Chemerinsky: These 4 lesser-known SCOTUS decisions are sure to spawn more litigation
Erwin Chemerinsky.
Although the Supreme Court’s decisions on marriage equality and the Affordable Care Act deservedly got the most media attention, other cases will more likely affect lawyers and judges on a daily basis. Here are four decisions—two criminal and two civil—from the completed Supreme Court term that will have a significant impact on attorneys and courts across the country.
Johnson v. United States
In Johnson v. United States (PDF), issued June 26, the Supreme Court declared unconstitutional the “residual clause” of the federal Armed Career Criminal Act, which provides that a person who has three or more earlier convictions for a serious drug offense or a violent felony will receive a prison term ranging from 15 years to life. “Violent felony” is defined as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another; or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” (Emphasis added.)
The issue in Johnson was whether this latter language, the residual clause, was unconstitutionally vague. Johnson was convicted of illegally possessing a shotgun and, because of prior convictions, was given a 15-year prison sentence. But the Supreme Court, in an opinion by Justice Antonin Scalia, found that the residual clause was void on vagueness grounds. The court concluded: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.”
This is going to lead to an enormous amount of litigation in federal courts by those who had received enhanced sentences under this provision. Countless individuals will file petitions seeking resentencing. A crucial question will be whether Johnson applies retroactively to those whose convictions and sentences were final before the decision. Unfortunately, nothing in the court’s decision answers, or even hints at, an answer to this question.
Also, many other federal statutes use similar language to that declared unconstitutional in Johnson. For example, there is similar language in 18 U.S.C. Sections 924(c) (use of firearm during crime of violence), 924(h) (transfer of firearm for use in drug trafficking or crime of violence), and 844(o) (transfer of explosive material for use in drug trafficking or crime of violence). There is also similar language in the federal Sentencing Guidelines. All of these will be challenged on vagueness grounds based on the court’s decision in Johnson v. United States.
Ohio v. Clark
In Ohio v. Clark (PDF), issued June 18, the court unanimously ruled that it did not violate the Confrontation Clause of the Sixth Amendment when statements of a 3-year-old boy were introduced against a criminal defendant without the boy testifying in court. In response to questions from his teacher, the boy had said that he had been beaten by his mother’s boyfriend, Darius Clark.
In Crawford v. Washington, decided in 2004, the court held that prosecutors cannot use testimonial statements from unavailable witnesses even if they are reliable. But the court did not attempt to define what is testimonial, and courts have struggled with the issue for more than a decade.
Ohio v. Clark offers important clarification of the meaning of “testimonial.” The court ruled that the boy’s statements to his teacher were not testimonial because they were not made with the primary purpose of creating evidence for prosecution. Justice Samuel A. Alito, writing for the court, declared: “Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’”
This definition will matter in criminal trials in state and federal courts. For a statement to be testimonial it must have been made with the primary purpose of creating evidence for the prosecution. The application of this test, and how to determine the primary purpose for a statement, will be aggressively litigated in criminal cases across the country.
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project
In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (PDF), the court held 5-4 on June 25 that disparate-impact claims are cognizable under the Fair Housing Act. Justice Anthony M. Kennedy wrote the opinion for the majority and stressed that the statute was adopted after, and uses language similar, to other laws that allow disparate impact liability, such as Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. The court explained that Congress in 1988 amended the Fair Housing Act knowing that every federal court of appeals had interpreted the statute to allow disparate impact, and retained the statutory language allowing disparate-impact liability. The court said that “recognition of disparate-impact claims is consistent with the FHA’s central purpose.”
But the court imposed a significant limit: proof of statistical disparity is not enough to prove disparate-impact liability. The plaintiffs must prove that there is a policy that causes this discriminatory impact. The court stated: “A disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.”
The case is significant for civil rights litigation. It is difficult to prove a discriminatory intent. Rarely will decision makers express a racially discriminatory motivation for their actions. Disparate-impact liability is thus crucial for fair housing litigation. Also, it is clear that some justices on the court, such as Justices Scalia and Clarence Thomas, question the constitutionality of any disparate-impact liability. They believe that such liability requires decision makers impermissibly to consider race in their decisions. Had that position attracted five votes, it would dramatically change litigation in areas such as employment, under Title VII of the Civil Rights Act of 1964, and voting, under the 1982 Amendments to the Voting Rights Amendments. But the court’s decision in Texas Department of Housing and Community Affairs shows that there are at least five justices who favor continuing to allow disparate-impact liability.
Wellness International Network, Ltd. v. Sharif
In Stern v. Marshall (PDF), decided in 2011, the court held that a bankruptcy court cannot issue a final judgment for a state law claim unless it stems from the bankruptcy itself. The court, in a 5-4 decision, held that because bankruptcy judges are not Article III judges—and do not have life tenure—it violates separation of powers for them to issue final judgments over such claims.
The issue immediately arose as to whether consent of the parties can cure this. May bankruptcy courts issue final judgments in such cases if the parties agree? If consent can cure the problem, Stern v. Marshall is not very important. The parties generally will consent. But if consent is not sufficient, then it would dramatically affect practice in bankruptcy courts as many matters would need to go to the federal district court for decisions. No longer could magistrate judges, who also do not have life tenure, hold jury trials in civil cases with consent of the parties. Federal laws requiring compulsory arbitration might be challenged as well because arbiters do not have the protections of Article III.
A split among the circuits developed. In Wellness International Network, Ltd. v. Sharif (PDF), decided May 26, the court ruled that consent— even implied consent—is permissible. Justice Sonia Sotomayor, writing for the court in a 6-3 decision, declared: “Our precedents make clear that litigants may validly consent to adjudication by bankruptcy courts. … [w]e conclude that allowing bankruptcy litigants to waive the right to Article III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts.”
The court also made clear that implied consent is sufficient. The court ruled: “Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express.” The key question that will be much-litigated is what is sufficient to create implied consent.
Often the cases that most affect lawyers and judges are not the ones that get the most media attention. These four cases will lead to a great deal of litigation in courts across the country.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
