Holmes, Sven Eric

English

University of Tulsa College of Law

Tulsa Law Review Volume 35 Issue 3 Practitioner's Guide to the 1998-1999 Supreme Court Term Spring 2000 Practitioner's Guide to the 1998-1999 Supreme Court Term: Introduction Sven Eric Holmes Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Sven E. Holmes, Practitioner's Guide to the 1998-1999 Supreme Court Term: Introduction, 35 Tulsa L. J. 467 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol35/iss3/1 This Supreme Court Review Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. TULSA LAW JOURNALVolume 35 Spring & Summer 2000 Numbers 3 & 4SYMPOSIUM: PRACTITIONER'S GUIDETO THE 1998 - 1999 SUPREME COURTTERMINTRODUCTIONThe Honorable Sven Erik HolmestToday marks the fifth year that the University of Tulsa College of Law hassponsored this annual review of the most recent Term of the Supreme Court - andalso the fifth year that I have had the privilege of giving this Introduction. Wheneveranything reaches the five-year point, it can legitimately be considered a tradition -and so it is with this event.IAs with any tradition, this symposium deserves a pause for reflection. As mostof you know, this program was first developed under the auspices of ProfessorBernard Schwartz, who each year until his death in 1998 would captivate theaudience with his knowledge and insight into the most recent decisions of the SupremeCourt.Despite Professor Schwartz's untimely death last year, the tradition of thissymposium has continued. Indeed, today I salute Professor Gary Allison for his workin maintaining this important contribution to Constitutional law. You Will hear apresentation later from Professor Allison on the federalism cases decided this term bythe Court, which scholars, jurists, and practitioners all agree were the most significantopinions issued during the 1998 Term.t. United States District Judge for the Northern District of Oklahoma.4671Holmes: Practitioner's Guide to the 1998-1999 Supreme Court Term: IntroduPublished by TU Law Digital Commons, 1999468 TULSA LAW JOURNAL [Vol. 35:467IIA tradition of five years merits more than congratulations. Five years is asufficient period of time from which to recognize specific trends. These trends in turnshould tell us what to expect from the Supreme Court in the future. Permit me, then,to introduce the 1998 Term through the prism of the trends that we have identified inthis forum during the last five years.1. The Supreme Court has become extremely comfortable deciding only alimited number of cases each year. In the 1998 Term, the Court issued 75 rulings;in 1997, 91; in 1996, 80; and in 1995, 75. Indeed, over the last ten years, the Courthas averaged fewer than 100 cases per year. In my judgment, this is a positive - nota negative - trend. Indeed, there is no empirical evidence that the Court has failed toaddress an important constitutional question, or has left unattended any significantlegal split in the circuit courts of appeals. To the contrary, as will becomeabundantly clear by the program today, the Court again this Term has given clearstatements of legal principles in critical areas of law. As a result, criticism that thenumber of cases decided in some way indicates a deficiency in the Court's work hasabated.2. While opinions issued by a divided Court receive a preponderance of theattention, as well they should, there has actually been a great deal of agreement on theRehnquist Court. In fact, this last term, 32 of the 75 decisions were unanimous.Over the last five years, the percentage of unanimous decisions has ranged between35% and 48%.3. The Supreme Court is, and will continue to be, most deeply divided over theissue of federalism. During the last five years, at this symposium, we have analyzedsuch cases as United States v. Lopez,' Seminole Tribe v. Florida,2 and City ofBoerne v. Flores.3 Thejurisprudence articulated in these opinions was further refinedthis Term in Alden v. Maine,4 Florida Prepaid Postsecondary Education Expensev. College Savings Bank,5 and College Savings Bank v. Florida PrepaidPostsecondary Education Expense.6In Alden, the Court considered a suit originally brought in federal court byMaine public employees seeking damages from the state under the Fair LaborStandards Act.7 The employees' federal case was dismissed.' Thereafter, theemployees filed their action in state court.9 The Supreme Court ruled that the1. 514 U.S. 549 (1995).2. 517 U.S. 44 (1996).3. 521 U.S. 507 (1997).4. 119 S. Ct. 2240 (1999).5. 119 S. Ct. 2199 (1999).6. 119 S. Ct. 2219 (1999).7. See Alden, 119 S.Ct. 2240,2246.8. See id.9. See id.2Tulsa Law Review, Vol. 35 [1999], Iss. 3, Art. 1https://digitalcommons.law.utulsa.edu/tlr/vol35/iss3/1INTRODUCTIONsovereign immunity from such federal claims described in Seminole Tribe extends tostate courts, and thus the decision of the state court dismissing the case wassustained. °The other two federalism cases, referred to collectively as College SavingsBank, involved a bank's patented college investment plan." The bank claimed aviolation of the federal patent and trademark law. 2 The Court rejected both claimsbased on sovereign immunity, ruling that Congress exceeded its constitutionalauthority under Section 5 of the 14th Amendment when it authorized private suitsagainst states for patent infringement and Lanham Act violations. 13 The Courtreasoned that Section 5 power permits Congress to enforce a constitutional right, notto define what constitutes a constitutional violation, and that deprivation of propertywithout due process was not established under the facts presented. 14The significance of these cases can best be understood in the context of the otherfederalism cases that we have addressed in this symposium during the last five years.In Seminole Tribe, the Court held that Congress cannot abrogate state immunityunder its Article I powers, but noted that abrogation is permitted under Section 5 ofthe 14th Amendment.' 5 After Alden, Seminole Tribe clearly applies to federal claimsin both state and federal courts.With the Article I route to abrogation of state immunity foreclosed by SeminoleTribe, and the state court alternative foreclosed by Alden, in the future remedialfederal legislation must find support in the Enforcement Clause to survive.Accordingly, such enactments must satisfy City of Boerne, which restricted theability of Congress to legislate under Section 5 by requiring congruence andproportionality between the 14th Amendment violation by the states and Congress'schosen remedy.' 6In the College Savings Bank cases, the Court emphasized that Congress cannotsimply recite its Enforcement Clause authority to abrogate state sovereignty andconcluded that the congruence and proportionality requirements of City ofBoerne hadnot been met. 17These applications of Seminole Tribe and City of Boerne make clear that theCourt views sovereign immunity as a significant restraint on federal power.Accordingly, the viability of private claims against states under a variety of federalstatutes - including the Age Discrimination in Employment Act, the Family andMedical Leave Act and the Americans with Disabilities Act - may be subject toquestion.The federalism cases are crucial, not only because a state employee may notbring a claim for relief otherwise cognizable under federal law, but also because of10. See id.11. Florida Prepaid Postsecondary Education Expense v. College Savings Bank, 119 S.Ct. 2199,2202-03.12. See id. at2204.13. See id. at 2206-08.14. See id. at 2208.15. See Seminole Tribe, 517 U.S. 44,47.16. See City of Boerne, 521 U.S. 507, 512.17. See College Savings Bank, 119 S.Ct. 2199.2000]3Holmes: Practitioner's Guide to the 1998-1999 Supreme Court Term: IntroduPublished by TU Law Digital Commons, 1999TULSA LAW JOURNALthe dramatic redistribution ofpolitical power occasioned by thisjurisprudence. Manyscholars believe that the federalism cases are more an expression of politicalphilosophy than an objective legal analysis. With each passing Term of the SupremeCourt, this view appears to gain support.Moreover, this conclusion is buttressed by other public pronouncements byChief Justice Rehnquist. During this past year, the Chief Justice joined forces withrepresentatives from all points on the political spectrum to assail the efforts ofCongress to federalize state crimes. In his Report on the Judiciary last year, the ChiefJustice stated:The trend to federalize crimes that traditionally have been handled in state courtsnot only is taxing the [federal] judiciary's resources and affecting its budget needs,but it also threatens to change entirely the nature of our federal system. Thepressure in Congress to appear responsive to every highly publicized societal illor sensational crime needs to be balanced with an inquiry into whether states aredoing an adequate job in these particular areas and, ultimately, whether we wantmost of our legal relationships decided at the national rather than local level.'8An impartial assessment of these comments, coupled with the federalismjurisprudence painstakingly carved out over the last five years in a series of dividedCourt decisions, suggests that the Chief Justice may not stop until the powers of theU.S. Congress have been severely curtailed.To many, such a systematic effort to undermine the legitimacy of Congressionalaction appears to be far more politics than law - that is, judicial activism infurtherance of a political philosophy- and not strict Constitutional construction. Anytime a desired outcome takes precedence over legal analysis, the fairness andimpartiality of our system can reasonably be questioned.IIIThere are other five-year trends reflected in the cases this Term that also meritour attention.First, the Court continues to provide important guidance in the area ofemployment law. These types of cases have constituted in excess of 10% of my totaldocket, and 25% of all my trials, since I took the federal bench in 1995. This year,two of the most important cases were Sutton v. UnitedAir Lines, Inc.,19 and Kolstadv. American Dental Ass'n.20In Sutton, the Court held that the determination of whether an individual isdisabled for purposes of the ADA must be made with reference to any corrective18. 1998 Year-End Report on the Federal Judiciary.19. 119 S. Ct. 2139 (1999).20. 119 S. Ct. 2118 (1999).[Vol. 35:4674Tulsa Law Review, Vol. 35 [1999], Iss. 3, Art. 1https://digitalcommons.law.utulsa.edu/tlr/vol35/iss3/1INTRODUCTIONmeasures that mitigate her impairment.2' Accordingly, two sisters who were able tocorrect their severe myopia to 20/20 vision were not regarded as disabled within themeaning of the statute.22In Kolstad, the Court held that punitive damages can be awarded under TitleVII if the plaintiff proves that the defendant acted with malice or reckless indifferenceto her civil rights.' The Court also held that an employer is not vicariously liable forpunitive damages if it has made a good faith effort to comply with Title VII.24 Thisaspect of the opinion reflects the Court's recent positive trend of creating incentivesfor employers to implement effective anti-discrimination policies in the workplace.A second trend: the Court has now brought into focus a coherent FourthAmendment jurisprudence applicable to automobiles. The vehicle search and seizurecases decided this year included Wyoming v. Houghton, 5 Florida v. White,26 andKnowles v. Iowa. 7In Wyoming v. Houghton, the Court held that when a police officer hasprobable cause to search a car, he may inspect containers found therein, includingthose of passengers - in this case a purse.28In Florida v. White, the Court held that the Fourth Amendment does not requirethe police to obtain a warrant before seizing an automobile from a public place whenthey have probable cause to believe that the car itself is forfeitable contraband.29Drugs found during the subsequent inventory search are not subject to suppressionon Fourth Amendment grounds. 30In Knowles v. Iowa, the Court unanimously held that a police officer may notconduct a full-blown search of the automobile pursuant to a traffic citation.3!Accordingly, there is no "search incident to a citation" exception to the requirementsof the Fourth Amendment. 2These cases are important because, in conjunction with Whren v. UnitedStates,33 the Court has put in place a clear framework by which trial courts mayanalyze Fourth Amendment challenges arising out of automobile-searches, as follows:(a) Police may stop a motorist for even a pretextual violation of the motorvehicle code.21. See Sutton, 119 S.Ct at2143.22. See id.23. See Kolstad, 119 S.Ct. at 2121.24. See id.25. 526 U.S. 295 (1999).26. 526 U.S. 559 (1999).27. 525 U.S. 113 (1998).28. See Wyoming v. Houghton, 526 U.S. 295, 307.29. See Florida v. White, 526 U.S. 559,561.30. See id.31. See Knowles v. Iowa, 525 U.S. 113, 118-19.32. Id. at 119.33. 517 U.S. 806 (1996).2000]5Holmes: Practitioner's Guide to the 1998-1999 Supreme Court Term: IntroduPublished by TU Law Digital Commons, 1999TULSA LAW JOURNAL(b) If only a citation is issued, no additional search may be made.(c) If there is an additional violation (for example, an expired driver's license)or there is consent, the entire automobile may be searched incident thereto.(d) Attendant to that search, other passengers do not have any reasonableexpectation of privacy in their own compartment or belongings.34Whatever their merits, these principles are easily applied by trial courts - andthis, after all, should be a fundamental goal of any Supreme Court decision.A third trend involves race. Race continues to be a vexing issue for the Courtand for the country. There was, however, a significant development this Term. Afterfive years of categorical statements that race cannot be considered in any way inpolitical redistricting, the Court for the first time recognized that race in fact may bea proxy for political preference, holding in Hunt v. Cromartie5 that when there arecorrelations that may be explained by politics, not race, the mere existence of racialcorrelations do not end the inquiry.36Finally, every year there have been one or more decisions that appear odd andcan be applied by trial courts, if at all, only with some difficulty. This year, I wouldadd to our five-year list Kumho Tire Co. v. Carmichael.37In Kumho Tire, the Court held that the trial court, in its capacity as gatekeeperof the evidence, must apply the standard for scientific testimony established inDaubert v. Merrell Dow Pharmaceuticals, Inc.38 to all expert witnesses.39 In myjudgment, this would effectively transfer from the jury to the judge a significantresponsibility to determine, in advance of trial, the reliability of proffered experttestimony. This function historically has been performed by the jury, relying in largepart on vigorous cross-examination. I anticipate that trial judges will be veryreluctant to extend their authority into this area and instead will maintain the practicethat such reliability determinations should be made by the finder of fact.These are only a few of the trends of the last five years that were reflected in thecases decided during the 1998 Term of the Supreme Court. Again, I am proud to bea part of this University of Tulsa tradition and congratulate the College of Law onthis important event.34. See Whren, 517 U.S. 806, 816-19.35. 119 S.Ct. 1545 (1999).36. See id. at 1552.37. 536 U.S. 137 (1999)38. 509 U.S. 579 (1993).39. See Kumho Tire Co., 536 U.S. at 147-49.[Vol. 35:4676Tulsa Law Review, Vol. 35 [1999], Iss. 3, Art. 1https://digitalcommons.law.utulsa.edu/tlr/vol35/iss3/1

Practitioner\u27s Guide to the 1998-1999 Supreme Court Term: Introduction

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Practitioner\u27s Guide to the 1998-1999 Supreme Court Term: Introduction

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