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The Supreme Court 2012-2013: Dogs, DNA, and DOMA

by Steven R. Smith, J.D.

The jokesters claim that during the most recent Term, “the Supreme Court went to the dogs.”1 This refers primarily to two cases involving searches involving dogs. But perhaps the most important part of the Term was the “dogs that didn’t bark”: cases that might have been of great importance, but that were decided on narrow grounds with the explosive issues left for another time.

There were, however, a number of cases of considerable importance during this Term. We will first look at some of the cases of special interest to psychology, medicine and other health professionals. Then we will consider more briefly a number of other decisions of general importance and interest. Finally, we will analyze this Term, look to the coming Term, and report on a major resignation that was announced. There were plenty of controversial decisions—leading some commentators to ask, “Who let the dogs out?”

Among this Term’s most important decisions were the following:

 The part of the federal Defense of Marriage Act (DOMA) that denies recognition to state-approved same-sex marriage is unconstitutional.2

 Universities that use race-conscious admissions process (including for achieving racial diversity in individual programs and majors) must be prepared to demonstrate that the use of race is necessary to accomplish diversity and that the use of race is narrowly tailored to achieve that result. 3

 Naturally occurring gene segments are not patentable, but genetic material that is created or altered may be patentable.4

1  It is constitutionally permissible to take DNA samples from persons arrested for felonies. 5

 Mentally impaired defendants do not have a right to being competent for their habeas corpus petitions to be considered by federal courts.6

 A well-trained dog signaling that drugs are present may provide a sufficiently reliable basis for obtaining a warrant to conduct a search, 7 but taking a drug sniffing dog on to the “curtilage” of a house is a search. 8

 “Reverse payments” or “pay for delay” settlements in pharmaceutical patent cases may violate the antitrust law, depending on the details of the arrangements. 9

 Generic drug manufacturers are not liable in “design defect” cases when they follow FDA requirements to use the same labeling and active ingredients as the brand-name drug.10

The Court also decided important cases involving health organization mergers, child custody, employment discrimination, arbitration and Medicare/Medicaid reimbursement.

Same-Sex Marriage and the Defense of Marriage Act

The Defense of Marriage Act (DOMA) provides that in federal law “the word ‘marriage’ applies only to a legal union between one man and one woman.” 11 In effect, this would mean that even if states recognize same-sex marriages, the federal government will not do so. In United States v. Windsor the Court was asked to decide whether DOMA is constitutional.12

In a 5-4 decision, the Court held that the DOMA definition of marriage is unconstitutional. In addition to the provision defining marriage for federal law purposes, DOMA also allows states to refuse to recognize same-sex marriages performed in other states, but that provision was not at issue in this case. For simplicity, we will refer to DOMA here only as the part that involves the federal definition of marriage.

DOMA is not an ancient law of another time. Well, it may be of another time, but it

2 is not ancient. It was adopted in 1996, with votes of 85–14 in the Senate and 342– 67 in the House, and signed by President Clinton.

The constitutional challenge was based on the 5th Amendment which says that no person shall “be deprived of life, liberty, or property, without due process of law.” Over the years the courts have construed this provision to have, in effect, an “equal protection” provision, somewhat comparable to the 14th Amendment (the Equal Protection Clause of which applies only to the states, not the federal government). The Windsor case ultimately came down to the question of whether there was a rational basis for the federal government to distinguish between opposite-sex and same-sex marriages. Justice Kennedy, writing for the majority of the Court, could not find such a basis, and determined that the purpose of the law was improperly discriminatory. 13

For all of its social significance, Windsor was actually a tax case. Edith Windsor and Thea Spyer were recognized as married by the state of New York. When Spyer died, leaving her estate to Windsor, the IRS refused to apply the “spousal exemption” in the federal estate tax, resulting in a tax liability of more than $363,000. In this case, Windsor sought a refund which would result from being treated as a surviving spouse under federal law.

The core of the majority’s opinion was that the federal government has almost uniformly left the definition of marriage to the states, and has used for the federal law the states’ determination of marriage. DOMA created a same-sex exception to this general federal approach and it was this that the majority focused on in striking down the law. The federal law, the Court held, has the effect of imposing injuries and disabilities on same-sex couples without any legitimate governmental interest that justifies the injury. DOMA’s “avowed purpose and practical effect … are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful” by a state.14

Four justices dissented in three separate opinions. The dissenters began with the opinion that the Court did not have standing to decide the case (discussed later in this article). All four said that Congress had the authority to determine that federal law does not provide benefits to same-sex marriages, and objected to claims that Congress and the President engaged in “bigotry” in adopting DOMA. 15

3 The Chief Justice emphasized that the majority did not decide whether states are required to recognize gay marriage—only that in those states that do recognize it, the federal government must do so too. Justice Scalia referred to the majority’s decision as “incomprehensible” and predicted that the Court would soon say that the Constitution requires that states recognize same-sex marriage.16 Justice Scalia probably has the better side of the prediction. The Court certainly did not decide the question of state recognition of same-sex marriage in this case, but the language of Justice Kennedy’s majority opinion certainly sounded themes that suggest an openness to a challenge to state laws in a future case. Stay tuned. That case will probably arrive at the Court before too long.

The practical effect of the case may be substantial. More than a thousand federal laws, including the Affordable Care Act, rely on the definition of marriage to determine rights and responsibilities. Each federal department will have to decide how it will apply the law. The chart below suggests how complicated this could be. Clearly, federal rights would apply to married couples in cells A and B. In cell C, the question is whether that is a recognized marriage at all—a matter probably to be determined in accordance with state law. Cell D is the big question—here, someone has a legal marriage in another state, but that marriage is not recognized under the state law of the state where the couple now lives. In August 2013, the IRS announced that it would allow those legally married in some state to be considered married for federal tax law purposes, regardless of what state they were living in. 17 Other federal agencies are considering the question, and it appears that most will follow the lead of the IRS.

 Married in a state that recognizes same-sex marriages and living in that state.

 Living in one state, but married in a different state. Both states recognize same-sex marriages.

 Living in a state that recognizes same- sex marriages, but married in a state that did not recognize such marriages at the time of the marriage (and does not now recognize the earlier marriage as legal).

4  Living in a state that does not recognize same-sex marriages, but married in a state that does recognize a marriage as legal.

The American Psychological Association (APA), American Medical Association, and American Psychiatric Association, along with several other organizations, filed an amicus curiae brief(“friend of the court,” brief filed by a nonparty to the case to inform the Court of its interest or special understandings) in the DOMA case. 18 The brief is strong in that it discussed the scientific issues in detail, and did not simply repeat the legal arguments of the parties. It also refuted some of the scientific studies of other briefs. None of the opinions of the Court specifically referred to or cited the brief. Justice Kennedy’s opinion for the majority, however, did have much of the flavor of the brief in the discussion of the children in same-sex marriages. Issues of sexual orientation have played an important role in the APA’s amicus briefs, according to the APA website. Of the approximately 120 briefs the APA has filed in all courts (not just the Supreme Court), 40 are sexual-orientation issues. 19 The second highest issue category, with 13 briefs, is “psychologists as expert witnesses.”

A second case from California was widely characterized in the popular press as a same-sex marriage decision, but in reality was a procedural “standing” case that incidentally involved same-sex marriage.20 The decision left in place a decision by a federal court in California that had the effect of recognizing same-sex marriages in California. The Supreme Court decided this case on procedural rather than substantive grounds. In this case, the APA and AMA filed essentially the same amicus brief they filed in Windsor. 21 We will discuss the exciting (well, important) concept of “standing” in a later section of this article.

Affirmative Action

Fisher v. University of Texas was one of the dogs that didn’t bark. 22 Some commentators predicted that this case could produce a major challenge to the affirmative action jurisprudence of the Court—although, the reason for that expectation was a little unclear given that neither party asked the Court to do that. In Fisher the Court did not make a significant change in the law but it did change how the existing rules would be applied.

5 The case this Term involved Abigail Fisher’s failed application to the University of Texas at Austin. Ms. Fisher claimed that the university’s consideration of race in admissions violated Equal Protection, possibly resulting in her denial of admission. The Supreme Court held that her claim had not received a fair hearing by the lower courts and returned it to the federal district court for reconsideration. 23 Seven justices agreed with this outcome (one dissented, and another did not participate in the case), so the case was essentially 7-1, although there was some split in the majority about the basis for the decision.

Justice Kennedy wrote the majority opinion and discussed in some detail the holdings in other university admissions cases. In three earlier college admissions cases, Bakke, 24 Gratz25 and Grutter,26 the Court had held that the Equal Protection Clause of the 14th Amendment makes racial preferences unconstitutional, and that a state (this includes state universities) may engage in such discrimination only if there is a “compelling interest” involved, and only if the discrimination is “narrowly tailored” to achieve that compelling interest. A university may have a compelling interest in diversity among its students. Narrowly achieving that interest may allow the admissions process to take race into account, but it precludes fixed quotas and over-emphasizing race among factors relevant to admission.

The Court in Fisher did not revisit these cases, but focused on applying the standards the cases had set out. The Court held that it is appropriate for courts to defer to universities’ determination that racial diversity is consistent with its educational goals. Of greater practical significance, however, the Court held that such deference is not due to universities’ determination that race is appropriate to use in pursuing the diversity objective. The universities’ claims of the necessity of racial preferences will be put to the test.

Specifically, a university using race in admissions must be able to demonstrate to the satisfaction of the courts that (1) the interest the university seeks to promote is both substantial and constitutionally permissible, (2) the use of racial classification is necessary to accomplish this interest, and (3) the use of race is narrowly tailored to achieve the compelling interest of the university. 27 These were the requirements the Court had announced in earlier cases. The Fisher case held, however, that when challenged, the university must prove that it has met these requirements. That is, “a university must make a showing that its plan is narrowly tailored to achieve the

6 only interest that this Court has approved in this context,” diversity (in which race may be an element). 28

Justice Scalia concurred, noting that the student had not asked the Court to reconsider its earlier cases.29 Justice Thomas concurred but noted that he would have overturned the earlier decisions allowing racial consideration. Justice Ginsburg dissented on the basis that she viewed the Texas admissions system consistent with the earlier decisions of the Court.

The American Psychological Association filed an amicus brief. 30 Its central theme was that “social science research confirms that the benefits of admissions policies like the one employed by the University of Texas extend far beyond admissions.” Its focus on science was indicated in the introductory note of the brief that“[t]he scientific conclusions set forth in this amicus brief are grounded in 79 peer-reviewed studies reflecting the contemporary social science research on campus diversity. … The studies that form the backbone of this brief … represent just a sample of the evidence collected by APA members and their colleagues that demonstrates the value of and continuing need for diversity in higher education.”31 The evidence that the APA reported will undoubtedly be of value to lower courts that will hear challenges to individual university’s affirmative action programs. The Association of American Medical Colleges, AMA and others also filed an amicus brief that explained the importance of educating physicians in ways that take into account the diverse populations they will serve, and noted the many years that medical schools have been doing holistic reviews of applicants.32

Experts disagree on the practical consequences of this decision. On one hand, there was relief that the Court did not reverse previous ruling allowing universities to consider race in admissions. On the other hand, the Court did send an important cautionary message to lower courts not to be over-deferential to universities; it will be critical how lower courts apply the “strict scrutiny” test in considering whether considering race was really required to pursue a compelling interest in diversity. Even more difficult is how universities will be able to demonstrate that the use of race was as “narrowly tailored” as possible to achieve that diversity. My sense is that this decision is an invitation to file lawsuits against public universities by those who oppose affirmative action in admissions. (Technically, the 14th Amendment applies only to state action, so it is unclear what effect this case might have on

7 private universities.) This will put those institutions to the test to prove that the use of race is necessary to achieve diversity, and the program selected is narrowly tailored to achieve the result, and that there is not a more limited race-neutral policy that could achieve the result. The university has the burden of proving that.

Finally, I expect considerable variation among federal district and circuit courts in applying this case. Judges who strongly favor affirmative action are likely to be much persuaded by limited evidence of “narrow tailoring” than judges who strongly oppose it. It is unlikely that the Supreme Court is going to be taking cases that titrate repeatedly how much evidence is required to demonstrate “narrow tailoring,” so circuit courts are likely to have the last appellate word. Expect the 5th Circuit and 9th Circuit to see things differently in such cases.

This decision does not just apply to universities as a whole, but also to programs that create racial elements in their own internal admissions decisions. While this section refers to “university admission,” the decision in Fisher would apply to departments of psychology, medical schools, law schools and other individual programs. If programs are taking race into account in admissions decisions (or other academic decisions), the Fisher reasoning applies to them. Any program taking race into account should be prepared to defend it by demonstrating why it is necessary, and that it is narrowly tailored to achieve the necessary diversity (including that there is not a more limited alternative that would be effective). It would be wise to document these considerations at the time the decision is made to use race as a factor, and to do a very hardnosed analysis of reasonable alternatives.

DNA

The Court decided two cases of considerable significance involving DNA. Continuing our canine concept, one of these was a dog that did not bark, and the other was a dog nobody heard, but which could bite in the future.

Patenting Human Genes

In Association for Molecular Pathology v. Myriad Genetics, the Court considered whether specific segments of human genes could be patented.33 Myriad discovered the precise location and sequence of these genes and the Patent Office issued several patents to Myriad for the BRCA1 and BRCA2 genes. Mutations in these

8 genes can code for breast and ovarian cancer. The patent essentially gave Myriad the right to the exclusive use of these naturally occurring gene segments. There was great concern in the medical and scientific community that upholding these patents would create a stampede into identifying specific genes and then stifle research into the use of these gene segments.

The Supreme Court unanimously held that naturally occurring gene segments are not patentable in the U.S. The courts have long interpreted the patent statute as precluding the patenting of abstract ideas, laws of nature and natural phenomena. 34 Without this, the Court noted, someone could “tie up” the basic tools of “scientific and technological work” and thereby “inhibit future innovations” based on these naturally occurring phenomena.35 Because Myriad did not create or alter the naturally occurring BRCA1 and BRCA2 genes, they could not patent them. The fact that they discovered important naturally occurring genes was not enough.

The Court took pains to explain that it would be different if Myriad had created or altered the genetic information encoded on the genes. For example, complementary DNA (cDNA) which omit part of the DNA segments are not naturally occurring and may be subject to being patented. Furthermore, new processes for isolating the DNA might be patentable, but Myriad used standard processes for that purpose.

The AMA was among the medical groups filing amicus briefs.36 It strongly urged the Court to prohibit the patenting of natural DNA, even though the Patent Office had moved ahead and permitted it. It emphasized that issuing such patents would hinder and delay medical research. The opening sentence of the brief: “Patents on human genes impede the provision of health care, thwart public health objectives, shackle innovation, and violate ethical tenets.” The outcome of the case averted this threat. Although a number of gene patents have been issued by the Patent Office, if those are merely parts of naturally occurring genes, the patents are now probably no good and the office should now refuse to grant new patents on these naturally occurring genes. So, this was a dog that did not bark because the fears the AMA and others expressed are avoided by the Court’s decision.

DNA Search and Seizure

In Maryland v. King, the Court was asked to determine whether taking DNA samples

9 from those arrested for felonies is constitutionally permitted. 37 A Maryland statute allowed police to take the DNA samples of those arrested for felonies. At issue was whether this was a violation of the 4th Amendment. (It provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.") In a 5-4 decision the Court upheld this as a constitutionally permissible search.

A cheek swab was used to take the DNA sample. This was viewed by all of the justices as a neither dangerous nor physically intrusive technique. The disagreement was whether or not it violated the privacy-like interests of the 4th Amendment. The majority held that taking DNA is like fingerprinting or taking a photograph. It is an important police function because it helps identify with near certainty the person arrested and held on a felony charge.38 This DNA search is reasonable because the strength of this state interest in identification overcomes a fairly modest personal intrusion.

The dissent mocked the majority’s claim that the purpose of taking DNA was for identification. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”39 The dissent pointed out that this kind of personal search was among the reasons the prohibition of unreasonable searches is in the Constitution. Contrary to the majority, it found no precedent for this search.

This case is my candidate to be the “sleeper” of the Term—the case that may, in the long run, be of much greater importance than was recognized at the time (that is, the dog that may bite later). DNA, of course, contains vastly more information about a person than fingerprints or a photograph. Giving governments the authority to take (and presumably keep) DNA samples gives it access to a huge amount of personal data, and it does so in ways that may not yet be imaginable. Technology is expanding the kinds of information that can be extracted from DNA, so DNA obtained today may provide lots of personal data in the future.

The Maryland law involved in this case and existing technology precluded, at least for now, obtaining much more than identity information for the DNA. And the majority noted that it “need not speculate” about a system that did not contain

10 similar security provisions.40 The dissent’s point seems right that “the Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver.”41

Mentally Impaired Criminal Defendants

Mental Impairment and the Writ of Habeas Corpus

The Court has made it clear that criminal defendants must be competent to stand trial. 42 In addition, defendants who have been sentenced to death must be competent to be executed.43 This Term the Court took up a case to determine whether a defendant must be competent in order to have a habeas corpus petition heard.

The writ of habeas corpus is a procedure by which someone held by the state— usually a criminal defendant—may challenge the legality of being held. It is commonly called the Great Writ because for centuries it has represented one of the most basic mechanisms for challenging illegal confinement. The writ is commonly filed in federal court after criminal proceedings have run their course. Because prisoners were filing multiple writs, often frivolous or repetitive, Congress adopted the Antiterrorism and Effective Death Penalty Act to limit and streamline the habeas corpus process.44 That law generally provides a limited time after a state conviction is final for a defendant to file a habeas petition, and allows only one such petition to the federal courts.

In Ryan v. Gonzales death row inmates filed federal habeas corpus petitions to overturn their convictions. 45 Their attorneys filed motions to delay the hearings on these petitions because the defendants were mentally incompetent and could not assist their attorneys. The “effective” death penalty reference in the law was primarily to avoid lengthy delays that death row inmates occasioned through the habeas process. Perhaps the elephant in the room in the Ryan case was that requiring that a criminal defendant be mentally competent is a way to delay the execution of death row inmates, first through the process of holding competency hearings, and then (for some defendants) delaying the habeas proceeding until the defendant is competent again.

The Supreme Court unanimously held that neither the Constitution nor federal

11 statute requires that habeas corpus hearings be suspended because of the mental incompetency of the defendant. The Court reasoned that ordinarily habeas petitions are on the record and, therefore, usually there is no need for the criminal defendants to assist counsel in presenting a habeas petition.

It is especially important to remember that under the Antiterrorism and Effective Death Penalty Act, a defendant may usually file only one habeas petition, and that it must be filed fairly soon after the state appeals process is final. Thus, it is critical that the petition be filed promptly and that it be the best possible argument for the federal courts stepping in and granting the defendant relief. The Court held, however, that in most habeas cases, the defendant does not really participate in the case because the federal habeas request must generally be based on the record of the trial (and appeals), not on new evidence.

This decision does not necessarily mean that the mental competency of a defendant is never a consideration in a habeas petition. Lower courts may, however, grant delay when it is necessary in the interests of justice. 46 There may be unusual circumstances in which the participation with the defendant in the habeas petition is important. The Supreme Court held that federal district courts have the discretion to issue delays in the proceedings, to hold an evidentiary hearing to determine whether the defendant’s competency is essential in any particular habeas case, or to hold a competency hearing when the lower court believes it is necessary. The Court, however, declined to “determine the precise contours of the district court’s discretion” in these areas.

Diminished Capacity

In another case the Court considered the question of the “diminished capacity” defense.48 This defense is one in which the defendant does not claim to be criminally insane. (Generally, the insanity defense means that the defendant, at the time of the crime, as a result of a mental condition did not understand right from wrong or that what he was doing was wrong.) Rather, the “diminished capacity” defense is that a mental condition prevented him from forming the specific intent or mental state that is a part of the crime. In a sense the defense is a misnomer, because the state must generally prove beyond a reasonable doubt each of the elements of a crime, including the required mental state or mens rea. The “diminished capacity” defense, however, is a term commonly used for when the

12 defendant presents expert mental health evidence that it would not have been possible to form the required mens rea. While there is a constitutional right to have the prosecution prove mens rea, there is no right to be able to present mental health experts to refute the existence of the mens rea. 49

Michigan dropped the diminished capacity defense by court decision. The question that ultimately got to the Supreme Court was a narrow one: Was it a violation of due process to preclude a defendant from using diminished capacity even though he had committed the offense when that defense was recognized? The Court unanimously held that this was not constitutional violation, either as a violation of due process or as an ex post facto law. 50

The Dogs

The canine jokes are possible because of two cases involving drug sniffing dogs. These cases have serious implications for the law of search and seizure. The 4th Amendment, quoted in the last section, prohibits unreasonable searches and seizures, prohibits “general” (unspecified as to location or purpose) searches, and ordinarily requires warrants for searches.

In Florida v. Harris the question was how “qualified” a sniffing dog must be in order to signal reliably that drugs are present, and thereby create probable cause to search an automobile. 51 In this case Harris was pulled over in a routine traffic stop. He refused consent to a search, but Aldo, a drug sniffing dog, signaled the presence of drugs. Those drugs were not found in the subsequent search, but ingredients for making methamphetamine (which Aldo was not trained to signal) were found. Aldo was trained and “certified” but had experienced some notable failures in the field. The trial court held a hearing and determined that Aldo was sufficiently reliable to provide the basis for a probable cause search.

The Supreme Court unanimously agreed. Essentially the Court held that a trial court should look at all of the evidence to determine sniffing reliability, and provide a chance for the defendant to challenge the basis for probable cause. That occurred in this case, and the search was constitutional. Score one for Aldo. Aldo’s certification was not essential to this outcome, nor was certification the last word. Rather, it was one factor to be considered in determining probable cause. 52

13 In the second dog case, Florida v. Jardines, the question was not the qualification of the dog, but where the dog could go sniffing around.53 Based on an unverified tip, law enforcement officers took a drug sniffing dog to the home of the defendant, Joelis Jardines. The pooch went on the porch and house, and signaled the smell of marijuana. Based on this, the officers obtained a search warrant and found marijuana. The question was whether taking the dog on the property near the house was an intrusion into the “houses or effects” of the defendant, and therefore an unconstitutional search. The dog had gone with officers onto the property, close to the house and on the porch, but not in the house.

A majority of the Court held that taking the dog into the yard and close proximity of the house was a physical intrusion and thus an unconstitutional search. The “curtilage”—the area immediately surrounding and associated with the home—was traditionally considered part of the home. 54 Thus, taking the dog there for the purpose of “searching” the area was an improper search.

The dissent held the view that the majority’s description of trespass law “is nowhere to be found in the annals of Anglo-American jurisprudence.” 55 In this view the dog search was not a trespass and it did not violate a reasonable expectation of privacy, so it was a legitimate search.

This 5-4 opinion was an unusual alignment of justices (belying the claims that all of the Court’s decisions are merely ideological battles). For the majority, it was Justices Scalia, Thomas, Ginsburg, Sotomayor and Kagan; for the dissent, Chief Justice Roberts and Justices Alito, Breyer and Kennedy.

Drugs (Pharmaceuticals)

This Term the Court decided major pharmaceutical cases involving antitrust and liability, and a lesser case involving securities regulation. We previously discussed the human DNA patent case (“Patenting Human Genes” above) which was viewed as a pharmaceutical case because future pharmaceutical advances were viewed as dependent on the outcome of that case.56

Antitrust

When the patent on a brand-name drug is about to expire, a generic company can register an abbreviated new drug application with the FDA. The active ingredient must be the same as the brand-name drug, but the generic does not have to go

14 through the entire course of testing that a new drug compound requires.

Under the Hatch-Waxman Act, the first-to-file generic company holds, for 18 months, the exclusive right to produce the generic drug.57 (In practice this period is often more like 30 months.) This very valuable right is intended to encourage generic companies to enter the market with the compound as soon as possible. The brand-name manufacturer often files a lawsuit claiming that this first generic company is violating its patents for the drug.

Over the course of time a process of “reverse payments” or “pay for delay” came to be common in these circumstances. It works as follows: the brand-name company agrees to drop the patent infringement suit and to pay the generic company a substantial amount; the generic agrees to delay its introduction of a generic for a period of time—perhaps the whole 18-30 months of exclusivity. 58 This means that the generic company gets a lot of money for not introducing the generic drug during the period of exclusivity, and the brand-name company can continue for a period to market the drug without competition. These companies also avoid the long and expensive battle over determining patent rights—these can be complicated and difficult. The losers, of course, are the patients and their insurance providers who must pay more for the drug during this time than they would have had there not been the settlement. These are called “reverse” payments because the company claiming infringement of its patents (the brand-name) is paying the alleged infringer.

For some time the Federal Trade Commission has been concerned with the antitrust implications of these agreements. Arrangements between competitors in which one competitor pays the other competitor to stay out of the market usually violate the Sherman Antitrust Act’s prohibition of “restraint of trade or commerce.”59 The question in Federal Trade Commission v. Actavis was whether reverse payment settlements are such a violation. 60 In a 5-3 decision (Justice Alito did not participate) the Court held that these agreements may or may not violate the antitrust laws depending on all of the circumstances, but the FTC or Justice Department may challenge them as violations of the antitrust laws.

Some anticompetitive activities are “per se” antitrust violations—that is, they are always considered violations of the law. Price fixing among competitors is a good example. Most anticompetitive activities, however, are considered under a “rule of

15 reason” test. This test essentially balances the benefits (to the public and the markets) against the costs of the potentially anticompetitive activity (market manipulation or inefficiencies). If the benefits of the activity outweigh the disadvantages, the rule of reason provides that there is not an antitrust violation. One example is accreditation. Accreditation inherently limits competition by prohibiting some practices in hospitals or educational institutions, and it frequently involves collusion by competitors to do that. But the public obtains higher quality medical facilities or more reliable educational programs as a result—a benefit that ordinarily outweighs the risk.

Reverse payment settlements are going to be considered under a rule of reason test. The ambiguity of that test means that a considerable range of evidence and analysis will be necessary where the FTC or others challenge the settlement. The length of time that the agreement keeps a generic off the market, the size of the payment and the likelihood that the generic would be found to violate the patent of the brand-name are examples of considerations relevant to this rule of reason review.

Three dissenting justices concluded that patents grant monopoly power to the brand-name to encourage innovation and invention. Therefore, “the key … is that the patent holder—when doing anything, including settling—must act within the scope of the patent.” 61 Paying someone to respect the patent, they suggested, did not exceed the scope of the patent.

The practical effect of this decision is probably to make pharmaceutical patent cases involving generic companies somewhat more difficult to settle. Still to be determined is how aggressive the FTC will be in challenging these settlements.

Pharmaceutical Liability

Generic drugs also were at issue in Mutual Pharmaceutical v. Bartlett. 62 In that case, a generic drug caused a serious injury, toxic epidermal necrolysis, to Karen Bartlett. The results were physical disabilities, severe disfigurement and loss of sight. The official packaging (essentially the prescription package insert) of the generic drug, Sulindac, did not contain a warning of this possible side effect until a year after the injury. Ms. Bartlett sued Mutual Pharmaceutical, which manufactured Sulindac, and the jury awarded $12 million. The question for the Supreme Court is

16 whether that state lawsuit could be maintained, or whether it was preempted by federal law.

The Supremacy Clause gives Congress the power to preempt state law. It may do so expressly, by saying it is doing so. In addition, under some circumstances the courts will find an implied preemption of state law. This may occur where state law conflicts with federal law or the state law is an obstacle to accomplishing federal law ("conflict preemption"). Or it may occur where federal regulation is so pervasive that there is no room for additional state regulation ("field preemption").63

Federal law requires that generic drugs have the same active ingredient, route of administration, strength, and rate and extent of absorption as the brand-name drug; generics must also be bioequivalent to the brand-name drug. The generic must use the same labeling (package stuffer), including warnings, as the brand-name. 64 The question was whether this federal law precludes states from imposing strict liability on generic companies for a design defect. 65 Two years ago in PLIVA v. Mensing, the Court held that the Supremacy Clause precludes generic drug companies from being liable for “failure to warn” strict liability because federal law prohibits those companies from using anything other than the brand-name label.66 Thus the question this Term was a cousin of that case: can design-defect liability be imposed on generics.

In a 5-4 decision the Court said that federal law preempted state liability in this case for design defects. 67 The majority found that it would be impossible for the generic company to comply with the federal law if it changed the actual physical design or the active ingredient, or the labeling, including the warning. Thus, it could not comply both with federal law requiring the same compounds and warnings as the brand-name, and state law that imposed liability for design defects for designs that the generic company could not change.

The reasoning of both the majority and dissent revolved around the complicated strict liability concept of “design defect.” Essentially, the majority found that because federal law required that the generic company use the same active ingredients at the same dosage and use the same warnings and other labeling as the brand-name, it was impossible to change the product in any meaningful way, and therefore imposing state liability was inappropriate.68 The dissent’s view was that the drug posed a risk of serious injury compared with similar products, and did

17 not have offsetting benefits compared with other compounds.69 The dissent noted that it was not impossible for the generic company to comply with federal and state law—for example, it could have just stopped selling the generic.70 The majority rejected this proposition as incompatible with preemption rules.71

Congress has the ultimate authority to determine preemption issues. When it has not spoken specifically, it is up to the courts to decide whether there is implicit preemption. Congress can, of course, simply change the law to clarify preemption matters. Following this case there were suggestions in Congress to do just that. The most attractive suggestion would allow generic companies to add warnings to pharmaceuticals they manufacture. If this were the law, generic companies could be subject to liability for failure to provide adequate warnings. In 2009 the Court ruled that brand-name companies could be liable for failure to warn. 72 There is also a suggestion that because the brand-name companies are the gatekeepers for changes in labeling, they should be liable for labeling “failure to warn” injuries even when the drug is manufactured by a generic company.73 This question is wending its way through lower courts, so, Mutual Pharmaceutical is probably not the last word on this issue.

Other Pharmaceutical Cases

Pharmaceutical Securities Fraud: Amgen promoted several of its drugs for uses that had not been approved by the FDA. In doing so it violated federal law. It ultimately ended up pleading guilty to misbranding (making unapproved claims for) its drug Aranesp, and paying $136 million in criminal fines and forfeit $14 million, and $612 million civil litigation settlement to state and federal governments. As a result of Amgen’s improper promotion of its drugs, sales went up resulting in the increase in the value of the stock. Of course, when the facts came to light, the stock dropped, and some injured stockholder filed a securities fraud class-action lawsuit.

The Supreme Court was faced this Term with the fallout of that suit. The question was not the substance of liability for securities fraud, but rather whether it was appropriate for this to be a class action. In a 6-3 decision the Court allowed the class action. 74 The result is that pharmaceutical and other securities fraud cases are somewhat easier to bring because smaller potential liabilities can be pooled into one class action.

18 Childhood Vaccine Injuries: The National Childhood Vaccine Injury Act is a federal compensation system for those injured as a result of vaccinations. 75 Under the law an injured person may bring a no-fault action to recover medical costs, lost earning capacity, and pain and suffering.76 Awards are paid from a federal trust fund that receives its income from a tax on vaccines. There is a 36-month “statute of limitations” on filing claims, and the time starts when symptoms of an injury first appear. The cases are generally heard by a special master (a special hearing officer or judge).

The law provides for an unusual payment for attorneys who bring these cases. They may not charge the injured party for services, but may present a claim for attorney’s fees to the court. When the claim for injury compensation succeeds, the award of attorney’s fees is automatic. When the claim is not successful, the master may still pay reasonable attorney’s fees if the claim was brought “in good faith and there was a reasonable basis for the claim.” 77 This Term the Supreme Court unanimously decided that an attorney who brings a claim after the statute of limitations has expired may receive attorney’s fees, so long as there is a non- frivolous basis for bringing the claim.78 (In some cases it may not be possible to determine whether the statute of limitations has run until after the proceedings have started.) This decision is likely to encourage attorneys to consider filing claims of cases that are possibly barred by the statute of limitations.

Other Important Decisions

Antitrust and Health Organization Mergers

A county hospital in Georgia sought to acquire control of a neighboring for-profit hospital. 79 These two hospitals accounted for 86% of the market for acute-care services within a six-county area. The Federal Trade Commission objected to the proposed merger because it would create a virtual monopoly. In a purely commercial setting, this objection would be unremarkable, but this was not a commercial setting.

The hospital that was acquiring the other hospital and would have had the lion’s share of the market was a public entity—a county hospital authority. Ordinarily,

19 antitrust laws do not apply to state action, and that usually includes subdivisions for a state. The Court unanimously held, however, that the state had not sufficiently articulated a policy allowing hospital authorities to make acquisitions that substantially lessen competition. 80 Therefore, the hospital authority was subject to the antitrust laws, and the FTC’s objection to the merger was properly before the lower courts.

We noted earlier that the Court applied antitrust laws to pharmaceutical patent settlements.81 These two cases strongly suggest that the Court is applying antitrust laws fairly aggressively to health care markets. Neither the participation of the courts in pharmaceutical patent disputes nor the county health authority was sufficient to avoid antitrust scrutiny. The AMA filed an amicus brief telling the Court that mergers of hospitals, including public hospitals, can have a negative impact on the quality and cost of hospital care. 82 It urged the Court to avoid reaching a decision that could disrupt professional licensing laws or empower the FTC to encroach on the states’ authority over the professions.

Child Custody

The Court decided two unusual child custody cases. Both involve rather complex factual situations which are not recounted here in detail, but are available by clicking on the cases in the endnotes. Adoptive Couple v. Baby Girl involved a baby girl 1.2% Cherokee. 83 The biological father, who had never seen the child, ultimately objected to the adoption after signing papers that he was not contesting the adoption.84 The Cherokee Nation also objected. Under the Indian Welfare Act of 1978, there is a heightened scrutiny of non-Indian adoptions of Indian children. In a 5-4 decision, the Supreme Court held that act did not preclude the adoption in this case and sent the case back to the South Carolina courts.

In the second case, Chafin v. Chafin, while Baby E.C.’s father was deployed to Afghanistan, E.C.’s mother took her to live in Scotland. After the deployment all three went to Alabama where the parents were divorced and the father filed for custody (the child was in Alabama). The mother was deported to Scotland and applied for custody of the child there. The courts in Scotland granted the mother custody under the theory that it was the “place of habitual residence” of the child. A treaty to which the US and Scotland are bound provides that a child should be returned to the country of “habitual residence.”85 Based on this statute, a district

20 court granted the mother custody and the mother left for Scotland with E.C. before an appeal could be filed. In this casethere was a narrow procedural question of whether the US appellate court could maintain jurisdiction over the appeal.86 The Court unanimously held that the appellate court could maintain jurisdiction for several reasons, including that there might be a “partial remedy” available to the father. The case, therefore, continues.

Employment Discrimination

There were two employment discrimination cases, both arising from universities. Both were 5-4 decisions, and rather contentious.

Vance v. Ball State University involved the question of whether an employer is liable when one employee discriminates against another employee based on race, color, religion, sex or national origin. 87 Title VII of the Civil Rights Act of 1964 makes that illegal, 88 and courts have held that Title VII prohibits the creation of a hostile work environment based on these factors.89 Thus, harassment based on one of the factors is illegal. If a co-worker engages in harassment, the employer is not responsible unless negligent in failing to control the work environment. If, however, the harasser is a supervisor and the harassment results in any kind of employment discipline or similar action, then the employer is strictly liable.90

The issue in Vance was “who is a supervisor?” The majority of the Court held that a supervisor, for the purposes of Title VII, is someone who “is empowered by the employer to take tangible employment actions.” 91 The four dissenting justices argued that this is too narrow a definition of supervisor because it leaves out those people who “control the day-to-day schedules and assignments of others.”92 The dissenters also invited Congress to correct the mistake that they felt the Court was making. 93

Title VII prohibits not only discrimination, but also retaliation against someone who files a discrimination claim. 94 In University of Texas Southwestern Medical Center v. Nassar the Court held that retaliation claims must be proved using “but for” causation.95 That is, the plaintiff must demonstrate that the discrimination, such as demotion, firing, or pay reduction, would not have happened “but for” the illegal discrimination. The easier standard to meet for retaliation, and the one the four dissenters favored, is that race, color, religion, sex or national origin was “a

21 motivating factor” in the retaliation. 96 The fight over these two standards makes a difference in cases where there was racial (or other) discrimination, but the adverse employment action would have happened even without the discrimination. That is, the discrimination was a motivating factor, but not the “but for” cause of the retaliatory action.

Even though the universities (employers) won in both cases, the cases should remind all employers that it is essential to have clear policies regarding discrimination, and complaints of discrimination, and that the policies are enforced. The failure to have such policies increases liability for discrimination or retaliation.

Confessions and the Right to Remain Silent

If a criminal suspect refuses to answer interrogation questions but does not specifically invoke the constitutional right to remain silent, may the prosecutor argue to the jury that the defendant’s silence is evidence of guilt? That was the legal question in Salinas v. Texas.97 Those who do forensic work will appreciate that such comments by prosecutors can be devastating to the defendant, and, therefore, that this is an important legal question.

In Salinas, the defendant had voluntarily answered police questions in a murder case. When police asked him whether ballistics tests would prove a gun to be his, he was silent (and looked at the floor, and bit his lip).98 At trial, the prosecutor argued to the jury that the defendant’s silence suggested his guilt. Among other things, he told the jury, that an “innocent person” would have said, ‘What are you talking about? I didn’t do that. I wasn’t there.’” But, the prosecutor added that the “defendant didn’t respond that way….He wouldn’t answer that question.’” 99 The defendant was convicted and sentenced to 20 years in prison.

The Court was badly split. Three justices, Chief Justice Roberts, and Justices Kennedy and Alito (who wrote for this plurality opinion) held that to receive the protection of the 5th Amendment’s right against self-incrimination, the defendant must invoke that right. No specific formulation of invoking that right must be used, but it must be clear that the defendant is invoking that right. The defendant’s silence did not invoke the right. Justices Justices Scalia and Thomas concurred in the judgment based on their belief that the 5th Amendment does not preclude a prosecutor from commenting on the defendant’s silence, even if the 5th Amendment

22 is specifically invoked.100 Four justices, Breyer, Ginsburg, Sotmayor and Kagan, wrote in dissent that it was sufficiently clear by the silence that the defendant was invoking the right to remain silent. Therefore, it was improper for the prosecutor to comment on the silence.101

This case is remarkable in the degree to which it seems to put form over substance. It means that it matters a lot whether a suspect just refuses to answer police questions, or instead says he does so as a constitutional right—a pretty fine distinction for ordinary citizens to have to make.

Standing

Early in this article I threatened to return to the issue of standing, perhaps a topic only a lawyer could love. But standing is important because it determines who and what issues will be heard by federal courts. I will be brief.

Standing is the doctrine arising from the Constitution and from the Court’s own rules that ensures that federal courts hear real cases and controversies—and do not become a forum for general political policy-making or advisory opinions. This Term the Court seemed to make something of a hash out of standing. Consider some of the big cases. In the California Proposition 8 case 102 the officers of the state refused to defend the proposition on appeal, but the Court would not allow clearly interested parties—the Proposition 8 proponents who put it on the ballot and spent substantial time and money to get it adopted—to have standing, so nobody was allowed defend the proposition on appeal. In the University of Texas case,103 it was not at all clear that the plaintiff had suffered any harm (e.g., it was not clear that she would have been admitted but for the affirmative action program), yet she had standing (not an entirely novel concept, but applied expansively).104 In the DOMA case, 105 the officers of the government said they would not defend DOMA. The Court noted its concern that public officials should not often refuse to defend laws they are supposed to “execute.” The Court’s holdings, however, seem to permit and perhaps reward such actions. Standing is always a difficult issue. It got more so this year.

Arbitration

Perhaps no message is clearer from the Court in recent terms than that arbitration agreements shall be enforced. Period. The Federal Arbitration Act expresses strong support for arbitration.106 That message was reinforced in two cases this Term, one

23 of them involving a health plan, and both of them involving class actions.

In Oxford Health Plans v. Sutter, Dr. Sutter provided medical services to Oxford’s insureds on a fee-for-service basis.107 After some initial skirmishes the arbitrator decided that the contract permitted class action arbitration by providers. (“Class action arbitration” means multiple claims being joined together in arbitration in a way that is similar to class action lawsuits.) Oxford objected but the Supreme Court decided, as it has several times before, that unless arbitrators exceed their arbitration powers, the courts will not step in. “It is not enough to show that the arbitrator committed an error—or even a serious error.”108 In short, arbitration does not include appeal to the courts to correct an error. The last paragraph of the Court’s opinion begins, “In sum, Oxford chose arbitration, and it must now live with that choice.” 109 As we shall see, Oxford could easily have avoided this by saying in the arbitration agreement that class arbitration was not permitted. The AMA filed a confusing amicus brief in this case, as described in the endnotes.110

In the other case, prohibiting class action arbitration is exactly what American Express did. 111 Its agreements with merchants who accept their cards included an arbitration provision and that provision precluded class action. The merchants had antitrust claims that were too small to bring individually. The Court held that they could not bring an antitrust lawsuit because of the contract’s requirement to arbitrate any disputes with American Express, and could not bring class action arbitration because class action arbitration was precluded by the arbitration agreement. 112 It is safe to predict that it will not be long before all consumer arbitration provisions will contain such limitations.

Professionals sign many contracts with arbitration provisions, often without thinking. There are real consequences to these provisions.

Medicare and Medicaid Reimbursement

Another reliable principle is that the Court will uphold reimbursement decisions of the Department of Health and Human Services (and the Centers of Medicare and Medicaid), and the department’s interpretation of the reimbursement statutes. It did so again, unanimously, this Term in Sebelius v. Auburn Regional Medical Center. 113 In this case the medical center was essentially claiming that the HHS regulations violated the fundamentals of fair play. The Court found that the rules for

24 reimbursement were sensible given the complexity of the reimbursement system. It is apparent that the Supreme Court does not want the federal courts to become a reimbursement referee of last resort.

This case, representing many in the last few years, suggests that HHS may be able to exercise very broad authority in administering the Affordable Care Act. That is most likely to be true when payment decisions are being made regarding providers.

Other Interesting Cases

Among the other cases of interest decided this Term were the following:

 The Federal Tort Claims Act, as amended, allowed the federal government to be liable for battery when a Navy surgeon performed surgery without consent. Sovereign immunity has been waived by federal statute for these claims.114

 The National Voter Registration Act, which requires states to accept a federal form to register voters in federal elections, precludes states from requiring documentary evidence of citizenship. (The federal form requires a signed statement that the registrant is a citizen.) 115

 A section of the Voting Rights Act of 1965 requiring some, but not all, states to obtain preclearance of the federal government before making election law changes was unconstitutional. A 5-4 majority of the Court found that circumstances had changed since 1965 and that using the same formula to put certain states under special scrutiny could no longer be justified.116 The other provisions of the Voting Rights Act, however, are in full force.

 Organizations that receive “Leadership Against HIV/AIDS” funding cannot be required to oppose prostitution and sex trafficking as a condition of receiving those funds, so long as they do not use federal funds to support such activities. The condition violates the First Amendment because it requires federally funded organizations to affirmatively speak a federally dictated message and because it limits what speech the organizations may engage in even with non-government funds.

 In some circumstances, demands that state or local governments make in order to approve initial land-use permits may be a “taking” of private property for which the government must pay fair value.118 In a second

25 decision the Court held that federal actions that result in the periodic flooding of land may be a partial “taking” of the land. 119

 The Alien Tort Claim Statute authorizes US courts to consider only a modest number of international law violations that occur outside the US and do not involve US citizens.

 Registration under the federal Sex Offender Registration and Notification Act may constitutionally be required even of those who were convicted of a sex offense before the act was passed. 121

 Someone who is convicted but can prove “actual innocence” has suffered a “fundamental miscarriage of justice” that allows a path for consideration of a petition for habeas corpus, despite the provisions of the Antiterrorism and Effective Death Penalty Act. This case provides a critical pathway for the release of prisoners who prove that they are innocent of the crime for which they are imprisoned.

 The police ordinarily must obtain a search warrant to draw blood, over the driver’s objection, for the purpose of determining blood-alcohol levels. There will, however, be some circumstances, such as in a relatively remote location in which there is no way to contact a judge to issue a warrant, in which a warrantless blood draw may be permitted.123

Analysis of the Term

The Court decided 78 cases between the beginning of the October 2012 Term on October 1, 2012, and the last day of the Term on June 27, 2013. Five of these cases were summary reversals with 73 cases having signed opinions. It is easy to forget that most of the cases are not really as divisive as it seems. Nearly fifty percent of the cases were 9-0—somewhat higher than the average of the last five Terms—and 29% of the cases were 5-4.124

There are fun data too. Justice Sotomayor led in the “number of questions asked” category with an average of 21.6 questions per argument. She edged out the perennial winner, Justice Scalia, who had 20.5 questions per argument. At the other end of the Court, Justice Thomas had an average of 0 questions per argument, and Justice Alito had 7.7. Thank goodness there were some who were quiet, or the attorneys would have no time at all to answer these questions—there would only be

26 questions. I calculated that each argument had an average of 117 questions per argument. The arguments are 60 minutes, so there is a question, on average, about every 30 seconds. Assuming that the average question takes 15 seconds to ask, that leaves about 15 seconds for the attorney to answer some of the most complicated legal questions there are.

On a still more frivolous level, there is the laugh meter. For several years the experts have been keeping track of the laughs each justice gets over the course of the Term. Here is one calculation for this Term: Scalia: 50 (still the champ), Breyer: 40; Roberts: 16; Kennedy: 9; Kagan: 9; Sotomayor: 7; Alito, Jr.: 5; Ginsburg: 1; Thomas: 1 (yes, I know; no questions but one laugh). For details see http://lawyersusaonline.com/dcdicta/category/the-funniest-justice/ . These laughs may be getting serious, though. Even the New York Times has taken notice.125

Justice Kennedy again was the center of the Court and the justice who most often decided the close cases. He was in the majority in 71 of 78 cases (91%) of all the cases decided this Term. In the 5-4 cases, he was in the majority in 20 of 23 (87%) of those cases. At the other end of the close cases, Justice Sotomayor was in the majority in only 9 of the 22 cases, or 39% of the 5-4 decisions (she was recused in one case). Justice Kennedy wrote only one dissenting opinion (as compared with 11 from Justice Scalia, the most of any justice this Term).

Chief Justice Roberts was close behind Justice Kennedy. He was in the majority in 86% of all cases (67 of 78), and 73% of divided cases, but was in the majority in only 61% (14 of 23) 5-4 decisions. A basketful of commentaries discuss his leadership in the Court, including that he is strategically enticing the “liberal” justices into taking moderate positions with him so that sometime in the future he can trap them into a conservative position—the affirmative action case (Fisher) being cited as the example. This theory does not make a lot of sense to me because it requires that he have a clear sense of who will be on the Court in three to ten years. My sense, and it comes from what he said he believed about the Court, is that ordinarily he feels it is best for the Court to decide questions as narrowly as possible. That often means that there will be follow up cases that incrementally move the law. But he does not seem to be interested in grand gestures.

Chief Justice Roberts also seems to be maintaining collegial relationships on the Court. By all accounts the members of the Court do get along well on a personal

27 level. It is, perhaps, regrettable that the opinions of the Court, particularly the dissenting opinions, slowly seem to be taking on a harsher edge. Without question, there have been aggressive, even nasty, dissents for many years. But it is moving from the unusual to the common. Justice Scalia seems to enjoy a good dig at an opponent, and that is a disease that appears infectious. Here’s hoping for a cure.

There was an important retirement at the Court. No justice announced plans for retirement, and all seem in reasonably good health. There was, however, a resignation from the Supreme Court family—a very important part of the infrastructure that makes the Court work. After 22 years as clerk of the Supreme Court, William Suter left that office on August 31. It is a great loss to the Court and to the country. Bill Suter was everywhere on days of oral argument, greeting the advocates with advice on how to be as effective as possible in answering questions in 15 seconds, welcoming new attorneys to admission before the Court, joking with friends and making sure everything was working exactly right and precisely on time.

He was known by many as “General Suter” because he had been the JAG for the Army. And he had a special place in his heart for military and for legal educators too. He had a great sense of humor and was devoted to the advice that one should take his job seriously, but not himself. I remember one day shortly after Chief Justice Roberts began his service when a light blew out above where Mr. Suter sat (to the left side of the Supreme Court bench) and molten glass began to fall from the ceiling. He dove under a desk. (In the meantime, Chief Justice Roberts reassured everyone not to worry--“This is just a little trick they play on new Chief Justices.”) After court Mr. Suter was complimented on his dexterity in avoiding the falling glass. “It was like old times,” he said. “I thought we had incoming.”

William Suter will be missed for his efficiency, grace, love of the law, and service to this country. The remarks of Chief Justice Roberts regarding Mr. Suter’s retirement are moving. http://www.scotusblog.com/2013/07/a-salute-to-the-general-william- k-suter/ . On September 1, 2013, Scott Harris, the long-time Legal Counsel at the Supreme Court, became Clerk of the Court.126

The Court will convene again on Monday, October 7. It has already accepted a number of interesting cases. They involve, as always, the death penalty, arbitration, searches and standing. There are also cases involving “abortion drugs,” election contributions, Indian gaming, frequent flier miles and “recess appointments”

28 by the President. And, one case describes the legal question as, “What constitutes ‘changing clothes’ within the meaning of … the Fair Labor Standards Act.” Stay tuned for next year—we will tell you the answer.

Location of Supreme Court Documents

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It is www.supremecourtus.gov. The website for the opinions for this Term is http://www.supremecourt.gov/opinions/slipopinions.aspx. Any of the cases discussed in this article are available from that source and interested readers are urged to look at that website to review the cases. This article gives the direct link to cases decided this Term. By clicking on the name of the case for cases decided this Term, you should be taken to the official internet site for the opinion of the Court and any concurring and dissenting opinions. (Some computers may require pressing while clicking.)

Anyone who is interested can also sign up for free same-day, digested notification of the decisions of the Supreme Court. The website is: http://www.law.cornell.edu/bulletin. An excellent site for all things Supreme Court is SOCUSBLOG at http://www.scotusblog.com/

* Professor of Law, California Western School of Law, 225 Cedar Street, San Diego, CA 92101. © Steven R. Smith, 2013. The author wishes to thank Andrew Boucher, Steven Ciceron, Eric Drogin, Judy Hall, Linde Heinrich, Sarah Keagy, Jin Hee Park, Glenn Smith and Lera Smith for their valuable comments on this article. Any remaining errors are in spite of their best efforts to correct the author.

ENDNOTES

For most of the cases and many other citations, clicking on the citation will take the reader to the original material.

The citations in this article are to the Slip Opinions of the Court as published on the Court’s web site. Readers should note that in Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case the majority opinion

29 begins on page one, a concurring opinion will again begin on page one and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other volumes, however, pagination is continuous. Author

Steven R. Smith, JD is Professor of Law and Dean Emeritus of the Claifornia Western Schoool of Law in San Diego, CA. He received his JD from the University of Iowa College of Law. Smith served as a public member on the APA Ethics Committee, ABPP Board of Trustees, and National Register Board of Directors. Acknowledgements

The author wishes to thank Andrew Boucher, Steven Ciceron, Eric Drogin, Judy Hall, Linde Heinrich, Sarah Keagy, Jin Hee Park, Glenn Smith and Lera Smith for their valuable comments on this article. Any remaining errors are in spite of their best efforts to correct the author.

References 1 David Bruggeman, The Supreme Court Went To The Dogs, Pasco Phronesis (March 28, 2013), available at http://pascophronesis.wordpress.com/2013/03/28/the-supreme-court- went-to-the-dogs/ . 2 United States v. Windsor, decided June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf . 3 Fisher v. University of Texas, decided June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf . 4 Association for Molecular Pathology v. Myriad Genetics, decided June 13, 2013, http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf . 5 Maryland v. King, decided June 3, 2013,

30 http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf . 6 Ryan v. Gonzales, decided January 8, 2013, http://www.supremecourt.gov/opinions/12pdf/10-930_7k47.pdf . 7 Florida v. Harris, decided February 19, 2013, http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf . 8 Florida v. Jardines, decided March 26, 2013, http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf . Some searches, such as those at the border do not require a warrant. 9 Federal Trade Commission v. Actavis, decided June 17, 2013, http://www.supremecourt.gov/opinions/12pdf/12-416_m5n0.pdf . 10 Mutual Pharmaceutical Company v. Bartlett, decided June24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-142_8njq.pdf . 11 Defense of Marriage Act (DOMA), 110 Stat. 2419. 12 United States v. Windsor, decided June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf . The decision was 5-4, with Justice Kennedy writing for the majority. 13 Windsor at 20-26. 14 Id. at 21. 15 Chief Justice Roberts, dissenting, at 2. 16 Justice Scalia, dissenting, at 7. Justice Scalia was quite critical of the reasoning of the majority, “There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are.” Id. at 15. 17 The IRS new release is available at: http://www.irs.gov/uac/Newsroom/ . 18 Brief of the APA and others, available at http://www.apa.org/about/offices/ogc/amicus/windsor-us.pdf . 19 The APA website contains a very helpful list of the amicus briefs filed since 1966. It is available by subject or issue at http://www.apa.org/about/offices/ogc/amicus/index-issues.aspx .

31 20 Hollingsworth v. Perry, decided June 26, 2013, http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf . The decision was 5-4 with Chief Justice Roberts writing the majority opinion. It was a very unusual split on the Court, with Chief Justice Roberts, and Justices Scalia, Ginsburg, Breyer and Kagan in the majority. 21 The amicus of the APA, AMA and others in Hollingsworth v. Perry is available at http://www.apa.org/about/offices/ogc/amicus/hollingsworth- perry.pdf 22 Fisher v. University of Texas, decided June 24, 2013. This was a 7-1 decision (Justice Kagan did not participate in the case). http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf 23 Fisher v. University of Texas, at 13. http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf 24 Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978). 25 Gratz v. Bollinger, 539 U. S. 244 (2003). 26 Grutter v. Bollinger, 539 U. S. 306 (2003). 27 Id. at 7-11. 28 Id. at 13. 29 “The petitioner in this case did not ask us to overrule Grutter’s holding that a ‘compelling interest’ in the educational benefits of diversity can justify racial preferences in university admissions. Tr. of Oral Arg. 8–9.” Scalia, concurring at 1. 30 Brief Of Amicus Curiae The American Psychological Association In Support Of Respondents, Fisher v. University of Texas, available at http://www.apa.org/about/offices/ogc/amicus/fisher.pdf . 31 Id. at 3. 32 Amicus brief of the AAMC, AMA and others, available at http://www.utexas.edu/vp/irla/Documents.pdf . 33 Association for Molecular Pathology v. Myriad Genetics, decided June 13, 2013, http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf . This was a unanimous decision, although Justice Scalia did not join the part

32 of the decision dealing with detailed genetic science. 34 Id. at 11. 35 Id. 36 Brief Of Amici Curiae American Medical Association and Others, Association For Molecular Pathology, v. Myriad Genetics, Brief is at http://www.ama-assn.org/resources/doc/legal-issues/amp-myriad-sup- ct-merits.pdf e 37 Maryland v. King, decided June 3, 2013, http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf . This was a 5-4 decision with Justice Kennedy writing for the majority and Justice Scalia for the dissent. It was an interesting division on the Court, with Chief Justice Roberts, and Justices Kennedy, Thomas, Breyer and Alito on one side, and Justices Scalia, Ginsburg, Sotomayor and Kagan in the minority. 38 Id. 39 Scalia, dissenting, at 1. 40 Majority opinion at 27-28. 41 Scalia, dissenting, at 7. 42 Dusky v. United States, 362 U.S. 402 (1960). 43 "Ford v. Wainwright, 477 U.S. 399 (1986). 44 Antiterrorism and Effective Death Penalty Act of 1996, available at http://www.gpo.gov/fdsys/pkg/PLAW-104publ132/pdf/PLAW- 104publ132.pdf . 45 Ryan v. Gonzales, decided January 8, 2013, http://www.supremecourt.gov/opinions/12pdf/10-930_7k47.pdf . Justice Thomas wrote for a unanimous Court. 46 Id. at 15. 47 Id. 48 Metrish v. Lancaster, decided May 20, 2013, http://www.supremecourt.gov/opinions/12pdf/12-547_0pm1.pdf . Clark v. Arizona, 548 U. S. 735, 756–779 (2006).

33 50 The Metrish case went to the Supreme Court as a habeas corpus case, so the demanding standard the Court was obligation to apply was whether the lower courts (here the Michigan courts) were clearly erroneous in applying settled law. 51 Florida v. Harris, decided February 19, 2013, http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf . This was a unanimous decision, with Justice Kagan writing for the Court. 52 Id. at 9-11. 53 Florida v. Jardines, decided March 26, 2013, http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf . 54 Id. at 3-6. 55 Alito, dissenting, at 1. 56 See notes 31-34 and accompanying text. 57 21 U. S. C. §355(j)(5)(B)(iii)-(iv) (2013), available at http://www.gpo.gov/fdsys/pkg/USCODE.pdf . 58 Justice Breyer described it as follows: “Company A sues Company B for patent infringement. The two companies settle under terms that require (1) Company B, the claimed infringer, not to produce the patented product until the patent’s term expires, and (2) Company A, the patentee, to pay B many millions of dollars. Because the settlement requires the patentee to pay the alleged infringer, rather than the other way around, this kind of settlement agreement is often called a “reverse payment” settlement agreement. And the basic question here is whether such an agreement can sometimes unreasonably diminish competition in violation of the antitrust laws.” This was the opening sentence of the majority opinion. Federal Trade Commission v. Actavis, decided June 17, 2013, http://www.supremecourt.gov/opinions/12pdf/12-416_m5n0.pdf . This was a 5-3 decision, with Justice Alito not participating. 59 15 U.S.C. §1 (2013), available at http://www.law.cornell.edu/uscode/text/15/1. Section 1 provides “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign

34 nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”

60 Federal Trade Commission v. Actavis, decided June 17, 2013, http://www.supremecourt.gov/opinions/12pdf/12-416_m5n0.pdf . This was a 5-3 decision, with Justice Breyer writing for the majority, and Chief Justice Roberts writing for the dissenters. Justice Kennedy was the “deciding” vote. Justice Alito was recused from the case. 61 Chief Justice Roberts, dissenting, at 3. 62 Mutual Pharmaceutical v. Bartlett, decided June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-142_8njq.pdf . This case was 5-4. 63 A very helpful discussion of this complicated area can be found in Glenn C. Smith and Patricia Fusco, Constitutional Law for Dummies 28-31 (2012). This is an excellent and comprehensive review of the complex constitutional principles—not for dummies, despite the title. 64 21 U. S. C. §§355(j)(2)(A)(ii), (iii) and (iv); §355(j)(8)(B); §355(j)(2)(A)(v) (2013). 65 Mutual Pharmaceutical v. Bartlett, at 2. 66 PLIVA v. Mensing, 564 U.S.__, 131 S.Ct. 2567 (2011). Available at http://www.supremecourt.gov/opinions/10pdf/09-993.pdf . 67 Mutual Pharmaceutical Company v. Bartlett, decided June24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-142_8njq.pdf . 68 Id. 13-20. 69 Sotomayor, dissenting at 2. 70 Id. at 18-20; Beryer, dissenting at 1. 71 Majority opinion at 14-16.

35 72 Wyeth v. Levine, 555 U.S. 555 (2009). 73 The Alabama Supreme Court has held that there may be such liability, but heard additional arguments in the case in September 2013. Wyeth v. Weeks, http://www.reedsmith.com/files/uploads/DrugDeviceLawBlog/Weeks.pdf . For a discussion of the case see http://www.al.com/opinion/index.ssf/2013/08/take_two_the_alabama_supr eme_c.html . 74 Amgen v. Connecticut Retirement Plans and Trust Funds, decided February 27, 2013, http://www.supremecourt.gov/opinions/12pdf/11- 1085_9o6b.pdf . Justice Ginsburg wrote for the majority. 75 The National Childhood Vaccine Injury Act of 1986(NCVIA or Act), 100 Stat. 3756, 42 U. S. C. §300aa–1 et seq. (2013), available at: http://www.law.cornell.edu/uscode/text/42/300aa-15 . 76 42 U. S. C. §300aa–15(a) (2013). 77 Sebelius v. Cloer, decided May 20, 2013, http://www.supremecourt.gov/opinions/12pdf/12-236_9ok0.pdf at 4. This was a unanimous decision. 78 Id. 79 Technically, the Phoebe Putney Health System owned one hospital, Phoebe Putney Memorial Hospital, and the authority sought to purchase the Palmyra Medical Center from HCA. 80 Federal Trade Commission v. Phoebe Putney Health System, decided February 19, 2013, http://www.supremecourt.gov/opinions/12pdf/11- 1160_1824.pdf . This was a unanimous decision, with Justice Sotomayor writing for the Court. 81 Federal Trade Commission v. Actavis, decided June 17, 2013, http://www.supremecourt.gov/opinions/12pdf/12-416_m5n0.pdf . 82 Amicus brief of the AMA in FTC v. Phoebe Putney Health Systems, http://www.americanbar.org/content/dam/aba.pdf . 83 Adoptive Couple v. Baby Girl, decided June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/12-399_q86b.pdf . Justice

36 Alito wrote for the five-justice majority. Both the majority and dissents were divided in the reasoning supporting their positions. 84 The opening paragraph of Justice Alito’s opinion capture the emotional nature of this case, “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents he had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.” Id. at 1. 85 The Hague Convention on the Civil Aspects of International Child Abduction in 1980. T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. In 1988, the US implemented the treaty with the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U. S. C. §11601 et seq. 86 Chafin v. Chafin, decided February 19, 2013, http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf . This was a unanimous decision. 87 Vance v. Ball State University, decided June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf . This was a 5-4 decision. 88 42 U. S. C. §2000e–2(a)(1) (2013). 89 Harris v. Forklift Systems, 510 U. S. 17, 21 (1993). 90 The Court added: “If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Vance v. Ball State University at 1, citing Faragher v. Boca Raton, 524 U. S. 775 (1998).

37 91 Vance v. Ball State University at 2. 92 Justice Ginsburg dissenting at 1. Id. at 22. 93 Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-3(a) (2013). 94 University of Southwestern Medical Center v. Nassar, decided June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf . This was a 5-4 decision. Justice Kennedy wrote for the majority and Justice Ginsburg for the dissent. 95 Ginsburg, dissenting. 96 Salinas v. Texas, decided June 17, 2013 http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf . This was a 5-4 decision. Three justices agreed with the holding reported in the text. Two justices held that a prosecutor may always comment on the refusal to answer questions, whether the 5th Amendment is invoked or not, and four justices dissented. 98 Id. at 1-2. 99 Breyer, dissenting, at 1. 100 Thomas, dissenting. Justice Scalia also signed on to this dissent. 101 Breyer, dissenting. 102 Hollingsworth v. Perry, decided June 26, 2013, http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf . 103 Fisher v. University of Texas, decided June 24, 2013. This was a 7-1 decision (Justice Kagan did not participate in the case) http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf . 104 The Court has previously used the theory that governmental actions that make it harder to compete for governmental benefits cause specialized injury. Still, in Fisher it was not at all clear that the plaintiff could have been admitted, quite apart from the racial preferences. Furthermore, she had graduated from college and seemed to be seeking the return of her application fee. The issue of standing did not play a role in the opinion of the Court.

38 105 United States v. Windsor, decided June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf . 106 Federal Arbitration Act, 9 U. S. C. §1 et seq. (2013). The act provides, in part, “A written provision in any … contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. 107 Oxford Health Plans v. Sutter, decided June 10, 2013, http://www.supremecourt.gov/opinions/12pdf/12-135_e1p3.pdf . This was a unanimous decision. The opinion was by Justice Kagan. 108 Id. at 4. 109 Id. at 8. 110 The AMA brief is somewhat confusing. It begins by strongly endorsing the idea that arbitration agreements should be enforceable without review by courts. But then it has a fairly substantial argument about the importance of physicians being able to use class actions in arbitration. But health plans need only write into the plans that class action arbitration is not permitted and under the first point the AMA makes it its brief, physicians would be precluded from using the very class action the brief later argues is essential. The AMA brief in the Oxford Health Plans v. Sutter case is available at http://www.americanbar.org/content/dam/aba.pdf 111 American Express v. Italian Colors Restaurant, decided June 20, 2013, http://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf . This was a 5-3 decision, with Justice Sotomayor recused. 112 Id. at 3. 113 Sebelius v. Auburn Regional Medical Center, decided January 22, 2013, http://www.supremecourt.gov/opinions/12pdf/11-1231_32q3.pdf . This was a unanimous decision with Justice Ginsburg writing for the Court. 114 Levin v. United States, decided March 4, 2013, http://www.supremecourt.gov/opinions/12pdf/11-1351_aplc.pdf . This was a unanimous decision. Justice Ginsburg wrote the opinion.

39 115 Arizona v. Inter Tribal Council of Arizona, decided June 17, 2013, http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf . This case was decided 7-2. 116 Shelby County v. Holder, decided June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf . The Court was emotionally divided 5-4. Chief Justice Roberts wrote for the majority. 117 Agency for International Development v. Alliance for Open Society International, decided June 20, 2013, http://www.supremecourt.gov/opinions/12pdf/12-10_21p3.pdf . This was a 6-2 decision with Justice Kagan recused. 118 Koontz v. St. Johns River Water Management District, decided , June 25, 2013, http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf . This was a 5-4 decision, with Justice Alito writing for the majority. 119 Arkansas Game and Fish Commission v. United States, decided December 4, 2012, http://www.supremecourt.gov/opinions/12pdf/11- 597_i426.pdf . The decision was unanimous. 120 Kiobel v. Royal Dutch Petroleum, decided April 17, 2013, http://www.supremecourt.gov/opinions/12pdf/10-1491_l6gn.pdf . This was a unanimous decision, although the Court was split on the basis for the decision. 121 United States v. Kebodeaux, decided June 24, 2103, http://www.supremecourt.gov/opinions/12pdf/12-418_7k8b.pdf . The decision was 7-2. 122 McQuiggin v. Perkins, decided May 28, 2013, http://www.supremecourt.gov/opinions/12pdf/12-126_lkgn.pdf .This was a 5-4 decision. 123 Missouri v. McNeely, decided April 17, 2013, http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf . This was a 5-4 decision, but the alignment on the case was complicated as the following suggests, “SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and

40 IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.” 124 Many of the data come from scotusblog.com, a wonderful site for anyone interested in the Supreme Court. 125 See, http://www.nytimes.com/2011/01/25/us/25bar.html?_r=0 126 See http://www.supremecourt.gov/publicinfo/press/viewpressreleases.html .

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