Department of Revenue of Kentucky v. Davis (06-666), United States v. Williams (06-694), United States v. Ressam (07-455) and order list

May 23, 2008 Supreme Court Update

Greetings, Court fans!
With just over a month left in the Term, the Court has finally released its 40th opinion (just past the half-way point of its docket, and behind even its sluggish pace of the last few Terms). We have five decisions to report since our last Update; we'll bring you three now and two shortly to break things up.
In Department of Revenue of Kentucky v. Davis (06-666), the Court treated us to its (seemingly) annual walk-through of the "dormant" or "negative" Commerce Clause – a Court-created doctrine holding that the Constitution created a mandatory "free trade" zone among the states, barring them from discriminating against or unduly burdening interstate commerce. Recently, the Court has been carving out exceptions to that rule. Last Term, in United Haulers Ass'n v. Oneida-Herker Solid Waste Management Authority, the Court upheld a local ordinance requiring trash haulers to use a municipal processing plant rather than cheaper out-of-state facilities on the ground that the dormant Commerce Clause did not apply to state regulations that serve typical government functions – the theory being that legitimate policy interests, like public health, might be at stake rather than mere economic protectionism. In Davis, a 7-2 majority led by Justice Souter extended that rationale to uphold Kentucky's tax exemption for interest on Kentucky-issued municipal bonds, which makes in-state bonds more attractive to Kentucky investors. For the Court, issuing securities to pay for public projects was a quintessentially public function, so Kentucky did not have to treat itself or its municipalities like all other bond issuers. (Souter went on to write that the Kentucky tax scheme was not really a regulation, as Kentucky was also a "market participant" as a bond issuer. This part of his opinion garnered only the votes of Justices Stevens and Breyer; the Chief and Justice Scalia noted in separate concurrences that this analysis was not necessary to resolve the case.) The Court also declined to perform the "undue burden" part of the dormant Commerce Clause analysis, holding that courts were ill-equipped to conduct cost-benefit analysis where the economic effects of taxes were concerned. (Scalia would never try to perform this balancing test; he would restrict the dormant Commerce Clause analysis, which he views as an "unjustified judicial invention," solely to the discrimination question, and even then he would apply it only where compelled by stare decisis.)
In a third concurrence, Stevens wrote that state action designed to motivate Kentucky taxpayers to lend money to the state was not the kind of burden that the dormant Commerce Clause aims to relieve. Justice Thomas concurred only in the judgment; he would junk the dormant Commerce Clause altogether, regardless of stare decisis.
Justices Kennedy and Alito dissented. Kennedy's dissent offered a ringing endorsement of the free market among the states, which differential taxation favoring local trade threatened to disrupt (witness the fact that forty-one states have discriminatory tax schemes like Kentucky's). He also viewed the Court's reasoning as dangerous, as virtually any protectionist measure can be recast as serving some valuable public purpose. Alito (a United Haulers dissenter) wrote simply that the Court should follow its dormant Commerce Clause precedents.
In United States v. Williams (06-694), the Court rejected a facial challenge to a law criminalizing the distribution of child pornography, even if it might be only "virtual child pornography" made using young adults or computer manipulation. By way of background, sexually explicit material that has "some social value" is protected under the First Amendment, but pornography made using real children is an exception that can be categorically banned. In 1996, Congress passed the Child Protection Act, which banned the possession or distribution of any image that "is, or appears to be," of a minor. In Ashcroft v. Free Speech Coalition (2002), however, the Court struck down that provision as overbroad, criminalizing the possession of virtual child pornography, which the Court found to be protected speech. Ever determined, Congress responded by passing the long-windedly titled Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the " PROTECT Act"), which bans the knowing distribution of material in a manner "that reflects the belief, or that is intended to cause another to believe," that the material is child pornography – that is, it criminalizes the distribution of material presented as real child pornography even if, in reality, it is only a simulation.
Led by Justice Scalia, the Court upheld the Act, holding that it did not criminalize a substantial amount of protected speech. Key to the Court's holding were (1) the Act's intent requirement and (2) its requirement that the defendant offer or solicit the material in a manner reflecting a belief or causing another to believe that it was real child pornography. Thus, even if the material turned out to be virtual child pornography, the defendant either was trying to commit a crime because he believed it to be real (akin to a crime of attempt, which is not defeated because facts render it impossible for the crime to be completed) or was attempting to commit fraud by passing off a simulation as actual child porn. Either way, the speech is not protected. The Act also was not impermissibly vague because its requirements were clear: Whether the requirements were met in a particular case may be a difficult question, but that does not mean that the requirements themselves were vague. Justice Stevens, joined by Justice Breyer, concurred to state that the Act's context makes clear that the material must be offered or solicited with a lascivious purpose – that is, with the intention of inciting sexual arousal.
Justices Souter and Ginsburg dissented. For them, the Act was an end-run around Free Speech Coalition that would necessarily criminalize transactions in protected images. (One wonders if, instead, the result will be that sophisticated child pornographers will advertising their work as "virtual child porn" – wink wink – to avoid the Act.)
Next, in United States v. Ressam (07-455), the Court held that a conviction under 18 U.S.C. § 844(h)(2) for "carr[ying] an explosive during the commission of any felony" does not require that explosives be carried to facilitate the felony, but merely that there be a temporal link between the explosives and the crime. Thus, Ressam, who had explosives in his car when he lied to customs officials in an attempt to enter the United States, was properly convicted under the statute even though the explosives did not facilitate his false statements. Justice Stevens, who penned the majority opinion, wrote that this was the most natural reading of the statute (so obvious that there was no need to consult a dictionary), and that it was also supported by legislative history. (Not surprisingly, Scalia and Thomas did not join this part of the majority opinion; they would look only to the "plain meaning" of the statute.) The law was modeled after the Gun Control Act of 1968, which criminalized the carrying of a gun during a felony, and both originally required that carrying the gun/explosives itself be unlawful. Congress later amended the Gun Control Act to remove the "unlawfulness" requirement and add a requirement that the gun be carried "in relation to" the felony. When Congress removed the "unlawfulness" requirement from section 844(h)(2), however, it did not add a relationship requirement, and for the majority that meant, for explosives, that a temporal link was all that was needed.
Justice Breyer registered the lone dissent. He "[could not] imagine" that Congress intended to impose a ten-year mandatory sentence on individuals who lawfully carried explosives (such as a farmer carrying fertilizer or a trucker carrying gas) while committing a completely unrelated felony (such as wire fraud). Congress had repeatedly stated that it intended to criminalize the "misuse" of explosives – not just the poor luck of carrying them legitimately while engaging in unrelated felony misconduct. The fact that the Gun Control Act and section 844(h)(2) were amended using different language likely reflected an oversight by Congress, or its reliance on prior judicial constructions of the gun law that already had implied a relationship requirement.
There was one cert grant last week. In Bell v. Kelly (07-1223), the Court will consider the following question in a habeas case involving claims of ineffective assistance of counsel at sentencing: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims "adjudicated on the merits" in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing?
That's it for part one – we'll cover the remaining decisions in a separate e-mail. Until then, thanks for reading!
Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400