William Osborne was tried and convicted of rape
and assault in Anchorage, Alaska, in 1993. The evidence against him included not particularly
precise DNA testing available at that time. As a trial strategy, Osborne's attorney did not request the more
conclusive DNA testing. Post conviction Osborne sought and even more precise DNA
test that became available after trial. But he failed to win that right in state court
under the U.S. or Alaska state constitutions. He then filed a section 1983
suit in federal court claiming a constitutional right to the DNA testing. He won in district court because of unique factors in his case: the tests were unavailable at the time of
his trial, the new test would cost the state almost nothing, and the results probably would be material. The appeals court for the Ninth Circuit affirmed. Alaska appealed that judgment and the Supreme Court granted cert in the District Attorney's Office for the Third Judicial District
v. Osborne. Laurie, did the Supreme Court upheld the Ninth
Circuit? No, it did not. Chief Justice Roberts wrote
this decision. And he basically said that denying the DNA
testing in this case was neither a substantive due process violation nor a procedural due process violation. He noted that while DNA evidence can be very
powerful it's not the be-all or end-all. It's really
up to the state legislatures to have state statutes that will govern this. It turns out that Alaska is one of only a
handful of states that doesn't have such a statute. So instead it had a system and a rule set up by the courts that had a three-part test. The defendant in order to obtain this evidence
had to show that the conviction rested on eye-witness testimony, that there was demonstrable doubt as
to those identifications, and that test was likely to be conclusive. Since the defendant could not meet that test in
this case, he didn't get the evidence and there was no due
process violation. The defendant also argued in Brady
v. Maryland the state had the obligation to make the evidence available for testing. Chief Justice Roberts writing for the Court rejected the application of Brady. He said, once there's been a conviction Brady v. Maryland no longer applies. The presumption of innocence before a conviction doesn't carry after the defendant has been convicted. Chief Justice Roberts then went on and emphatically rejected the idea of a due process right to evidence for DNA testing. As Laurie said, it doesn't matter whether it's called a procedural
due process right or a substance due process right. There is no constitutional right to the material available for DNA testing. Okay well there's another aspect of this case
I believe having to do with a 1983 action, right? That's right. And basically there are three justices who would
bar this claim under Heck v. Humphrey which says that you cannot challenge by civil
suit a conviction until that conviction is overturned. Only three justices in this case but they
might get five down the road. Well it might be worth noting that this was a
5 to 4 decision and with the dissenters believing that Alaska's
denial of the DNA testing was arbitrary and violated both procedural and substantive due process. They believed that the liberty interest outweighed any state
interest that was in effect. Well, one of the reasons they argued that
is that, in fact, no defendant has been able to obtain this DNA testing under the Alaska statutes. I think the bottom line is that whether there's
a right to DNA testing is left to the Congress and the state legislatures. It is a matter for legislation not a matter of a constitutional right. Thank you. Well, it's not often that legal fiction and legal fact reflect each other as closely
as they did in this next decision, but the plot of John Grisham's novel, The Appeal, and the facts behind Caperton
v. A.T. Massey are surprisingly similar. A West Virginia jury awarded a $50 million verdict to Caperton in a suit against the A.T. Massey Coal Company. The company's chairman, Don Blankenship, supported Brent Benjamin for a seat on the
state supreme court spending $3 million on Benjamin's
campaign. That was more than Benjamin's own campaign
committee and all of his other supporters spent collectively. Benjamin won. Caperton moved to disqualify Justice
Benjamin from sitting on the appeal under the due process clause and the state's Code of Judicial Conduct. Justice Benjamin refused to recuse himself
from the decision that reversed the $50 million jury
award. The question before the U.S. Supreme Court was, does it violate due process for a judge
to participate in a case when one of the litigants donated substantial funds to the
judge's election campaign? Does it, Erwin? The Supreme Court said it does violate due
process. There was a 5 to 4 decision, Justice Kennedy writing for the majority. Justice Kennedy said due process in the constitution incorporates the common-law rule the requires recusal when the judge has a direct, substantial, pecuniary interest. Justice Kennedy said the question is, is the risk of actual bias so great as to be constitutionally intolerable? It's worth here looking at the exact language
that Justice Kennedy used in defining the standard of due process. He said and I quote, "The issue is whether under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the risk must be forbidden if the guarantee of due process is to be adequately
implemented." And then the Court set out some factors to
look at to see if it meets this test in the campaign contribution context. So you are looking at the relative size of the contribution, the total amount spent on the campaign, the
effect of the contribution and the timing of the contribution. Certainly not required to prove that there
was a quid pro quo or that this contribution did get the justice
elected. And the court when out of it's way to try
to emphasize in order to not open the floodgates that this was an extraordinary case. On the other hand, it's a big question how they're going to limit this case and how the courts are going to apply these
standards and tests. Chief Justice Roberts wrote for the four dissenters
and that's exactly what he emphasized. He said when there's a violation of due process is too
ambiguous and vague after this case that he structured his dissent from forty unanswered questions. He literally listed forty questions that
are open in this case. All of which ultimately go to the issue where is the line to be drawn. Three million dollars and an election decided
by fifty thousand votes violates due process. How much money, and what kind of election would be enough to violate the Constitution? That's what's uncertain after this case. I guess you're going to have to wait and see
what happens here. Finally, our First Amendment decision. In Pleasant Grove City, Utah v. Summum, members of the Summum faith asked Pleasant
Group City to allow them to place a monument with Summum's Seven Aphorisms in Pioneer Park. There are already fifteen permanent displays
in the park, eleven donated by private groups including a large Ten Commandments
donated by the Friends of the Eagles. Pleasant Grove refused and Summum sued the city under section 1983 for violating the First Amendment. Laurie, did it violate the First Amendment when the city refused to place
the monument? No, it did not. In fact this was a unanimous
decision, and it did not violate the First Amendment because the free speech wasn't violated because
this was government speech, not the government endorsing or providing a
forum for private speech. And so in this case, when there been no establishment
clause challenge, the Court said it was upheld. Laurie is right that the Court emphasized that
this was government speech but that raises some important and even troubling questions. First, it raises issues with regard to the
establishment clause. Once it's said that the Ten Commandments monument is government speech, that heightens the concern, is this government
symbolic endorsement of religion that would violate the establishment clause. And second, it raises questions in terms of free speech. Imagine that there was a city with a park and it allowed a pro-war demonstration and then refused to allow the anti-war demonstrators to use the same
park. The traditional answer would be that clearly violates the First Amendment. What if the city says we adopt the private pro-war demonstrations as our government speech just like Pleasant Grove adopted the
privately donated Ten Commandments monument as its government speech. Can it then engage in viewpoint discrimination? Justice Alito writing for the majority drew the distinction between a permanent monument and transitory speech. It's hard to see why that distinction would matter in terms of free speech under the First Amendment. So we see these concerns in the
concurrences. Justices Stevens and Ginsburg said
they're not quite ready to buy into this, what they called the newly minted government speech
doctrine that there might be an implicit endorsement
of the message by the government. And if so, we would look to the establishment
clause or perhaps equal protection to bring those challenges. We have Justice Breyer writing that he says,
Don't look at the labels really look at what the city's doing. And then Justice Souter has his own tests where he says it's whether "a reasonably and fully informed observer would understand the expression to be government's speech."
Thanks Laurie. Finally. one interesting note in this area
of law: at the end of the term the Court put off for
re-argument until September 15, two weeks before the beginning of its October
term, a case considering whether restrictions
on corporate contributions to political campaigns violate the First Amendment. Suzanna Sherry, Evan Lee, and and I will be back in a moment. Our first decision, Ricci v. DeStefano, is generating much discussion for the changes
brought about in employment discrimination law. The facts of the case as you probably know are that the New Haven, Connecticut, Fire Department gave a promotion exam on which no African-American and only one
Latino candidate scored high enough to win a promotion. Fearing a disparate impact suit by minority
firefighters that the exam was biased against them, New Haven cancelled the results of the test and promoted no one. The city was then sued by the white and one
Latino firefighters who had scored well enough on the exam to
be eligible for promotion for violating their rights under, among other things, Title VII and the equal protection clause of the Fourteenth
Amendment to the U.S. Constitution. The district court granted the city summary
judgment, finding that it had reason to be concerned
it would be liable under a disparate impact analysis and that it had made a prima facie case that it had not acted with discriminatory animus towards non-minority candidates. The appeals court affirmed the district ruling in a per curiam opinion that essentially adopted the lower court's
reasoning. The question before the Supreme Court was: can an employer's concern for its liability under adverse impact analysis of an employment practice be a defense to a claim of intentional discrimination? Evan, can it? Well, yes and no, depending on the basis for fearing that they would be liable. But let's define some terms. Title VII of the Civil Rights Act of 1964
forbids employers to discriminate in employment practices on the basis of
race, color, religion, sex, national origin. And intentional discrimination is known as disparate treatment. Now in 1991 Congress amended
the law to add a prohibition against facially neutral policies and practices by employers that are in operation or in fact discrimintory. That was a codification of the Supreme Court's
1971 decision in Griggs v. Duke Power. That kind of discrimination is called disparate
impact. Employers can defend against a disparate impact charge by showing
that the challenged policy or practice is job-related and that it is justified by business neccesity. And then if an employer can show that, the burden shifts to the plaintiff who would then have to show that the employer had refused to adopt some kind of alternative
practice that would still serve its need but, you know, would have a less
disparate impact. So now to answer your question, the Court held in Ricci v. DeStefano
that an employer may engage in a race conscious action to avoid disparte impact liability but only where there exists "a strong
basis in evidence" to conclude that such liabiltiy would otherwise have been incurred, and not just when an employer has a good-faith belief that would be liable for disparate impact. Well, Suzanna, I think most of our audience knows
by now that the Court found for the white firefighter appellants. Could you tell us a little bit about their
reasoning? Well they went into great detail about the
facts in this case, about how New Haven had carefully constructed the test to make the questions job-related and to minimize
disparate impact and had provided the materials, study materials, to the firefighters and so on. And because of this history, the Court found that the city did not have an objective basis
or strong basis in evidence for believing that it would be liable under
disparate impact theory because the the tests were job-related
and there was no less discriminatory alternative. Oh, by the way, the Court took the objective
basis "strong objective basis in fact" test from equal protection cases where employers, government employers, were not
allowed to use affirmative action unless they can show that there is strong evidence that the affirmative action is necessary
to combat prior government discrimination. But there were two concurrences and a dissent in the case.
Can you tell us about those? Well the concurrences, one was by Justice Alito who concurred to suggest that perhaps the reason the city had
canceled the test was to appease a particular racial constituency. And then Justice Scalia wrote a concurrence
because he thinks that the disparate impact analysis and the equal protection jurisprudence are on a collision course and that eventually the Court is going to have
to deal with that collision. Well, what about the dissent? Justice Ginsburg wrote to say that she
did not see disparate treatment and disparate impact as necessarily being in conflict with one another but rather
as being both parts of a unitary approach in guaranteeing
equality in the workplace and she predicted that the majority decision would
not have staying power. Thanks, Evan. In our next decision, Gross v. FBL Financial Services, the Court answered a question not raised
by the cert petition nor briefed by the parties, and changed the law in every circuit. Jack Gross sued his employer, FBL Financial Services, under the ADEA,the Age Discrimination in Employment Act. The question the Court agreed to hear when
it granted cert was, if a plaintiff shows that age was a motivating
factor but not the only factor in making an adverse
employment decision, what type of evidence suffices to switch the burden to the employer to show that it would have made the same decision without considering age? Suzanna, what kind of evidence did the
Court say was necessary? Well, let me start by going back to what you said
about changing the law in every circuit. Before this decision there was a split in
the circuits rising from the Court's decision in Price
Waterhouse. And some circuits said that you needed direct
evidence of discrimination, discriminatory motive, to switch the burden and other circuits said no, any evidence of
discriminatory motive would suffice to switch the burden. But one thing all circuits agreed on was that
if there was the right kind of evidence the burden would switch to the employer to
show that it would have made the same decision anyway. And what the Court held was that no evidence is sufficient, that burden never switches. The majority criticized the Title VII
burden-shifting scheme said that it was, quote/unquote, difficult
to apply. Instead, following the language in its
1993 decision in Hazen Paper v. Biggins the majority said that in order for a plaintiff to prevail that age had to have had a determinative influence on the outcome. In other words, you have to be able to say that but for the consideration of age that decision wouldn't have been made. Okay, so if I am understanding correctly, now people have two different standards depending on whether
the actions brought under Title VII or under the ADEA. Is this right? That is exactly right. The
Court distinguished between Title VII and the ADEA because Congress in 1991 amended
Title VII to essentially incorporate the Price Waterhouse standard that says that race or gender could be just a motivating factor and didn't
have to be the sole factor. But Congress didn't amend the ADEA and so the Court said that language would not be interpreted the same way. Basically the bottom line is
if Congress wants the ADEA and Title VII to be interpreted the same way they're going
to have to amend the ADEA. What about the dissent in this case? You know sometimes people question the value
of dissents and say they write too many of them. But the majority opinion in this case basically adopts Justice O'Connor's dissent
in Price Waterhouse calling for this "but for" standard in Title VII cases. And the dissent in this case by Justice Stevens and three others would have adhered to Justice Brennan's plurality opinion in Price Waterhouse
that if any impermissible consideration played a part in the employer's decision that the employer should be liable under
Title VII. So who knows? Maybe some day this dissent will become the majority as well. We'll see. Well, unlike the decision in Gross our next three decisions reach conclusions
that followed recent trends in Title VII and ADEA cases. Evan, what were the facts in AT&T v. Hulteen? Hulteen argued that prior to the enactment of the Pregnancy Discrimination
Act in 1978 that AT&T didn't treat maternity leave the same way it treated
other forms of disability leave for purposes of pension and other benefits. But you have to remember that discrimination was
not, that discrimination on the basis of pregnancy was not illegal under Title VII at that
time because of a decision called General Electric v. Gilbert. Now after the PDA was passed AT&T adopted benefits calculations that did give service credit for pregnancy leave on
the same basis as leave taken for other temporary disabilities. But AT&T didn't go back and retroactively adjust
the calculations for women who had been subject to the previous
policy. And because AT&T's seniority system calculated
pension benefits based on length of service when employees retired, the women subject to the old policy had earned fewer benefits. Well, how did the Court come down in this case?
They said there was no Title VII violation. Basically, they relied on the fact that the policy before the PDA was legal because it wasn't
discriminatory and that all of the results or all of the effects came as a result of a bona fide seniority system and under Title VII bona fide seniority
systems are protected even if they have a discriminatory effect. And the seniority system was bona fide
because it wasn't intentionally discriminatory. The Court said it would have been different
if the PDA had been applied retroactively but there was no evidence of congressional intent to that effect. Okay, so Justice Ginsburg wrote a very strong dissent, as I
recall. Right. She did, joined by Justice Breyer, she
essentially said that the decision, the 1976 decision that Evan referred to
in General Electric v. Gilbert was not just wrong but it was so egregiously wrong that when Congress changed it the Court
should act as if it had never happened. And that basically any employment practices that were tainted by even pre-PDA pregnancy discrimination should be held to violate Title VII. Well let's turn to Crawford v. Nashville. In the past few years, the Court has decided
a series of cases on retaliation claims and has broadly interpreted
various statutes to allow such claims. This case takes a similarly broad view of retaliation. Title VII protects employees from retaliation if they oppose any practice that Title VII
makes illegal or if they bring a Title VII suit or participate
in a Title VII investigation or proceeding. Evan, which one of these protections
was Crawford under? Well, according to the lower courts, neither one.
Crawford had been harassed by an employee of the defendant school district but she hadn't reported it until she was interviewed by an internal investigator who was looking into harassment charges against another employee. Although she was retaliated against for what she told the investigator the lower courts initially held that she didn't
qualify for protection under the so-called opposition clause on the theory
that the opposition had to be active and consistent. So what did the Court hold, Suzanna? It reversed unanimously, and it said that participating in an internal
investigation is opposing illegal practices and, therefore, is protected by the opposition clause and because
it said that, it didn't have to go ahead and determine whether it was also protected under
the participation clause. Here, was there any disagreement among the Justices? On the broad rule, yes. There was a
concurrence by Justices Thomas and Alito. They said that they would hold that opposition must be, quote/unquote, active
and purposive to qualify under the opposition clause. But they acknowledged separately that testifying in an internal investigation would qualify. Okay. Our final decision in this segment is 14
Penn Plaza v. Pyett. This was in keeping with another trend the
Court has established and followed over the years, the trend in favor of arbitration agreements. At issue was a collective bargaining agreement that
required union members to arbitrate their claims under the Age Discrimination and Employment
Act. The question was its enforceability. Suzanna, did the Court find it enforceable?
It did. But in order to find it enforceable it had
to narrowly construe some of its own prior precedents. The Second Circuit relied on some Supreme
Court cases from the 1970s including Alexander v. Gardner-Denver and its progeny which seemed to hold that statutory anti-discrimination claims cannot be subjected to mandatory arbitration. And in this decision the Court said that Gardner-Denver
didn't preclude arbitration as long as the specific statutory claim was explicitly made subject to arbitration in the collective bargaining agreement, as it was in this case. The Court also
said that the portion of the ADEA that requires the waiver of a substantive right
to be knowing and voluntary doesn't apply in this case because what's
involved here is the waiver of a judicial forum, not the waiver of a remedy. I think this case is important for what
it says going forward. The Court suggested that if Gardner-Denver had not been distinguishable
in this case it might have been overruled because it was from a time when the Court was unjustifiably hostile to arbitration.
The Court said that Gardner- Denver's skepticism against arbitration rested on a misconceived view of
arbitration that this Court has since abandoned. I think that's a pretty strong signal that the Court is going to distinguish or overrule any cases that exempt certain claims from
arbitration. Thanks, Suzanna. Thanks, Evan. We'll be right back. Three of the five civil rights decisions we are
going to discuss involve 42 U.S.C. ยง 1983. Under that statute local governments and state and local officials can be sued for violating civil rights when
acting under the color of law. When government employees are sued for money
damages under 1983 they may be given either absolute or qualified
immunity. Absolute immunity is the exception and is given for only a few tasks performed
by employees. One of these is for prosecutors acting in
their prosecutorial capacity. That was the focus of our first decision, Van
de Kamp v. Goldstein. Tommy Lee Goldstein spent 24
years in prison for a murder he didn't commit. He was convicted entirely on the testimony
of two witnesses. One of those later recanted and the other was a police informant named, ironically, Edward Fink. Fink testified that Goldstein told him he
committed the crime when they were cell mates in Long Beach, California. Fink denied he made a deal with prosecutors
for better treatment in exchange for his testimony, but it later came to light that he had. Goldstein ultimately brought a successful
habeas claim to win his release. He then sued the former district attorney and his
chief deputy under section 1983 for failing to train prosecutors to provide exculpatory material to defendants that they were required to provide under Brady
v. Maryland. The question before the Supreme Court? Was a suit against the DA and his deputy barred
by absolute prosecutorial immunity? Suzanna? It was. The Court said it was barred by absolute
immunity. But I think to understand the full importance
of this case, you have to look at what Goldstein was specifically
alleging in his complaint. He sued the DA and the deputy for three things: for failing to properly train the line prosecutors, for failing to properly supervise them, and for failing to create an information system to keep track
of informants and keep track of necessary disclosures. So the failures here were not failures
that were directly related to the prosecution of Goldstein himself. So Erwin why is that important? In 1976 in Imbler v. Pachtman the Supreme Court said that prosecutors have
absolute immunity to the prosecutorial task but only qualified immunity for the administrative and investigative tasks. The Supreme Court said that each of the tasks that Suzanna just referred to were regarded as prosecutorial and protected by absolute immunity because they are
ultimately all linked to what actually goes on at trial in the courtroom. The Court basically said that because the
line prosecutors themselves would have been immune from suit for failing to disclose, the supervisors had to be immune for claims that they failed to train or supervise
or create an information system. Basically what the Court said is that giving a cause of action without immunity for these sorts of things would be as disruptive
of the prosecutorial function as allowing suits for things having to do with the prosecution
of individual cases. I think this case is part of a trend in the Supreme Court and in the federal court of appeals towards the expansion of the scope of absolute immunity. Well, as I said before officers who do not have
absolute immunity are protected by qualified immunity when sued for money damages. Qualified immunity means that there is liability
only if the officer violated clearly established
law that a reasonable officer should know. In our next decision, Pearson v. Callahan, the focus was on the law used in the analysis
of qualified immunity. In this case Afton Callahan sued police
officers for violation of his Fourth Amendment protection against unreasonable searches and
seizures when they entered his home without a warrant. The officers raised qualified immunity as a
defense. Erwin, what's the analysis here? In a series of cases culminating in Saucier v. Katz
in 2001, the Supreme Court prescribed a two-step approach for trial courts to use in determining whether officers are protected by qualified
immunity. First taking the facts that were favorable to the plaintiff, the Court has to decide whether there's a constitutional violation. And, if so, second then it has to decide is there a violation of clearly established
law that the reasonable officer should know. The issue in Pearson v. Callahan is should Saucier v. Katz be overruled. And how did the Court come down on that question?
The Court overruled Saucier. What they said is that district court judges can use their
discretion in deciding in which order to analyze the questions. So if it easier, for
example, to just determine that there is no clearly established
constitutional violation, the court need not first determine whether there is a constitutional violation
at all. It's important to emphasize the Court did
not prohibit trial courts in engaging in
the two-step approach. It just said that the two-step approach is not
required. It is interesting to think about what this could
actually mean in the trial courts. On the one hand, in cases where a trial court can
find qualified immunity it can easily conclude and does not clearly establish
law the reasonal rational can be dismissed easily. On the other hand, it is going to mean a lot less development
of constitutional law to provide guidance for trial courts into the future. Yes, and this is a decision by a unanimous Court. Well, now our last 1983 decision, Fitzgerald v. Barnstable School Committee. The issue here was whether the existence of
a Title IX claim precluded a 1983 action. In this case the parents of a kindergartner
who was sexually harassed by an older boy on her
school bus sued the school district for failing to adequately
respond. Their complaint included a claim for violation
of Title IX, and claims under section 1983
for violation of Title IX and the Fourteenth Amendment's equal protection clause. The appeals court ruled that the existence
of a Title IX remedy precluded a section 1983 suit. Did the Supreme Court agree, Suzanna? No, they
disagreed. There had been a circuit split before
this case and in this case, the Supreme Court said that,
unanimously again, that an 1983 action
is permitted because Title IX is neither elaborate enough nor detailed enough to
preclude a 1983 suit. Okay, so when would a 1983
action be precluded by a federal statute? The Supreme Court has consistently said that if a federal statute
provides a comprehensive enforcement mechanism it then precludes a 1983 suit. The key here is the Supreme Court said that Title IX is not such a statute. The Supreme Court said it doesn't allow suits
against individual officers. The Court said allowing a 1983 action won't interfere
with the Title IX administrative remedy. The Court said there's no indication that Congress meant to preclude 1983 suits when it adopted Title IX. Now, Erwin, isn't this decision a departure
away from what the Court's been finding in recent years, that 1983 actions are precluded
by federal statutes? Yes, you're absolutely right. All of the recent cases found that specific
federal statutes did preclude 1983 actions. Here the Court said the Title IX does not preclude a 1983
action. But there's something different about this case. Here the issue was, would Title IX preclude a constitutional equal protection claim under 1983? In that sense the greatest significance of
this case is what the Court didn't decide. Had the Court found that the constitutional claim was precluded by Title IX that would have really changed the nature of
the law. Next we have a civil rights decisions involving
a statute other than 1983, this time it was section 5 of the Voting
Rights Act of 1965, which Congress extended for another 25
years in 2006. Section 5 requires jurisdictions with a
history of race discrimination to receive preclearance from the U.S. Department
of Justice before it can change an election practice. In Northwest Austin Municipal Utility District Number One
v. Holder, a small utility district with elected board sought relief from the law under a bailout
provision available to jurisdictions in compliance with
the Act over a ten-year period. If this relief was denied, it argued that
section 5 was unconstitutional because Congress's power was remedial and there is no longer sufficient race discrimination to require such a remedy. So, Suzanna, did the court hold section 5 unconstitutional? No, it didn't but it's not quite that simple. The Court never actually reached the constitutional question. The Court instead held 8 to 1 that local governments are eligible for this
bailout provision. And just as all political units including local governments are considered political subdivisions for purposes of
the pre-clearance requirement, the Court held that they had to be considered
political subdivisions for purposes of eligibility for the bailout. The lower courts had said that the local governments were not eligible
for the bailout. So what the Court did was decide the case
on statutory grounds and then invoke the canon that it doesn't reach constitutional
questions if it does not have to. So, that' it? Section 5 is safe from constitutional challenges? No, not at
all. Chief Justice Roberts writing for the majority
expressed great doubts about the constitutionality of the 25-year extension of section 5
of the Voting Rights Act. He said it's a great intrusion on the state and local
governments since only justified to remedy intentional race
discrimination. I thought it interesting that none of the justices wrote a separate opinion to defend the constitutionality of the extension of section 5 of the Voting Rights
Act. The Court actually went to quite some length to question the constitutionality of the statute. They suggested, noted all of the things that had changed
in the covered jurisdictions since the statute's enactment. For example. they pointed to the high registration
rate among black voters, of the rarity of blatant discrimination, the prevalence of both minority candidates, and successful minority office holders and then finally that there was often equivalent
turnout in covered and noncovered jurisdictions. I think what you are going to see is local governments
are going to come to court and argue that they're entitled to the bailout because they don't know the history of recent
race discrimination in voting. If they are denied the bailouts then they're going to bring the constitutional
challenges to the extension of section 5 of the Voting Rights
Act. I agree, and, and I think that that section
5 supporters should see this case as a warning shot across the bow. That essentially the Supreme Court is suggesting that if more bailouts are not granted the Court might well hold section 5 unconstitutional. I don't think there is any way to know at this point, whether there would be
five votes to invalidate section 5 of the Voting Rights Act. Well, you noted that this is an 8-to-1 decision.
Who was the lone dissenter? That would be Justice Thomas. He believed the Court should have reached
the constitutional question and he would invalidate section 5 because
he thinks that the conditions that justified it originally
no longer exist. Thank you. Our next decision is Horne v. Flores. This was the case with a complicated procedural posture but one that could have an important affect
on institutional reform litigation. Some parents in Nogales, Arizona, filed suit in federal court alleging that the Nogales schools were providing
inadequate instruction for students for whom English is a second language. The district court issued a declaratory
judgment and an injunction in plaintiffs' favor and the defendants did not appeal. The state legislature increased the funding
for the programs but the district court declared there was no
rational connection between the new funding levels and the needs of the students. The district court held the state in contempt
until it complied with the injunction. The state moved to purge the contempt finding and to modify the injunction under Rule 60(b)(5) of the Federal Rules of Civil Procedure. Rule 60(b)(5) permits a party to seek relief from a judgment or order if a significant change in either factual
conditions or in law renders continued enforcement detrimental
to the public interest. Arizona argued that passage of the federal No Child Left Behind Act and improved teaching methods changed the facts on the ground and brought the state into compliance with
the court order even if funding levels did not satisfy the
court. The question before the Supreme Court was should the injunction have been modified on these
grounds? Erwin? The Supreme Court said there was a basis
for consideration of modification of the injunction. The Supreme Court said that the district court
and the court of appeals were much too restrictive in what they were willing to allow to be the basis
for modification. The Supreme Court said it is important in an institutional reform case like this where injunctions can exist for decades and a much more flexible approach is when injunctions can be modified. The Court also pointed to the Equal Education
Opportunity Act which is the Act under which the suit was brought and it said that it only requires schools
to take appropriate action for the targeted education population and it doesn't provide for specific funding
levels so the Court said that the courts below
erred in looking only at the funding levels instead of looking at all of the changes to determine whether there was appropriate action being taken. In general the Court said that lower
courts should take a much more flexible approach to modifying injunctions in order to return control to the local authorities as soon
as possible. So the Court ultimately remanded back to the lower courts for consideration
of various factors to determine whether the injunction should be modified. I think that's really
what's important about this case that transcends just the area of education. I think the Supreme Court was sending a clear
message. It wants more flexibility. It wants long-term injunctions that can be modified. They want changes in fact or law to be much more easily a basis for modifying these injunctions. Thanks, Erwin. Thanks, Suzanna. Mark will be back with Suzanna and Evan
to look at the Court's decision in the areas of federal jurisdiction and pre-emption. Welcome back for the final panel of our program, this one on federal pre-emption and jurisdiction. If the term last but not least ever applied
it may be here because these may be some of the most important
decisions of the term for the day-to-day work of federal judges. We start with two pre-emption decisions, Altria Group v. Good and Wyeth v. Levine. Both are about federal labeling laws and
state causes of action and both are good examples of how federal pre-emption
jurisprudence is in flux. The Altria Group is the parent company
of the tobacco giant Philip Morris, U.S.A. The respondents in this case originally charged
that in advertising that some of its cigarettes delivered less tar and nicotine to smokers, while
knowing that wasn't true, Altria engaged in fraudulent advertising
in violation of the Maine Unfair Trade Practices Act. The district court granted summary judgment
to Altria on the ground that the state-law claim was pre-empted by the Federal Cigarette Labeling
and Advertising Act. The Court of Appeals for the First Circuit
reversed that judgment concluding that the respondents' claim was not the kind of smoking-and-health-based
state claim that the federal act to specifically meant
to pre-empt, but was a state law fraud claim alleging Altrai falsely represented their
cigarettes. Susanna, where did the Supreme Court come down on this one? To answer that let me take us back for a little bit of background.
In 1992 the Supreme Court splintered over a very similar question in a case called Cipollone v. Liggett. In that case there was no majority opinion but the plurality adopted a test that focused
on the legal duty underlying the state common-law claim. If it was a general duty then that claim was
not pre-empted, but if it was a duty that was targeted at
smoking and health then it was pre-empted. So the Court in Cipollone
held that a fraud claim was not pre-empted but that a claim based on a state law against advertising that minimized health
risks that would be pre-empted. Now in this case, the Court adopted, or a majority of the
Court adopted, that plurality standard and said that because the common-law fraud claim in this case is not targeted, it is a
general duty, the main claim was not pre-empted. The Court, the majority, said that its pre-emption line might not be elegant, they said in fact it was inelegant but again they said it is straightforward. The question is,
is the state law targeted at smoking and health or is it general? Right, the majority here
distinguished its decision last term in Riegel v. Medtronic on the ground that the state tort claim
in that case was precisely the type that Congress meant to pre-empt. It then rejected the implied pre-emption claim here on the ground that the government denies ever
having authorized the use of this "light" or "low tar" as descriptors. Now there was a dissent in this case and the
dissenters wanted the Court to abandon the legal duty test altogether and instead they wanted a proximate application
test which would pre-empt any state claim that imposes an obligation because of the effect of smoking on health. But the majority said that that would allow a result that Congress
could not have intended. Namely, to permit cigarette manufacturers to engage
in fraudulent advertising. Now in Wyeth v. Levine the state-law cause of action was for inadequate
warnings on the label of a prescription drug. Diana Levine was a musician vacationing in Vermont when she went to a local health clinic seeking
relief from a migraine headache. The clinic gave her Phenergan to relieve the nausea
that accompanies migraines. But rather than giving it to her by IV drip
the physician's assistant gave it to her using the IV push method, where the drug is injected directly into the
patient's vein. The danger there is that the drug is corrosive
and causes irreversible gangrene if it enters the patient's artery. That is what happened to Levine and her right arm
had to be amputated below the elbow. In addition to the pain and suffering, Levine
incurred substantial medical expenses and lost her livelihood as a professional musician. She settled with the clinic and the clinician and sued Wyeth Labs. While Phenergan's label warned of the dangers
of gangrene and amputation following contact with arterial blood, Levine alleged that the label was defective
because it failed to tell clinicians to use the IV drip instead of the IV push method and that Phenergan was not reasonably safe
for intravenous administration because of its foreseeable risks in relation
to its therapeutic benefits. A jury awarded Levine more than $7
million in damages but Wyeth contended before the U.S. Supreme Court that Levine's state-law claim should have been pre-empted
for two reasons; first, that it would have been impossible for it to comply
with the state-law duty to modify Phenergan's labeling without violating the federal law, and, second, that recognition of Levine's state tort
action creates an unacceptable "obstacle to the accomplishment and execution of the full purpose and objectives of Congress." Evan, where did the Court come down on these
questions? The majority rejected both of Wyeth's arguments.
The majority held that it was not impossible for Wyeth to satisfy both state and federal
law because it could have unilaterally strengthened the
warnings against the administration of Phenergan by IV push. The FDA permitted interim use of stronger warning labels
without preapproval, and there was just no reason to believe that the FDA would
have disapproved the stronger warning labels. I think the impossibility question was
the easier of the two. It was a little more complicated when the Court analyzed whether the
tort suit created obstacles to congressional objectives. There was no evidence that Congress wanted to
pre-empt these sorts of state tort suits but the preamble to a 2006 FDA
regulation did state that label approval would pre-empt. So the Court held, the majority held, that FDA
regulations can sometimes pre-empt but that this one didn't. First of all, although they will sometimes defer to an agency, especially
on areas of technical expertise, the ultimate decision on pre-emption is the
court's to make. And they found that in this case the preamble did not effectively pre-empt and did not deserve
deference because, first, there was no opportunity for notice and comment. Second, the preamble was at odds with the perceived congressional purpose, and also the preamble reversed a long-standing FDA
policy without any explanation for the reversal. Yes, the majority here distinguished its
2000 decision in Geier v. American Honda, where it held that state court claims for failure
to install air bags were impliedly pre-empted because in that case there was an agency regulation
that had the force of law which was not present in this case. I think it's important to mention that Justice
Thomas concurred in the judgment but not in the reasoning. He did not like the majority's focus on congressional
purpose. Instead, he would have limited pre-emption to either where it's impossible to comply
with both or where there is an explicit textual basis
for a pre-emption. So it sounds like he's going to be very unlikely
to find implied pre-emption in the future, although, of course, in the Altria case he found textual pre-emption when there was, I think, a somewhat ambiguous
text. There was a dissent in this case, by
the Chief Justice and Justices Alito and Scalia. They argued that the Geier approach ought to
be followed because, in their words, "juries are ill-equipped to perform the FDA cost/benefit balancing function." Do these two decisions taken together tell
us anything about the state of pre-emption jurisprudence? I think they do. Before this term, the court has increasingly
found state claims to be pre-empted. And in fact they have emphasized the plain meaning of the text rather
than the congressional objectives and they had before this term moved away from the presumption against pre-
emption. And I think they have reversed both of those
in this term. They focused more on the congressional objectives
than on the text and they seemed to invoke the presumption against pre-emption. So, as you said in the beginning, I think this
is in a state of flux. Let's move on to our jurisdiction decisions. The most important of these may be Ashcroft v.
Iqbal with its clarification of the new pleading
standard. Javaid Iqbal was a Pakistani Mulslim
arrested in the U.S. on criminal charges and held by federal officials following the
terrorist attacks on September 11, 2001. Iqbal sued former Attorney General John
Ashcroft and FBI Director Robert Mueller, claiming he was mistreated during detention and that the mistreatment was on account of
race and/or religion. The district court denied the defendant's
motion to dismiss on qualified immunity grounds and the court of appeals affirmed. Let's look first at the Supreme Court's holding
in this case and then talk about why it is an important
decision in the area of federal jurisdiction. Evan, what did the Supreme Court uphold in Iqbal?
The Court held that Iqbal's allegations against Ashcroft and Mueller were insufficiently factual and they were
to conclusory to survive the so-called plausibility pleading standard that the Court adopted
in its 2007 decision in Bell Atlantic v. Twombly. The Court said that Iqbal's claim that Ashcroft and Mueller and here I'm quoting "knew of, condoned, and willfully and maliciously agreed
to subject plaintiff to harsh conditions of confinement solely on account of his religion, race, or
national origin" end quote, constituted nothing more than legal conclusions unsupported by factual
allegations. Suzanna, let's get back to Twombly. How does the Court's ruling in Iqbal
affect that? Well, Twombly two years ago said that a complaint
has to state a plausible claim to relief in order to withstand a motion
to dismiss and that two open questions after Twombly were,
first, does it apply beyond the antitrust context and, second, what does plausible mean? And in this case the Court first made
clear that it does apply beyond the antitrust context, that is, that the Twombly
plausibility standard applies across the board in all causes of action and in clarifying what plausibility meant
I think they ratcheted up the requirements for a complaint a bit. They first cited established
doctrine that for the purposes of a motion to dismiss the Court has to take factual allegations as true but not legal allegations and what what I think they did was somewhat
blur the line or move the line between factual allegations and legal allegations, because they, they said that a legal allegation
includes a recital of the cause of action
supported by mere conclusory statements, and they put into this category of insufficient legal statements rather than factual allegations that the fact that Ashcroft was
the principal architect of the policy, that Mueller was instrumental in implementing
it, or as Evan noted, that both of them condoned it. Here the Court held that to prevail the complaint would have had to have contained
facts plausibly showing that Ashcroft and Mueller purposefully adopted a policy of selecting their detainees based
on race or religion or national origin. I don't think this is over. We'll have to see
where the court takes this new standard, but it does seem to be inching a little bit
closer to a probability standard rather than a plausibility standard. We should probably also point out that in
clarifying Bivens law, the Court rejected supervisorial liability when it's based on nothing more than knowledge and acquiescence in the unconstitutional conduct of underlings. In other words, each government official, regardless of title, is responsible only for his or her own misconduct. That's true, but I think there's some ambiguity
about whether the Court thought it was changing the law or merely restating existing law. Now, we have a couple of decisions dealing
with court of appeals jurisdiction. In Arthur Andersen v. Carlisle the Court
again delved into the enforceability of arbitration agreements under the Federal Arbitration Act, an issue that often comes before the Court
in one form or another. The Federal Arbitration Act or FAA has two
provisions regarding when a court may stay litigation. Section 3 authorizes a district court to stay any
litigation that is arbitrable and section 16(a) authorizes interlocutory
appeals of any order refusing a stay under section 3. What was the issue here, Suzanna? Well, Arthur Andersen wasn't a party to the
contract that had the arbitration clause in it. But it moved to enforce that arbitration clause
as a third-party beneficiary under principles of
equitable estoppel. The district court denied the stay and Andersen appealed. The appeal was dismissed on the theory that
stay motions based on equitable estoppel do not constitute motions under section 3 of the FAA. And did the Court agree with that theory, Evan? No, it rejected it. The district court had denied the stay and
the court of appeals had dismissed it on the theory that Suzanna just enunciated. But the Supreme Court in this decision held
that section 16(a) authorizes appeals from any refusal of a requested stay and said that appellate
courts should not, quote/unquote, "look through" the motion to the merits of the appeal. The Court said that nothing in the FAA blocks
third parties from seeking to enforce arbitration clauses. The question of who is bound by a contract and under what
equitable principles is governed by state law. So the Court remanded it for a decision whether Andersen would be entitled to enforce
this contract under state law. The Court was sensitive to the possibility
that there might be some frivolous appeals, but it said that there were other ways to deal
with it. For example, by streamlining the disposition of meritless claims, by offering the district court to retain jurisdiction, or even by imposing single or even double
costs as a sanction. Now, the Court decided another case involving
the FAA this term, this time focusing on section 4, which allows a U.S. district court to entertain
a petition to compel arbitration if the court would have jurisdiction, save for the arbitration agreement, over a suit arising out of a controversy between
the parties. Evan, what was the Court
asked to decide in Vaden v. Discover Bank? Well, the Court considered
two questions involving the district court's
jurisdiction over a section 4 petition. First, should the court if asked to compel arbitration pursuant to section 4 quote/unquote "look through" the petition and grant the requested relief
if the court would have federal question jurisdiction over the underlying controversy? The second issue was if the answer to that first question is yes, may the court exercise jurisdiction over a section 4 petition when the petitioner's complaint rests on state law, but an actual or potential counter claim rests on federal law? What did the Court decide? The Court said that the courts can "look through" the petition to see and compel arbitration in a case
pending in state court if and only if the federal court would
have jurisdiction over a suit arising out of the controversy between the parties. Yeah, the majority interpreted "controversy
between the parties" to mean the substantive underlying conflict and not the dispute over
the arbitration clause that's raised by the petition to compel arbitration. But even for
that dispute all of the usual rules of federal jurisdiction apply. and so in answer to the
second question the court can only take jurisdiction if
there is a federal question in the complaint, and not if there is a federal question that
is raised by a counter claim. And that was the situation here, it was counter claim
and so there was no jurisdiction. Now in our next case, Nken v. Holder, it asks what criteria an appellate court should
use in staying the removal of an alien from this country/ Is it the more restricted statutory standard
governing injunctions that is in the illegal Immigration Reform and Immigrant Responsibility Act of 1996, or the traditional criteria governing
stays? Jean-Marc Nken sought asylum in the U.S. and deferral of removal claiming that he
would be persecuted if he returned to Cameroon because of his past anti-government activity
there. His application was denied. After rounds of litigation he appealed to the Fourth Circuit and asked that that court stay his removal pending appeal. The Fourth Circuit denied the stay and Nken
asked the Supreme Court to resolve a split among the circuits on what standard governs a request for a stay such as this. Evan, which standard did the Court say is the
right one? The Court agreed with Nken that
the traditional four-part test for granting stays pending appeal should be used by the appellate courts. The majority said that it really came down to whether the statute's
use of the word enjoin includes stays, and the majority said that
it did, or rather, that it did not, because injunctions stop people and stays only stop judicial proceedings. So what's the traditional-four part test? Well, under that test an alien bears the
burden of showing that there's a strong likelihood of success on the merits. That there will be irreparable harm if the
stay is not granted. That there will be no substantial injury if the
stay is granted. And that the balance of the public interest
favors granting the stay. I think it's important here that the majority,
and especially a concurrence by Justices Kennedy and Scalia, emphasized that stays are not to be routinely
granted, and that removal is not automatically to be
considered irreparable injury, and that irreparable injury is not itself sufficient
for a stay, and that a court has to give some weight to the public interest in removing aliens
who were lawfully deemed to be removable. I agree with Evan, I think courts of appeals
should take this case as something of a warning not to grant stays too freely, and in fact as a suggestion that perhaps some courts
of appeals have been granting stays too freely. Interesting. For a small legal principle and a unanimous result this next decision generated some major
disagreements that may yet lead to major changes. The case is Carlsbad Technology v. HIF Bio. Both state and federal claims were raised
in state court and then removed to federal court. The district court dismissed the federal claim under Rule 12(b)(6) and then declined to exercise supplemental
jurisdiction over the state claims under section 1367(c). So the state claims were remanded back to the state court. The defendant appealed but the appellate court
said that it had no jurisdiction because the remand was based on the lack of
subject-matter jurisdiction by the district court. So what was the judgment that all of the justices could support, Suzanna? They reversed unanimously because they agreed
that the remand order was in fact reviewable. Section 1447(d) says that remands are not reviewable by appeal
or otherwise but the Court's earlier precedent in the Thermtron Products case limits that to remands on the basis of section
1447(c) including lack of jurisdiction, which might
have been at issue in this case. But in this case it wasn't a lack of jurisdiction, it was the district court's decision to decline the exercise of jurisdiction, and so for that reason the remand was reviewable. Yeah, that means that all remand orders based on abstention grounds are not jurisdictional and therefore are
reviewable. But for a pretty straightforward case there were a lot of skirmishes in the concurrences,
weren't there? Absolutely. Justice Scalia wants to overrule Thermtron and take a strict textual approach. Justice Stevens agrees with Scalia on the textual reading but applauds the Court for sticking with precedent. And Justices Breyer and Souter want Congress
to completely reexamine sections 1447(c) and (d). I don't think we've heard the last of this
question. All right. Well, thank you Suzanna, thanks,
Evan. Now here's John Cooke with some final words. That's our program for this year. We hope you found it interesting and helpful. We ask you again to fill out the evaluation
form included with our on-line written materials and fax it back to us so we will know what
you thought of the program and how we can improve it. I thank our faculty for helping to explore
and explain this term's decisions and everyone here at the FJC who worked on
the program. I'm John Cooke. Thank you for watching.
