 You're watching FJTN, the Federal Judicial Television Network. Supreme Court, the Term and Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Welcome to the Federal Judicial Center's ninth annual review of the just completed term of the United States Supreme Court. The court decided 80 cases this term with a signed opinion or a substantive purcurium. We're not going to review all of them or even all the cases that got the most attention. We'll cover 33 cases, most likely to affect the day-to-day work of federal judges. Your written materials have summaries of all 80 cases. Starting with those we'll discuss and the sequence we'll discuss them. That begins with criminal procedure and sentencing, including a look at Booker's impact. Then we'll take up habeas cases and three death penalty cases. After a short break, in part two, we'll turn to civil liberties cases, first under the first, fifth and fourteenth amendments, and then under two civil rights statutes. Finally, four cases broadening federal jurisdiction. Your written materials include brief biographies of the five people who will be describing and analyzing the decisions or their impact. Erwin Chemerinsky of Duke, Evan Lee of the University of California, Hastings College of the Law, Lori Levinson of Loyola Law School in Los Angeles, Susanna Sherry of Vanderbilt, and Sentencing Commission Chair Ricardo Hinojosa. Those who've watched earlier editions of our Supreme Court review will notice we're discussing fewer cases this year but giving more analysis to most of those we cover. That means no mention of some of the term's blockbuster cases. Cases on federalism, for example, or on copyright. This shift in emphasis responds to comments on evaluation forms about programs in previous years. Please use this year's evaluation form available in your written materials to give us your views of this change and any other aspect of the program. Now to three fourth amendment cases. Here to discuss three fourth amendment cases are Erwin Chemerinsky and Lori Levinson. Cases are pretty different, so we'll treat each in turn. But there's a common theme. Whatever pulling back the courts done in other areas, such as habeas, it remains quite differential to law enforcement as to search and seizure. First, does the fourth amendment require reasonable, articulable suspicion to justify using a drug detection dog to sniff a vehicle during a legitimate traffic stop? No, said the court, seven to two. An Illinois trooper pulled over Ray Kabajas for doing 71 on a 65-mile-per-hour interstate. Kabajas provided the standard documents but wouldn't permit a car search. While the trooper wrote out a warning ticket, another officer walked the dog around the car. Based on the dog's reaction, he searched the trunk, found marijuana, and arrested Kabajas. First said Justice Stevens, the dog sniffed didn't prolong Kabajas's detention, ten minutes with or without the search. Second, it didn't matter that the police lacked probable cause to believe the trunk had marijuana. Police conduct that doesn't compromise a legitimate privacy interest isn't a search under the fourth amendment. According to Justice Stevens, the dog would alert only to contraband drugs. The two dissenters worried this decision could okay all manner of drug searches, eroding the protections in Terry v. Ohio, especially if dogs trained to search for drugs, nevertheless alert to substances in which people have legitimate privacy interests. Now, Lori, let me ask you, how significant is this case? Well, we don't know quite yet. You know, when it comes to these dog searches, what we probably know is that there's a spectrum. Certainly it's okay in the airport scenario when it's for security purposes and it may be okay also in security purposes out in the field. But this case pushes it over to basically law enforcement purposes and the court seems to say it's all right. And frankly, if a dog sniff is not even a search, you might be able to see these type of things occurring in other less formalized types of stops. I don't read Justice Stevens' opinion so broadly. I think when out of his way to say he was just dealing with drug sniffing dogs when there's a lawful traffic stop. Now, you're right. If drug sniffing dogs are not regarded as a search, then it would seem any of them used to be permissible. I just don't think that's what the court decided here. Let me ask you a question that is made quite a thing out of and pointed to a lot of studies suggesting, I think Justice Souter said, a drug that alerts only to drugs is a myth. Now, is the court likely to pick up on that? You think it will see challenges to the concept of a dog who sniffs only for drugs? It might. On the other hand, as you said at the beginning, this is a court that's very deferential to law enforcement with regard to the Fourth Amendment. It's particularly deferential to the police in the context of traffic stops. So I don't see reconsideration, at least in the context of a case like this. Well, actually, I think that there will be a lot of challenges. I think that the defense bar is going to come in and say that these dogs alert to things, other than private things, other than contraband, things such as health markers and the like. And if they can show that, then I think that the court might return and say there are Fourth Amendment privacy interests. Well, we'll see. Let's go on to Devin Peck versus Alford. Police pulled over Jerome Alford because they suspected he was impersonating a law enforcement officer. But they arrested him for secretly recording their roadside conversation, which it turned out wasn't a crime in the state of Washington. The judge dismissed the charges. Alford's 1983 action claimed arrest without probable cause. The Court of Appeals agreed. Even if the officers had probable cause to believe he was impersonating a policeman, they arrested him for the tape recording. That said the Court of Appeals was not closely related to the impersonating offense. No matter suggestive Scalia in a unanimous opinion, the Court's precedents make clear, as he put it, that the officers' subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. Is this surprise you were wondering? Not at all. In Wren versus the United States in 1996, the Supreme Court said the subjective intention of the officers irrelevant under the Fourth Amendment. All that matters is whether the officer had probable cause. And that's exactly what the Supreme Court was saying in this decision. Oh, I think the clear message here to the courts is don't move away from the objective standard. You constantly have to not ask what was going on in that officer's mind, but what would a reasonable police officer find in this situation? And yet there's something very troubling about that. You have a real prospect then that an officer would be completely wrong in arresting somebody, but then come up with something after the fact and then it becomes permissible. On the other hand, I think what the court was concerned about is if this wasn't the result, then officers would literally charge everything, hoping that something would later stick. They talked about that as a matter of fact. I think that's right. But one consequence of this is I think it'll be much harder to bring challenges of pretextual searches because the court's not looking at the subjective state of mind, just looking at the objective factors. OK, let's go on to the MENA case. Iris Mena was asleep in her room at 7 a.m. when Simi Valley police armed with a search warrant, raided the house to search for guns and gang members. Mena wasn't a suspect, but they handcuffed her and several others at gunpoint, was showing part of the police videotape, and detained her for three hours. Her 1983 action claimed detention for an unreasonable time and in an unreasonable manner. The Chief Justice for himself and for others relied on court precedents holding that detaining occupants during a house search prevents flight, minimizes risk to the officers, and facilitates the search. So detaining Mena was clearly reasonable. Keeping her in handcuffs and for three hours was justified when balanced against the dangers of a weapon search in a house that might contain violent gang members. Finally, an INS officer questioned her during her detention. The court, citing the cabajus case we discussed earlier, said that questioning didn't prolong the detention, and thus the officer needed no additional Fourth Amendment justification for his inquiry. Now, four justices concurred only in remanding the case to allow consideration of an additional claim. What about this case? Well, on this case, I think what you're seeing is our theme continue, which is the court being very deferential to law enforcement, especially when it involves safety issues. So two things come out of this ruling. One, that it's not per se unconstitutional to use handcuffs in a detention. The court had previously said in Michigan versus Summers that in fact you could detain people during these searches. The second thing that the court said is, you know, just because you question people during the detention, it doesn't transform it into a Fourth Amendment violation. Erwin, you were on the breeze in this case, so we know what you think about it, but do you wanna add anything to what Lori said? One issue that the court didn't resolve is whether Iris Mena was detained beyond the time of the search of the residents. The court remanded the case for the Ninth Circuit on that issue that has been briefed and we're waiting for a decision on it. Okay, thanks very much. We'll be back with some cases involving rights of defendant at trial and at sentencing. Four cases affecting defendants' rights at trial or at sentencing. Two involve judges' obligations when black defendants claim prosecutors use peremptory challenges to keep blacks off juries because of their race. In 1986, Batson v. Kentucky set up a three-step burden shifting process to resolve such claims. First, the defendant must make out a prima facie case by showing, in Batson's words, that the totality of the relevant facts gives rise to an inference of discriminatory purpose. If the defendant does so, then the state must offer race-neutral justifications. Third, based on those submissions, the judge must decide if the defendant, as Batson put it, has proved purposeful racial discrimination. Johnson v. California concerned the first step. Johnson's lawyers challenged the prosecutors' use of peremptories to remove the three blacks from the vanire list. The judge didn't ask prosecutors for an explanation. Instead, he said Johnson failed to show a strong likelihood that the challenges were race-based. The California Supreme Court agreed. California case law let a court require the defendant to show that it is more likely than not that the challenges were based on race. The U.S. Supreme Court disagreed eight to one. Batson wrote Justice Stevens did not intend the first step to be so onerous that a defendant would have to persuade the judge that the challenge was more likely than not the product of purposeful discrimination. Justice Thomas in dissent said that California was well within the discretion that Batson grants states. Now, during Thomas Miller-L's murder trial, prosecutors used peremptories to strike 10 of 11 blacks. The judge accepted the prosecutor's race-neutral justification. On habeas review, the Supreme Court reversed the conviction six to three. Justice Souter's 11,000-word opinion dissected the entire Vordyre. Prosecutors removed blacks whose support for the death penalty was stronger than that of whites whom they seated. They shuffled the panel's seating arrangement to reduce the number of blacks to be questioned. They described the death penalty to blacks more gruesomely than to whites. And the prosecutor's office had a policy of racial jury exclusion in the years leading up to the trial. In an equally long dissent, Justice Thomas disagreed with the majority's Vordyre analysis and its using in a habeas proceeding evidence not before the state judges. Justice Breyer, concurring alone, suggested that the only way to eliminate racial bias in peremptories may be to eliminate peremptories themselves. Now, Irwin, in the California case, where did the Supreme Court of California go wrong? Well, as you pointed out, Johnson v. California involved the first part of the Batson test. What's enough to show a prima facie case? The California Supreme Court had said there has to be strong evidence that it's more likely than not that race had been used. The Supreme Court emphatically disagreed and said there just has to be evidence from which it can be inferred that race was the basis for the peremptory challenges. But isn't the problem here, we don't know how much we really need? We know it's not more likely than not. But in this case, it was three out of the three jurors being excused. What if it's two out of three, one out of three? Do we know what'll meet that standard of reasonable inference? You're right. The court tried to give some guidance to district courts by saying that they should look to the standards that are used under Title VII for showing a prima facie case. The problem is that itself is an issue that's caused a great deal of confusion in the law. Yeah, I agree. I don't think that the Title VII worked so well. But there is a little more guidance in the decision. For example, looking at all the circumstances of the case. You know, what role will race play in the case? With the witnesses, with the parties, the nature of the facts. How are the peremptories being used? What does the jury composition look like after the peremptories are used? It's not a lot of guidance, but it's some. I agree with that. I'll go back to what you said a moment ago. There's still the question. In this case, three out of three was enough for a prima facie case. Well, we're law professors. What if it was two out of three? What if it's one out of one? What if it's four out of four? And those are the questions that on a daily basis district courts are going to have to deal with. In this case, really doesn't give much guidance as to that. Well, I think maybe the bottom line on the message here is that it's not more likely than not that the party doesn't have to win at step one. They just have to raise that reasonable inference and that states can be more lenient. They can't be tougher than this standard. Considering both these cases together, what's the message to take away? I mean, it seems to me that, at the very least, the court's serious about Batson. I think you're absolutely right. I think if you look at just a suitor's opinion in Miller-El, he's giving guidance how district courts and courts of appeals should go out of Batson analysis. As you pointed out, he went through the record in detail. He pointed to the number of African-Americans struck. He pointed to the fact that the Dallas County prosecutor's office had a manual that said if there's a black defendant, strike black jurors. He looked at the questions that have been asked. He even compared how one white juror and one black juror had been treated. And I think what he's saying is this is exactly how all courts have to go about Batson analysis. And I think it's important to emphasize it's not just a message here for the trial courts. It's also for the courts of appeal that they have to look at the whole record and they may have to do this exhaustive, comparative juror analysis just like the Supreme Court did. It's a good point. I'd also highlight something you point out that Justice Breyer said in his concurring opinion. He said if courts don't do this, then the Supreme Court's going to consider completely eliminating preemptory challenges. Which just as Marshall suggested back at the time of Batson. Let's go on to Brad Shaw versus Stumpf. This involved the use of conflicting theories against co-defendants. John Stumpf and Clyde Wesley gained access to a residence. Stumpf pleaded guilty to wounding the husband but said that Wesley killed the wife. The prosecution argued that Stumpf shot her but even if he didn't, Ohio law permits death for an accomplice to murder. The panel sentenced Stumpf to death. Later, the same prosecutor tried Wesley before the same judge and argued that he Wesley pulled the trigger in the murder of the wife. Wesley pointed out that the prosecutor had argued that Stumpf did it. The jury sentenced Wesley to life imprisonment with the possibility of parole. Based on that prosecution, Stumpf sought to withdraw his guilty plea and have his sentence vacated. On habeas review, the federal court of appeals agreed. First, his plea couldn't have been knowing an intelligent because he insisted he didn't kill the wife so he must not have known that specific intent to cause death was an element of the aggravated murder charge. No said a unanimous Supreme Court. The records show that Stumpf's attorneys explained the charge to him. It's not necessary that the judge do so. And there's nothing inconsistent with denying he pulled the trigger and admitting that he aided Wesley. Second, the court of appeals said the prosecutorial inconsistency in the two cases required voiding Stumpf's guilty plea. No said the Supreme Court. In Justice O'Connor's words, the precise identity of the trigger man was immaterial to Stumpf's conviction for aggravated murder. But she added, the post trial proceedings had focused mainly on Stumpf's conviction, not his sentencing. The court remanded the case to let the court of appeals consider if the sentencing panel could have been influenced by knowledge of the two prosecution theories. What's the message here? Well, as you mentioned, although the ruling focuses on whether the guilty plea is voluntary or involuntary and the court finds it's voluntary, I think there is a message here to prosecutors that they should think long and hard before they use these inconsistent theories, especially in the sentencing phase of the case. Except the court really doesn't resolve the issue. There's long been a split among the circuits is whether a prosecutor violates due process by using inconsistent theories. The court did not decide that question. They sent the case back to the sixth circuit to determine whether or not due process was violated in sentencing by the use of inconsistent theories. But even there, there's no resolution by the court of the issue. Well, I think that's fair. I mean, the only thing they really did resolve is under Henderson versus Morgan, an older case that in fact, guilty plea is still voluntary if the defendant knows the elements of the offense either because the judge told him or his lawyer told him and here it was the lawyer. Okay, finally we have DEC versus Missouri. Carmen DEC appealed his Missouri death sentence because he was visibly shackled during his sentencing hearing. The state Supreme Court affirmed but the US Supreme Court reversed seven to two. Court said Justice Breyer may not routinely place defendants and physical restraints visible to the jury during the penalty phase of a Capitol hearing. Why not? Well, it can influence the jury's view of the offender and its ability to weigh all relevant factors. It can hinder the offender's ability to communicate with counsel and it detracts from the dignity of judicial proceedings. This right is not absolute though. We are mindful, Justice Breyer wrote, of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But visibility restraints are justified only if the judge has considered the circumstances of the particular case. So what do we know after DEC? I think three things. First, the court says there can be restraints even visible restraints. The court was very clear it's not creating an absolute bar to such restraints. Second, to use such restraints, a court has to make findings of a need in the particular case. And third, if restraints are used, prejudice will be inferred from that. The Missouri Supreme Court had said that the defendant had to show prejudice just as Breyer's opinion said, prejudice can be inferred if a jury sees a defendant with visible restraints. I agree. I think there's good news and bad news here. The good news for the defense is that they don't have the burden of showing prejudice. Probably the bad news is that the court makes it very clear that, frankly, if there's any type of possible showing or plausible showing by the court that there's a need for security, the court's gonna allow it. They have no intention of putting judges at risk, especially given recent matters. For sure. For sure. Well, thanks to both of you. Finally, two unanimous and quickly rendered decisions. As the Enron Corporation imploded, officials at Arthur Anderson, Enron's auditor, ordered document destruction under the firm's document retention policy. They saw litigation coming, but didn't stop the shredding until they got a subpoena. Anderson challenged the jury instructions under the witness tampering statute, statute that made it a crime if one knowingly uses intimidation or physical force threats or corruptly persuades another person with intent to cause withholding or altering documents for use in an official proceeding. The Chief Justice said conviction requires consciousness of wrongdoing. The jury couldn't convict if Anderson really believed his conduct was lawful. And there had to be some nexus between document destruction and a particular proceeding. It's not illegal to have someone shred documents under a document retention policy without thought of any specific proceeding in which they might be material. Quitfield, V.U.S. sustained a conviction for conspiracy to launder money. The judge refused to tell the jury that it must find not only a conspiracy, but at least one overt act. The 1986 Money Laundering Statute barred overt acts and a 1992 amendment criminalized conspiracies. Justice O'Connor said Congress normally intends to adopt the common law definition of statutory terms and a common law conspiracy didn't require proof of overt acts. Next up, sentencing and Booker's impact. No decision this term had more impact on the work of most federal judges than USV Booker and USV Fan Fan. For short, the Booker case. The court with shifting five-four majorities said that the Sentencing Reform Act and the guidelines violate the Sixth Amendment when they require a sentence above the guideline range indicated by the offense of conviction and based on facts not proved beyond a reasonable doubt or admitted by the defendant. Had Congress known about that constitutional flaw, it would have kept the guidelines in place but made them advisory. So the court severed two sections of the act to make them so. Later, we're here about post Booker developments from Lori Levinson and then from Sentencing Commission Chair Ricardo Hinojosa. But first, one other sentencing decision. The Armed Career Criminal Act, ACCA, creates a 15-year minimum for anyone possessing a firearm who has three prior convictions for serious drug offenses or violent felonies. Burglary is a violent felony if it's generic burglary. Burglary committed in a building or other enclosed space. In 1990, the court said that a sentencing judge to determine if the prior convictions were for generic burglary should look to the statute of conviction, the charging documents and the jury charge. But what about Reginald Shepard? He pleaded guilty to a federal firearm possession charge and had four prior state burglary convictions based on guilty pleas. Now it's pretty clear that the burglaries were in buildings but not from the Massachusetts burglary statute which includes more than generic burglary or from the charging documents and of course there was no jury charge. So prosecutors tried to bring in things like the state police applications to arrest him for burglary. Shepard though said no matter what's in those documents he never acknowledged in his state court pleas that he burgled in buildings. Justice Souter agreed for a five justice majority. Guilty pleas can establish generic burglary but only if the statute or charging documents specified it or the plea colloquy or agreement made clear that the defendant admitted it. Now some thought the court might use this case to extend Booker. There the court repeated the familiar holding in the Apprendi line of cases, any fact that takes the sentence over the maximum authorized by facts and a plea or verdict must be admitted by the defendant or proved beyond a reasonable doubt. Any fact that is except a prior conviction. Some thought the court might use Shepard to limit that exception. Justice Souter declined to do so. Overturning the ACCA rather than limiting its reach and guilty pleas would run counter to the rule of reading statues to avoid their unconstitutionality. By now though he was speaking for a four justice plurality having lost Justice Thomas. Justice Thomas said the court's statutory interpretation was unnecessary. Applying the ACCA based on police documents was unconstitutional under Apprendi and his progeny. He also called when the right case comes along for overruling Almondara's Taurus V.U.S. That's the 1998 case in which he concurred upholding a statute that tells a sentencing judge to treat a prior conviction as a sentencing factor if established simply by a preponderance of the evidence. A majority of the court he said now recognizes that Almondara's Taurus was wrong. That's the four dissenters in Almondara's Taurus plus Justice Thomas himself. In other words, the Apprendi majority. Well now back to Booker and Fanfan and Lori Levinson. Lori, let me just ask you, what's your take on how judges and lawyers are handling sentencing after January in the Booker case? Well it really depends. There are a couple things going on. I mean there's some judges, things haven't changed much at all. They're doing it much like under the guidelines. They start out with the same guidelines and look at them looking maybe more broadly, liberally at the departures and the individual consequences and maybe things like cooperation but still very much tied to the guidelines. Other judges however, are following a defense suggestion which is don't start with the guidelines, start with the 3553 factors. Look at the circumstances of the case, of the defendant, whether punishment's needed and then test your gut reaction with what the guidelines say and that can make a tremendous difference depending on the type of the case. So this might be good news for example for white collar cases where there might be less of a need to punish or for deterrence but for the street criminals my guess is it's not such a good development for the judges to be looking broadly and how the judges are doing this depends on the background of the individual judge. I mean we have judges who are sitting on the bench I think before the guidelines and for them they welcome both go back to the discretion. I talked about that yesterday and so I went to the senator's history website and looked it up. In fact 12% of the sitting district judges had a year's experience sentencing before November 87 when the guidelines took effect. Right and you see in some of those judges they very much welcome going back to the broad discretion approach but for the judges that have lived pretty much under the guidelines that's the comfortable way to go and that's where they start and even though they're advisory they look at them very closely. What about retroactivity and what's happening on remand of these post-booker sentences? Right on retroactivity generally is no but the issue is the pipeline cases and the cases that are being sent back and once again different circuits are approaching this different ways. You know in some circuits let's send them all back and have new sentencing hearings. In some circuits it's no only if the court of appeals finds there's plain error and even on those that they send back well what are they sending them back to do? Sometimes it's for the trial judge to say look would I have given the same sentence if I didn't have to impose the guidelines or are they gonna have a full sentencing hearing and then there's a great deal of responsibility on the bar to make those arguments to the judge about how it would be different if they're not tied to the guidelines. Laurie we were talking earlier at least as of late July the court had granted no social right petitions involving booker matters but it's hard to believe that it's not gonna have to take some cases sooner or later. What do you think's gonna be on the court's plate? I think there'll be plenty coming the court's way. You know let's start with the basic idea of reasonableness. Now under this new approach you have all these court of appeals that are gonna decide whether these sentences are reasonable or not. And what does that mean? Does that mean great deference to the trial judge as long as they're within the old guidelines and what do you do things like the difference between powder and crack cocaine if courts take different approaches to those is one reasonable one unreasonable. So that's one set of issues. I think the question of mandatory minimums. Will they survive? Will Harris survive? And you mentioned Amandara Torres whether the judge can decide on the prior convictions. There appear to be enough votes to overturn that in the Supreme Court. Just as Thomas said there were there's no doubt in his mind. Absolutely but they have to take the case. A big area of issues will be the procedures and the burdens of proof in this new sentencing approach. I mean what do prosecutors have to show beyond a reasonable doubt by preponderance, clear and convincing how that will be handled by the court and finally what if there's new legislation by Congress? How will that be viewed? Well we'll have to wait and watch all of that stuff. Thanks Laurie. The US Sentencing Commission is heavily involved in Booker implementation. On July 13th I spoke with Judge Ricardo Hinajosa, Chair of the US Sentencing Commission. Here's that interview. Judge Hinajosa, thanks very much for coming by. Recall when we talked in February in our show post Booker you were concerned to urge judges to send in the statement of reasons and continue to send in the same forms they did before Booker. What kind of cooperation are you getting like sending in the statement of reasons? You're urging them not to amend the form also. And when will the new forms be out? We've had very good cooperation with regards to sending the forms and the five documents that are required by statute to be sent to the Sentencing Commission, Russ. And I will say that we are getting some courts that are still using other forms but there is a very good cooperation with regards to the latest form that has been put out by the judicial conference. And it's very big help with regards to keeping track of what is going on in the courts with regards to sensing post Booker. The criminal law committee and the judicial conference have now passed a new form which would be helpful with regards to post Booker type of sensing because we had some questions being asked about the form that was being used. That will be available the middle of September. In fact, it is available now. And how would one get one if they wanted to start using it now? If somebody wanted to start using it now they would contact Kim Wattley here at the administrative office. She works very closely with the criminal law committee and she would, I think, be very happy to email it to anyone who wanted to use it. So the form's available here as we speak in July. We are taping this on July 13th that you had just finished up yesterday at the Sentencing Institute here in Washington. What did you learn from that? Or what did you learn? What have you learned generally? Which are observations about sentencing practices in this post Booker era. The Sentencing Institute was very helpful with regards to over 100 judges from across the country coming together and visiting with each other about their practices. The general theme is that people are basically looking at 3553A, the factors that need to be considered, the seven factors under 3553A. Realizing that two of those factors are a consideration of the guidelines and the policy statements which means departures within the guidelines. So most judges it appears the vast majority of judges are calculating the guidelines as the circuit courts that have ruled on it have said needs to be done. Considering policy statement, departures reasons within the guidelines and then looking at the overall picture of 3553A and deciding whether there should be a variance or a sentence outside of the guideline system. Let me follow up on that. And as you mentioned, of course, the commission is obliged by statute to collect data and monitor sentencing practices. In quantitative terms, what are you finding out about the number of within guideline sentences and sentences below the guidelines? But the request of prosecutors. I have to preface this a little bit, Russ, with the fact that I know a lot of courts and I certainly would have done this before I was on the Sins and Commission question, having to send all these documents and what happens to them and is anybody paying attention? And I have to say that post-booker, a lot of interested segments of the criminal justice system are very interested in whether it's Congress or the judges or the executive or the general public. And what the statistics have shown, and we've been able to do this quickly thanks to the courts being able to send these to us as quickly as they can, that sentences post-booker are somewhat very similar to what they were pre-booker as far as within the guideline range. It seems to be about 61.7% with about 28 to 30% of the cases we would normally see in a year already having been reported to us. I preface this by saying there may be some cautionary instructions with regards to how we take these figures. There is, outside the guideline system, 23% of those are government sponsored, whether about 15% or motions to depart based on substantial assistance. Fast track goes into that. About 1.8% are above the guideline system. Traditionally that's been about 0.7%. As far as the 61.7% prior to 2003, that was about 64, 65% within the guidelines. 2003 was actually 69.7% within the guideline system that was post-Protect Act to some extent. Outside the guideline system that are departure downwards, we are about 13.5%. Traditionally that has been nine or 10%. Of the 13.5%, about 3% have used actual guideline reasons for departures. And so there is an importance with regards to how we fill out the statement of reasons and the forms that are sent to the commission because all interested parties, whether it's the judges or the Congress or the executive, as well as the general public are interested in seeing what is the result of the book or decision and how are the judges considering 3553A factors. And at this point it seems that it is somewhat very similar to what it was pre-book or with regards to percentage of sentences within the guideline system. But keep the information coming into the commission so you can continue to monitor. I cannot emphasize enough how important it is for us to get this information and to get it complete and to get it correctly. And it would be very helpful if the courts across the country use this one form. The form is important not only from the standpoint of statistics, but the act itself requires for judges to state their reasons for sentencing. And this form does that. And so it helps us as judges to be able to comply with our statutory requirements. Okay, super. Thanks very much. Thank you, sir. Next, Beth Wiggins will have this term's habeas cases. The court decided several cases involving habeas and edpa, the Anti-Terrorism and Effective Death Penalty Act. After a state habeas petition was denied, Charles Ryan sought federal habeas relief well within edpa's one-year statute of limitations which was told while the state petition was pending. But South Dakota challenged several of Ryan's claims as unexhausted and the district court agreed. Since edpa's statute of limitations had now run, Ryan's asked the district court to hold his petition in abeyance until he could exhaust his state claims. The district court granted the stay but the court of appeals vacated it. The question before the Supreme Court, was the stay in abeyance procedure a proper way to deal with habeas petitions containing both exhausted and unexhausted claims? A unanimous court answered with a qualified yes. Just as O'Connor wrote, stay in abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. And even then, the district court would abuse its discretion if it granted the stay when the unexhausted claims were plainly meritless or the petitioner was engaging in abusive litigation tactics or intentional delay. Similarly, Robert Johnson filed for a habeas relief from his enhanced federal conviction as a career offender because a prior state conviction used to enhance the federal sentence was vacated. Was vacating his state conviction a fact under edpa? If so, the one year statute of limitations would begin running from the discovery of that fact rather than from when his federal conviction became final. Just as Suda wrote for a five justice majority, the state court vacator is a matter of fact for the limitation rule. But the statute allows the fact of the state court order to set the one year period running only if the petitioner has shown due diligence in seeking the order. Johnson, the court said, had not pursued his state court vacator claim with sufficient diligence to benefit from the court's interpretation. Araleo Gonzalez also prevailed in his general argument but didn't get the relief he sought. The district court dismissed his federal habeas petition as barred by edpa's statute of limitations. The district court also denied his rule 60 B6 motion challenging the court's interpretation of the statute of limitations. This time as a second or successive habeas petition for which the court of appeals had not first granted a certificate of appealability. On bonk, the court of appeals said his motion, indeed any 60 B motion except one alleging fraud should be treated as a second habeas petition. The Supreme Court disagreed but held the 60 B motion should be denied. We hold, wrote Justice Scalia, that a rule 60 B6 motion in a section 2254 case is not to be treated as a successive habeas petition if it does not assert or reassert claims of error in the movement's state conviction. A motion that like petitioners challenges only the district court's failure to reach the merits does not warrant such treatment and can therefore be ruled upon by the district court without pre-certification by the court of appeals. In this case, however, petitioners rule 60 B6 motion fails to set forth any extraordinary circumstances justifying relief. Next, mailing versus Felix, which also involved the interaction between Edwa's statute of limitation and a rule of civil procedure. Rule 15C2 says that an amendment to a pleading relates back to the filing date of the original pleading when the amended claim or defense arises out of the same conduct, transaction or occurrence set forth in the original pleading. Felix filed his original petition within the statute of limitations one year period, claiming that the admission at trial of videotape testimony violated his Sixth Amendment right to confront his accuser. Five months after the time limit had expired, he filed an amended petition adding that his own pre-trial statements to police were coerced, violating his Fifth Amendment rights. Felix argued that his trial was the relevant transaction or occurrence that connected both claims. Until his pre-trial statements were introduced at trial, he had no actionable claim, preventing that violation of his Fifth Amendment right against self-incrimination and enforcing his Sixth Amendment right to confront his accuser were both trial rights. The Supreme Court disagreed. Congress enacted Edwa to advance the finality of criminal convictions, wrote Justice Ginsburg. To that end, it adopted a tight timeline, a one-year limitation period, or narrowly running from the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. If claims asserted after the one-year period could be revived simply because they relate back to the same trial, conviction, or sentence as a timely filed claim, Edwa's limitation period would have slim significance. Finally, in PACE versus Degu Lielmo, can a petition for state court post-conviction relief that was rejected as untimely still be viewed as properly filed under Edwa, thereby tolling the statute of limitations? No, said the Supreme Court. When a post-conviction petition is untimely under state law, that is in the end of the matter for the purposes of 2244-D2. Susanna Sherry and Evan Lee join me now to discuss the court's habeas decisions this term. Do either of you see and trend or overarching theme in these cases? What's really interesting is that so many of these cases involve the statute of limitations in EDPA and that often the court is somewhat sympathetic in allowing at least diligent petitioners to get around the statute of limitations. I think we lived without a statute of limitations in habeas for so long that the court is uncomfortable about just shutting everything down after a year. Yeah, you know, a lot of the pre-EDPA Supreme Court cases were predicated on the fact that there was no statute of limitations. And I think this is a symptom of a more general phenomenon, the court having to go back and adapt its pre-EDPA habeas jurisprudence to the realities of the statute. And there's just so much pre-EDPA case law because the, you know, habeas jurisprudence prior to EDPA was almost entirely a body of common law. It had some statutory boundaries, but it was essentially a common law body. And I think the adaptation of the common law and EDPA is particularly difficult in the case of the statute of limitations because a lot of the parts of EDPA were at least attempts to codify the pre-existing common law, but the statute of limitations was not. It was completely new. Yeah, and Rines v. Weber is a perfect example of that. Prior to EDPA, the court back in Rose v. Lundy had established the total exhaustion rule. District courts have no discretion. If they get a petition that contains any unexhausted claims, it must dismiss. Obviously, now that there is a one year statute of limitations and considering how long it takes district courts to get to the determination that there are unexhausted claims in a petition, a lot of petitioners are gonna be shut out. The Supreme Court in Rines v. Weber recognized that. And so in Rines, the court holds that lower courts are permitted, you know, to stay these habeas petitions and hold them in abeyance while the prisoner goes back and exhaust state remedies. But at the same time, they don't wanna undermine the statute of limitations in EDPA too much, so they limit it and say that you can only use the stay and abeyance procedure where the petitioner has good cause for his failure to exhaust his state remedies. And I think that's actually gonna lead to a lot of litigation because it's not clear in this context what good cause means. Yeah. You know, I do think there's a trend going on in these habeas cases, which is the court's attempt to ameliorate or at least kind of smooth off the rougher edges of EDPA's procedural bars. An example of that might be what the court has done with ineffective assistance of counsel. If you take EDPA's 2254D, which requires unreasonable application of federal law, well, in the case of Strickland versus Washington, the court has found in quite a few cases that the state court unreasonably applied Strickland versus Washington. This is at least somewhat surprising, but again, I think what's going on here is the court is trying to smooth off the rougher edges of 2254D. But Evan, do you think that's the only reason petitioners are winning a fair number of these cases? Well, no, I mean, there's something else going on, which is that I think the court, the Supreme Court recognizes that if it does not grant statutory tolling in a number of these cases, if it shuts petitioners out completely on that score, a lot of the circuits are gonna go back and they're gonna rely on equitable tolling. And equitable tolling, I think, is a morass that the Supreme Court desperately does not wanna get into. I mean, the question of under what precise circumstances equitable tolling is appropriate, that's gotta be a case-by-case thing. You're right, they wanna stay out of it. And I think PACE is a good example of that, of the avoidance. They did not decide in that case whether equitable tolling was ever appropriate. They just said that it was not appropriate in this case. And I think that's how they're gonna deal with the issue of equitable tolling in addition to the point you make about expanding this statutory tolling. Thanks, Susanna and Evan. One more case before we end this panel, Wilkinson versus Dotson. In this case, the question was whether two state prisoners challenging Ohio's parole procedures as unconstitutional could do so under section 1983 or had to seek relief exclusively under the federal habeas corpus statute. 1983 actions challenged the conditions of a prisoner's confinement, while habeas actions challenged the factor duration of that confinement. Ohio argued that by challenging the constitutionality of its parole procedures, the two prisoners were in fact collaterally attacking the duration of their confinement in hopes of shortening that. Therefore, the claim had to be brought in a habeas action. The court concedes there's a habeas exception to 1983 where favorable judgment in such an action would necessarily imply the invalidity of a conviction or sentence leading to a speedier release. But the court finds that that is not the case here. At most success in their 1983 actions would lead to possible new parole hearings with the chance, but not the guarantee of an earlier release. For that reason, neither claim lies at the core of habeas corpus. Evan and I will be back in a moment to talk with Lori Levinson about this term's death penalty decisions. The three death penalty cases differed in their focus. One was a procedural matter, one a fact intensive analysis of trial counsel behavior and one a change of constitutional doctrine. The Roy Smith was convicted of capital murder and sentenced to death by a Dallas County jury. A supplemental nullification instruction directed the sentencing jury to give effect to mitigating evidence, but only by negating what would otherwise be affirmative responses to the two aggravating issues of deliberateness and future dangerousness. The court had ruled in 2001 that a similar nullification instruction was constitutionally inadequate because it didn't allow the jury to give full consideration and effect to mitigating circumstances and choosing the sentence. The court's percurium opinion at Smith reiterates that holding. Wrote the court, just as in Penry II, that's a 2001 case, Smith's jury was required by law to answer a verdict form that may no mention whatsoever of mitigation evidence and just as in Penry II, the burden of proof on the state was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence. And Rompia v. Beard, a five justice majority, ruled that Ronald Rompia's trial counsel failed to provide a defense that met the Sixth Amendment standard of reasonable competence. Although his lawyers took steps to uncover mitigating evidence, they, said justice suitor, were deficient in failing to examine the court's file on his prior conviction. Prosecutors had notified defense counsel weeks prior to sentencing that they would introduce the victim's transcript from the prior rape conviction to prove an aggravating factor. Moreover, the file was available in the same courthouse as Rompia's current trial. Justice suitor recounted the file's mitigating contents in detail, reversed the court below and ordered the state to either retry the case on penalty or stipulate to a life sentence. Finally, Christopher Simmons killed his 87-year-old victim in an unquestionably brutal and premeditated manner, even bragging he could not be executed because of his age. But in Roper v. Simmons, the court held five to four that executing offenders who were under 18 when they committed their crimes violated the Eighth Amendment. Citing the number of states and foreign countries that have outlawed the execution of minors, Justice Kennedy wrote, the prohibition against cruel and unusual punishments like other expansive language in the Constitution must be interpreted according to its text by considering history, tradition and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework, we have established the propriety and affirmed the necessity of referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual. Evan, the issues in these cases were rather different even though they all concerned the death penalty. Is there any common theme? Well, I kind of think there is. I think the court is making it clear that state courts are going to have to be more exacting in their procedures surrounding capital sentencing. And I think the Supreme Court's focus is very clearly on what you might call mitigating factors writ large, that you have these mitigating factors that are so powerful that they have to be taken away from the jury. They have to be taken off, the capital punishment has to be taken off the table. I mean, Atkins versus Virginia, if the IQ is below a certain level. Now, this term in Roper versus Simmons, if the age of the defendant is below a certain point, the jury can't even be, it just per se violates the Eighth Amendment. Whereas you also have mitigating factors that aren't quite so powerful, where I'm going to say fetal alcohol syndrome or perhaps a severe childhood abuse, maybe severe poverty, something like that. Those are mitigating factors, they're not so powerful that the court has said it per se violates the Eighth Amendment for capital punishment to be meted out in those cases. But, and this is key, the jury has to be permitted to exercise mercy on the basis of those factors. But, so Laurie, in light of this trend, do you think there's any situation in which nullification instructions would be approved? I think it's really hard to think of one, because frankly it is so confusing for the jury and it's so misleading. And you really want the jury, as Evan said, to consider these mitigating factors, so I really can't think of a situation where this type of nullification instruction would be allowed. You know, I'm taking one step further. I think the court is also saying that in order for the jury to be able to take these mitigating factors into account, trial counsel has to properly develop and present that evidence during the penalty phase. And if it's not properly developed and presented, then that's gonna be ineffective assistance and it's gonna be a new trial. Laurie, how does this relate to the ABA standards that were mentioned in Rumpia? Oh, this is a big boost for the proponents of the ABA standards and don't forget that this is something that Justice O'Connor had been looking at for many years. Now, I don't wanna say it's a checklist and neither did the court, but it's darn close because in this case, it wasn't like the lawyers had dropped the ball altogether. In fact, the defense lawyer had put on five family members in mitigation, but the court found that wasn't enough. They had not done the type of discovery and investigation and preparation you need particularly for a death penalty case. So I think it's very likely that judges will be looking to the ABA standards, maybe not as a strict checklist, but a list of things that they want the defense lawyers to be doing. Yeah, well, I don't know if you'd call it a checklist or not, but I will say this, that it may well be error now for federal habeas judges not to even consult these standards. I think that's right. And even though they're not a checklist, I mean, that's one way that the court can see what the lawyer's doing. On the other hand, if you have a defense lawyer in a death penalty case who's done many things right, really done a very vigorous job in defense, let's miss something on the checklist. I still think under the Supreme Court's approach, that's not necessarily ineffective assistance of counsel. You know, I think there may be one question that's kind of lingering in the minds of district judges who are watching this and thinking, you guys been talking about these heightened standards of competency. Do they only apply in these capital cases? Do they apply across the board in non-capital cases? And I think I'd have to lean toward the former. I think I'd have to say that, you know, if we're talking about, you know, Strickland versus Washington's standards of deficiency, I think there, the Supreme Court will not say it has not said it, but I think they are different in capital cases. I have to agree. I think that there really has been and will be closer scrutiny in the death penalty cases. And that may be because they have something that ordinary trials don't have, which is those penalty phases. And those are extra responsibilities under defense lawyers. Well, we haven't talked yet about the case that received most attention, this term roper versus Simmons, in which the court found executing minors under 18 violated the Eighth Amendment. Any comment there? What's next? Well, if you combine the principles of roper versus Simmons and Atkins versus Virginia, I think the next thing that defense lawyers are gonna claim is that the mental age of their clients was so low that it would violate the Eighth Amendment for them to be executed. Let me give you an example, just a hypothetical. I mean, let's say that a particular defense lawyer's client was 35 so that he doesn't qualify under roper versus Simmons and that his IQ was, let's say, 75 so that he doesn't qualify for the Eighth Amendment protection under Atkins, but that defense lawyer can bring in an expert who's gonna testify that this client's mental age was 12 or 13 at the time he did the killing. Well, then you got an argument that the Eighth Amendment prohibits execution in that case. And of course, if you're gonna bring in experts, that means you're gonna have to have a downward hearing in each one of these cases. Yeah, I think that's right. The defense lawyers are gonna look for cases in the seams that combine the two, but I think there might be other types of challenges coming up the road, which are about, what about non-homicide cases? Do those violate the Eighth Amendment? For example, rape of children, terrorism cases, drug cases, and the Supreme Court will have to continue to decide what's within this evolving standard of decency under the Eighth Amendment. Thanks, Lori. Thanks, Evan. That wraps up the first half of our program. We're going to take a five-minute break and then come back to talk about constitutional issues, civil rights statutes, and federal jurisdiction, and procedure. Now to three cases involving the Establishment Clause. Lori Levinson and Susanna Sherry join me. Cutter v. Wilkinson unanimously rejected a facial challenge to the Religious Land Use and Institutionalized Persons Act. That act bars prison authorities from imposing a substantial burden on inmates' religious exercises unless the burden furthers a compelling government interest by the least restrictive means. State inmates sued under the act, claiming that authorities in prison denied them access to things like religious literature and attire. The prison officials said the act was government endorsement of religion. The Court of Appeals struck the act down based on Lemon v. Kurtzman. But Justice Ginsburg said, we resolve this case on other grounds. She said the act fits within the corridor between the Establishment and Free Exercise Clause and, on its face, was a permissible accommodation of religion. First, it alleviates government burdens on religious exercise. Second, Congress made clear it didn't want authorities to apply the act so as to elevate religious accommodation over prison discipline. Third, the act doesn't discriminate between bona fide face. Lori, how does this cut a decision fit within the Establishment Clause jurisprudence generally? Well, just last term, the Court referred in Lock v. Davies to the plague in the joints between what the Free Exercise Clause requires and what the Establishment Clause prohibits. And this is one of those cases. And this case also confirms that accommodating religious practices is not itself a violation of the Establishment Clause and it illustrates the limits of employment division versus Smith. The government's not required to accommodate religion, but it is permitted to do so. Well, let me ask you, you made reference to this play in the joints phrase from the Lock v. Davies case. How much play in the joints is there? Well, it's certainly okay to have legislation to tell the government not to impose a substantial burden on the Free Exercise of Religion unless there's a compelling interest and the least restrictive alternative. Although this is not the same compelling interest test that we see in free speech or equal protection cases. After all, the Court says context matters, the context here is prison, and so it requires and allows quite a lot of deference to prison officials. Interestingly, it cites the affirmative action case from a couple of terms ago, Gruder v. Bollinger, for the idea that this compelling interest test is somewhat flexible. So this is not your father's strict scrutiny. What is this, let me ask you this, Lori, what does it do to Lemon v. Kurtzman? That case is all over. Well, the Court declined to apply Lemon in this case, and in fact, just as Thomas and his concurrence points out how the Lemon test is in a state of disarray throughout the Court. I think it's a little early to say that it's in disarray or it's discredited. After all, the Court does apply it in some cases and not in others, and all Justice Ginsburg said was it wasn't necessary in this case. Will this case make it easier to deal with these issues of free exercise in the prison context? I think the cases that are coming down the pipeline are gonna be more difficult than this case. This case was actually a fairly easy case. For one thing, the prison officials were discriminating among religions, and also they didn't have any plausible reasons for not giving the accommodations that the prisoners asked for. I think future cases are gonna raise much more difficult questions about whether the requested accommodations interfere with prison order and security. Yeah, I agree that the subsequent cases are likely to be much harder, but there's a clear signal here that you can have congressional legislation that accommodates religion, especially where there's been discrimination. Well, this case was unanimous. Our next two cases were both five to four. They involved the 10 Commandments. One involved the 10 Commandments in courthouses, and one on state capital grounds. Now, a five member majority, Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer struck down the courthouse display of the 10 Commandments. The four dissenters in that case, the Chief Justice and Justices Scalia, Kennedy, and Thomas, plus Justice Breyer upheld the state capital display. McCreary County and several other Kentucky counties tried three times to post the Commandments in courthouse public areas. First, they posted only the Commandments. When the ACLU sued, they posted a more extensive display, the Commandments together with such things as the national motto in God We Trust and a presidential proclamation of the year of the Bible. The counties authorized the display in overtly religious terms. Their resolutions, for example, said that the officials had a duty to acknowledge God as the source of America's strength and direction. The district court ordered that display removed so the counties put up the foundations of American law and government display. Nine documents, including the Commandments and such things as the Magna Carta, Declaration of Independence, and Mayflower Compact. Citing the lemon test secular legislative purpose prong, Justice Souter said the display's religious objective was apparent in part from the county resolutions ordering the second display. He added that this legislative history wouldn't necessarily taint any future effort to display the Commandments and that the court wasn't saying that they could never be integrated into a governmental display of law or history. But he said, purpose needs to be taken seriously under the establishment clause. Now, there was no majority opinion in Thomas Van Orden's suit to remove a six-foot granite monolith inscribed with the Commandments, which the Eagles fraternal order donated to Texas in 1961. It sits on the capital grounds with 37 monuments and markers to events in U.S. or Texas history. In his plurality opinion, the Chief Justice rejected the lemon test as not useful in dealing with this sort of passive monument. He looked instead to the nature of the monument and our nation's history. The Commandments are both religious and secular, simply having religious content, he said, or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause. He recounted sites on many buildings in Washington that depict the Commandments, including the court's own courtroom. Justice Breyer concurred only in the judgment. To him, the monument was permissible based mainly on the purposes of the religion clauses, that is, promoting religious freedom while avoiding religious endorsement and avoiding what he called that divisiveness based upon religion that promotes social conflict. Unlike the courthouse displays, he said the Texas display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree, this display is unlikely to prove divisive and this matter of degree is critical in a borderline case such as this one. The two cases, 11 opinions, debated the founders invocations of God in their public acts and statements. To Justice Scalia, the friend whose references to God show a distance between the acknowledgement of a single creator and the establishment of a religion. To Justice O'Connor, even if the framers couldn't predict today's religious pluralism, they knew that in her words, line drawing between religions is an enterprise that once begun has no logical stopping point. How much guidance do we get out of these cases, Lori? Let's start with the McCreary case. These are the courthouse displays of the commandments. Right, I hate to say it, but you know, so many words, so little guidance. Basically in this case, the court says, you know, the lemon test is okay for now but we don't really know how it's going to be applied. So instead of getting a clear test, what we have is the court saying, well, you know, look at the history, the context and the purpose of the display. I think we disagree a little on this. The majority did, after all, apply the lemon test so we know how they want to apply it and Justice O'Connor did join the majority opinion as well as concurring using her endorsement test. So I think there's a little more guidance here. In terms of the lemon test, Justice Souter made a point of saying that context really was important in terms of that first prong. Yes, context is very important and he said that in determining whether the purpose of the display was religious, you look not only at the display itself but you look at the history of the display, how it was designed, maybe how it changed and also at the legislative history of the governmental body and all of those things help determine whether there was a religious purpose for the display. Yeah, but this one was a bit easy, wasn't it? When you look at both the legislative history and the context of it, on the legislative history, what do we have in the record here? We have a reference to Jesus Christ, Prince of Ethics. You have the pastor speaking at the dedication. You have a county resolution saying that God is the source of America's strength and it's the dedication. You have the display originally going up with a religious display then being modified through the litigation and still having the religious context. Not so sure cases after this will be so easy. There's also this question of bright line rules and Justice Souter said in his opinion in McCreary that bright line rules are hard to come by in establishment clause cases. Yeah, but as the court says, maybe firm edges aren't such a good thing in complicated areas like this. Suzanne, let me ask you, we had the Van Orden case. This is the Texas case, a plurality opinion, two concurring opinions in the priority opinion, a concurrence only in the judgment and three dissenting opinions. What kind of guidance do we get from this case? Well, I think the guidance has to come from Justice Breyer because it's his vote and his opinion that provides the majority in both cases. And I think the best way to read him consistent with, consistently in both cases, is that context does matter when you're determining the purpose of a display, whether it's religious or not. I think that makes his opinion in the Van Orden case consistent with the majority in McCreary and I think it does give more guidance to the lower courts. I think context does matter, but what Justice Breyer says is that he's actually not applying the lemon test. He's just looking at the general purposes of the First Amendment and what would stop a lower court judge from saying, you know, I'm like Justice Breyer. It's a close case, but I look at the general purposes and this is what I find. And then you see this evolving jurisprudence by some pretty interesting concurrences in the case. You know, you have Scalia saying that there's nothing unconstitutional about the government supporting a monotheistic religion because after all, the majority of the population would follow that. You have Justice Thomas saying the First Amendment shouldn't even be incorporated to the States, I think we're gonna see a lot of development in this area. And we do have to remember that the four dissenters in McCreary who made up the plurality in Van Orden would like to abandon the lemon test and allow more religious displays and if they get one more vote for that position then the jurisprudence may well change and with Justice O'Connor retiring and she was in the majority in McCreary, this jurisprudence could well be in flocks. Okay, good enough. Thank you, Santa and thank you, Laurie. I'll be back in a moment with Evan Lee and Erwin Chemerinsky to talk about some 5th and 14th Amendment cases. Cases involving the 14th Amendment's due process cause and the 5th Amendment's takings cause. Erwin Chemerinsky and Evan Lee join me. First, Jessica Gonzalez filed a 1983 action against Castle Rock, Colorado over police failure to honor her demands that they enforce a restraining order against her husband by arresting him. He had kidnapped their three daughters, he eventually murdered them. The court of appeals held that she had alleged a protected property interest in the enforcement of the restraining order and that failure to enforce it deprived her of due process. The Supreme Court reversed seven to two. The 14th Amendment's procedural due process component, Justice Scalia wrote, doesn't protect everything that might be considered a benefit. Those seeking protection must have a legitimate claim of entitlement. The court of appeals read the language of the restraining order as mandatory. A police officer shall use every reasonable means to enforce a restraining order, shall arrest. The Supreme Court wouldn't defer to the 10th Circuit's interpretation of the Colorado statute. Some discretion resides even in mandatory language. And even if the court read the statute as mandating arrest, that wouldn't give Gonzalez an entitlement to its enforcement. The criminal law serves public, not private ends, said Justice Scalia. Finally, even if the court saw the statute as creating an entitlement, that wouldn't necessarily create a property right in its enforcement. Such a right would resemble no traditional conception of property. In dissent, Justice Stevens argued that the Colorado statute mandated arrest in order to beef up police enforcement of restraining orders and domestic violence cases and that such police enforcement was a property interest as concrete and as valuable as other promised government services. Let's talk about this case, Erwin. It's not the first time the court's dealt with unresponsive municipal services. That's right. In Dashaney versus Winnebago County Department of Social Services in 1989, the Supreme Court said that the government generally has no duty to protect people from private inflicted harms. Dashaney was a substantive dupras case. The 10th Circuit in its en banc opinion here said, well, this is procedural due process, so it's different. And I think the significance of this opinion as the Supreme Court's saying, it doesn't matter if it's characterized as substantive due process or procedural due process. It doesn't matter if the statute of the restraining order or mandatory language, the government generally has no duty to protect people from privately inflicted harms. No, I think that's absolutely right. And even if the question were, what about a property interest versus a liberty interest? I really don't think it would make any difference to this court. I think that it's pretty clear now that this court believes that Section 1983 simply does not authorize a suit against municipalities for failure to provide adequate police protection. Unless it's a situation where a person is literally in government custody or the government has created the danger, then the Supreme Court said there's due process claims and there can also be claims under state tort law. I think that's true. But I think here in Castle Rock, the key is that the majority is determined not to expand Section 1983, not to expand the due process clause to further create what it's, I think referred to very derisively in the past as a font of tort law. Okay, let's go to the two takings cases, go to the fifth amendment. In fact, one of the term's most controversial cases was the five to four decision upholding New London, Connecticut's efforts to take 15 parcels of land as a small part of a large redevelopment project of shops, residences, hotels, and a river walk. New London hoped the project would create jobs, a larger tax base, and a more hospitable urban environment. But Suzette Kiehlo and others refused to sell their well-maintained houses. So the city tried to use a state law that said, the taking of land, even developed land as part of an economic development project is a public use and in the public interest. Now, of course, the fifth amendment, let's government take private property for public use with just compensation is economic development by itself, public use. Now, obviously, some elements of this redevelopment plan would not be open to the general public, but just as Stevens wrote, that's not the test. The test is whether a takings goal was to serve a public purpose. Without exception, he said, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. He relied on precedents upholding acquisition of a department store as part of a blighted neighborhood redevelopment and a statute that transferred land from less sores to less ease to break up a land oligopoly. He said the court's duty was to resolve challenges based on the entire redevelopment plan, not individual takings. Deference to legislative determinations meant that New London needn't show a reasonable certainty that the plan would realize its objectives. And he rejected calls for bright line rules to prevent a city's transferring one person's property to another simply because the latter's use of it would produce more taxes. He said, such a one-to-one transfer of property outside the confines of an integrated development plan is not presented in this case. And a Justice O'Connor, nothing in his opinion would prevent such transfers. She posited the same hypothetical as when she asked at oral argument, what if there's a motel six, but the city thinks the Ritz-Carlton will generate more taxes? Let me ask you, Irwin, how much of a departure was key all? People who said this is a step away from earlier decisions. It's not a departure at all. I think this is a case that's been widely misrepresented. The court very much followed existing precedents in Berman versus Parker and Y versus Mitkin. The cases you referred to, the Supreme Court said, a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. That's exactly the test, Justice Stevens opinion applies here. The case did not make new law. Yeah, I agree with that. This case does not go beyond Berman or Mitkin. I think what was interesting to me was that Justice O'Connor would actually distinguish those cases. She would say, look, the condemned property in Berman and in Mitkin was doing some sort of affirmative harm to society and that's why it was progressive. Whereas in this case, she's saying, look, these are pretty well kept old historical houses. They're not doing any kind of harm to society. I think it's also interesting in Justice O'Connor's opinion how she sort of openly regrets having used a certain language in the Mid-Kiff majority opinion that she wrote. That was the land case, the land oligoptic case. Yes, and in that opinion, she stated that the police power, the state police power was coterminous with the public use doctrine. And I think now she regrets that and says that it was, you know, in provident language that has caused some harm. I also think Justice Kennedy's opinion is important here. He, after all, was the fifth vote in the majority. He said there still has to be judicial review to make sure it's not the government taking from one private owner to give to another. Now he analogizes it to rational basis review but says there's to be some teeth to judicial review to enforce the public use limitation. I think that's a very important point is that Justice Kennedy does emphasize that if the public use sort of rhetoric of government is truly pretextual, then it can't stand. So it's a motive test. You know, if the predominant motive of government is to benefit a private party and not the public use, then it's not okay. I think that's very important. The other thing to remember here is that there still may be limits on what the government can do in the name of public use. Many states have laws and others might adopt statutes saying that there can't be takings for economic development purposes and bills have already been introduced into Congress to try to impose this limit on what constitutes public use. Bill's introduced in Congress and as you say, a lot of talk about state legislatures taking action in the wake of Keelow. Let's go to the other takings case. Lingle v. Chevron involved regulatory takings. The court revisited the 1980 decision in Agans v. Tiberon. Language in that decision set applying a zoning law to a particular property affects a taking if the ordinance does not substantially advance legitimate state interests. Chevron asked a district court to enjoin enforcement of a state statute that capped the rent oil companies charge their gas stations. The judge agreed with Chevron that companies would raise prices to compensate for the loss of rent, resulting in higher retail prices for gas. She held the act in unconstitutional regulatory taking because it wouldn't substantially advance a legitimate state interest. Consumers wouldn't benefit. The Supreme Court reversed unanimously, rejecting what Justice O'Connor called regrettably imprecise language in Agans. Chevron, she said, didn't even argue that it had been singled out to bear any particularly severe regulatory burden. She said a full scale application of the Agans test would require extensive judicial scrutiny of many regulatory statutes in order to predict whether they would produce a substantial public benefit. What's the significance of this case, Evan? Well, I think until Lingle, there were basically five ways that a government regulation could be denominated, a taking that would therefore require just compensation. And what this opinion, Lingle does, is it does away with the fifth of those, that is to say a regulation doesn't substantially advance a legitimate state interest. But it leaves those other four unchanged. And in this case, the court says whether a regulation advances a state interest is relevant to rationality review, but has nothing to do with whether it affects a taking. I think this brings Takings, Ledger's, Prudence in accord with what the court's been doing since 1937 and deferring to government economic regulation. Agans had used the language, substantially advance a legitimate purpose. And the court says, no, it's a rational base review, just to reasonably advance a legitimate purpose. I think the real significance of what the court didn't do had the court come out the other way would be much more judicial review of government economic regulations. There's been many challenges over the years to government rent controls. Every single one of the challenges has failed, just as it did here, the court's saying, we're gonna leave it to the legislature to decide when rent controls or other economic regulations are necessary. Just as a current court didn't want courts to be getting into that business on a regular basis. Let me ask you, Evan, you referred several times with this, you may want to comment on it. There was some anyway regretting about language and past decisions bearing fruit that their authors may not have intended. Yeah, I don't know whether that's a coincidence or whether it's something that's endemic to the Takings area, but clearly that the prior decisions, both the court and Justice O'Connor individually did express some remorse about maybe loose language that wasn't thought all the way through at the time. What it would lead to. Thanks, Evan. Thanks very much, Irwin. Next, Beth will have two cases under civil rights statutes. Gledge discrimination based on age or sex has not received the same sort of strict scrutiny from the court that race has over the years. However, this term, the court expended protection in both these areas by extending private causes of action in two major civil rights statutes. Roderick Jackson coached high school girls basketball in Birmingham, Alabama. Transferred to a new school in 1999, Jackson found his team was not receiving the same funding or access to athletic equipment and facilities as the boys team. Jackson complained to his supervisors about the deferential treatment, but the school did nothing to remedy the situation. Jackson began to receive negative work evaluations. About 18 months later, he was removed from his coaching job, losing the extra pay he received for doing that work. Jackson sued, alleging among other things that by retaliating against him, the school board had violated Title IX. Title IX is a 1972 amendment to the 1964 Civil Rights Act. It forbids sexual discrimination by recipients of federal education funds. The court granted the school board's motion to dismiss the complaint. It held that Title IX's private cause of action did not include claims of retaliation. The court of appeals affirmed, but the Supreme Court disagreed. Justice O'Connor, writing for the majority, said, "'Retaliation against a person "'because that person has complained of sex discrimination "'as another form of intentional sex discrimination "'encompassed by Title IX's private cause of action. "'Moreover, retaliation is discrimination "'on the basis of sex "'because it is an intentional response "'to the nature of the complaint, "'an allegation of sex discrimination.'" That case is Jackson versus Birmingham Board of Education. In a second case, Smith versus City of Jackson, the newly sanctioned theory of recovery was a disparate impact. Disparate impact in which facially neutral policies are found discriminatory because they unlawfully affect one group differently than another has long been recognized as a cause of action under Title VII of the Civil Rights Act of 1964. However, the circuits were split over whether disparate impact claims are cognizable under the Age Discrimination and Employment Act, or ADEA. In this case, the petitioners were police officers in Jackson, Mississippi, who contended that salary increases were discriminatory because they were less generous to officers over the age of 40 than they were to younger officers. A federal district court ruled that the disparate impact claim was unavailable under the ADEA and the Court of Appeals affirmed. The Supreme Court reviewed its disparate impact jurisprudence and compared portions of Title VII and the ADEA. A majority of five justices agreed that a disparate impact theory is cognizable under the ADEA. But the court held that the scope of disparate impact liability under ADEA was narrower than that under Title VII and found that the police officers in Jackson had not made a proper case under this more restrictive standard. With us now to discuss these two cases are Susanna Sherry and Evan Lee. Susanna, which of these two cases do you think will have the biggest impact on the courts? I think the Smith v. City of Jackson, the ADA case is definitely going to have the bigger impact. The other case, the Title IX case out of Birmingham is pretty straightforward. There's an established cause of action for retaliation in other statutes such as Title IX and the courts will just interpret this cause of action for retaliation in pretty much the same way. Yeah, I agree. I think retaliation is pretty old hat for most district judges, whereas I think you cannot say that of this ADEA decision. I think the ADEA decision is basically uncharted territory and I'm afraid it may be very large territory. So you both think it's gonna generate a lot of litigation? Oh, it's gonna generate tons of litigation. Every time an employer makes a decision based on rank or aid or rank or salary or seniority that's gonna have potentially a disparate impact. Think about how different age is from, say, race or gender. Unless there is, in fact, deliberate discrimination, your salary almost never depends on your race or your gender, but it's often gonna depend on your age because it's so well correlated. Yeah, I mean, the basic problem is you've got aid, which is this impermissible category, and then you've got categories of differentiation that everybody agrees are okay, like seniority, rank, experience, but then age correlates very highly with the rank and experience and seniority and I think you're just gonna have problems. How does that correlation relate to the defenses that could be raised in these cases? Well, the court said that if an employer can show that the action was taken because of reasonable factors other than age, RFOA, then there's no liability. Now, there is an analog in Title VII law, which is BFOQ, Bonafide Occupational Qualification, but that's much narrower. It doesn't apply in race cases. It is limited only to national origin and gender cases, I believe, and even then, normally, gender and national origin don't correlate with, don't correlate with those bases of differentiation. And so, whereas age does. And I think what's gonna have to happen here is that district courts, in the first instance, and eventually the circuits, are gonna have to hammer out on a case-by-case basis, on a practice-by-practice basis, what is reasonable and what is not reasonable. Let me give you an example. Not giving time off for doctors' appointments. Now, that is gonna have a disparate impact against older employees because they have to go to the doctor more often. But what courts are gonna have to decide now is, is that essentially a reasonable practice? And my guess is that they're gonna do that and they're gonna try and stem the tide of litigation under this case by granting summary judgment that a particular practice is or isn't reasonable as a matter of law, and then the circuits are gonna disagree as to practices, and in five years the Supreme Court's gonna have to step in again to decide. Well, a court does say disparate impact under their ADEA is different than under Title VII. Does that make the ADEA cases any easier? Well, no, it doesn't. You might think so at first because what the court says is that the Congress overruled the Ward's Cove case for Title VII, but not for ADEA. All that means, though, is that the plaintiffs in these ADEA cases are gonna have to point to a specific employment practice that has a disparate impact, but I don't think that's gonna make much difference. No, I mean, the difficult part is not gonna be identifying the practice. The difficult part is gonna be determining whether it's reasonable. Well, one more case in this area, Johnson versus California. The question was whether California's policy of racially-segregating new inmates violates the Equal Protection Clause of the 14th Amendment. California argued that it racially-segregated inmates when they enter a new facility as a way to prevent violence caused by racial gangs. It also argued that the policy should be exempt from the court's strict scrutiny rule regarding racial classifications used by government because the policy is neutral. That is, it neither benefits one group nor the other. Strict scrutiny requires the government to demonstrate a compelling state interest and show the policy is narrowly tailored to meet that goal. While the court did not decide whether the California policy violated the Equal Protection Clause, it did hold that strict scrutiny was a proper standard of review and remanded the case to allow the lower courts to apply it here. Does that settle everything? Well, possibly not. There is language in Justice O'Connor's opinion that I think may lead inmates to file a lot of challenges. Let me just say what I think that language is. In this opinion, she says that we have only applied Turner to rights that are inconsistent with proper incarceration. Now, I think what's gonna happen is that inmates are now going to file a series of challenges against specific individual practices arguing that they displace rights even though those practices aren't necessary, they're not inextricable to proper incarceration. If the court stands by this language, I think it largely undermines Turner versus Safly. And so the question is going to be, is the court really serious about this language or is it sort of improvident dicta? Thanks, Evan and Susanna. I'll be back in a moment with Susanna and Irwin Chemerinsky for our final panel. We discussed last and somewhat ironically the first question any federal court asks about a case before it, is there jurisdiction? The Supreme Court decided four cases this term, expanding federal jurisdiction. Exxon Mobil versus Alipeta and Ortega versus Starchis decided together ask whether federal court could exercise supplemental jurisdiction in a diversity case if one or more plaintiffs failed to meet the amount in controversy requirement in 28 USC 1332A. A class action of about 10,000 Exxon dealers alleged an intentional and systematic scheme by Exxon to overcharge them for fuel. Not all class members met the jurisdictional amount. The Ortega case involved the family of a young girl who cut herself severely opening a can of Starchis tuna. While her suit met the amount in controversy requirement, the family's claims for emotional distress and certain medical expenses did not. A five justice majority decided that 28 USC 1367 overruled the court's longstanding requirement that each plaintiff in a federal diversity action satisfy the jurisdictional amount. They held that where other elements of jurisdiction are present and at least one named plaintiff satisfies section 1332A's amount in controversy requirement, the federal courts have original jurisdiction. And then section 1367 authorizes supplemental jurisdiction over the claims of the other plaintiffs in the same article three case or controversy, even when those claims are less than for the requisite amount. Susanna, the court continues to adhere to a bright line rule concerning complete diversity, even though there's no constitutional requirement or requirement in 1332A. Well, how does the rationale underlying that rule compare to the rationale underlying the amount in controversy and supplemental jurisdiction rule? Well, the court distinguishes them in this way. The court says that where there is incomplete diversity, then the district court has no jurisdiction over the case at all, and there's nothing for jurisdiction to be supplemental to. But if the court has jurisdiction over one of the plaintiffs because that plaintiff meets the jurisdictional amount, then supplemental jurisdiction can come in to cover the other plaintiff because the court has jurisdiction over the case or controversy. Now there is one twist, though. Ortega involved multiple plaintiffs and a single defendant. It's pretty clear that if it were the reverse and there were a single plaintiff and multiple defendants, supplemental jurisdiction would not be allowed if one of the claims didn't meet the jurisdictional amount because 1367B says quite clearly that supplemental jurisdiction cannot be exercised over a claim by a plaintiff against a party joined under rule 20 as both plaintiffs and defendants are. So the question is what happens if there are multiple plaintiffs and multiple defendants? Now the language of 1367B and the reasoning of the case might suggest that there is no supplemental jurisdiction when you take Ortega and add one additional defendant. That seems peculiar, but as I said, that's how the reasoning goes. It is, however, still an open question. Another open question here is how district courts have handled cases where there's incomplete diversity. Some district courts are dismissing the non-diverse parties and then proceeding with what remains as complete diversity. Other district courts are dismissing the entire case for lack of subject matter jurisdiction. The Supreme Court's gonna have to resolve that conflict. Well, broadly, what's the significance of these cases? This is an interesting trend, I think. This is, these are cases that expand federal jurisdiction. The Supreme Court overruled two earlier cases that had limited jurisdiction and this expands it. There's an interesting aspect to that shift. It used to be that it was the liberal justices who'd be expanding jurisdiction and the conservative justices who'd wanna constrict jurisdiction. Now here what we find is it's the four most conservative members of the court who are in the majority to expand jurisdiction. And this fits, of course, with the class action fairness act where it was the Republican Congress that voted to expand federal jurisdiction over class action suits. In another case involving ExxonMobil, this one against Saudi basic industries incorporated, the court expanded potential federal jurisdiction by more narrowly interpreting the Rooker Feldman Doctrine used for years by federal courts to decline jurisdiction. The doctrine in essence stands for the proposition that district courts may exercise only original, not appellate jurisdiction and cannot review the decisions of state courts. Saudi basic industries sued two Exxon subsidiaries in a Delaware state court over a contract dispute. ExxonMobil countersuit in federal district court. The state court entered judgment on a jury verdict. Later on interlocutory appeal, the court of appeals considered whether subject matter jurisdiction over the federal suit failed under Rooker Feldman because ExxonMobil's claims had already been litigated in state court. No said the Supreme Court unanimously. The Rooker Feldman Doctrine, Justice Ginsburg wrote, is confined to cases brought by state court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Susanna, the courts rely on Rooker Feldman frequently and determining whether jurisdiction lies. What signal does this case send to them? Oh, this is a very clear signal that the Supreme Court wants the lower courts to cut back on the use of Rooker Feldman. And again, it's part of the trend because by cutting back on Rooker Feldman, a limit on federal jurisdiction, it expands the range of federal jurisdiction. Erwin, how does Rooker Feldman relate to preclusion? Rooker Feldman is a jurisdictional doctrine and Justice Ginsburg's opinion was very clear that even though the federal court may have jurisdiction, there's not private jurisdiction just because there's the state court proceedings pending, still there may be preclusion. The federal court may be precluded by virtue of the state court judgment because of the usual principles of claim or issue preclusion. It may be precluded, but we do have to remember that preclusion is not a jurisdictional issue and so it can be waived. And the court also makes very clear that federal court jurisdiction isn't automatically terminated just because a state court has issued a judgment. Well, under Rooker Feldman, lower courts have been denied jurisdiction when the federal issues are inextricably intertwined with the state court judgment. Is this standard still applicable? What does it mean? I think so. What federal courts have had to decide is whether they're precluded by a state court decision with a jurisdiction tonight because what's before them is inextricably intertwined with what's before or been decided by the state court. Well, there's at least five different approaches that circuits have taken for assessing what does inextricably intertwine mean and there's nothing in the axon case that gives any guidance to lower courts about that. I'm not sure that's right though because all of those cases were decided before the axon mobile case and it might be that what the court is saying in axon mobile is that inextricably intertwined is not relevant anymore. That the only question is whether the plaintiffs in the federal case are state court losers complaining of injuries received from the state court judgment. But if there is a state court judgment then the question is is the federal court proceeding seeking to relitigate that or not? Inevitably that's gonna turn on the question of what's inextricably intertwined. So it means very much I think a live issue even after this decision. But sometimes they're not trying to relitigate the actual question before the state court. They're just trying to get an injunction that goes for example in the opposite direction and I'm not sure whether inextricably intertwined is gonna help us there. I agree. I think that axon as you said at the outset makes clear the court is narrowing the reach of the Rucker Feldman doctrine. But where Rucker Feldman continues to apply I think courts are gonna still have to assess in any cases whether the federal court proceedings are inextricably intertwined with the issues decided in the state court proceedings. Let's move on to Grable versus Deru. The holding here was narrow and also unanimous. The case involved a title action brought in state court but hinging on the interpretation of the notice statute in federal tax law. When Deru removed the case to federal court, Grable complained that the case did not pose a significant question of federal law. The Supreme Court however held that the national interest in providing a federal form for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal. The court said the decision turned on whether the state law claim necessarily raised a stated federal issue actually in disputed which a federal form may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Irwin, is this standard consistent with the Merildau standard? I don't think so. For a century the Supreme Court and federal courts have struggled with when is the federal question jurisdiction under 1331 when it's a state law cause of action. I always understood Merildau as saying this federal question jurisdiction is someone's Susan or a state law cause of action and federal law is an essential component only if it's a federal law that itself creates a cause of action. Here the court's saying doesn't always have to be a federal law that itself creates a cause of action. That's how I always read Merildau too as creating a bright line rule but Grable makes it clear that the court doesn't think that Merildau created a bright line rule and I think that difference is gonna create a lot of litigation because everybody's gonna wanna claim that their particular embedded federal question in a state cause of action does raise a significant enough federal issue that it should come within the Grable doctrine. I very much agree. I think this is gonna open the door to litigants trying to get federal court jurisdiction where previously thought to be precluded by Merildau. It used to be if it wasn't a federal law that created a cause of action it just couldn't sue in federal court. Now litigants in a lot of different kinds of cases are gonna try to come into federal court and claim federal jurisdiction based on this decision. They may try but I don't think they're gonna be very successful. I think ultimately this is gonna turn out to be a narrow doctrine. Justice Souter himself does stress that it's gonna be the rare case that actually raises a significant enough issue that it can be in federal court in these circumstances but I think this case is interesting for another reason and that's the adoption of this balancing test rather than the bright line rule which is very pragmatist and it's very consistent with what the court's been doing in other areas but this is the first time I've seen them adopt this kind of case by case analysis in the context of jurisdiction especially subject matter jurisdiction. I think that's an important point. The Supreme Court has wanted bright line rules for jurisdiction. I think lower courts have wanted bright line rules for jurisdiction because it tells them whether they can or can't hear the case. Now for the first time you're something more like a balancing test for jurisdiction and I think it's gonna be very hard for district courts to apply. Thanks very much, Irwin and Susanna. Finally, we want to mention one last case. That is Duro Pharmaceuticals versus Brotto. In this securities fraud case, private stockholders claim that misleading statements by company officials led them to pay artificially inflated prices for Duro securities and suffer damages. Two aspects of the court's unanimous opinion are noteworthy. First, the court held that plaintiffs must prove economic laws and proximate causation between the misleading statements and the laws. Therefore, the complaint must allege both which in this case it did not. Alleging an artificially inflated purchase price alone is not enough to establish loss causation. Second, the court pointedly affirmed notice pleading. Justice Breyer wrote, we concede that ordinary pleading rules are not meant to impose a great burden upon the plaintiff but it should not prove burdensome for a plaintiff who has suffered an economic loss to provide a defendant with some indication of the loss and the causal connections that the plaintiff has in mind. Russell will be back in a moment with some final words. Thanks, Beth. That concludes our review of the court's 2004 October term. As always, thanks to the center's board and our judicial education advisory committees for help with case selection and to our faculty who not only commented on the cases but helped us design the program. Again, please complete and send us the evaluation form in your written materials. We'll use your advice in planning next year's review. Finally, a note about Justice Sandra Day O'Connor who announced she would retire from the court upon confirmation of her successor. We don't know when that will be as we tape this program on July 20. There's no reason here to repeat Justice O'Connor's firsts or her decisive role in most of the constitutional developments of the last 24 years. Others will comment as well on her consideration for others, which we see close up here at the center. Justice O'Connor comes to these studios occasionally to tape a message for a meeting she cannot attend or a greeting to someone being honored somewhere around the country. Her graciousness to the VIP being honored is of a peace with her graciousness to the camera crew and others here in the studio. We wish her well and we thank you for joining us. Hello, I'm Judge Barbara Rothstein, Director of the Federal Judicial Center. The program you have just watched marks the ninth year we have tried to help you in your work as federal judges by telling you about the most important decisions reached by the Supreme Court this term. Sadly, it also marks the last time the program will be moderated by the man who has been its driving force and intellectual center, our deputy director, Russell Wheeler. Russell has been with the Federal Judicial Center for 28 years, 29 if you count his year as a judicial fellow. He has been deputy director for 14 of those years. During those years, he has not only watched the center grow and change, but has often been the person most responsible for shaping that growth and change. He has taken the center into new areas and new directions, such as television and the internet, while guaranteeing that the quality of the monographs, reports, programs, videos, and other center products has never been compromised. He has expanded our relations with courts around the country and around the world, and has supported our work in uncovering and preserving the history of the federal judiciary and its contributions to our country. Through his work on committees and study groups outside the FJC, he has often been called upon to serve the wider interests of the judiciary. We are delighted that his new position is one perfectly suited to his many talents, and one in which he will continue in public service. As the head of a think tank, focusing on inter-branch relations within the federal government, Russell will be applying his considerable intellect and experience to a particularly difficult problem at a particularly crucial time. But we would be less than truthful if we said we are anything but sad to see him go. He will be missed here at the federal judicial center and by the federal judiciary as a whole. He will be missed, but certainly not forgotten.