments

Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel

Canning held that, for the purposes of the Recess Appointments

4 Id. at 9–11. More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that

an intra-session recess was not a recess. The Court noted that, while the phrase

“the Recess” might suggest limiting recess appointments to the single break between sessions of Congress, the word “the” can also be used “generically or universally,” see, e.g., U.S. Const. art. I, sec. 3, cl. 5. (directing the Senate to choose a President pro tempore “in the Absence of the Vice-President”), and that there were examples

of “the Recess” being used in the broader manner at the time of the founding. 573

U.S. ___, No. 12–1281, slip op. at 9–11.

5 Id. at 11. (“The Senate is equally away during both an inter-session and an

intra-session recess, and its capacity to participate in the appointments process has

nothing to do with the words it uses to signal its departure.”).

6 The Court noted that Presidents have made “thousands” of intra-session recess appointments and that presidential legal advisors had been nearly unanimous

in determining that the clause allowed these appointments. Id. at 12.

7 Id. at 21. The Court left open the possibility that some very unusual circumstance, such as a national catastrophe that renders the Senate unavailable, could

require the exercise of the recess appointment power during a shorter break. Id.

8 The Court noted that even Thomas Jefferson thought the phrase in question

could point to both vacancies that “may happen to be” during a recess as well as

those that “may happen to fall” during a recess. Id. at 22.

9 Id. at 1–2.

10 Id. at 26 (“[W]e believe the narrower interpretation risks undermining constitutionally conferred powers [in that] . . . [i]t would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no

matter how dire the need, no matter how uncontroversial the appointment, and no

matter how late in the session the office fell vacant.”).

11 Id. at 34 (“Historical practice over the past 200 years strongly favors the broader

interpretation. The tradition of applying the Clause to pre-recess vacancies dates at

least to President James Madison.”).
Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact

Senate business.12 In this vein, Noel Canning provides the Senate

with the means to prevent recess appointments by a President, who

attempts to employ the “subsidiary method” for appointing officers

of the United States (i.e., recess appointments) to avoid the “norm” 13

for appointment (i.e., appointment pursuant to the Article II, sec.

2, cl. 2).14

12 Id. In the context of Noel Canning, the Court held that the Senate was in

session even during a pro forma session, a brief meeting of the Senate, often lasting

minutes, in which no legislative business is conducted. Id. at 38–39. Because the

Journal of the Senate (and the Congressional Record) declared the Senate in session during those periods, and because the Senate could, under its rules, have conducted business under unanimous consent (a quorum being presumed), the Court

concluded that the Senate was indeed in session. In so holding, the Court deferred

to the authority of Congress to “determine the Rules of its Proceedings,” see U.S.

CONST. art. I, sec. 5, cl. 2, relying on previous case law in which the Court refused to

question the validity of a congressional record. 573 U.S. ___, No. 12–1281, slip op.

at 39 (citing United States v. Ballin, 144 U.S. 1, 5 (1892)).

13 573 U.S. ___, No. 12–1281, slip op. at 40.

14 It should be noted that, by an act of Congress, if a vacancy existed when the

Senate was in session, the ad interim appointee, subject to certain exceptions, may

receive no salary until he has been confirmed by the Senate. 5 U.S.C. § 5503. By

targeting the compensation of appointees, as opposed to the President’s recess appointment power itself, this limitation acts as an indirect control on recess appointments, but its constitutionality has not been adjudicated. A federal district court noted

that “if any and all restrictions on the President’s recess appointment power, however limited, are prohibited by the Constitution,” restricting payment to recess appointees might be invalid. Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C.

1979).

ARTICLE III

Section 2. Judicial Power and Jurisdiction

Clause 1. Cases and Controversies; Grants of Jurisdiction

JUDICIAL POWER AND JURISDICTION—CASES AND

CONTROVERSIES

Adverse Litigants

[P. 722, add new paragraph to text at the end of the section:]

Concerns regarding adversity also arise when the Executive Branch

chooses to enforce, but not defend in court, federal statutes that it

has concluded are unconstitutional. In United States v. Windsor,

1

the Court considered the Defense of Marriage Act (DOMA), which

excludes same-sex partners from the definition of “spouse” as used

in federal statutes.2 DOMA was challenged by the surviving member of a same-sex couple (married in Canada), who was seeking to

claim a spousal federal estate tax exemption. Although the Executive Branch continued to deny the exemption, it also declined to

defend the statute based on doubts as to whether it would survive

scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause. Consequently, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) 3

intervened

to defend the statute. The Court noted that, despite the decision

not to defend, the failure of the United States to provide a refund

to the taxpayer constituted an injury sufficient to establish standing, leaving only “prudential” limitations on judicial review at issue.4 The Court found that the “prudential” concerns were outweighed by the presence of BLAG to offer an adversarial presentation

of the issue, the legal uncertainty that would be caused by dismissing the case, and the concern that the Executive Branch’s assessment of the constitutionality of the statute would be immunized from

judicial review.

Substantial Interest: Standing

—Constitutional Standards: Injury in Fact, Causation, and Redressability

1 570 U.S. ___, No. 12–307, slip op. (2013).

2 Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7.

3 BLAG is a standing body of the House, created by rule, consisting of members

of the House Leadership and authorized to direct the House Office of the General

Counsel to file suit on its behalf in state or federal court.

4 570 U.S. ___, No. 12–307, slip op. at 6–7.

9
[P. 732, add new paragraph to text after n.410:]

Beyond these historical anomalies, the Court has indicated that,

for parties lacking an individualized injury to seek judicial relief

on behalf of an absent third party, there generally must be some

sort of agency relationship between the litigant and the injured party.

In Hollingsworth v. Perry,

5 the Court considered the question of

whether the official proponents of Proposition 8,6 a state proposition that amended the California Constitution to define marriage

as a union between a man and a woman, had standing to defend

the constitutionality of the provision on appeal. After rejecting the

argument that the proponents of Proposition 8 had a particularized injury in their own right,7 the Court considered the argument

that the plaintiffs were formally authorized to litigate on behalf of

the State of California.

Although the proponents were authorized by California law to

argue in defense of the proposition,8 the Court found that this authorization, by itself, was insufficient to create standing. The Court

expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still

acting as private individuals, not as state officials 9 or as agents that

were controlled by the state.10 Because the proponents did not act

as agents or official representatives of the State of California in defending the law, the Court held that the proponents only possessed

5 570 U.S. ___, No. 12–144, slip op. (2013).

6 Under California Elections Code § 342, “ ‘[p]roponents of an initiative or referendum measure’ means . . . the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General . . . ; or . . . the person or

persons who publish a notice or intention to circulate petitions, or, where publication is not required, who file petitions with the elections official or legislative body.”

7 570 U.S. ___, No. 12–144, slip op. at 7–9 (2013).

8 California’s governor and state and local officials declined to defend Proposition 8 in federal district court, so the proponents were allowed to intervene. After

the federal district court held the proposition unconstitutional, the government officials elected not to appeal, so the proponents did. The federal court of appeals certified a question to the California Supreme Court on whether the official proponents

of the proposition had the authority to assert the state’s interest in defending the

constitutionality of Proposition 8, see Perry v. Schwarzenegger, 628 F.3d 1191, 1193

(2011), which was answered in the affirmative, see Perry v. Brown, 265 P. 3d 1002,

1007 (Cal. 2011).

9 See 570 U.S. ___, No. 12–144, slip op. at 12 (citing Karcher v. May, 484 U.S.

72 (1987)).

10 The Court noted that an essential feature of agency is the principal’s right to

control the agent’s actions. Here, the proponents “decided what arguments to make

and how to make them.” Hollingsworth, 570 U.S. ___, No. 12–144, slip op. at 15.

The Court also noted that the proponents were not elected to their position, took no

oath, had no fiduciary duty to the people of California, and were not subject to removal. Id.
a generalized interest in arguing in defense of Proposition 8 and,

therefore, lacked standing to appeal an adverse district court decision.

[P. 732, delete sentence after n.412 and add new paragraphs to text:]

In a number of cases where a plaintiff seeks prospective relief,

such as an injunction or declaratory relief, the Supreme Court has

strictly construed the nature of the injury-in-fact necessary to obtain such judicial relief. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking equitable relief cannot articulate a concrete harm.11 For example, in Laird

v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury stemmed

from a “subjective chill”, as opposed to a “claim of specific present

objective harm or a threat of specific future harm.” 12 Second, the

Court has required plaintiffs seeking equitable relief to demonstrate that the risk of a future injury is of a sufficient likelihood;

past injury is insufficient to create standing to seek prospective relief.13 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways in

the past,14 generally refusing to find standing where the risk of future injury is speculative.15

More recently, in Clapper v. Amnesty International USA, the Court

held that, in order to demonstrate Article III standing, a plaintiff

seeking injunctive relief must prove that the future injury, which

is the basis for the relief sought, must be “certainly impending”; a

showing of a “reasonable likelihood” of future injury is insuffi11 See generally Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a . . . right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing.”); see, e.g., Cal. Bankers Ass’n

v. Shultz, 416 U.S. 21, 73 (1974) (plaintiffs allege that Treasury regulations will require them to report currency transactions, but make no additional allegation that

any of the information required by the Secretary will tend to incriminate them).

12 408 U.S. 1, 14–15 (1972).

13 See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983) (holding that a victim of a police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him).

14 See Davis v. FEC, 554 U.S. 724, 734 (2008) (“[T]he 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.”).

15 See, e.g., O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (no “sufficient immediacy and reality” to allegations of future injury that rest on the likelihood that plaintiffs will again be subjected to racially discriminatory enforcement and administration of criminal justice); Rizzo v. Goode, 423 U.S. 362, 372 (1976) (“[I]ndividual

respondents’ claim to ‘real and immediate’ injury rests not upon what the named

petitioners might do to them in the future . . . but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.”).
cient.16 Moreover, the Court in Amnesty International held that a

plaintiff cannot satisfy the imminence requirement by merely “manufacturing” costs incurred in response to speculative, non-imminent

injuries.17

A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus 18 reaffirmed that preenforcement challenges

to a statute can occur “under circumstances that render the threatened enforcement sufficiently imminent.” 19 In Susan B. Anthony List,

an organization planning to disseminate a political advertisement,

which was previously the source of an administrative complaint under an Ohio law prohibiting making false statements about a candidate or a candidate’s record during a political campaign, challenged the prospective enforcement of that law. The Court, in finding

that the plaintiff’s future injury was certainly impending, relied on

the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that “any person” could file a

complaint under the law, and any threat of enforcement of the law

could burden political speech.20

The Requirement of a Real Interest

16 568 U.S. ___, No. 11–1025, slip op. at 10–11 (2013). In adopting a “certainly

impending” standard, the five Justice majority conceded that the cases had not uniformly required literal certainty. Id. at 15 n.5. Amnesty International’s limitation on

standing may be particularly challenging in certain contexts, such as national security, where evidence necessary to prove a “certainly impending” injury may be unavailable to a plaintiff.

17 Id. at 10–11. In Amnesty International, defense attorneys, human rights organizations, and others challenged prospective, covert surveillance of the communications of certain foreigners abroad as authorized by the FISA Amendments Act of

2008. The Court found the plaintiffs lacked standing because they failed to show,

inter alia, what the government’s targeting practices would be, what legal authority

the government would use to monitor any of the plaintiffs’ overseas clients or contacts, whether any approved surveillance would be successful, and whether the plaintiffs’ own communications from within the United States would incidentally be acquired. Id. at 11–15. Moreover, the Court rejected that the plaintiffs could demonstrate

an injury-in-fact as a result of costs that they had incurred to guard against a reasonable fear of future harm (such as, travel expenses to conduct in person conversations abroad in lieu of conducting less costly electronic communications that might

be more susceptible to surveillance) because those costs were the result of an injury

that was not certainly impending. Id. at 16–19.

18 573 U.S. ___, No. 13–193, slip op. (2014).

19 Relying on Amnesty International, the Susan B. Anthony List Court held that

an allegation of future injury may suffice if the injury is “ ‘certainly impending’ or

there is a ‘substantial risk’ that the harm may occur.” Id. at 8. Interestingly, while

previous Court decisions have viewed preenforcement challenges as a question of

“ripeness,” see “Ripeness,” infra, Susan B. Anthony List held that the doctrine of

ripeness ultimately “boil[s] down to the same question” as standing and, therefore,

viewed the case through the lens of Article III standing. 573 U.S. ___, No. 13–193,

slip op. at 7 n.5.

20 573 U.S. ___, No. 13–193, slip op. at 14–17 (internal quotation marks omitted).
—Mootness

[P. 757, add to text at end of paragraph:]

So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt

on the practical enforceability of a final judicial order.21

[P. 758, add to n.544 after citation sentence referencing City of

Mesquite v. Aladdin’s Castle, Inc.:]

; see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___, No. 11–338, slip op. (2013)

(action to enforce penalty under former regulation not mooted by change in regulation where violation occurred before regulation was changed).

[P. 759, add to text after n.551:]

This amounts to a “formidable burden” of showing with absolute

clarity that there is no reasonable prospect of renewed activity.22

[P. 761, add to n.561:]

Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No. 11–1059, slip op. (2013).

[P. 761, delete last sentence in section and substitute the following:]

In Genesis Healthcare Corporation v. Symczyk,

23 the Court appeared to follow the “personal stake” rule applicable to class actions in the context of “collective actions” under the Fair Labor Standards Act, at least to the extent that actions that would moot the

plaintiff’s claims prior to a “conditional certification” by the court

would likewise moot the collective action.

—Retroactivity Versus Prospectivity

[P. 764, add to beginning of n.582:]

For an example of the application of the Teague rule in federal collateral review of a

federal court conviction, see Chaidez v. United States, 568 U.S. ___, No. 11–820, slip

op. (2013).

JUDICIAL REVIEW

Limitations on the Exercise of Judicial Review

21 Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013) (appeal of district

court order returning custody of a child to her mother in Scotland not made moot

by physical return of child to Scotland and subsequent ruling of Scottish court in

favor of the mother continuing to have custody).

22 Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. at 4 (2013) (dismissal of a trademark infringement claim against rival and submittal of an unconditional and irrevocable covenant not to sue satisfies the burden under the voluntary cessation test) (citing Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S.

167, 190 (2000)).

23 569 U.S. ___, No. 11–1059, slip op. (2013).
—Disallowance by Statutory Interpretation

[P. 790, delete period at end of n.724 and add:]

; Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014).

Clause 2. Original and Appellate Jurisdiction

FEDERAL-STATE COURT RELATIONS

Conflicts of Jurisdiction: Rules of Accommodation

—Abstention

[P. 883, delete period at end of n.1272 and add:]

; Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. ___, No. 12–815, slip op. (2013).

Conflicts of Jurisdiction: Federal Court Interference with State

Courts

—Federal Restraint of State Courts by Injunctions

[P. 892, substitute new paragraph for last paragraph in text:]

Beyond criminal prosecutions, the Court extended Younger’s general directive to bar interference with pending state civil cases that

are akin to criminal prosecutions.24 Younger abstention was also found

appropriate when a judgment debtor in a state civil case sought to

enjoin a state court order to enforce the judgment.25 The Court further applied Younger’s principles to bar federal court interference

with state administrative proceedings of a judicial nature, in which

important state interests were at stake.26

Nonetheless, the Court has emphasized that “only exceptional

circumstances justify a federal court’s refusal to decide a case in

24 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (state action to close adult theater under the state’s nuisance statute and to seize and sell personal property used

in the theater’s operations); Judice v. Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977); Moore v. Sims, 442 U.S. 415 (1979); Middlesex Cty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

25 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (holding that federal abstention was warranted in a federal court action to block a state court order issued under the state’s “lien and bond” authority). It was “the State’s [particular] interest in

protecting ‘the authority of the judicial system, so that its orders and judgments are

not rendered nugatory’ ” that merited abstention, and not merely a general state

interest in protecting ongoing civil proceedings from federal interference. Id. at 14

n.12 (quoting Judice v. Vail, 430 U.S. 327, 336 n.12 (1977)).

26 Oh. Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986).

The “judicial in nature” requirement is more fully explicated in New Orleans Public

Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).
deference to the States.” 27 In Sprint Communications, Inc. v. Jacobs,

28 the Court made clear that federal forbearance under Younger

was limited to three discrete types of state proceedings: (1) ongoing

state criminal prosecutions; (2) particular state civil proceedings that

are akin to criminal prosecutions; and (3) civil proceedings involving orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.29 In so doing, the Sprint Communications Court clarified that the types of cases previously held to merit

abstention under the Younger line defined Younger’s scope and did

not merely exemplify it.30

27 See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.

350, 368 (1989).

28 571 U.S. ___, No. 12–815, slip op. (2013).

29 Id. at 2.

30 Id. at 8.

ARTICLE IV

Section 2. Interstate Comity

Clause 1. State Citizenship: Privileges and Immunities

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

All Privileges and Immunities of Citizens in the Several States

[P. 962, add to text at end of first partial paragraph:]

Contrariwise, accessing public records through a state freedom of

information act was held not to be a fundamental activity, and a

state may limit such access to its own citizens.1

1 McBurney v. Young, 569 U.S. ___, No. 12–17, slip op. (2013). The Court further found that any incidental burden on a nonresident’s ability to earn a living,

own property, or exercise another “fundamental” activity could largely be ameliorated by using other available authorities. The Court emphasized that the primary

purpose of the state freedom of information act was to provide state citizens with a

means to obtain an accounting of their public officials.

17

FIRST AMENDMENT

RELIGION

Establishment of Religion

—Governmental Encouragement of Religion in Public Schools: Prayers

and Bible Reading

[P. 1093, delete footnote 170 and substitute the following:]

The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), holding that

the opening of a state legislative session with a prayer by a state paid chaplain

does not offend the Establishment Clause. The Marsh Court had distinguished Abington

on the basis that state legislators, as adults, are “presumably not readily susceptible to ‘religious indoctrination’ or ‘peer pressure,’ ” and the Lee Court reiterated

this distinction. 505 U.S. at 596–97. This distinction was again relied on by a plurality of Justices in Town of Greece v. Galloway, see 572 U.S. ___, No. 12–696, slip op.

at 18–24 (2014), in a decision upholding the use of legislative prayer at a town board

meeting. Justice Kennedy, on behalf of himself and Chief Justice Roberts and Justice Alito, distinguished the situation in Lee, in that with legislative prayer, at least

in the context of Town of Greece, those claiming offense at the prayer were “mature

adults” who are not “susceptible to religious indoctrination or peer pressure” and

were free to leave a town meeting during the prayer without any adverse implications. Id. at 22–23 (quoting Marsh, 463 U.S. at 792).

—Religion in Governmental Observances

[P. 1102, add new paragraph to text at end of section:]

The Court likewise upheld the use of legislative prayers in the

context of a challenge to the use of sectarian prayers to open a town

meeting. In Town of Greece v. Galloway,

1 the Court considered whether

such legislative prayers needed to be “ecumenical” and “inclusive.”

The challenge arose when the upstate New York Town of Greece

recruited local clergy, who were almost exclusively Christian, to deliver prayers at monthly town board meetings. Basing its holding

largely on the nation’s long history of using prayer to open legislative sessions as a means to lend gravity to the occasion and to reflect long held values, the Court concluded that the prayer practice

in the Town of Greece fit within this tradition.2 The Court also voiced

pragmatic concerns with government scrutiny respecting the content of legislative prayers.3 As a result, after Town of Greece, absent a “pattern of prayers that over time denigrate, proselytize, or

1 572 U.S. ___, No. 12–696, slip op. (2014).

2 Id. at 9–18. The Court suggested that a pattern of prayers that over time “denigrate, proselytize, or betray an impermissible government purpose” could establish

a constitutional violation. Id. at 17.

3 Id. at 12 (“To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases

to act as supervisors and censors of religious speech, a rule that would involve gov19
betray an impermissible government purpose,” First Amendment challenges based solely on the content of a legislative prayer appear

unlikely to be successful.4 Moreover, absent situations in which a

legislative body discriminates against minority faiths, governmental entities that allow for sectarian legislative prayer do not appear

to violate the Constitution.5

Free Exercise of Religion

—Free Exercise Exemption from General Governmental Requirements

[P. 1124, add new sentence to n.350:]

See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, No. 13–354, slip op. (2014)

(holding that RFRA applied to for-profit corporations and that a mandate that certain employers provide their employees with “[a]ll Food and Drug Administration

approved contraceptive methods, sterilization procedures, and patient education and

counseling for women with reproductive capacity” violated RFRA’s general provisions).

FREEDOM OF EXPRESSION—SPEECH AND PRESS

Right of Association

—Conflict Between Organizations and Members

[P. 1183, add new paragraph to text after n.663:]

Doubts on the constitutionality of mandatory union dues in the

public sector intensified in Harris v. Quinn.6 The Court openly questioned Abood’s central holding that the collection of an agency fee

from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free

ridership.” Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2)

Abood’s failure to appreciate the distinctly political context of public sector unions; and (3) Abood’s dismissal of the administrative

difficulties in distinguishing between public union expenditures for

collective bargaining and expenditures for political purposes.7 Notwithstanding these concerns about Abood’s core holding, the Court

in Harris declined to overturn Abood outright. Instead, the Court

focused on the peculiar status of the employees at issue in Harris:

home health care assistants subsidized by Medicaid. These “partialernment in religious matters to a far greater degree than is the case under the town’s

current practice . . . .”).

4 572 U.S. ___, No. 12–696, slip op. at 17.

5 Id.

6 573 U.S. ___, No. 11–681, slip op. (2014).

7 Id. at 8–20.
public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with

state agencies or employees, and derived only limited benefits from

the union.8 As a consequence, the Court held that even Abood’s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union

speech.9 The question that remains after Harris is whether the Court

will, given its open criticism of Abood, overturn the 1977 ruling in

the future, or whether the Court will continue to limit Abood to its

facts.

Particular Government Regulations that Restrict Expression

—Government as Employer: Free Expression Generally

[P. 1208, add new paragraphs to text after first partial paragraph:]

In distinguishing between wholly unprotected “employee speech”

and quasi-protected “citizen speech,” sworn testimony outside of the

scope of a public employee’s ordinary job duties appears to be “citizen speech.” In Lane v. Franks,

10 the director of a state government program for underprivileged youth was terminated from his

job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The employee challenged the termination on First Amendment grounds. The Court held generally

that testimony by a subpoenaed public employee made outside the

scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.11 The Court

noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone

who testifies in court bears an obligation to the court and society

at large, to tell the truth.” 12 In so holding, the Court confirmed that

Garcetti’s holding is limited to speech made in accordance with an

employee’s official job duties and does not extend to speech that merely

concerns information learned during that employment.

The Court in Lane ultimately found that the plaintiff’s speech

deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech

was testimony about misuse of public funds) and the testimony did

8 573 U.S. ___, No. 11–681, slip op. at 24–27.

9 Id. at 27.

10 573 U.S. ___, No. 13–483, slip op. (2014).

11 Id. at 9.

12 Id.
not raise concerns for the government employer.13 After Lane, some

question remains about the scope of protection for public employees, such as police officers or official representatives of an agency

of government, who testify pursuant to their official job duties, and

whether such speech falls within the scope of Garcetti.

—Government as Regulator of the Electoral Process: Elections and

Referendums

[P. 1222, add new paragraph to text after n.870:]

In McCutcheon v. FEC,

14 however, a plurality of the Court 15 appeared to signal an intent to scrutinize limits on contributions more

closely to ensure a “fit” between governmental objective and the means

utilized.16 Considering aggregate limits on individual contributions—

that is, the limits on the amount an individual can give in one campaign cycle 17—the plurality opinion distinguished between the government interest in avoiding even the appearance of quid pro quo

corruption versus the government interest in avoiding potential “ ‘influence over or access to’ elected officials of political parties” as the

result of large contributions; only the interest in preventing actual

or apparent quid pro quo corruption constituted a legitimate objective sufficient to satisfy the First Amendment.18 Given the more narrow interest of the government, the McCutcheon Court struck down

the limits on aggregate contributions by an individual donor. The

plurality opinion viewed the provision in question as impermissibly

restricting an individual’s participation in the political process by

limiting the number of candidates and organizations to which the

individual could contribute (once that individual had reached the

aggregate limit).19 Moreover, the plurality opinion held that the ag13 Id. at 12–13. The Court, however, held that because no relevant precedent in

the lower court or in the Supreme Court clearly established that the government

employer could not fire an employee because of testimony the employee gave, the

defendant was entitled to qualified immunity. Id. at 13–17.

14 572 U.S. ___, No. 12–536, slip op. (2014).

15 Chief Justice Roberts wrote the plurality opinion, joined by Justices Scalia,

Kennedy and Alito. Justice Thomas, concurring in judgment, declined to join the

reasoning of the plurality, arguing that, to the extent that Buckley afforded a lesser

standard of review to restrictions on contributions than to expenditures, it should

be overruled.

16 The Court declined to revisit the differing standards between contributions

and expenditures established in Buckley, holding that the issue in question, aggregate spending limits, did not meet the demands of either test. 572 U.S. ___, slip op.

at 10.

17 In 2014, these aggregate limits capped total contributions per election cycle

to $48,600 to all federal candidates and $74,600 to all other political committees, of

which only $48,600 could be contributed to state or local party committees and PACs.

2 U.S.C. § 441a(a)(3); 78 Fed. Reg. 8532.

18 572 U.S. ___, No. 12–536, slip op. at 19.

19 Id. at 15.
gregate limits on individual contributions were not narrowly tailored to prevent quid pro quo corruption, as the limits prevent any

contributions (regardless of size) to any individual or organization

once the limits are reached.20 The plurality likewise rejected the

argument that the restriction prevented circumvention of the restriction on base contributions to individual candidates, as such circumvention was either illegal (because of various anti-circumvention rules)

or simply improbable.21 Collectively, the Court concluded that the

aggregate limits violate the First Amendment because of the poor

“fit” between the interests proffered by the government and the means

by which the limits attempt to serve those interests.22

—Government and the Power of the Purse

[P. 1245, add new paragraph to text after n.996:]

In contrast, in Agency for International Development v. Alliance

for Open Society International,

23 the Court found that the federal

government could not explicitly require a federal grantee to adopt

a public policy position as a condition of receiving federal funds. In

Alliance for Open Society International, organizations that received

federal dollars to combat HIV/AIDS internationally were required

(1) to ensure that such funds were not being used “to promote or

advocate the legalization or practice of prostitution or sex trafficking” and (2) to have a policy “explicitly opposing prostitution.” 24 While

the first condition legitimately ensured that the government was

not funding speech which conflicted with the purposes of the grant,

the second requirement improperly affected the recipient’s protected conduct outside of the federal program. Further, the organization could not, as in previous cases, avoid the requirement by establishing an affiliate to engage in opposing advocacy because of the

“evident hypocrisy” that would entail.25

Speech Plus—The Constitutional Law of Leafleting, Picketing, and

Demonstrating

—Public Issue Picketing and Parading

[P. 1336, add new paragraph to text after first partial paragraph:]

In McCullen v. Coakley, the Court retained a content-neutral

analysis similar to that in Hill, but nonetheless struck down a statu20 Id. at 21–22.

21 Id. at 21–30.

22 Id. at 30.

23 570 U.S. ___, No. 12–10, slip op. (2013).

24 22 U.S.C. § 7631(e), (f).

25 570 U.S. ___, No. 12–10, slip op. at 13.
tory 35-foot buffer zone at entrances and driveways of abortion facilities.26 The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public

safety and preserving access to reproductive healthcare facilities,

the concerns claimed by Massachusetts to underlie the law. The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public fora for speech,

nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. The Court

also held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are

preferable to broad, prophylactic measures.27

26 573 U.S. ___, No. 12–1168, slip op. (2014).

27 Id. at 23–29.
FOURTH AMENDMENT

SEARCH AND SEIZURE

History and Scope of the Amendment

—Scope of the Amendment

[P. 1367, delete period at end of n.27 and add:]

; see also Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. (2013) (rejecting

a per se exception for obtaining warrants in DWI cases, and requiring that exigent

circumstances be evaluated under a “totality of the circumstances” test).

—The Interest Protected

[P. 1372, add to n.59:]

The Court reprised its physical trespass analysis in Florida v. Jardines. 569 U.S.

___, No. 11–564, slip op. (2013) (police use of drug-sniffing dog on the front porch of

a house based on month-old anonymous tip). Emphasizing the primacy of the home

among constitutionally protected areas, the Court reviewed the law of trespass and

concluded that there is no implied license, under customary community practice, for

police to mount a porch to conduct a drug sniff by a trained canine. Id. at 5–8. Any

implied license for the public to approach a house is limited not only to specific areas, but also to specific purposes. Id. at 7.

—Arrests and Other Detentions

[P. 1374, delete period at end of n.66 and add:]

; Plumhoff v. Rickard, 572 U.S. ___, No. 12–1117, slip op. (2014) (police use of 15

gunshots to end a police chase).

Searches and Seizure Pursuant to Warrant

—Probable Cause

[P. 1386, add to n.123:]

For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g., Florida v. Harris, 568 U.S. ___,

No. 11–817, slip op. (2013).

—Execution of Warrants

[P. 1395, add paragraph to text after n.186:]

Limits on detention incident to a search were addressed in Bailey v. United States after an occupant exited the premises and traveled some distance before being stopped and detained.1 There the

1 568 U.S. ___, No. 11–770, slip op. (2013). In this case, the police obtained a

warrant to search Bailey’s residence for firearms and drugs. Id. at 2. Meanwhile,

detectives staked out the residence, saw Bailey leave and drive away, and then called

25
Court held that the detention was not constitutionally sustainable

under Summers.

2 According to the Court, application of the categorical exception to probable cause requirements for detention incident

to a search is determined by spatial proximity, that is, whether the

occupant is found “within the immediate vicinity of the premises to

be searched,” 3 and not by temporal proximity, that is, whether the

occupant is detained “as soon as reasonably practicable” consistent

with safety and security. In so holding, the Court reasoned that limiting the Summers rule to the area within which an occupant poses

a real threat ensures that the scope of the detention incident to a

search is confined to its underlying justification.4

Valid Searches and Seizures Without Warrants

—Detention Short of Arrest: Stop and Frisk

[P. 1399, delete period at end of n.209 and add:]

; Prado Navarette v. California, 572 U.S. ___, No. 12–9490, slip op. (2014) (anonymous 911 call reporting an erratic swerve by a particular truck traveling in a particular direction held to be sufficient to justify stop).

—Search Incident to Arrest

[P. 1403, add new paragraph to text after n.231:]

Although the Court has disavowed a case-by-case evaluation of

searches made post-arrest, the Court remains willing to make categorical evaluations as to post-arrest searches. Thus, in Riley v. California,

5 the Court declined to extend the holding of United States

v. Robinson to the search of the digital data contained in a cell phone

found on an arrestee. Specifically, the Court distinguished a search

of cell phones, which contain vast quantities of personal data, from

the limited physical search at issue in Robinson.

6 Focusing primarily on the rationale that searching cell phones would prevent the

destruction of evidence, the government argued that cell phone data

could be destroyed remotely or become encrypted by the passage of

time. The Court, however, both discounted the prevalence of these

in a search team. Id. While the search was proceeding, the detectives tailed Bailey

about a mile before stopping and detaining him. Id. at 2–3.

2 As an alternative ground, the district court had found that stopping Bailey

was lawful as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 (1968), but

the Supreme Court offered no opinion on whether, assuming the stop was valid under Terry, the resulting interaction between law enforcement and Bailey could independently have justified Bailey’s detention. 568 U.S. ___, No. 11–770, slip op. at 14.

3 568 U.S. ___, No. 11–770, slip op. at 13–14.

4 Id. at 13.

5 573 U.S. ___, No. 13–132, slip op. (2014).

6 “Cell phones differ in both a quantitative and a qualitative sense from other

objects that might be kept on an arrestee’s person.” Id. at 17.
events and the efficacy of warrantless searches to defeat them. Rather,

the Court noted that other means existed besides a search of a cell

phone to secure the data contained therein, including turning the

phone off or placing the phone in a bag that isolates it from radio

waves.7

—Vehicular Searches

[P. 1408, add to n.260:]

Cf. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013).

—Consent Searches

[P. 1413, add to text at end of section:]

Common social expectations inform the analysis. A person at the

threshold of a residence could not confidently conclude he was welcome to enter over the express objection of a present co-tenant. Expectations may change, however, if the objecting co-tenant leaves,

or is removed from, the premises with no prospect of imminent return.8

—Prisons and Regulation of Probation and Parole

[P. 1420, add new paragraph to text after n.339:]

The Court in Maryland v. King cited a legitimate interest in

having safe and accurate booking procedures to identify persons being taken into custody in order to sustain taking DNA samples from

those charged with serious crimes.9 Tapping the “unmatched potential of DNA identification” facilitates knowing with certainty who

the arrestee is, his criminal history, the danger he poses to others,

his flight risk, and so on.10 By comparison, the Court characterized

an arrestee’s expectation of privacy as diminished and the intrusion posed by a cheek swab as minimal.11

7 Id. at 14.

8 Fernandez v. California, 571 U.S. ___, No. 12–7822, slip op. (2014) (consent by

co-occupant sufficient to overcome objection of a second co-occupant who was arrested and removed from the premises, so long as the arrest and removal were objectively reasonable).

9 569 U.S. ___, No. 12–207, slip op. (2013).

10 Id. at 10–18, 23.

11 Id. at 23–26.

FIFTH AMENDMENT

DOUBLE JEOPARDY

Reprosecution Following Acquittal

[P. 1468, add new sentence to text after n.96:]

Thus, an acquittal resting on the trial judge’s misreading of the elements of an offense precludes further prosecution.1

—Trial Court Ruling Terminating Trial Before Verdict

[P. 1471, add new sentence to text after n.114:]

This is so even where the trial court’s ruling on the sufficiency of

the evidence is based on an erroneous interpretation of the statute

defining the elements of the offense.2

SELF-INCRIMINATION

Development and Scope

[P. 1485, substitute for text beginning with the first new paragraph

and continuing through the paragraph carrying-over from page

1486 to 1487:]

The historical studies cited demonstrate that in England and

the colonies the privilege was narrower than the interpretation now

prevailing. Of course, constitutional guarantees often expand, or contract, over time as judges adapt underlying policies to new factual

patterns and practices. The difficulty is that the Court has generally not articulated the policy objectives underlying the privilege,

usually citing a “complex of values” when it has attempted to state

the interests served by it.3 Commonly mentioned in numerous cases

1 Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013) (acquittal after

judge ruled the prosecution failed to prove that a burned building was not a dwelling, but such proof was not legally required for the arson offense charged).

2 See Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013).

3 Discussing the privilege in one case, the Court stated:

It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel

trilemma of self-accusation, perjury or contempt; our preference for

an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates

“a fair state-individual balance by requiring the government to leave

the individual alone until good cause is shown for disturbing him and

by requiring the government in its contest with the individual to shoulder the entire load”; our respect for the inviolability of the human

29
was the assertion that the privilege was designed to protect the innocent and further the search for truth.4

It appears now, however, that the Court has rejected both of

these as inapplicable and has settled upon the principle that the

clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of

the judicial system, and the preservation of personal privacy from

unwarranted governmental intrusion.5 To protect these interests and

to preserve these values, the privilege “is not to be interpreted literally.” Rather, the “sole concern [of the privilege] is, as its name

indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.” 6 Furthermore, “[t]he privilege afforded not only extends to answers that

would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence

needed to prosecute . . . .” 7

personality and of the right of each individual “to a private enclave

where he may lead a private life”; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.”

Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964) (citations omitted).

4 E.g., Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann v. United States,

350 U.S. 422, 426 (1956); Quinn v. United States, 349 U.S. 155, 162–63 (1955).

5 In Tehan v. United States ex rel. Shott, the Court noted:

[T]he basic purposes that lie behind the privilege against selfincrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which

even the guilty are not to be convicted unless the prosecution “shoulder the entire load.”

. . . .

The basic purpose of a trial is the determination of truth, and it is

self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a

conviction because the accused is poor is to impede that purpose and

to infect a criminal proceeding with the clear danger of convicting

the innocent. . . . By contrast, the Fifth Amendment’s privilege against

self-incrimination is not an adjunct to the ascertainment of truth. That

privilege, like the guarantees of the Fourth Amendment, stands as a

protection of quite different constitutional values—values reflecting

the concern of our society for the right of each individual to be let

alone.

Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); see also Miranda

v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–65

(1966); California v. Byers, 402 U.S. 424, 448–58 (1971) (Harlan, J., concurring). For

a critical view of the privilege, see Henry Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968).

6 Ullmann v. United States, 350 U.S. 422, 438–39 (1956).

7 Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Emspak v. United

States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 159 (1950); Blau v. United

States, 340 U.S. 332 (1951).
The privilege against self-incrimination parries the general obligation to provide testimony under oath when called upon, but it

also applies in police interrogations. In all cases, the privilege must

be supported by a reasonable fear that a response will be incriminatory. The issue is a matter of law for a court to determine,8 and

therefore, with limited exception, one must claim the privilege to

benefit from it.9 Otherwise, silence in the face of questioning may

be insufficient to invoke the privilege because it may not afford an

adequate opportunity either to test whether information withheld

falls within the privilege or to cure a violation through a grant of

immunity.10 A witness who fails to claim the privilege explicitly when

an affirmative claim is required is deemed to have waived it, and

waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.11 However, an

assertion of innocence in conjunction with a claim of the privilege

does not obviate the right of a witness to invoke it, as her responses still may provide the government with evidence it may later

seek to use against her.12

Although an individual must have reasonable cause to apprehend danger and cannot be the judge of the validity of his claim, a

court that would deny a claim of the privilege must be “perfectly

8 E.g., Mason v. United States, 244 U.S. 362 (1917).

9 The primary exceptions are for a criminal defendant not taking the stand and

a suspect in inherently coercive circumstances (e.g., custodial interrogation). See Salinas

v. Texas, 570 U.S. ___, No. 12–246, slip op. at 4–6 (2013) (plurality opinion).

10 In Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013), the defendant—

Salinas—answered all questions during noncustodial questioning about a double murder, other than one about whether his shotgun would match shells recovered at the

murder scene. He fell silent on this inquiry, but did not assert the privilege against

self-incrimination. At closing argument at Salinas’s murder trial, the prosecutor argued that this silence indicated guilt, and a majority of the Court endorsed these

comments. The Court affirmed the Texas Supreme Court’s ruling that Salinas had

failed to invoke his Fifth Amendment rights because he did not do so explicitly. Although no opinion drew a majority of Justices, in an opinion joined by Chief Justice

Roberts and Justice Kennedy, Justice Alito observed that a defendant could choose

to remain silent for numerous reasons other than avoiding self-incrimination. 570

U.S. ___, No. 12–246, slip op. at 9 (plurality opinion).

11 Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317

U.S. 424 (1943). The “waiver” concept here has been pronounced “analytically [un-

]sound,” with the Court preferring to reserve the term “waiver” “for the process by

which one affirmatively renounces the protection of the privilege.” Garner v. United

States, 424 U.S. 648, 654, n.9 (1976). Thus, the Court has settled upon the concept

of “compulsion” as applied to “cases where disclosures are required in the face of

claim of privilege.” Id. “[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Id. at 654. Similarly, the Court has enunciated

the concept of “voluntariness” to be applied in situations where it is claimed that a

particular factor denied the individual a “free choice to admit, to deny, or to refuse

to answer.” Id. at 654 n.9, 656–65.

12 Ohio v. Reiner, 532 U.S. 17 (2001).
clear, from a careful consideration of all the circumstances in the

case, that the individual is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.” 13 To reach a determination, furthermore, a trial judge may not require a witness to

disclose so much of the danger as to render the privilege nugatory.

As the Court observed:

[I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the

privilege is designed to guarantee. To sustain the privilege, it need only be

evident from the implications of the question, in the setting in which it is

asked, that a responsive answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious disclosure could

result.14

Confessions: Police Interrogation, Due Process, and

Self-Incrimination

—Miranda v. Arizona

[P. 1518, add the following to n.355 before the period at the end of

the first citation sentence:]

; Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013) (plurality opinion) (voluntarily accompanying police to station for questioning)

NATIONAL EMINENT DOMAIN POWER

When Property Is Taken

—Government Activity Not Directed at Property

[P. 1570, replace first sentence at the beginning of the paragraph

and n.667 with:]

But the Court also decided long ago that land can be “taken” in the

constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently

or recurrently.15

—Regulatory Takings

13 Hoffman, 341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va. 892, 898

(1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11–14

(1964), and id. at 33 (White, Stewart, JJ., dissenting). Where the government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion).

14 Hoffman, 341 U.S. at 486–87.

15 Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). Recurrent,

temporary floodings are not categorically exempt from Takings Clause liability. Ark.

Game & Fishing Comm’n v. United States, 568 U.S. ___, No. 11–597, slip op. (2012)

(downstream timber damage caused by changes in seasonal water release rates from

government dam).
[P. 1582, after the parenthesis on line 4 add the following footnote:]

A third type of inverse condemnation, in addition to regulatory and Nollan, also applies to exactions imposed as conditions precedent to permit approval. Koontz v. St.

Johns River Water Mgmt. Dist., 570 U.S. ___, No. 11–1447 (2013). To the argument

that nothing is “taken” when a permit is denied for failure to agree to a condition

precedent, the Court stated that what is at stake is not whether a taking has occurred, but whether the right not to have property taken without just compensation

has been burdened impermissibly. Id. at 10. The Court does not discuss what remedies might be available to a plaintiff who refuses to accept certain conditions precedent and thereby is refused a permit.

[P. 1582, after n.735 add:]

The Court clarified this uncertainty in Koontz v. St. Johns River

Water Management District by holding that monetary exactions imposed under land use permitting were subject to essential nexus/rough

proportionality analysis.16

16 570 U.S. ___, No. 11–1447 (2013).

SIXTH AMENDMENT

RIGHT TO TRIAL BY JURY

Jury Trial

—When the Jury Trial Guarantee Applies

[P. 1606, add to text after n.93:]

In Alleyne v. United States, the Court extended Apprendi to require “that any fact that increases the mandatory minimum [sentence] . . . must be submitted to the jury.” 1

[P. 1609, replace the second paragraph beginning on the page with:]

The Court, however, has refused to extend Apprendi to a judge’s

decision to impose sentences for discrete crimes consecutively rather

than concurrently.2 The 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.3

The 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.4

ASSISTANCE OF COUNSEL

Absolute Right to Counsel at Trial

—Limits on the Right to Retained Counsel

[P. 1641, in the first full paragraph, add new footnote after “defense

counsel.”:]

On the same day, the Court also rejected a due process challenge to the same statute, holding that it was permissible to restrain the use of the seized property preconviction even when the defendant sought to use the seized assets to pay for his

attorney as long as probable cause had been established that a qualifying crime had

1 570 U.S. ___, No. 11–9335, slip op. at 1–2 (2013) (overruling Harris v. United

States, 536 U.S. 545 (2002)).

2 Oregon v. Ice, 555 U.S. 160 (2009).

3 Most states follow the common law tradition of giving judges unfettered 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.” Id. at 163.

4 Id. at 525. The Court also noted other decisions judges make that are likely to

evade the strictures of Apprendi, including determining the length of supervised release, attendance at drug rehabilitation programs, terms of community service, and

imposition of fines and orders of restitution. Id. at 171–72.

35
been committed. United States v. Monsanto, 491 U.S. 600, 615 (1989) (“Indeed, it

would be odd to conclude that the Government may not restrain property, such as

the home and apartment in respondent’s possession, based on a finding of probable

cause, when we have held that . . . the Government may restrain persons where

there is a finding of probable cause to believe that the accused has committed a

serious offense.”). A subsequent case held that where a grand jury had returned an

indictment based on probable cause, that conclusion is binding on a court during

forfeiture proceedings and the defendants did not have a right to have such conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to

pay for his counsel. Kaley v. United States, 571 U.S. ___, No. 12–464, slip op. (2014).

—Effective Assistance of Counsel

[P. 1645, delete period at end of n.320 and add:]

; Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013).

[P. 1645, delete period at end of n.325 and add:]

; Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013) (where a reasonable interpretation of the record indicated that a criminal defendant claimed actual innocence, his attorney was justified in withdrawing a guilty plea).

[P. 1646, delete period at end of n.329 and add:]

; Hinton v. Alabama, 571 U.S. ___, No. 13–6440, slip op. (2014) (per curiam) (attorney’s hiring of a questionably competent expert witness because of a mistaken belief

in the legal limit on the amount of funds payable on behalf of an indigent defendant constitutes ineffective assistance).

[P. 1647, add new footnote to text at end of first partial paragraph:]

In Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013), the Court

held that Padilla announced a “new rule” of criminal procedure that did not apply

“retroactively” during collateral review of convictions then already final. Retroactive

application of the Court’s criminal procedure decisions is discussed under the topic

“Retroactivity Versus Prospectivity” in Article III, supra.
EIGHTH AMENDMENT

CRUEL AND UNUSUAL PUNISHMENTS

Capital Punishment

Limitations on Capital Punishment: Diminished Capacity

[P. 1711, add new paragraph to text after n.160:]

In Hall v. Florida,

1 however, the Court limited the states’ ability to define intellectual disability by invalidating Florida’s “bright

line” cutoff based on Intelligence Quotient (IQ) test scores. A Florida

statute stated that anyone with an IQ above 70 was prohibited from

offering additional evidence of mental disability and was thus subject to capital punishment.2 The Court invalidated this rigid standard, observing that “[i]ntellectual disability is a condition, not a

number.” 3 The majority noted that, although IQ scores are helpful

in determining mental capabilities, they are imprecise in nature and

may only be used as a factor of analysis in death penalty cases.4

This reasoning was buttressed by a consensus of mental health professionals that an IQ test score should be read not as a single fixed

number, but as a range.5

1 572 U.S. ___, No. 12–10882, slip op. (2014).

2 Fla. Stat. § 921.137.

3 572 U.S. ___, No. 12–10882, slip op. at 21.

4 Id. Of those states that allow for the death penalty, a number of them do not

have strict cut-offs for IQ scores. See, e.g., CAL. PENAL CODE § 1376; LA. CODE CRIM.

PROC. ANN. art. 905.5.1; NEV. REV. STAT. § 174.098.7; UTAH CODE ANN. § 77–15a–102.

Similarly, the U.S. Code does not set a strict IQ cutoff. See 18 U.S.C. § 3596(c).

5 This range, referred to as a “standard error or measurement” or “SEM,” is

used by many states in evaluating the existence of intellectual disability. 572 U.S.

___, No. 12–10882, slip op. at 12.

37

FOURTEENTH AMENDMENT

Section 1. Rights Guaranteed

PROCEDURAL DUE PROCESS: CIVIL

Jurisdiction

—In Personam Proceedings Against Individuals

[P. 1955, add the following new paragraph to the end of the

section:]

Walden v. Fiore further articulated what “minimum contacts”

are necessary to create jurisdiction as a result of the relationship

between the defendant, the forum, and the litigation.1 In Walden,

the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident

that occurred in the Atlanta airport as the plaintiffs were attempting to board a connecting flight from Puerto Rico to Las Vegas. The

Court held that the court in Nevada lacked jurisdiction because of

insufficient contacts between the officer and the state relative to the

alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct

connects him to the forum in a meaningful way.2

—Suing Out-of-State (Foreign) Corporations

[P. 1956, replace both paragraphs starting on that page with:]

Presence alone, however, does not expose a corporation to all

manner of suits through the exercise of general jurisdiction. Only

corporations, whose continuous and systematic affiliations with a

forum make them “essentially at home” there, are broadly amenable to suit.3 Without the protection of such a rule, foreign corporations would be exposed to the manifest hardship and inconvenience of defending, in any state in which they happened to be carrying

1 571 U.S. ___, No. 12–574, slip op. (2014). This type of “jurisdiction” is often

referred to as “specific jurisdiction.”

2 Id. at 6–8.

3 Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014) (quoting

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, No. 10–76, slip op.

at 2 (2011)) (holding Daimler Chrysler, a German public stock company, could not

be subject to suit in California with respect to acts taken in Argentina by Argentinian subsidiary of Daimler, notwithstanding the fact that Daimler Chrysler had a

U.S. subsidiary that did business in California).

39
on business, suits for torts wherever committed and claims on contracts wherever made.4 And if the corporation stopped doing business in the forum state before suit against it was commenced, it

might well escape jurisdiction altogether.5 In early cases, the issue

of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign

corporation, was much disputed and led to very particularistic holdings.6 In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could

be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.7

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.8 International Shoe, an out-of-state corporation, had not been

issued a license to do business in Washington State, but it systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such

salesmen. The Court deemed a notice of assessment served personally upon one of the local sales solicitors, and a copy of the assessment sent by registered mail to the corporation’s principal office in

Missouri, sufficient to apprise the corporation of the proceeding.

EQUAL PROTECTION AND RACE

Education

4 E.g., Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907); Simon v. S. Ry.,

236 U.S. 115, 129–30 (1915); Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907);

Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Davis v. Farmers Cooperative Co., 262 U.S. 312 (1923); Helicopteros Nacionales de Colombia v. Hall, 466

U.S. 408 (1984). Continuous operations were sometimes sufficiently substantial and

of a nature to warrant assertions of jurisdiction. St. Louis S.W. Ry. v. Alexander,

227 U.S. 218 (1913); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. ___, No. 10–76, slip op. (2011) (distinguishing application of stream-ofcommerce analysis in specific cases of in-state injury from the degree of presence a

corporation must maintain in a state to be amenable to general jurisdiction there).

5 Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921);

Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). Jurisdiction would

continue, however, if a state had conditioned doing business on a firm’s agreeing to

accept service through state officers should it and its agent withdraw. Washington

ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364 (1933).

6 Solicitation of business alone was inadequate to constitute “doing business,”

Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907), but when connected with other

activities would suffice to confer jurisdiction. Int’l Harvester Co. v. Kentucky, 234

U.S. 579 (1914). Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930)

(Hand, J.) (providing survey of cases).

7 E.g., Goldey v. Morning News, 156 U.S. 518 (1895); Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903); Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915);

but see Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899).

8 326 U.S. 310 (1945).
—Efforts to Curb Busing and Other Desegregation Remedies

[P. 2098, add new paragraph to text after n.1655:]

The Court subsequently declined to extend the reasoning of these

cases to remedies for exclusively de facto racial segregation. In Schuette

v. BAMN,

9 the Court considered the constitutionality of an amendment to the Michigan Constitution, approved by that state’s voters,

to prohibit the use of race-based preferences as part of the admissions process for state universities. In Schuette,

10 a plurality of the

Court restricted its prior holdings as applying only to those situations where state action had the serious risk, if not purpose, of causing specific injuries on account of race. Finding no similar risks of

injury with regard to the Michigan Amendment and no similar allegations of past discrimination in the Michigan university system,

the Court declined to “restrict the right of Michigan voters to determine that race-based preferences granted by state entities should

be ended.” 11 The plurality opinion and a majority of the Court, however, explicitly rejected a broader “political process theory” with respect to the constitutionality of race-based remedies. Specifically, the

Court held that state action that places effective decision making

over a policy that “inures primarily to the benefit of the minority”

at a different level of government is not subject to heightened constitutional scrutiny.12

Affirmative Action: Remedial Use of Racial Classifications

[P. 2116, add new footnote at end of first full paragraph:]

539 U.S. at 315. While an educational institution will receive deference in its judgment as to whether diversity is essential to its educational mission, the courts must

closely scrutinize the means by which this goal is achieved. Thus, the institution

will receive no deference regarding the question of the necessity of the means cho9 572 U.S. ___, No. 12–682, slip op. (2014).

10 The plurality opinion was written by Justice Kennedy, joined by Chief Justice Roberts and Justice Alito. Justice Scalia authored an opinion concurring in judgment, joined by Justice Thomas, arguing that Seattle School District and the case

on which it was based should be overturned in their entirety. 572 U.S. ___, No. 12–

682, slip op. at 7–8 (2014) (Scalia, J., concurring in judgment). Justice Breyer also

wrote an opinion concurring in judgment that the Michigan amendment did not violate the Equal Protection Clause. Specifically, Justice Breyer relied on the facts that

(1) the amendment forbid racial preferences aimed at achieving diversity in education (as opposed to remedying past discrimination); (2) the amendment was aimed

at ensuring the democratic process (as opposed to the university administration) controlled with respect to affirmative action policy; and (3) the underlying racial preference policy had been adopted by individual school administrations, not by elected

officials. Id. at 5 (Breyer, J., concurring in judgment). Justice Sotomayor, joined by

Justice Ginsburg, dissented. Id. at 5, 22 (Sotomayor, J., dissenting). Justice Kagan

recused herself.

11 Id. at 3–4.

12 Id. at 11.
sen and will bear the burden of demonstrating that “each applicant is evaluated as

an individual and not in a way that an applicant’s race or ethnicity is the defining

feature of his or her application.” Fisher v. Univ. of Tex. at Austin, 570 U.S. ___, No.

11–345, slip op. at 10 (2013) (citation omitted).

THE NEW EQUAL PROTECTION

Sexual Orientation

[P. 2172, add new paragraphs to text at end of section:]

In United States v. Windsor,

13 the Court struck down section 3

of the Defense of Marriage Act (DOMA), which provided that for

purposes of any federal act, ruling, regulation, or interpretation by

an administrative agency, the word “spouse” would mean a person

of the opposite sex who is a husband or a wife.14 In Windsor, the

petitioner had been married to her same-sex partner in Canada and

she lived in New York, where the marriage was recognized. After

her partner died, the petitioner sought to claim a federal estate tax

exemption for surviving spouses.15 In examining the federal statute, the Court initially noted that, while “[b]y history and tradition

the definition and regulation of marriage . . . has been treated as

being within the authority and realm of the separate States,”

16 section 3 of DOMA took the “unusual” step of departing from the “history and tradition of reliance on state law to define marriage” in

order to alter the reach of over 1,000 federal laws and limit the

scope of federal benefits.17 Citing to Romer, the Court noted that

discrimination of “unusual character” warranted more careful scrutiny.18

In approving of same-sex marriages, the State of New York was

conferring a “dignity and status of immense import,” 19 and the federal government, with section 3 of DOMA, was aiming to impose

“restrictions and disabilities” on and “injure the very class” New

York sought to protect.20 In so doing, the Court concluded that section 3 of DOMA was motivated by improper animus or purpose because the law’s avowed “purpose and practical” effect was to “impose a . . . stigma upon all who enter into same-sex marriages made

lawful” by the states.21 Holding that “no legitimate purpose over13 570 U.S. ___, No. 12–307, slip op. (2013).

14 110 Stat. 2419, 1 U.S.C. § 7.

15 Section 3 also provided that “marriage” would mean only a legal union between one man and one woman.

16 570 U.S. ___, No. 12–307, slip op. at 14–16.

17 Id. at 18–19.

18 Id. at 19 (citing Romer v. Evans, 517 U.S. 620, 633 (1996)).

19 Id. at 18.

20 Id. at 19–20.

21 Id. at 21.
comes the purpose and effect to disparage and injure those whom

the State, by its marriage laws, sought to protect in personhood and

dignity,” 22 the Court held that section 3 of DOMA violates “basic

due process and equal protection principles applicable to the Federal Government.” 23 In striking down section 3, the Court did not

expressly set out what test the government must meet to justify

laws calling for differentiated treatment based on sexual orientation.

22 Id. at 25–26.

23 Id. at 20. Because the case was decided under the due process clause of the

Fifth Amendment, which comprehends both substantive due process and equal protection principles (as incorporated through the Fourteenth Amendment), this statement leaves unclear precisely how each of these doctrines bears on the presented

issue.

FIFTEENTH AMENDMENT

Sections 1 and 2

ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS

OF RACE

Congressional Enforcement

Federal Remedial Legislation

[P. 2212, after first paragraph, delete remaining paragraphs in

section and replace with:]

But, it was in upholding the constitutionality of the 1965 Act

in South Carolina v. Katzenbach that the Court sketched the outlines of a broad power in Congress to enforce the Fifteenth Amendment.1 Although section 1 authorized the courts to strike down state

statutes and procedures that denied the vote on the basis of race,

the Court held section 2 authorized Congress to go beyond proscribing certain discriminatory statutes and practices to “enforce” the

guarantee by any rational means at its disposal. The standard was

the same as that used under the “Necessary and Proper” Clause

supporting other congressional legislation. Congress was therefore

justified in deciding that certain areas of the nation were the primary locations of voting discrimination and in directing its remedial legislation to those areas. The Court found that Congress chose

a rational formula based on the existence of voting tests that could

be used to discriminate and on low registration or voting rates, which

demonstrated the likelihood that the tests had been so used; that

Congress could properly suspend for a period all literacy tests in

the affected areas upon findings that they had been administered

discriminatorily and that illiterate whites had been registered while

both literate and illiterate African-Americans had not been; and that

Congress could require the states to seek federal permission to reinstitute old tests or institute new ones; and it could provide for

federal examiners to register qualified voters.2

The Katzenbach decision appeared to afford Congress discretion to enact measures designed to enforce the Amendment through

broad affirmative prescriptions rather than through proscriptions of

specific practices.3 Subsequent decisions of the Burger Court con1 383 U.S. 301 (1966).

2 Id. at 333–37.

3 Justice Black dissented from the portion of the decision that upheld the requirement that before a state could change its voting laws it must seek approval of the

45
firmed the reach of this power. In one case, the Court held that

evidence of past discrimination in the educational opportunities available to black children precluded a North Carolina county from reinstituting a literacy test.4 And, in 1970, when Congress suspended

for a five-year period literacy tests throughout the nation,5 the Court

unanimously sustained the action as a valid measure to enforce the

Fifteenth Amendment.6

Moreover, in City of Rome v. United States,

7 the Court read the

scope of Congress’s remedial powers under section 2 of the Fifteenth Amendment to parallel similar reasoning under section 5 of

the Fourteenth Amendment. In City of Rome, the City had sought

to escape from coverage of the Voting Rights Act by showing that it

had not utilized any discriminatory practices within the prescribed

period.8 The lower court found that the City had engaged in practices without any discriminatory motive, but that its practices had

had a discriminatory impact.9 The City thus argued that, because

the Fifteenth Amendment reached only purposeful discrimination,

the Act’s proscription of effect, as well as of purpose, went beyond

Congress’s power.10 The Court held, however, that, even if discriminatory intent was a prerequisite to finding a violation of section 1

of the Fifteenth Amendment,11 Congress still had authority to proscribe electoral devices that had the effect of discriminating.12 The

Court held that section 2, like section 5 of the Fourteenth Amendment, was in effect a “Necessary and Proper Clause,” which enabled Congress to enact enforcement legislation that was rationally related to the end sought, and that section 2 of the Fifteenth

Amendment did not prohibit such legislation since the legislation

was consistent with the letter and spirit of the Constitution, even

though the actual practice, which the legislation outlawed or restricted, would not, in itself, violate the Fifteenth Amendment.13 In

so acting, Congress could prohibit state action that perpetuated the

effect of past discrimination, or that, because of the existence of past

Attorney General or a federal court. Id. at 355.

4 Gaston Cty. v. United States, 395 U.S. 285 (1969).

5 84 Stat. 315, 42 U.S.C. § 1973aa.

6 Oregon v. Mitchell, 400 U.S. 112, 131–34, 144–47, 216–17, 231–36, 282–84 (1970).

7 446 U.S. 156 (1980).

8 Id. at 172.

9 Id.

10 Id. at 173.

11 Cf. City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980).

12 Id.

13 Id. at 174–77.
purposeful discrimination, raised a risk of purposeful discrimination that might not lend itself to judicial invalidation.14 The Court

stated:

It is clear, then, that under § 2 of the Fifteenth Amendment Congress may

prohibit practices that in and of themselves do not violate § 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting

are “appropriate,” as that term is defined in McCulloch v. Maryland and Ex

parte Virginia . . . . Congress could rationally have concluded that, because

electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.15

In 1975 and 1982, Congress extended and revised the Voting

Rights Act.16 Congress used the 1982 Amendments to revitalize section 2 of the Act, which, unlike section 5, applies nationwide.17 As

enacted in 1965, section 2 largely tracked the language of the Fifteenth Amendment. In City of Mobile v. Bolden,

18 a majority of the

Court agreed that the Fifteenth Amendment and section 2 of the

Act were coextensive, but the Justices did not agree on the meaning to be ascribed to the statute. A plurality believed that, because

14 Id. at 175–76.

15 City of Rome v. United States, 446 U.S. 156, 177 (1980). In Lopez v. Monterey

Cty., 525 U.S. 266 (1999), the Court reiterated its prior holdings that Congress may

exercise its enforcement power based on discriminatory effects, and without any finding of discriminatory intent.

16 The 1975 amendments, Pub. L. 94–73, 89 Stat. 400, extended the Act for seven

years; expanded it to include those areas having minorities distinguished by their

language, i.e., “persons who are American Indian, Asian American, Alaskan Natives

or of Spanish heritage,” § 207, in which certain statistical tests are met; and required election materials to be provided in an alternative language if more than five

percent of the voting age citizens of a political subdivision are members of a single

language minority group whose illiteracy rate is higher than the national rate. § 301.

The 1982 amendments, Pub. L. 97–205, 96 Stat. 131, in addition to the section 2

revision, provided that a covered jurisdiction may remove itself from the Act’s coverage by proving to the special court in the District of Columbia that the jurisdiction

has complied with the Act for the previous ten years and that it has taken positive

steps both to encourage minority political participation and to remove structural barriers to minority electoral influence. § 2. Moreover, the 1982 amendments change

the result in Beer v. United States, 425 U.S. 130 (1976), in which the Court had

held that a covered jurisdiction was precluded from altering a voting practice covered by the Act only if the change would lead to a retrogression in the position of

racial minorities; if a change in voting practice merely perpetuated a practice that

was not covered by the Voting Rights Act because it was enacted prior to November

1964, the jurisdiction could implement it. The 1982 amendments provide that the

change may not be approved if it would “perpetuate voting discrimination,” in effect

applying the new section 2 results test to preclearance procedures. S. REP. NO. 417,

97th Congress, 2d Sess. 12 (1982); H.R. REP. NO. 227, 97th Congress, 1st Sess. 28

(1981).

17 Private parties may bring suit to challenge electoral practices under section

2.

18 446 U.S. 55 (1980). See id. at 60–61 (Burger, C.J., Stewart, Powell, Rehnquist,

JJ.), and id. at 105 n.2 (Marshall, J. dissenting).
the constitutional provision reached only purposeful discrimination, section 2 was similarly limited. A major purpose of Congress

in 1982 had been to set aside this possible interpretation and to

provide that any electoral practice “which results in a denial or abridgement” of the right to vote on account of race or color will violate

the Act.19

The Court in Shelby County v. Holder,

20 however, emphasized

the limits to the enforcement power of the Fifteenth Amendment

in striking down section 4 of the Act, which provided the formula

that determined which states or electoral districts are required to

submit electoral changes to the Department of Justice or a federal

court for preclearance under section 5 of the Act. In 2006, Congress

had reauthorized the Act for twenty-five years, and provided that

the preclearance requirement extended to jurisdictions that had a

voting test and less than 50 percent voter registration or turnout

as of 1972.21

In Shelby County, the Court described the section 5 preclearance process as an “extraordinary departure from the traditional

course of relations between the States and the Federal Government” 22 and as “extraordinary legislation otherwise unfamiliar to

our federal system.” 23 This led the Court to find the formula in section 4 violated the “fundamental principle of equal sovereignty” among

states because the section, by definition, applied to only some states

and not others.24 While the Court acknowledged that the disparate

19 Before the 1982 amendments, section 2 provided that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed

or applied by any State or political subdivision to deny or abridge the right of any

citizen of the United States to vote on account of race or color.” Pub. L. 89–110, § 2,

79 Stat. 437. Section 3 of the 1982 amendments amended section 2 of the Act by

inserting the language quoted and by setting out a nonexclusive list of factors making up a “totality of circumstances test” by which a violation of section 2 would be

determined. 96 Stat. 131, 134, amending 42 U.S. § 1973. Without any discussion of

the Fifteenth Amendment, the Court in Thornburg v. Gingles, 478 U.S. 30 (1986),

interpreted and applied the “totality of the circumstances” test in the context of multimember districting. Id. at 80.

20 570 U.S. ___, No. 12–96, slip op. (2013).

21 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act

Reauthorization and Amendments Act, Pub. L. 109–246, 120 Stat. 577.

22 570 U.S. ___, No. 12–96, slip op. at 12.

23 Id. (citation omitted).

24 570 U.S. ___, No. 12–96, slip op. at 9 (quoting Nw. Austin Mun. Util. Dist.

No. One v. Holder, 557 U.S. 193, 203 (2009)).The significance of the principle of equal

sovereignty as enunciated in Coyle v. Smith had been considered by the Court in a

previous challenge to the Act. See South Carolina v. Katzenbach, 383 U.S. 301, 328–29

(1966). Considering the disparate treatment of states under the section 5 preclearance requirement, the Katzenbach Court had referenced the case of Coyle v. Smith,

221 U.S. 559 (1911), which upheld the authority of Oklahoma to move its state capitol despite language to the contrary in the enabling act providing for its admission

as a state. This case, while based on the theory that the United States “was and is
treatment of states under section 4 could be justified by “unique

circumstances,” such as those before Congress at the time of enactment of the Voting Rights Act,25 the Court held that “Congress could

no longer distinguish between States in such a fundamental way

based on 40-year-old-data, when today’s statistics tell an entirely

different story” with respect to racial discrimination in covered jurisdictions.26 The Court added, however, that Congress could “draft

another formula [for pre-clearance] based on current conditions” that

demonstrate “that exceptional conditions still exist justifying such

an ‘exceptional departure from the traditional course of relations

between the States and the Federal Government.’ ” 27

a union of States, equal in power, dignity and authority,” 221 U.S. at 580, was distinguished by the Court in Katzenbach as concerning only the admission of new states

and not remedies for actions occurring subsequent to that event. The Court in Shelby

County held, however, that a broader principle regarding equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.” 570

U.S. ___, No. 12–96, slip op. at 11 (citing Nw. Austin, 557 U.S. at 203).

25 570 U.S. ___, No. 12–96, slip op. at 12–13 (quoting Katzenbach, 383 U.S. at

334, 335).

26 Id. at 13, 23–24.

27 Id. at 24 (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500–01 (1992)).

ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN

WHOLE OR IN PART BY THE SUPREME COURT

OF THE UNITED STATES

[This entry should follow #109 in the main volume:]

Act of August 6, 1965 (Pub. L. 89–110, § 4(b), 79 Stat. 438, 42 U.S.C. § 1973(b))

Section 4 of the Voting Rights Act of 1965, which provides the formula for determining the states or electoral districts that are required to submit electoral changes to the Department of Justice or a

federal court for preclearance approval under section 5 of the Act, exceeds Congress’s enforcement power under the Fifteenth Amendment

by violating the “fundamental principle of equal sovereignty” among

states without sufficient justification.

Shelby Cty. v. Holder, 570 U.S. ___, No. 12–96, slip op. (2013).

Justices concurring: Roberts, C.J., Scalia, Kennedy, Thomas, Alito

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

[This entry should follow #162 in the main volume:]

Act of September 21, 1996 (Pub. L. No. 104–199, § 2(a), 110 Stat. 2419, 1

U.S.C. § 7)

Section 3 of the Defense of Marriage Act (DOMA), which provides

that—for purposes of any federal act, ruling, regulation, or interpretation by an administrative agency—the word “spouse” is defined as a

person of the opposite sex who is a husband or a wife, was “motivated

by improper animus or purpose” to disparage and injure those whom

a state, by its marriage laws, “sought to protect in personhood and

dignity,” amounting to a deprivation of the equal liberty of persons that

is protected by the Fifth Amendment.

United States v. Windsor, 570 U.S. ___, No. 12–307, slip op. (2013).

Justices concurring: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito

[This entry should follow #168 in the main volume:]

Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002 (Pub.

L. 107–155, § 307(b), 2 U.S.C. § 441a(a)(3))

Aggregate limits on the amount of money individuals are allowed

to contribute to candidates, political action committees, national party

committees, and state or local party committees violate the First Amendment by restricting participation in the political process without furthering the government’s interest in preventing quid pro quo corruption or the appearance thereof.

51
McCutcheon v. FEC, 572 U.S. ___, No. 12–536, slip op. (2014).

Justices concurring: Roberts, C.J., Scalia, Kennedy, Alito

Justice concurring in judgment only: Thomas

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

[This entry should follow #171 in the main volume:]

Act of May 27, 2003 (Pub. L. 108–25, Title III, § 301(f), 117 Stat. 711, 734,

22 U.S.C. § 7631(f))

A condition on the provision of federal funds intended to combat

HIV/AIDS requiring a recipient to have a policy “explicitly opposing

prostitution and sex trafficking” violates First Amendment free speech

rights by improperly interfering with the recipient’s protected conduct

outside of the federal program.

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570 U.S. ___, No. 12–10, slip

op. (2013).

Justices concurring: Roberts, C.J., Kennedy, Ginsburg, Breyer, Alito, Sotomayor

Justices dissenting: Scalia, Thomas
STATE CONSTITUTIONAL AND STATUTORY PROVISIONS AND MUNICIPAL ORDINANCES HELD UNCONSTITUTIONAL OR HELD TO BE PREEMPTED

BY FEDERAL LAW

I. STATE LAWS HELD UNCONSTITUTIONAL

954. Hall v. Florida, 572 U.S. ___, No. 12–10882, slip op. (2014)

Florida state law that provides a “bright line” cutoff based on IQ

test scores to determine if a defendant is ineligible for capital punishment because of intellectual disability violates the Eighth Amendment

because IQ scores are imprecise in nature and may only be used as a

factor of analysis in death penalty cases.

Justices concurring: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito

955. McCullen v. Coakley, 573 U.S. ___, No. 12–1168, slip op. (2014)

Massachusetts statute requiring a 35-foot buffer zone at entrances and driveways of abortion facilities violates the First Amendment, as the zone created is not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to

reproductive healthcare facilities because less intrusive alternatives were

available to the state.

Justices concurring: Roberts, C.J., Ginsburg, Breyer, Sotomayor, Kagan

Justices concurring in judgment: Scalia, Kennedy, Thomas, Alito

956. Harris v. Quinn, 573 U.S. ___, No. 11–681, slip op. (2014)

An Illinois law requiring a Medicaid recipient’s “personal assistant” (who is part of a collective bargaining unit but not a member of

the bargaining union) to pay an “agency” fee to the union violates the

First Amendment’s prohibitions against compelled speech and could not

be justified under the rationale of Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

Justices concurring: Roberts, C.J., Scalia, Kennedy, Thomas, Alito

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

III. STATE AND LOCAL LAWS HELD PREEMPTED BY

FEDERAL LAW

[Insert the following at the beginning of list:]

The Constitution of the United States of America: Analysis and Interpretation is currently undergoing significant revisions as part of a regular review

of the document. As part of the revision process, the list of state and local

53
laws held preempted by federal law is being eliminated.

SUPREME COURT DECISIONS OVERRULED BY

SUBSEQUENT DECISION

Asterisks (*) identify cases expressly overruled.

Overruling Case Overruled Case

* 957. Alleyne v. United States, 570 U.S.

___, No. 11–9335, slip op. (2013)

Harris v. United States, 536 U.S. 545

(2002)
TABLE OF CASES

Page

Abington School Dist. v. Schempp, 374 U.S. 203 (1963)........................................................ 19

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)................................................... 20–21, 53

Agency for Int’l Dev. v. Alliance for Open Society Int’l, 570 U.S. ___, No. 12–10, slip

op. (2013).................................................................................................................. 23, 52

Alleyne v. United States, 570 U.S. ___, No. 11–9335, slip op. (2013)............................... 35, 54

Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. (2013).................................... 13

Apprendi v. New Jersey, 530 U.S. 466 (2000)....................................................................... 35

Arkansas Game & Fishing Comm’n v. United States, 568 U.S. ___, No. 11–597, slip

op. (2012)........................................................................................................................ 32

Bailey v. United States, 568 U.S. ___, No. 11–770, slip op. (2013)........................................ 25

Beer v. United States, 425 U.S. 130 (1976).......................................................................... 47

Blau v. United States, 340 U.S. 159 (1950).......................................................................... 30

Blau v. United States, 340 U.S. 332 (1951).......................................................................... 30

Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014).......................................... 14

Buckley v. Valeo, 424 U.S. 1 (1976)..................................................................................... 22

Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013)...................................................... 36

Burwell v. Hobby Lobby, 573 U.S. ___, No. 13–354, slip op. (2014)....................................... 20

California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974)......................................................... 11

California v. Byers, 402 U.S. 424 (1971)......................................................................... 30, 32

Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013)................................................. 13

Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013)................................ 13, 36

Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373 (1920).............................................. 40

City of Los Angeles v. Lyons, 461 U.S. 95 (1983).................................................................. 11

City of Mobile v. Bolden, 446 U.S. 55 (1980)................................................................... 46–47

City of Rome v. United States, 446 U.S. 156 (1980)........................................................ 46–47

Clapper v. Amnesty International USA, 568 U.S. ___, No. 11–1025, slip op. (2013).......... 11–12

Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014)....................................................... 1

Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903)....................................................... 40

Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899)............................................ 40

Connick v. Myers, 461 U.S. 138 (1983)................................................................................ 21

Coyle v. Smith, 221 U.S. 559 (1911)..................................................................................... 48

Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. (2014)........................................ 39

Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. ___, No. 12–52, slip op. (2013)........................ 2

Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923)....................................................... 40

Davis v. FEC, 554 U.S. 724 (2008)....................................................................................... 11

Decker v. Northwest Environmental Defense Center, 568 U.S. ___, No. 11–338, slip

op. (2013)........................................................................................................................ 13

Emspak v. United States, 349 U.S. 190 (1955)..................................................................... 30

Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013).............................................. 29

Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004)................................................................. 5

Fernandez v. California, 571 U.S. ___, No. 12–7822, slip op. (2014)...................................... 27

Fisher v. Univ. of Texas at Austin, 570 U.S. ___, No. 11–345, slip op. (2013)......................... 42

Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013)............................................ 25, 27

Florida v. Jardines, 569 U.S. ___, No. 11–564, slip op. (2013)............................................... 25

Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000)...................................... 13

Garcetti v. Ceballos, 547 U.S. 410 (2006)........................................................................ 21–22

Garner v. United States, 424 U.S. 648 (1976)...................................................................... 31

Gaston County v. United States, 395 U.S. 285 (1969).......................................................... 46

Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No. 11–1059, slip op. (2013)................. 13

55
Goldey v. Morning News, 156 U.S. 518 (1895)..................................................................... 40

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, No. 10–76, slip op.

(2011)........................................................................................................................ 39–40

Gratz v. Bollinger, 539 U.S. 244 (2003)................................................................................ 41

Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907).............................................................. 40

Hall v. Florida, 572 U.S. ___, No. 12–10882, slip op. (2014)............................................ 37, 53

Harris v. Quinn, 573 U.S. ___, No. 11–681, slip op. (2014)........................................ 20–21, 53

Harris v. United States, 536 U.S. 545 (2002).................................................................. 35, 54

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984)........................................ 40

Hillman v. Maretta, 569 U.S. ___, No. 11–1221, slip op. (2013).............................................. 2

Hill v. Colorado 530 U.S. 703 (2000).............................................................................. 23–24

Hinton v. Alabama, 571 U.S. ___, No. 13–6440, slip op. (2014)............................................. 36

Hoffman v. United States, 341 U.S. 479 (1951).............................................................. 30, 32

Hollingsworth v. Perry, 570 U.S. ___, No. 12–144, slip op. (2013)......................................... 10

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)...................................................................... 14

Hutchinson v. Chase and Gilbert, 45 F.2d 139 (2d Cir. 1930)............................................... 40

Illinois v. Gates, 462 U.S. 213 (1983)................................................................................... 25

In re Farrow, 3 Fed. 112 (C.C.N.D. Ga. 1880)........................................................................ 5

International Harvester Co. v. Kentucky, 234 U.S. 579 (1914).............................................. 40

International Shoe Co. v. Washington, 326 U.S. 310 (1945).................................................. 40

Judice v. Vail, 430 U.S. 327 (1977)...................................................................................... 14

Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359 (D.C. Cir. 2005).......................................... 1

Kaley v. United States, 571 U.S. ___, No. 12–464, slip op. (2014)......................................... 36

Karcher v. May, 484 U.S. 72 (1987)..................................................................................... 10

Koontz v. St. Johns River Water Mgmt Dist., 570 U.S. ___, No. 11–1447 (2013).................... 33

Laird v. Tatum, 408 U.S. 1 (1972)....................................................................................... 11

Lane v. Franks, 573 U.S. ___, No. 13–483, slip op. (2014)............................................... 21–22

Lee v. Weisman, 505 U.S. 577 (1992)................................................................................... 19

Lopez v. Monterey County, 525 U.S. 266 (1999)................................................................... 47

Malloy v. Hogan, 378 U.S. 1 (1964)..................................................................................... 32

Marsh v. Chambers, 463 U.S. 783 (1983)............................................................................. 19

Maryland v. King, 569 U.S. ___, No. 12–207, slip op. (2013)................................................. 27

Mason v. United States, 244 U.S. 362 (1917)....................................................................... 31

McBurney v. Young, 569 U.S. ___, No. 12–17, slip op. (2013)............................................ 1, 17

McCullen v. Coakley, 573 U.S. ___, No. 12–1168, slip op. (2014)................................ 23–24, 53

McCutcheon v. FEC, 572 U.S. ___, No. 12–536, slip op. (2014)........................................ 22, 52

Michigan v. Summers, 452 U.S. 692 (1981).......................................................................... 26

Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)................. 14

Miranda v. Arizona, 384 U.S. 436 (1966)............................................................................. 30

Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. (2013)........................................... 25

Moore v. Sims, 442 U.S. 415 (1979)..................................................................................... 14

Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964).............................................................. 30

Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. ___, No. 12–142, slip op. (2013)................... 2

National Labor Relations Board v. Noel Canning, 573 U.S. ___, No. 12–1281, slip op.

(2014)............................................................................................................................ 5–7

New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S.

350 (1989).................................................................................................................. 14–15

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)................................................... 33

Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009).............. 48–49

Nw. v. Ginsberg, 572 U.S. ___, No. 12–462, slip op. (2014)..................................................... 1

Ohio Civil Rights Comm’n v. Dayton Christian School, Inc., 477 U.S. 619 (1986).................. 14

Ohio v. Reiner, 532 U.S. 17 (2001)....................................................................................... 31

Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907)....................................................... 40
Oregon v. Ice, 555 U.S. 160 (2009)....................................................................................... 35

Oregon v. Mitchell, 400 U.S. 112 (1970)............................................................................... 46

O’Shea v. Littleton, 414 U.S. 488 (1974).............................................................................. 11

Padilla v. Kentucky, 559 U.S. ___, No. 08–651, slip op. (2010).............................................. 36

Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998)....................................................................... 1

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)..................................................................... 14

Perry v. Brown, 52 Cal. 4th 1116, 265 P. 3d 1002 (2011)...................................................... 10

Perry v. Schwarzenegger, 628 F.3d 1191 (2011).................................................................... 10

Peugh v. United States, 569 U.S. ___, No. 12–62, slip op. (2013)............................................ 3

Pickering v. Board of Education, 391 U.S. 563 (1968).......................................................... 21

Plumhoff v. Rickard, 572 U.S. ___, No. 12–1117, slip op. (2014)............................................ 25

Prado Navarette v. California, 572 U.S. ___, No. 12–9490, slip op. (2014)............................. 26

Presley v. Etowah County Comm’n, 502 U.S. 491 (1992)...................................................... 49

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872).................................................... 32

Quinn v. United States, 349 U.S. 155 (1955)........................................................................ 30

Riley v. California, 573 U.S. ___, No. 13–132, slip op. (2014)................................................ 26

Riverside Mills v. Menefee, 237 U.S. 189 (1915)................................................................... 40

Rizzo v. Goode, 423 U.S. 362 (1976)..................................................................................... 11

Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921)......................... 40

Rogers v. United States, 340 U.S. 367 (1951)....................................................................... 31

Romer v. Evans, 517 U.S. 620 (1996)................................................................................... 42

Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516 (1923)...................................................... 40

Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013).............................................. 31–32

Schmerber v. California, 384 U.S. 757 (1966)....................................................................... 30

Schuette v. BAMN, 572 U.S. ___, No. 12–682, slip op. (2014)............................................... 41

Shelby Cnty. v. Holder, 570 U.S. ___, No. 12–96, slip op. (2013)................................ 48–49, 51

Simon v. S. Ry., 236 U.S. 115 (1915).................................................................................... 40

South Carolina v. Katzenbach, 383 U.S. 301 (1966).................................................. 45, 48–49

Sprint Communications, Inc. v. Jacobs, 571 U.S. ___, No. 12–815, slip op. (2013)............ 14–15

St. Louis S.W. Ry. v. Alexander, 227 U.S. 218 (1913)............................................................ 40

Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979)................................................................ 7

Summers v. Earth Island Institute, 555 U.S. 488 (2009)...................................................... 11

Susan B. Anthony List v. Driehaus, 573 U.S. ___, No. 13–193, slip op. (2014)...................... 12

Teague v. Lane, 489 U.S. 288 (1989).................................................................................... 13

Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).................................................... 30

Temple v. Commonwealth, 75 Va. 892 (1881)....................................................................... 32

Terry v. Ohio, 392 U.S. 1 (1968).......................................................................................... 26

Thornburg v. Gingles, 478 U.S. 30 (1986)............................................................................ 48

Town of Greece v. Galloway, 572 U.S. ___, No. 12–696, slip op. (2014).................................. 19

Trainor v. Hernandez, 431 U.S. 434 (1977).......................................................................... 14

Twining v. New Jersey, 211 U.S. 78 (1908).......................................................................... 30

Ullmann v. United States, 350 U.S. 422 (1956).................................................................... 30

United States v. Allocco, 305 F.2d 704 (2d Cir. 1962)............................................................. 5

United States v. Ballin, 144 U.S. 1, 5 (1892)......................................................................... 7

United States v. Kebodeaux, 570 U.S. ___, No. 12–418, slip op. (2013)................................... 3

United States v. Monia, 317 U.S. 424 (1943)........................................................................ 31

United States v. Monsanto, 491 U.S. 600 (1989).................................................................. 36

United States v. Robinson, 414 U.S. 218 (1973)................................................................... 26

United States v. Windsor, 570 U.S. ___, No. 12–307, slip op. (2013)............................ 9, 42, 51

United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985)........................................................ 5

Walden v. Fiore, 571 U.S. ___, No. 12–574, slip op. (2014).................................................... 39

Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361

(1933).............................................................................................................................. 40
Washington v. Seattle School Dist., 458 U.S. 457 (1982)....................................................... 41

Wos v. E.M.A., 568 U.S. ___, No. 12–98, slip op. (2013).......................................................... 2

Younger v. Harris, 401 U.S. 37 (1971)............................................................................ 14–15
INDEX

Page

Abortion:

Demonstrations, protests outside clinics.................................................................. 23–24

Abstention doctrine............................................................................................................. 14

Association, freedom of.................................................................................................. 20–21

Automobiles:

Searches of................................................................................................................... 27

Campaign finance restrictions, First Amendment........................................................... 22–23

Capital punishment:

Diminished capacity, Intellectual Disability................................................................... 37

Cases and controversies, federal courts:

Adverseness of parties.................................................................................................... 9

Cell Phones:

Searches of............................................................................................................. 26–27

Cloture................................................................................................................................. 1

Congress:

Cloture.......................................................................................................................... 1

Enforcement of Fifteenth Amendment..................................................................... 45–49

Ex Post Facto laws........................................................................................................ 3

Members of Senate or House of Representatives:

Elections, state, federal regulation......................................................................... 49

Necessary and Proper Legislation................................................................................... 3

Powers generally:

Enforcement of Fifteenth Amendment.................................................................... 49

Power to define constitutional rights............................................................................. 49

Counsel, assistance of, criminal proceedings:

Effective assistance of counsel...................................................................................... 36

Retained counsel, right to....................................................................................... 35–36

Courts (Federal):

Accommodation with state courts.................................................................................. 14

Adverseness of parties required...................................................................................... 9

Mootness...................................................................................................................... 13

Retroactivity of decisions.............................................................................................. 13

Standing................................................................................................................. 10–12

State court proceedings, restraint of........................................................................ 14–15

Courts (State):

Restraint of proceedings in by federal courts........................................................... 14–15

Detention of Occupants During Search.......................................................................... 25–26

Double jeopardy:

Acquittal, reprosecution................................................................................................ 29

Due process of law (Fourteenth Amendment):

Foreign Corporations, obtaining jurisdiction over..................................................... 39–40

Nonresident of State, obtaining jurisdiction over........................................................... 39

Elections:

Campaign contribution limitations.......................................................................... 22–23

Congressional power to regulate.............................................................................. 45–49

Equal protection of the laws:

Affirmative action................................................................................................... 41–42

Education, racial discrimination in............................................................................... 41

Ex Post Facto laws............................................................................................................... 3

59
Gerrymandering:

Racial.......................................................................................................................... 49

Homosexuals, constitutional protection.......................................................................... 42–43

Intellectual Disability:

Capital Punishment..................................................................................................... 37

Interstate commerce:

State powers, taxation and regulation:

Dormant commerce clause (burdens on commerce)................................................... 1

State proprietary activity exception.......................................................................... 1

Judicial review:

Presumption of constitutionality................................................................................... 14

Jurisdiction:

State courts, how obtained...................................................................................... 39–40

Jury trial, criminal cases:

Factfinding, elements of crime, sentencing factors......................................................... 35

Labor unions:

Dues money, use of by unions.................................................................................. 20–21

Mootness in legal disputes.................................................................................................. 13

Necessary and Proper Legislation......................................................................................... 3

Preemption....................................................................................................................... 1–2

President:

Recess appointments.................................................................................................. 5–7

Prisoners:

Fourth Amendment rights............................................................................................ 27

Privacy:

Fourth Amendment protection of.................................................................................. 25

Privileges and Immunities of Citizenship:

Access to public records................................................................................................ 17

Probable cause.................................................................................................................... 25

Public employees:

Speech, political rights............................................................................................ 21–22

Racial discrimination:

Affirmative action................................................................................................... 41–42

Enforcement of prohibition, congressional powers.......................................................... 49

Voting.......................................................................................................................... 49

Voting Rights Act.................................................................................................... 45–49

Recess appointments......................................................................................................... 5–7

Religion, Establishment Clause........................................................................................... 19

Government observances......................................................................................... 19–20

Religion, Free Exercise Clause............................................................................................ 20

Religious Freedom Restoration Act............................................................................... 20

Retroactivity, prospectivity of judicial decisions................................................................... 13

Searches and seizures:

Arrests, other detentions:

Lawfulness, when warrant required....................................................................... 25

Arrests, Search incident to...................................................................................... 26–27

Automobiles................................................................................................................. 27

Cell Phones............................................................................................................ 26–27

Consent searches.......................................................................................................... 27

DNA Testing................................................................................................................ 27

Exceptions to Warrants................................................................................................ 26

Prisoners..................................................................................................................... 27

Privacy, protection of.................................................................................................... 25
Searches and seizures—Continued

Reasonableness, meaning............................................................................................. 25

Relevance of Trespass................................................................................................... 25

Stop and frisk (Terry stop)............................................................................................ 26

Totality of the Circumstance......................................................................................... 25

Warrants, Detention of Occupants........................................................................... 25–26

Warrants:

Exceptions to warrant requirement........................................................................ 25

Self-incrimination:

Incriminating disclosures........................................................................................ 29–32

Privacy rationale.......................................................................................................... 30

Sexual orientation, discrimination on basis of................................................................ 42–43

Speech and press, freedom of expression:

Association, freedom of............................................................................................ 20–21

Campaign finance restrictions................................................................................. 22–23

Picketing................................................................................................................ 23–24

Public employees, expression rights......................................................................... 21–22

Spending power, conditions on receipt of federal grants................................................. 23

Standing to sue in federal courts................................................................................... 10–12

Stop and frisk..................................................................................................................... 26

Taking of property by government:

Exactions..................................................................................................................... 33

Physical invasion of property........................................................................................ 32

Voter qualifications:

Race............................................................................................................................ 49

Voting Rights Act................................................................................................................ 49