It’s always perilous to try and generalize about a Supreme Court Term.  Roughly 80 cases on diverse topics decided by nine different people don’t collectively produce clear themes.  When they do appear to, it’s often a mirage that reflects the coincidence of cases that happen to fall together by chance within a single term.

But that never stopped me before.

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn’t the Court’s principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I’m right about the direction of the case law, the Court’s methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.  This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled.  The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent.  The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

There is nothing illegitimate about that approach.  It’s easy to demonize decisions with which you disagree as either exercises in raw judicial power (the truth of the matter is that the principal difference between McConnell and Wisconsin Right to Life is that Justice O’Connor was replaced by Justice Alito) or outright sneakiness.  Neither is accurate or fair.  Just because one set of Justices gets to a constitutional question first does not give it a greater claim to “constitutional truth.”  I disagree (sometimes substantially) with the direction of the law, but this incrementalism is rooted in a consistent vision of the law and a deep concern for the Court as an institution. 

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court.  Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court.  The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace.  If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

For the moment, there is no reason to rush.  Time permits a jurisprudence of not just originalism, or textualism, but actuarialism.  The sand running through this hourglass will not expire for eight years. 

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

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Analysis

Amid competing essays on the courts’ role in declaring constitutional meaning, a Supreme Court majority has handed off — as essentially a question for the political branches of government — the issue of when a convicted individual can get access to genetic evidence to try to prove innocence of the crime.

Testing of such evidence, to detect whose DNA may be present, has become a highly sophisticated chemical process that, the Court acknowledged Thursday, can — all by itself — make a difference between guilt and innocence.

Access to evidence for DNA testing, however, is not guaranteed by anything in the Constitution, the Court majority concluded – at least when the individual has had a fair trial, and is seeking the evidence after the fact, to try to undo a conviction.

“We are reluctant,” Chief Justice John G. Roberts, Jr., wrote for a 5-4 majority, “to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.”

The majority opinion in District Attorney’s Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing.  What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access.

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CORRECTION 3:50 p.m.: The paragraph describing the Court’s ruling in Yeager v. U.S. was in error as published. F. Scott Yeager has not been convicted of any crime. See the UPDATE below, at the end of that paragraph.

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Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence.  This was one of four final rulings the Court issued Thursday, leaving ten remaining.  The next release of opinions is expected on Monday.

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote.  Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence.  “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

While the decision appeared to be focused on whether such a right of access exists after a criminal conviction has become final, when states presumably have more authority to shape their responses to new challenges to earlier convictions, the language used by the Court majority made it appear that the sweep of the decision may turn out to be considerably broader.

Two of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court. (The Chief Justice’s opinion assumed, without deciding, that the case had been properly pursued as a civil rights claim.)

In an opinion written by Justice Samuel A. Alito, Jr., he and Justice Anthony M. Kennedy also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.  Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.

In another major ruling on criminal law, available here, the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted.  The ruling came in a case growing out of the Enron Corp. scandal — Yeager v. U.S. (08-67).  Justice John Paul Stevens wrote for the majority.  UPDATE: The charges against F. Scott Yeager on which the jury could not reach a verdict were insider trading and money laundering. He was convicted on none of the charges against him.  He sought to bar retrial on the “hung” charges, but that challenge failed in lower courts. While the Supreme Court ruled that he could not be retried on those charges if a jury verdict on other charges had resolved an essential element of those crimes, the Court did not decide that issue itself, treating it as a factual question.  It said that the government could raise in the lower courts its claim that the jury did not actually resolve that factual issue.  The Fifth Circuit Court may revisit the issue, the Court said. END OF UPDATE.

In a third ruling, available here, the Court made it more difficult for workers to prove in court their claims that they were the targets of workplace discrimination because of their age.  It is up to the worker to prove that age was the decisive factor in the action taken by the employer, even if there is some evidence that the worker’s age was one factor behind the move.  Juries in Age Discrimination in Employment Act cases, the Court declared, may never be told that, if there is some evidence of age bias, the burden then shifts to the employer to prove that the action would have been taken anyway.  Justice Clarence Thomas wrote for the majority in the 5-4 ruling in Gross v. FBL Financial Services (08-441).

In what the Court said was a “narrow ruling” in a case that had the potential for a sweeping decision on bankruptcy courts’ powers, the Justices ruled that the bankruptcy court that had approved a settlement of one facet of the reorganization plan for asbestos maker Johns Mansville Corp. had the authority to block some lawsuits filed years later dealing with that part of the plan.  Justice David H. Souter wrote for the Court in the 7-2 decision in Travelers Indemnity, et al., v. Bailey, et al. (08-295).  That opinion is available here.

Erica Goldberg discusses Monday’s argument in Osborne.

Because so much is at stake in the case of District Attorney’s Office v. Osborne, including whether criminal defendants have a post-conviction right to access DNA evidence and whether they can sue under 42 U.S.C. § 1983 to vindicate that right, the March 2 oral argument was a battle over how to frame the relevant issues.  Argument revealed a political schism among the Court, but even the conservative Justices were troubled by the prospect of restricting prisoners’ access to DNA evidence.  Conversely, even the liberal Justices searched for a way to avoid constitutionalizing this issue, and hoped that Alaska would simply offer Osborne the remedy he deserves.  Osborne’s fate may rest in Justice Kennedy, whose decision in turn may depend on the liberals’ ability to narrowly define a constitutional right.

Kenneth Rosenstein, the Assistant Attorney General of Alaska, began by arguing that § 1983 is an improper procedural device for asserting a post-conviction constitutional right to access DNA evidence.  Rosenstein contended that, because Osborne is seeking to invalidate his conviction, he must file a habeas petition to obtain that evidence.

Justice Souter led the questioning with an assault on this logic.  He posited that § 1983 is appropriate because Osborne does not know if the new DNA tests will invalidate his conviction; he simply wants access to the DNA to determine that issue.  Then, if the DNA testing is exculpatory, Osborne can file a habeas petition to be released from prison. 

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The transcript for District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6) is available here.

The transcript for Atlantic Sounding Co., Inc., et al. v. Townsend (08-214) is available here.

At 10 a.m., the Court will release the  orders from the Justices’ private conference on Friday. Following the release of orders, the Court will hear argument in District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6), on the right to obtain DNA evidence. Kenneth Rosenstein of the Alaska Office of Special Prosecutions & Appeals will argue for the petitioner and Peter J. Neufeld of Cardozo School of Law will argue for the respondent. Neal Kaytal of the Solicitor General’s office will argue as amicus curiae for the United States in support of the petitioners.

At 11 a.m., the Court will hear argument in Atlantic Sounding Co., Inc., et al. v. Townsend (08-214), involving a seaman’s right to punitive damages. David W. McCreadie will argue for the petitioner and G.J. Rod Sullivan will argue for the respondent.

We will post links to the transcripts as soon as they are available.

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

• District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6) -  right to obtain DNA evidence
• Atlantic Sounding Co., Inc., et al. v. Townsend (08-214) -  seaman’s right to punitive damages

On Tuesday, the Court may issue one or more opinions in pending cases. Following the announcement of any rulings, the Court will hear argument in:

• Caperton v. A.T. Massey Coal Company, Inc., et al. (08-22) – duty of elected judge to disqualify from case in which a major campaign donor has an interest
• Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146) – right to appeal a District Court’s refusal to stay a pending case during arbitration

On Wednesday, the Court may issue one or more opinions in pending cases. Following the announcement of any rulings, the Court will hear argument in:

• Abuelhawa v. United States (08-192) – use of telephone as factor in “facilitation” of felony of distributing illegal drugs, when the purchase is for personal use
• Dean v. United States (08-5274) – proof needed for ten-year mandatory minimum sentence for discharging a gun during a violent crime

The Justices will hold a private conference on Friday, orders from which could be released that afternoon. To view our list of petition’s to watch at Friday’s conference, click here.

No merits briefs are due this week.

New SCOTUSblog contributor Erica Goldberg previews one of the cases to be heard by the Justices on Monday, March 2nd. Erica is a graduate of Stanford Law School.

On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.

Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.

The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.

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No oral arguments are scheduled at the Court this week.  Oral arguments will resume February 23.

On Monday, the Court will release the  orders from the Justices’ private conference last Friday.

Merits briefs for the petitioners are due Monday in Travelers Indemnity v. Bailey (08-295) and Common Law Settlement Counsel v. Bailey (08-307), Polar Tankers v. Valdez (08-310), and Gross v. FBL Financial Services, Inc. (08-441). The respondent’s merits brief is due Monday in District Attorney’s Office v. Osborne (08-6).  On Wednesday, the respondents’ briefs are due in Caperton v. A.T. Massey Coal Company (08-22), Abuelhawa v. United States (08-192), and Dean v. United States (08-5274).

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week. The Justices will next convene for their private conference on January 9. Oral arguments will resume January 12.

Merits briefs for the petitioner are due Monday in Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146) and Wednesday in District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6). Merits briefs for the respondent are due Monday in Boyle v. United States (07-1309). (Links above direct to case pages on SCOTUSwiki.)

The Supreme Court on Monday released the oral argument calendar for the session beginning Monday, Feb. 23, and continuing through Wednesday, March 4.  The calendar can be found here.  All of the hearings will be in the mornings. Here are the scheduled cases, with brief summaries of the issues involved:

Mon., Feb. 23:

U.S. v. Navajo Nation (07-1420) — federal government duty to protect Indian tribe’s mineral rights

Rivera v. Illinois (07-9995) — effect on conviction of erroneous denial of peremptory challenge to a juror

Tues., Feb. 24:

Burlington Northern v. U.S. (07-1601) and Shell Oil v. U.S. (07-1607) — liability for cleanup of toxic waste dump (cases consolidated for one-hour hearing)

Carlsbad Technology v. HIF Bio, Inc. (07-1437) — Circuit Court authority to review District Court order returning case to state courts

Wed., Feb. 25:

Hawaii v. Office of Hawaiian Affairs (07-1372) — authority of a state to sell state lands

Flores-Figueroa v. U.S. (08-108) — proof needed under federal identity theft law

Mon., March 2:

District Attorney’s Office v. Osborne (08-6) — right to obtain DNA evidence

Atlantic Sounding v. Townsend (08-214) — seaman’s right to punitive damages

Tues., March 3:

Caperton v. A.T. Massey Coal (08-22) — duty of elected judge to disqualify from case in which a major campaign donor has an interest

Arthur Andersen LLP v. Carlisle (08-146) — right to appeal a District Court’s refusal to stay a pending case during arbitration

Wed., March 4:

Abuelhawa v. U.S. (08-192) — use of telephone as factor in “facilitation” of felony of distributing illegal drugs, when the purchase is for personal use

Dean v. U.S. (08-5274) — proof needed for ten-year mandatory minimum sentence for discharging a gun during a violent crime

Today’s orders list is now available here. The Court granted certiorari in two cases — District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6) and Atlantic Sounding Co., Inc., et al. v Townsend (08-214) — filings for which are available after the jump.

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The Supreme Court agreed on Monday to decide whether a state prison inmate may seek access to DNA evidence for use in pursuing a claim of innocence, by filing a civil rights claim after his trial is over.  In a second grant, the Court said it would decide whether a seaman may sue for punitive damages if the shipowner or operator refuses to pay benefits after the worker is injured.  Among cases denied was a constitutional test of a state program that provides added public funds to a state candidate running with a public subsidy to offset spending by a candidate not using public funds.

In the new DNA evidence case, District Attorney’s Office v. Osborne (08-6), an implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

The Ninth Circuit Court relied upon Brady in ruling that an Alaska inmate may sue under the 19th Century civil rights law, so-called Section 1983, to discover evidence in the government’s possession in advance of filing a free-standing claim of innocence that would rely, at least in part, upon that evidence.  The case involves William G. Osborne of Anchorage, who was convicted of kidnapping, first-degree sexual assault and first-degree assault, and sentenced to 25 years in prison with five years suspended.  At Osborne’s trial, his defense lawyer made a strategic decision not to seek additional DNA testing of biological evidence found near the scene of the assault.  After his conviction, he began pursuing a post-conviction plea for access to that evidence.  If the results turned out to be favorable, he planned to file a claim of innocence in federal court.

The appeal by prosecutors contends that the Brady decision created a right of access to evidence only at the trial stage, not in a post-conviction proceeding, and contended that there is no right to pursue a free-standing claim of innocence following a trial that was free of errors.

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This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on October 31. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, including the list for the upcoming conference of October 17, visit our archives here on SCOTUSwiki.

Conference of October 31, 2008

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Docket: 07-1468
Title: Manning v. Astrue
Issue: Whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney.

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-1547
Title: Aguilera, et al. v. Baca
Issue: Whether public employers violate the Fifth Amendment right against self-incrimination by punishing employees for refusing to provide potentially incriminating testimony in internal investigations, where it did not inform them the testimony could not be used against them in criminal proceedings but that their refusal to testify could result in administrative discipline.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Byron L. Warnken (in support of petitioner)
• Brief amici curiae of National Association of Police Organizations, Inc., et al. (in support of petitioner)

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Docket: 08-6
Title: District Attorney’s Office for the Third Judicial District, et al. v. Osborne
Issue: Whether a defendant may access a state’s biological evidence following a conviction under 42 U.S.C. 1983 or the Due Process Clause of the Fourteenth Amendment.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 08-33
Title: Smith v. United States
Issue: Whether the Fourth Amendment requires that the decision to impound a vehicle for community caretaking purposes without a warrant be made in accordance with standardized police procedures. (Disclose: Akin Gump and Howe & Russell represent the petitioner)

• Opinion below (3rd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 08-38
Title: Molski, et al. v. Evergreen Dynasty Corporation, dba Mandarin Touch Restaurant
Issue: Whether a litigant or attorney may be dubbed a “vexatious litigant” under the Americans with Disabilities Act, barring them from filing future suits without a district court’s approval, in the absence of an evidentiary hearing or finding that prior suits were non-meritorious.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 08-120
Title: Duke, Jr., et al. v. Leake, et al.
Issue: Whether provisions of North Carolina election law that permit publicly funded judicial candidates to receive extra money if targeted by independent advocacy groups, and that impose additional reporting requirements on privately funded candidates, violate the First Amendment.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amici curiae of Dean Martin, et al. (in support of petitioner)

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Docket: 08-214
Title: Atlantic Sounding Co., Inc., et al. v Townsend
Issue: Whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Brief amici curiae of American Waterways Operators, et al. (in support of petitioners)
• Brief amicus curiae of Cruise Lines International Association (in support of petitioners)
• Brief amicus curiae of United Maritime Group, LLC (in support of petitioners)

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Docket: 08-269
Title: CSX Transportation, Inc. v. Rivenburgh
Issue: Whether there is a relaxed standard of causation or negligence under the Federal Employers’ Liability Act, which allows railroad employees to recover for workplace injury or death.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of the Association of American Railroads (in support of petitioner)

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UPDATE Tuesday night

Virginia Gov. Tim Kaine turned down a request for clemency, allowing the execution of Kevin Green to proceed.  A statement by the governor can be found here.

The Supreme Court early Tuesday evening refused to delay the execution in Virginia of Kevin Green.  Simultaneously, the Court denied review of a new appeal by Green, raising issues about the time allowed for filing a habeas challenge.  The Court’s order, along with a dissent by Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, can be found here.

Since the Court’s ruling in Baze v. Rees (07-5439) on April 16, clearing the way for the resumption of executions, the Justices have stayed only one scheduled execution — in the case of Edward Nathaniel Bell, another death-row inmate in Virginia.  The Court granted review of Bell’s appeal (Bell v. Kelly, 07-1223) on May 12; the key issue in that case is whether federal courts, in hearing challenges by state prisoners, must defer to state court findings even if the state court did not consider the evidence at issue.

In Virginia, Kevin Green was convicted of murder and sentenced to death for the 1998 shooting death of Patricia L. Vaughn at the grocery store she and her husband owned in Brunswick County, VA.  Green had previously been a customer at the store, mainly to cash his payroll checks from a nearby lumber company.

In his new appeal (Green v. Johnson, 07-10988), Green contended that his defense lawyers had improperly failed to appeal the robbery portions of his guilty verdict, even while appealing the murder conviction. They won a new trial on the murder count, but not on the robbery count, and this, Green contended, allowed the jury to learn about the robbery conviction — information that he argued increased the chances of his being convicted anew of murder and sentenced to death.  He was denied a chance to raise this issue in his first federal habeas petition; that petition was denied by the Fourth Circuit Court, leading to Green’s new appeal.

Justice Stevens’ dissent complained that the state of Virginia planned to execute Green before the Court had a full opportunity to review his legal claims.  As he has before, Stevens argued that the Court should follow the regular practice of staying all executions that are scheduled before the Court had time to review the denial of a first habeas petition.

Green’s stay application was 07A913.   In denying that application and the petition for certiorari, the Court provided no explanation.  Green’s stay request was filed with Chief Justice John G. Roberts, Jr., Circuit Justice for the Circuit that includes Virginia.  Roberts referred the matter to the full Court.

Green’s execution was scheduled for 9 p.m. Tuesday.

 The next scheduled execution is in Texas, where Derrick Sonnier is to die next Tuesday, followed by Curtis Osborne in Georgia on Wednesday. At present, eight executions, including Sonnier’s and Osborne’s, are due in June — three in Texas, two in Virginia, and one each in Georgia, South Carolina and Oklahoma.