Supreme Court 2008-2009 Term Highlights

2008-09 saw several interesting Supreme Court decisions. The Court revisited “disparate impact” racial discrimination in the high-profile case Ricci v. DeStefano (07-1428), and revisited the Voting Rights Act in Bartlett v. Strickland (07-689) and Northwest Austin Municipal Util. Dist. No. One v. Holder (08-322).

This term contributed more close cases than last year’s term. This term, 29% of the Court’s decisions were determined by 5-4 votes. While this is significantly higher than the 2007-08 term’s 17%, it is close to the 2006-07 term’s 30%. Of the 23 5-4 decisions, 16 were standard left-right splits, with Justice Kennedy as the swing-vote. Other cases revealed some interesting ideological divides and affiliations. For example, in Arizona v. Gant (07-542) and Melendez-Diaz v. Massachusetts (07-591), Justices Scalia and Thomas joined with Justices Ginsburg, Stevens, and Souter to protect defendants’ rights in criminal cases. See SCOTUS Blog.

Racial Discrimination

In 2003, the City of New Haven administered a test to determine firefighters’ promotion eligibility. However, when the city examined the test’s results, it found that Caucasian candidates significantly outperformed African-American and Latino candidates. Federal law not only prohibits employers from intentional racial discrimination, but also forbids facially neutral promotion and hiring policies with a racially “disparate impact.” 42 U.S.C. §2000e–2. Cognizant of these rules, the city refused to certify the test’s results. Eighteen high-scoring test-takers sued, alleging intentionally racial discrimination. The District Court granted summary judgment for the city, and the Second Circuit affirmed in a brief per curiam opinion.

In Ricci v. DeStefano (07-1428), the Supreme Court split 5-4 to not only reverse, but also take the unusual step of granting summary judgment for the plaintiff firefighters instead of allowing the defendants to address the Court’s holding on remand. Writing for the majority, Justice Kennedy explicitly avoided the firefighters’ constitutional claims. Nevertheless, he drew on the Court’s Equal Protection Clause jurisprudence to conclude that employers may use race-conscious policies to avoid disparate-impact discrimination, but only where there is a “strong basis in evidence” that the policies are necessary to avoid disparate impact liability. Because Justice Kennedy further concluded that the city could not meet this test, he granted the firefighters’ motion for summary judgment. Justice Ginsburg, writing for the dissent, argued that the majority’s rule improperly discouraged employers’ from voluntarily correcting possible statutory violations.

Age Discrimination

Jack Gross sued his employer FBL Financial Services, alleging illegal age discrimination in violation of the Age Discrimination in Employment Act (ADEA), codified at 29 U.S.C. 621 et seq. The trial judge gave the jury a “mixed-motive” instruction, informing the jury that if Gross showed that his age was a factor in FBL’s actions, than Gross must prevail unless FBL showed that Gross’s age was not the determining factor in its decision. The court based this instruction on McDonnell Douglas v. Green, 411 U.S. 792 (1973), a Supreme Court case considering discrimination suits generally. The Eighth Circuit reversed, relying on Price Waterhouse v. Hopkins (Waterhouse), 490 U.S. 228 (1989), a Supreme Court case considering Title VII discrimination claims.

In Gross v. FBL Financial Services, Inc. (08-441), the Supreme Court split 5-4 to hold that ADEA plaintiffs must show that their age was a “but-for” cause of their employer’s action. Writing for the Court, Justice Thomas examined the legislative history of both Title VII and the ADEA, ultimately concluding that because they are materially different statutes, courts need not apply the same rules to both of them. Thus freed from Waterhouse and other Title VII precedent, Justice Thomas analyzed the ADEA’s language to conclude that the statute did not support mixed-motive instructions at all. Justice Stevens, writing for the dissent, disputed Justice Thomas’s characterization of the statutes’ legislative history. Justice Breyer joined Justice Stevens’ dissent, but wrote separately to emphasize practical problems in applying the Court’s rule.

The Voting Rights Act

Vote Dilution

Section 2 of the Voting Rights Act (VRA), codified at 42 U.S.C. § 1973, prohibits states from drawing election districts in ways that improperly dilute racial minorities’ voting power. Vote dilution claims may arise when a state splits a minority community between different election districts, minimizing the community’s influence at the polls. The Supreme Court previously upheld a vote dilution claim where a racial minority would constitute a majority of the voting-age population in a single, geographically compact district, and thus could routinely elect their chosen candidate in such a district. On the other hand, the Court rejected a similar claim where a racial minority would have made up less than 50% of the voting-age population and thus been able to “influence,” but not determine, which candidate would win. In Bartlett v. Strickland (07-689), the Court considered a vote dilution claim involving a “crossover district” where a racial minority made up less than 50% of the voting-age population but could, nevertheless, routinely elect their chosen candidate with the help of “crossover voters” from other racial groups.

Ultimately, the Court split 5-4 to hold that § 2 does not protect crossover districts. Writing for a 3-member plurality, Justice Kennedy argued that because racial minorities in crossover districts have the same political opportunities as other groups of equal size, § 2 does not apply. He rejected the dissents’ suggested sliding scale rule, noting the benefits of a bright-line rule that would limit future confusion, and reserved the question of how evidence of intentional discrimination would impact his analysis. The dissents argued against a rigid 50% requirement for § 2 protection, noting that it created perverse incentives for states to reduce minorities’ political influence by over-concentrating them in a small number of districts. This, they argued, went against the VRA’s purpose. Justice Thomas, joined by Justice Scalia, wrote separately to argue against any recognition of vote dilution claims.

Exemptions and Bailout

Section 5 of the Voting Rights Act (VRA), codified at 42 U.S.C. § 1973c, prohibits “covered jurisdictions” from changing any voting law without first obtaining federal preclearance. Section 4(a), codified at 42 U.S.C. § 1973b, allows states or “political subdivisions” to “bail-out” of the federal oversight under the VRA. Texas has been subject § 5 oversight since 1965. Accordingly, when the Northwest Austin Municipal Utility District (the District) was created in the 1980’s, § 5 applied to it as well. In 2006, the district sued, seeking to bail-out of the act’s restrictions and, alternatively, arguing that that § 5 was unconstitutional. The District Court rejected both claims, specifically holding that the district was not eligible to bail-out because it did not register voters.

The Supreme Court allowed a direct appeal and, in Northwest Austin Municipal Util. Dist. No. One v. Holder (08-322) unanimously reversed to hold that the district was eligible for bail-out. Writing for the Court, Chief Justice Roberts relied on precedent to conclude that the same definition of political subdivision applied both when considering whether a governmental unit was subject to § 5 oversight and when a governmental unit sought bail-out. The majority avoided the district’s constitutional arguments. Justice Thomas wrote separately to argue that the doctrine of constitutional avoidance was inapplicable here.

Identity Theft

Ignacio Flores-Figueroa, a Mexican immigrant, was arrested after presenting fake Social Security and alien registration cards to a potential employer. Because, unbeknownst to Flores-Figueroa, the cards’ numbers belonged to other people, the Government charged him with “[a]ggravated identity theft” under 18 U.S.C. § 1028A(a)(1), which applies where an offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Flores-Figueroa appealed, arguing that § 1028A(a)(1) requires the Government to show that a defendant knew that they used a “means of identification” belonging to another person. The Eighth Circuit rejected Flores-Figueroa’s argument and upheld his conviction.

In Flores-Figueroa v. United States (08-108), a unanimous Court reversed. Writing for the Court, Justice Breyer noted that the lower courts’ reading of the statute was inconsistent with ordinary English usage and grammar, and rejected government arguments based on legislative intent and practical enforcement problems.

Religious Monuments as Government Speech

Pioneer Park, a public park located in Pleasant Grove, Utah, contains several permanent, privately donated monuments, including a monument inscribed with the Ten Commandments. Summum, a religious group, requested permission to install a similar monument inscribed with the Seven Aphorisms of Summum. When the city refused to accept the monument, Summum sued, alleging that the city’s actions violated its First Amendment rights. After the District Court denied Summum’s request for a preliminary injunction, the Tenth Circuit reversed, categorizing the proposed monument as private speech and the park as a traditional public forum. The Tenth Circuit did not address the case’s religious aspects, because Summum appealed only its free speech claim.

In Pleasant Grove v. Summum (07-665), the Court unanimously reversed, holding that the Pioneer Park monuments were government speech, and thus not subject to the Free Speech Clause. Justice Alito, writing for the Court, noted that by history and custom, governments have discretion in deciding whether or not to allow private groups to place permanent monuments on public land. He further argued that the Court’s public forum doctrine did not apply to the case because it would lead to absurd and self-contradictory results. Finally, Justice Alito rejected Summum’s argument that strict safeguards are necessary to avoid viewpoint discrimination by public entities. He did not resolve the Establishment Clause issues implicated by the case.

Justice Scalia, joined by Justice Thomas, wrote separately to argue that neither Summum’s proposed monument nor the existing Ten Commandments monument violated the Establishment Clause. Justice Souter concurred in the judgment, but expressed unease about the interaction of the Free Speech Clause and Establishment Clause in the Court’s government speech doctrine.

Recusal

In 2002, petitioners won a $50 million jury verdict against A. T. Massey Coal and its affiliates. In 2004, before Massey completed its appeals, Brent Benjamin challenged Justice Warren McGraw for a seat on West Virginia’s Supreme Court of Appeals. Massey’s CEO and President, Don Blankenship, spent $3 million campaigning against McGraw, and Benjamin won the election. Later, when the West Virginia court heard Massey’s appeal, Justice Benjamin repeatedly denied petitioners’ request that he recuse himself due to Blankenship’s campaigning, both when the Supreme Court of Appeals initially heard Massey’s appeal, and at a subsequent rehearing. Petitioners appealed Justice Benjamin’s failure to recuse himself.

In Caperton v. A.T. Massey Coal Co., Inc. (08-22), the Supreme Court split 5-4 to reverse and remand. Writing for the Court, Justice Kennedy explained that because Blankenship’s contributions “had a significant and disproportionate influence” on Justice Benjamin’s election, there was a “serious risk of actual bias.” This risk, Justice Kennedy concluded, compelled recusal under the Due Process Clause, regardless of the presence of actual bias. Although Justice Kennedy did not articulate a clear test for lower courts to apply in similar cases, he emphasized this case’s extreme fact pattern, and concluded that its rule only applied in similarly extreme cases. Writing for the dissent, Chief Justice Roberts emphasized practical difficulties in applying the Court’s rule to other cases, and argued against imposing Constitutional requirements regarding recusal.

Qualified Immunity

Utah police officers conducted a warrantless search of Afton Callahan’s house based on an informant’s tip. After the Utah Court of Appeals vacated Callahan’s conviction on the grounds that the search was illegal, Callahan sued under 42 U.S.C. § 1983, seeking damages for the officers’ violation of his Fourth Amendment rights. The District Court granted the officers’ motion for summary judgment on the grounds that the officers were entitled to qualified immunity because, at the time of the search, they reasonably believed that the search was proper. The Tenth Circuit overruled, based on the Supreme Court’s decision in Saucier v. Katz, 53 U.S. 194 (2001). In Saucier, the Court held that when considering whether defendants receive qualified immunity, courts must first address underlying constitutional issues before determining whether defendant government officials’ conduct was unreasonable.

In Pearson v. Callahan (07-751), a unanimous Court reversed, holding that the officers were entitled to qualified immunity and overruling Saucier. Writing for the Court, Justice Alito recognized that the Saucier rule created unnecessary confusion and expense by forcing lower courts to grapple with difficult constitutional issues even when the defendants’ conduct was not unreasonable. He also recognized that the rule could lead to inequitable results, such as when defendants win based on the test’s second prong but not its first, leaving them open to later suits based on their “proven” unconstitutional activities while making it difficult to appeal because, after all, they “won.” Accordingly, the Court held that while the Saucier approach might be appropriate in many cases, it is no longer mandatory in all cases.

The Fourth Amendment

Searches by School Officials

Safford middle school officials caught a student with prescription-strength ibuprofen pills in violation of school rules. Relying on the student’s uncorroborated statement that thirteen-year-old Savana Redding gave her the pills, school officials required Redding to remove her outer clothing and briefly pull away her underwear. Redding’s mother sued the school under 42 U.S.C. § 1983, alleging that school officials violated Redding’s Fourth Amendment right to be free from unreasonable searches. The District Court granted defendants’ motion for summary judgment on the grounds that the search was reasonable. After initially affirming, the Ninth Circuit reversed en banc, find that the search was unreasonable and denying the officials’ qualified immunity claim.

In Safford Unified School Dist. #1 v. Redding (08-479), the Supreme Court voted 8-1 to affirm that the “strip-search” violated the Fourth Amendment. Writing for the Court, Justice Souter reaffirmed the Court’s holding in New Jersey v. T.L.O., 469 U.S. 325, that when school officials search students, the scope of the search must be justified by its circumstances. Accordingly, school officials were justified in searching Redding’s outer clothing and backpack, and in strip-searching the student caught with pills. However, in light of the power of the suspected contraband and a lack of evidence that Redding had drugs, in her underwear or elsewhere, Justice Souter concluded that a “strip-search” was unjustified. Despite this, Justice Souter concluded that because, at the time of the search, circuits were split on whether the search was justified, the defendant school officials were entitled to qualified immunity. Although Justices Ginsburg and Stevens agreed with Justice Souter’s other conclusions, they split from the majority on this issue. Justice Thomas, writing by himself, argued that the search was not unreasonable.

Warrantless Searches of Cars

After arresting Rodney Gant for driving with a suspended license, police handcuffed him and locked him in the back of a police car. They then searched Gant’s car. The state later used evidence from this search, introduced over Gant’s objections, to convict him on drug charges. The Arizona Supreme Court reversed, finding that the search violated the Fourth Amendment.

In Arizona v. Gant (07-542), the Supreme Court affirmed in a 5-4 decision. Writing for the Court, Justice Stevens explained that police may only conduct a warrantless search of a vehicle incident to its recent occupant’s arrest if they reasonably believe that (1) the arrestee might access the vehicle to (a) get a weapon or (b) destroy evidence, or that (2) the vehicle contained evidence relevant to the offense of arrest. Justice Stevens reasoned that although there are exceptions to the Fourth Amendment’s rule that warrantless searches are per se unreasonable, none of those exceptions applied here.

The Sixth Amendment

Confrontation Clause

The Sixth Amendment’s Confrontation Clause gives criminal defendants the right to cross-examine witnesses testifying against them. Luis Melendez-Diaz appealed his drug conviction on the grounds that the state violated his rights under the Sixth Amendment’s Confrontation Clause by admitting laboratory reports without allowing him to cross-examine the analysts who prepared the reports. Both the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court rejected Melendez-Diaz’s argument.

In Melendez-Diaz v. Massachusetts (07-591), the Court reversed in an unusual 5-4 split. Justice Scalia, writing for the majority, concluded that drug lab reports are within the core class of testimonial statements covered by the Confrontation Clause. Thus, prosecutors may not use them as evidence unless defendants waive their right to cross-examine the analysts who prepared them. In reaching this conclusion, Justice Scalia emphasized that the courts may not ignore constitutional rights simply because compliance is inconvenient or expensive. Justices Stevens, Souter, Thomas, and Ginsburg joined Justice Scalia’s majority opinion. Justice Kennedy, writing for the dissent, argued that the Court’s holding unnecessarily broke with precedent, and was dangerously ambiguous and impractical. He was joined by Chief Justice Roberts and by Justices Alito and Breyer. Finally, the majority and dissent disputed the breadth of the Court’s rule, with the dissent arguing that it could disrupt the entire criminal justice system, and the majority suggesting that it was only narrowly applicable.

Right to Counsel

Uncounseled Interrogations

Jesse Montego was arrested on suspicion of murder. At an initial preliminary hearing, he was declared indigent, and counsel was automatically appointed to represent him. Montejo stood silent at this hearing. After the hearing, but before Montejo met with his counsel, Montejo consented to an uncounseled police-initiated interrogation. Over defense objections, the State introduced evidence from this uncounseled interrogation at trial. Montejo appealed, arguing that his consent to the interrogation was void due to Michigan v. Jackson, 475 U.S. 625 (1986). In Jackson, the Court held that once indigent defendants request that the state appoint counsel to represent them, their waivers of their right to counsel during subsequent police-initiated interrogations are void. Montejo proposed that under this rule, a state may never approach represented defendants and request that they consent to uncounseled interrogation. The Louisiana Supreme Court rejected this interpretation, holding that Jackson did not apply because Montejo did not affirmatively assert his rights.

In Montejo v. Louisiana (07-1529), the Supreme Court overruled Jackson by a 5-4 vote. Justice Scalia, writing for the Court, considered and rejected the interpretations of both the Louisiana Supreme Court and Montejo’s. Instead, relying on “antibadgering” ideas underlying Jackson, Justice Scalia turned to Edwards v. Arizona, 451 U.S. 477 (1981), a case preceding Jackson that prevented police-initiated custodial interrogations only after defendants affirmatively assert their right to counsel. Justice Scalia reasoned that, in light of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), defendants are unlikely to ignorantly waive their Sixth Amendment rights. He further argued that while the Court should insure that defendants’ waivers are proper, it need not try to make such waivers impossible. The dissent, written by Justice Stevens, disputed the majority’s characterization of Jackson as an antibadgering provision and emphasized that uncounseled defendants may not realize the significance of waiving their right to have counsel present during interrogations.

Jailhouse Informants

In Kansas v. Ventris (07-1356), the Court considered the application of the Sixth Amendment to cases where police deliberately place an informant in a defendant’s cell. Although the court concluded that states may not use such an informant’s testimony to show a defendant’s guilt, they may use the testimony for impeachment purposes. Writing for a seven-member majority, Justice Scalia first concluded that when the state violates the Sixth Amendment by subjecting a defendant to uncounseled pre-trial questioning, the constitutional violation occurs at the time of questioning, not when the state subsequently introduces tainted evidence at trial. Accordingly, he argued that this case was not about preventing constitutional violations but about remedying them. Noting that the exclusionary rule prohibiting government use of tainted evidence was a court-created deterrent and not a constitutional right, he further argued that in this case, prohibiting government use of tainted evidence to show guilty was already a strong deterrent against government misconduct, and that the importance of preventing perjury outweighed the additional deterrent effect gained by prohibiting government use of tainted evidence for impeachment.

Ineffectiveness of Counsel

The Court addressed defendants’ ineffectiveness of counsel claims in Vermont v. Brillon (08-88), and Knowles v. Mirzayance (07-1315). In Brillon, the Court concluded that a defendant’s Sixth Amendment right to a speedy trial was not violated when the defendant’s public defenders caused the relevant delays. Writing for the Court’s 7-member majority, Justice Ginsburg rejected the Vermont Supreme Court’s conclusion that Brillon’s public defenders were, in effect, state actors. She cautioned, however, that notwithstanding the Court’s decision in this case, delays caused by a breakdown in a state’s public defender system as a whole might violate the Sixth Amendment.

In Knowles, the Court rejected a defendant’s ineffectiveness of counsel claim where the defendant’s attorney failed to advance his only available defense because the attorney felt that the defense would almost certainly fail. Justice Thomas, writing for a unanimous court, rejected the Ninth Circuit’s application of a “nothing to lose” test as entirely unsupported by Supreme Court precedent and thus inappropriate under, 28 U.S.C. § 2254(d)(1), the federal law governing this type of habeas corpus claim. Applying the Court’s more deferential general test from Strickland v. Washington, 466 U.S. 668 (1984), Justice Thomas concluded that the state’s courts were not unreasonable in denying Mirzayance’s requests for post-conviction relief.

The Exclusionary Rule

Police officers arrested Bennie Herring on a warrant issued by a neighboring county. Unbeknownst to the arresting officers, the warrant was no longer valid and only remained in neighboring county’s database due to a clerical error. At trial, Herring moved to suppress evidence gathered in a search incident to his improper arrest on the grounds that the search was unreasonable, in violation of the Fourth Amendment. Under the exclusionary rule, courts must suppress most evidence gathered in violation of the Constitution. The District Court, however, denied Herring’s motion on the grounds that the arresting officers acted in good faith, and that applying the exclusionary rule would not deter future police misconduct. The Eleventh Circuit affirmed.

In Herring v. United States (07-513), the Supreme Court affirmed by a 5-4 vote. Chief Justice Roberts, writing for the court, explained, “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Reasoning that the rule is merely a court-create mechanism to deter police misconduct and not an individual Constitutional right, Chief Justice Roberts concluded that “isolated police negligence attenuated from [an] improper arrest” does not necessarily require application of the rule.

Justice Ginsburg, writing for the dissent, objected to the Court’s narrow reading of the exclusionary rule, noting the neighboring County’s inadequate procedures to insure warrant accuracy, and emphasizing the lack of effectively remedies for illegal searches. She rejected as insufficient Chief Justice Roberts’s assurances that under the Court’s approach, instances of reckless or deliberate record-keeping errors would still invoke application of the rule.

Plain Error and Plea Bargains (Puckett v. United States)

The plain-error rule is a limited exception to the normal rule that if parties do not object to a court’s errors when they occur, they cannot raise those “unpreserved” errors on appeal. James Puckett invoked this rule after he failed to properly object to the government’s breach of its plea bargain agreement with him at his sentencing. Although the Fifth Circuit agreed that the plain-error rule applied, it nevertheless affirmed Puckett’s conviction and sentence, reasoning that the state’s breach did not harm Puckett because he would have received the same sentence even if the government had honored its agreement.

In Puckett v. United States (07-9712), the Supreme Court affirmed the Fifth Circuit’s decision by a 7-2 vote. Writing for the Court, Justice Scalia rejected Puckett’s argument that government violations of plea bargain agreements per se justify reversal under the plain-error rule, reasoning that not all unpreserved plea bargain violations prejudice defendants. He also emphasized the importance of limiting parties’ ability to raise unpreserved errors on appeal. Justice Stevens, writing for the dissent, argued that the Court misconstrued Puckett’s harm by focusing on his sentencing and not his conviction, reasoning that the government’s breach of its plea bargain voided Puckett’s guilty plea.

Preemption

During its 2009 term, the Supreme Court rejected federal preemption of state law in three cases: Altria Group v. Good (07-562), Wyeth v. Levine (06-1249), and Cuomo v. Clearing House (08-453). In each of these cases, Justices Stevens, Souter, Ginsburg, and Breyer sided with the majority. They were joined by Justice Kennedy in Altria and Wyeth, and by Justice Scalia in Cuomo.

Of these cases, Cuomo has the narrowest holding. The case turns on 12 U.S.C. § 484(a), part of the National Banking Act (NBA), which exempts national banks from states’ “visitation powers.” The Office of the Comptroller of the Currency (OCC), which enforces the NBA, interpreted § 484(a) to prohibit state from enforcing even non-preempted state laws. The New York Attorney General disagreed and initiated administrative investigations of national banks for possible violations of state laws. The OCC successfully sued, and the Second Circuit affirmed. Writing for the Court, Justice Scalia carefully distinguished “visitation” from “law enforcement,” ultimately concluding that although the state Attorney General could sue to enforce state law, it could not conduct purely administrative investigations. Justice Thomas, writing for the dissent, rejected the majority’s definition of “visitation.” In reaching these different conclusions, the two opinions drew on many of the same sources.

Both Altria and Wyeth involved appeals from private tort suits. In Altria, the Court held that exclusive federal control over cigarette advertising claims regarding smoking and health did not prevent state law suits agianst cigarette manufacturers for fraudulent deception. Writing for the Court, Justice Stevens focused on the defendants’ deceptive practices, and concluded that regardless of whether the FTC authorized their marketing claims, they still had a “duty not to deceive.” Justice Thomas, writing for the dissent, argued that the Court’s decision undermines the Labeling Act, 15 U.S.C. § 1334(b), by allowing state juries to revisit federal evaluations of defendants’ advertising claims about smoking and health.

In Wyeth, the Court rejected the defendant drug maker’s argument that states could not impose warning label standards more strenuous than those imposed by the Food and Drug Administration (FDA). Writing for the court, Justice Stevens emphasized that drug companies, not the FDA, are responsible for drugs’ labels, and that Congress did not expressly or implicitly prohibit states from applying heightened warning requirements. Justice Alito, writing for the dissent, argued that the real issue was whether state law juries may overturn the FDA’s carefully considered determination that a drug is “safe” when distributed with its approved label.

Racketeering

The federal Racketeering Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961 et. seq., inflicts harsh penalties on members of an “enterprise” who conduct the enterprise’s affairs through a “pattern of racketeering activity.” 18 U.S.C. § 1962(c). “Enterprise” includes both formal legal entities and informal “association-in-fact” enterprises.

A jury convicted Edmund Boyle under RICO, based on his membership in an informal group that committed several racketeering crimes. Edmund Boyle appealed, arguing that because the group was informal and existed solely to commit its crimes, the District Court by instructing the jury that the group could constitute a RICO association-in-fact enterprise. The Second Circuit rejected Boyle’s arguments. The Supreme Court granted certiorari to resolve a three-way split in the circuits.

In Boyle v. United States (07-1309), the Court affirmed by a 7-2 vote. Writing for the Court, Justice Alito explained that RICO association-in-fact enterprises must have a “structure,” and that proving the presence of this structure requires proof of at least three elements; “[A] purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose.” He reaffirmed that where appropriate, the same evidence may be used show both an enterprise’s racketeering activities and also its structure. Finally, he rejected Boyle’s reading of RICO’s association-in-fact enterprise requirement as unsupported by the statute’s text. Justice Stevens, writing for the dissent, argued that RICO only applied to “business-like” enterprises, and cautioned that the Court’s reading of RICO might make RICO effectively indistinguishable from federal conspiracy law in some cases.

Standing to Challenge Administrative Regulations

Following a fire in the Sequoia National Forest, the Forest Service approved the Burnt Ridge Project, “a salvage sale of timber on 238 acres damaged by the fire.” The service did not follow its usual notice, comment, and appeals in approving the project, because its regulations exempted salvage sales covering less than 250 acres from those requirements. Several environmental groups sued, attacking the Forest Service’s handling of the Burnt Ridge Project and also facially challenging several Forest Service regulations. To establish standing for their Burnt Ridge Project claims, they presented an affidavit from a member who regularly used of the project site and intended to do so again in the future. To support standing for their facial attack on the Forest Service regulations, plaintiffs presented similar affidavits from members who regularly used National Forest sites around the country.

After the parties settled their dispute over the Burnt Ridge Project, the Government argued that the plaintiffs no longer had standing to facially challenge the Forest Service’s regulations. The District Court disagreed, and issued a nationwide injunction barring the enforcement of several specific regulations. The Ninth Circuit affirmed.

In Summers v. Earth Island Institute (07-463), the Supreme Court overruled the Ninth Circuit. In a 5-4 vote, the Court held that plaintiffs lacked standing to challenge the regulations. Justice Scalia, writing for the Court, highlighted their failure to identify concrete, non-hypothetical situations where the regulations would cause future harm to them or their members. He further noted that the plaintiffs failed to meet the imminence standard required for injunctive relief. The dissent, authored by Justice Breyer, argued that the court’s standard was too strict and criticized the Court for improperly ignoring several of the plaintiffs’ affidavits outlining expected future harm. Justices Scalia and Breyer disputed the significance of the environmental organizations’ size, the frequency of allegedly improper Forest Service timber sales, and the adequacy of the plaintiffs’ affidavits.

Separation of Powers

Plaintiff environmental groups sued to enjoin the Navy’s use of “mid-frequency active” (MFA) sonar in training exercises off the coast of Southern California, alleging that the Navy’s training plan took inadequate precautions to mitigate MFA sonar’s negative effects on marine mammals. The Navy bitterly contested plaintiff’s claims, noting the necessity of MFA sonar training and disputing plaintiffs’ allegations about the extent and severity of the exercises’ probable impact on marine life. After two losses in District Court and one trip to the Ninth Circuit, the Navy sought and received relief from the Executive Branch, which exempted the Navy’s exercises from the environmental laws underlying the injunction. The District Court refused to vacate its injunction in light of this waiver, and the Ninth Circuit affirmed.

In Winter v. National Resources Defense Council (07-1239), the Supreme Court overruled the Ninth Circuit in a 6-3 vote. Writing for the Court, Chief Justice Roberts explained that even if the plaintiffs demonstrated that the Navy’s training exercises would likely cause irreparable harm to marine life, the balance of equities still favored the Navy, due to the weight of the public’s interest in strong national defense and the Navy’s interest in conducting realistic training exercises. He also emphasized the necessity of deferring to military judgment on military matters, including the reasonableness of proposed restrictions on training exercises. In a dissent, Justice Ginsberg, joined by Justice Souter, strongly objected to the Executive Branch intervention in this case, and suggested that the Navy should have sought Congressional intervention instead of going to the Executive Branch.

Environmental Regulation

The Clean Water Act (CWA) of 1972, codified at 33 U.S.C. § 1251 et seq., prohibits unauthorized pollution of protected waterways. Section 404 of the CWA, codified at 33 U.S.C. § 1344, directs the Army Corps of Engineers to regulate discharges of “fill materials,” and § 402, codified at 33 U.S.C. § 1342, directs the EPA Environmental Protection Agency (EPA) to regulate all other pollutant discharges. Both agencies treat mine tailings as fill material. In 2005, the Corps issued Coeur Alaska a permit to use a lake as a tailing pond. Coeur also obtained an EPA permit for the lake’s runoff. Environmental groups sued, arguing that the tailings should be subject to § 404 EPA regulation as well as § 402 Army Corps regulation. The District Court rejected the plaintiffs’ arguments, but the Ninth Circuit reversed, holding that the EPA regulations did apply.

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984) the Supreme Court reversed by a 6-3 vote, holding that the CWA’s pollution restrictions do not apply to § 404 discharges. Writing for the Court, Justice Kennedy relied on EPA and Army Corps interpretations of the CWA to conclude that the Corps had exclusive permitting authority over tailings. He rejected the environmental groups’ proposed reading of the CWA as unworkably ambiguous. He also emphasized Coeur’s claim its proposal would cause less long-term environmental harm than constructing a new tailing pond nearby. Justice Ginsburg, writing for the dissent, argued that the majority’s decision opened a dangerous loophole in the CWA, and emphasized Congress’ intent of prohibiting polluters from using protected waters as waste treatment systems.

Authors

Prepared by LII Summer Editor David Carlson (Cornell Law School Class of 2011).