Background

In 2006, respondent Carlisle, McNellie, Rini, Kramer, & Ulrich filed a complaint seeking to foreclose on the home owned by petitioner Karen L. Jerman.  They sent Ms. Jerman a copy of the complaint and a validation notice which indicated that the debt would be assumed valid unless Jerman disputed the claim in writing within thirty days.  Jerman retained a lawyer to dispute the claim; after investigating, the respondents realized the debt had been paid and dismissed the complaint.

Jerman then filed a complaint against the respondents for unlawful collection practices.  Specifically, she alleged that the requirement that she dispute the debt had to be filed "in writing," which violated the Fair Debt Collection Practices Act (FDCPA).  Jerman sought class certification for all consumers served with a similar notice, actual damages, penalties consisting of the lesser of either $500,000 or one percent of respondents' net worth, and attorney's fees.

The respondents filed a motion to dismiss, which the district court denied.  The district court found that, by directing borrowers to contest the notice "in writing," the respondents had violated the FDCPA.  However, the district court subsequently granted the respondents' motion for summary judgment, agreeing with respondents that they were shielded from liability by 15 U.S.C § 1692k(c), which exempts debt collectors from liability when they can show that "the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error."

On appeal, the Sixth Circuit affirmed.  It followed the Tenth Circuit's decision in Johnson v. Riddle, which rejected the holdings of three other circuits "“ the Second, Eighth, and Ninth "“ that  the FDCPA's bona fide error defense does not apply to legal errors.  Those cases, the Tenth Circuit concluded, relied on the Truth in Lending Act (TILA), which has generally been applied only to clerical errors; by contrast, the Tenth Circuit concluded, the FDCPA was not limited to clerical errors. In its decision, the Sixth Circuit emphasized that Congress has amended the FDCPA on multiple occasions without clarifying that the bona fide error defense does not apply to legal errors.  Thus, including legal errors within the protective framework of the FDCPA is in line with Congress's objective of eliminating abusive practices without putting debt collectors who make bona fide errors at a competitive disadvantage.

Ms. Jerman filed a petition for certiorari, which the Supreme Court granted on June 29, 2009.

In her brief on the merits, Ms. Jerman emphasizes that Congress has rarely, if ever "made mistake of a law a complete defense" against culpability, and that even unintentional legal errors are outside the protection afforded to bona fide errors.  She further notes that when Congress has wanted to impose liability only when a defendant knows both what he is doing and that his actions violate the law, it has used the term "willful violation."  By contrast, Congress's use of the term "intentional" in the FDCPA indicates that it intended it to apply to debt collectors who violated the statute even if they did not understand the legal consequences for doing so.  Congress's intent to exclude legal mistakes from the bona fide error shield can also be seen from its requirement that a defendant seeking to invoke the defense demonstrate that the error occurred despite reasonable procedures to avoid such errors; Ms. Jerman posits that it is "quite difficult" to develop procedures to avoid mistakes of law.

Ms. Jerman next contends that extending the bona fide error defense to legal mistakes will undermine Congress's intent to discourage abusive collection practices by allowing collection agencies to "take an aggressive view of the law" because they believed there would be no legal recourse for illegal actions.  Finally, she notes that although Congress amended TILA to exclude errors of law from the bona fide legal error category, it did so simply to clarify, and it did not intend to change the TILA's operative language.  Because Congress used the same language in the FDCPA, Ms. Jerman suggests, it too should be interpreted to exclude legal errors from the bona fide defense.

In their brief on the merits, the respondents counter that a "plain text analysis" of the FDCPA leads to the conclusion that Section 1692k(c) covers all unintentional, bona fide legal errors, as long as there were procedures in place to avoid errors.  Congress did not intend to omit legal errors from the category of bona fide errors; if it had intended to do so, it would have expressly provided such an exclusion. Moreover, Congress in the FDCPA intended to "equitably balance" the concerns of debt collection agencies and borrowers, and allowing legal practitioners to avail themselves of the bona fide error protection fulfills this purpose.  The respondents cite Heintz v. Jenkins, a 1995 case which concluded that the FDCPA applied to attorneys engaged in debt collection litigation, as further proof that the scope of FDCPA extends to include attorneys and legal errors.

Responding to Ms. Jerman's arguments regarding the similarities between the FDCPA and the TILA, the respondents counter that such an argument would lead to indistinguishable treatment for ethical and unethical debt collectors.  However, they continue, this is contrary to the FDCPA's intent, which is to curtail abusive practices, and their error amounts to a legal error.  Thus, by punishing a bona fide legal error, the Court would be punishing a non-abusive practice.

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In Abbott, the Court will construe the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party.  Under the Convention, a parent whose child has been abducted has the right to have his child returned to the child's country of habitual residence if the child has been removed in violation of his rights of custody.  The Convention further defines "rights of custody" to include "the right to determine the child's place of residence."  At issue in this case is whether a ne exeat clause "“ which prohibits one parent from removing a child from the country without the other parent's consent "“ confers a "right of custody" for purposes of the Hague Convention.  The Fifth Circuit joined the Second, Fourth, and Ninth Circuits in holding that the ne exeat clause does not constitute a right of custody; by contrast, the Eleventh Circuit and the majority of foreign courts which have considered the issue have held that it does.  Judge Sonia Sotomayor dissented from the Second Circuit's decision on the issue in Croll v. Croll; she would also have held that the ne exeat clause does confer a right of custody.

We filed the petition for certiorari in November 2008; in January 2009, the Court invited the Solicitor General to file a brief expressing the views of the United States.  In late May, the Solicitor General filed a brief urging the Court to grant certiorari and reverse.  Our co-counsel in the case is Adair Dyer of Austin, Texas.  We received help along the way from five students from the Stanford Law School Supreme Court Litigation Clinic "“ David Schwartz, JP Schnapper-Casteras, Dan Matro, Rakesh Kilaru, and Martine Cicconi "“ as well as three students from our Supreme Court Litigation Class at Harvard Law School "“ Andrew Corkhill, Eric Nguyen, and Jane Wang.

In Jerman, the Court will consider whether a debt collector's legal error qualifies for the bona fide error defense under the Fair Debt Collection Practices Act, which immunizes debt collectors from liability if they can prove that "the violation was not intentaional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error."  Three circuits "“ the Second, Eighth, and Ninth Circuits "“ have held that the Fair Debt Collection Practices Act does not apply to violations that result from legal mistakes; in so holding, they relied on the similarity between the FDCPA's bona fide error provision and a "nearly identical" provision of the Truth in Lending Act, which courts have consistently declined to construe as extending to legal errors.  In this case, the Sixth Circuit joined the Tenth Circuit in reaching the contrary result.  Our co-counsel in the case are Ed Icove of Cleveland and Steve Felson of Cincinnati.  Harvard's Andrew Corkhill, Jane Wang, and Eric Nguyen worked on this case as well. 

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• Brief for Petitioner Karen L. Jerman
• Brief for Respondents Carlisle, McNellie, Rini, Kramer & Ulrich LPA
• Reply Brief for Petitioner Karen L. Jerman

Amicus Briefs

• Brief for the United States of America in Support of Petitioner
• Brief for Public Citizen, et al. in Support of Petitioner
• Brief for New York, et al. in Support of Petitioner
• Brief for ACA International in Support of Respondents
• Brief for American Legal and Financial Network (AFN) in Support of Respondents
• Brief for the California Association of Collectors in Support of Respondents
• Brief for the Commercial Law League of America and DBA International in Support of Respondents
• Brief for the Mississippi Creditors’ Attorneys Association in Support of Respondents
• Brief for the National Association of Retail Collection Attorneys in Support of Respondents
• Brief for the Ohio Creditor’s Attorneys Association and California Creditor’s Bar Association in Support of Respondents
• Brief for USFN – America’s Mortgage Banking Attorneys in Support of Respondents
• Brief for DRI – The Voice of the Defense Bar in Support of Respondents

[##CERT-STAGE##]

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Oral argument last Wednesday in No. 08-1200, Jerman v. Carlisle, focused narrowly on legal definitions, legislative history, and Congressional intentions.  (You can read more on the background of the case here.)

Kevin Russell represented petitioner Karen Jerman.  He began by emphasizing that "Congress rarely makes ignorance of the law a defense to civil liability"; when it has done so, it does so "quite plainly."  No such evidence of Congress's intent was present in this case, Russell continued.  Justice Scalia quickly broke in to ask whether a violation of law was the act that constitutes violating the law, or the fact of violating the law.  Russell responded that under the Court's prior interpretations, the term "violation" "is best understood to refer to the act."

Justice Breyer, Chief Justice Roberts, and Justice Sotomayor each proposed hypotheticals examples to test Jerman's arguments.  Justice Breyer wondered whether a lawyer and his client would be liable for making an error while litigating, even if the lawyer had sufficiently researched the law.  Chief Justice Roberts wondered whether a ruling in Jerman's favor might discourage debt collectors from seeking legal advice, so as to limit their liability.  And Justice Sotomayor questioned whether a district court could rule that an attorney had violated the law but nonetheless not award damages.  In answering, Russell consistently returned to his opening argument: if Congress had intended to provide a special remedy for lawyers litigating in debt-collection cases, it would have done so explicitly.  Congress, Russell maintained, gave district courts discretionary power over statutory damages, but it has never specifically amended the FDCPA to include legal errors within the scope of the bona fide error defense.

Assistant to the Solicitor General William Jay, arguing on behalf of the United States in support of Jerman, next took the podium.  He suggested that the Court should interpret the FDCPA in conjunction with the Truth in Lending Act (TILA), which does not extend to legal errors.  "Errors of law," he explained, "are not what Congress or the agency had in mind."   Jay next responded to skepticism about the utility of relying on the Federal Trade Commission (FTC) for an opinion, a "safe harbor" for debt collection agencies under the FDCPA.  Justice Ginsburg wondered whether the short statute of limitations "“ one year "“ might discourage debt collectors from seeking an opinion.  The Chief Justice suggested that it would be unrealistic to rely on FTC requests.  In ten years, seven FTC requests have been made, and four have been answered.  Jay defended the FTC "safe harbor," emphasizing that Congress intended the FDCPA to protect "unsophisticated debtors" while allowing more sophisticated debt collectors to resolve their questions by seeking an FTC opinion.

Representing the respondent, George Coakley faced questions from Justice Sotomayor regarding whether Congress intended to provide an "automatic defense" when a debt collector sought legal advice before violating the FDCPA.   Justice Breyer, Justice Ginsburg, and the Chief Justice all soon joined in this line of questioning.  A lay debt collector, Coakley countered, could still be held liable even for actions taken at the advice of his attorney if a court subsequently ruled against him "“ which in Coakley's view exemplified the unfair nature of the statute.

Turning to the parallels between the TILA and the FDCPA, Justice Scalia asked whether the FDCPA should, like TILA, exclude legal errors from the bona fide error defense.  Justice Scalia read the decisions of the courts of appeals interpreting the TILA from 1977 to 1980 as uniformly holding that legal errors were not protected by the bona fide error defense, such that Congress's 1980 amendment did not change the law, but instead affirmed an accepted judicial interpretation.   Justice Ginsburg then asked whether the Court should interpret the FDCPA in parallel with the TILA, because the operative clauses were the same.  Coakley responded that because Congress had not amended the FDCPA, though it could have, the statutes should be read separately.

Justice Stevens then began a series of questions regarding the relative importance of providing a defense for legal errors in TILA and FDCPA cases.  Coakley responded that the statues were "significantly different," rendering it virtually impossible to weigh the importance of a legal error defense.   Coakley then quoted Justice Breyer to the effect that "reading the bona fide error provision to exclude legal error is worse than unfair."   In response, however, Justice Breyer indicated that "the answer now seems to be floating around the FTC idea" "“ that is, that attorneys could be shielded from liability for legal errors if they have consulted with the FTC and received an opinion letter, on which they then rely.  This avenue, Justice Breyer suggested, would "protect the lawyer against true legal surprise."  In response, and in conclusion,  Coakley cautioned against an opinion that would allow a lawyer or debt collector to be personally liable for advising his client in an area in which the law was "unsettled."

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People who unwittingly violate criminal laws frequently run aground on the aphorism that "ignorance of the law is not an excuse."  Earlier this week the Court offered the same warning not to hapless criminals, but to debt collectors who stray from the terms of the Fair Debt Collection Practices Act ("FDCPA").  In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, the Court held "“ by a vote of seven to two "“ that the FDCPA's bona fide error defense "“established in Section 1692k(c) "“ does not apply to errors of law.  (You can read Matt Sundquist's preview and recap of oral argument in posts here and here.)    The result?  If a nationwide debt collector mistakenly calls a debtor after 9 p.m. (a violation of the Act), it nevertheless has a defense if it made the factual mistake of placing the debtor in a time zone where it isn't yet 9 p.m.  On the other hand, a debt collector who commits the legal error of requiring a debtor to dispute a debt in writing, when the FDCPA is silent on whether a writing can be required, has no defense if sued for requiring the writing, no matter the genesis – reasonable or not – of the legal error.  So concluded the Court in an opinion by Justice Sotomayor and joined by Chief Justice Roberts, Justice Stevens, Justice Thomas, Justice Ginsburg, and Justice Breyer (who also wrote a separate, concurring opinion).  Justice Scalia concurred in part and in the judgment, but – true to form – had his own thoughts on the majority's reliance on the FDCPA's legislative history.  Justices Kennedy and Alito dissented.

The Court began its substantive discussion by quoting the ""common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.'" When Congress means to offer such an excuse, it does so more explicitly than in § 1692k(c).  For example, when the scope of a law is meant to exclude ignorant violators, the law is often directed only at "willful" conduct:  "Willful" violations are traditionally interpreted to require a defendant to know that its actions violate the law.  Consequently, ignorance of the law is an excuse if violating the law requires willfulness.  But willfulness is nowhere mentioned in the portion of the FDCPA that makes debt collectors liable to debtors for failing to comply with the Act, § 1692k(a), nor is it mentioned in the section of the Act providing debt collectors a defense.

The majority then looked to the FDCPA's legislative history, and the provenance of § 1692k(a) in a similar defense provided by the Truth In Lending Act (TILA).  Section 130(c) of the TILA provided the affirmative defense that "[a] creditor may not be held liable in any action brought under [TILA] if the creditor shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error."  In the nine-year period between the passage of that language and the passage of the FDCPA, three courts of appeals considered the scope of the application of the bona fide error defense in TILA; none interpreted it to extend to errors of law.  From this, the majority posits that when Congress used the same language in the FDCPA, it intended that language to similarly be read as not extending to errors of law.

The Court acknowledged a point raised by Carlisle, its amici, and the dissent – that narrowing the scope of the bona fide error defense in cases such as this will allow plaintiffs with minimal actual damages to threaten debt collectors with costly class-action litigation.  However, the majority parried this argument by noting that if an attorney is liable for an FDCPA violation but the violation is trivial, the damages will be de minimis.  Moreover, not only could a court elect to award a prevailing plaintiff only minimal attorney fees in such a case, but it could even award fees to the defendant under § 1692k(a)(3) if the plaintiff's suit "was brought in bad faith and for the purpose of harassment." That the FDCPA, without a defense for mistakes of law, could impose a constraint on an attorney's zealous advocacy is of no moment, the majority found, as many laws constrain attorneys' conduct.  In any event, the Court observed, many states have similar debt collection statutes that provide no defense for bona fide legal errors; consequently, even under Carlisle's reading of the exception, debt collectors may not escape liability for their conduct under state law.

To take the dissent's position, the majority concluded, could grant blanket immunity to anyone who seeks a legal opinion on a provision of the FDCPA before violating that statute.  Further, the dissent's position would invite litigation as to a defendant's subjective intent to violate the statute, because by creating a defense for errors of law, the dissent essentially reads a willfulness requirement into the Act (i.e., the defendant must know that its action violates the law).  If debt collectors are unsure as to the meaning of some part of the Act, they can seek a formal opinion on its meaning from the FTC, pursuant to § 1692k(e).  Acting within the scope of the FTC's formal advice immunizes a debt collector from suit for its action.  Thus, absent some absurdity arising from applying § 1692k(c) only to mistakes of fact, the majority would not interpret the law contrary to its understanding of the statute's legislative history or the traditional notion that a mistake of law does not excuse the law's violation.

Justice Breyer wrote separately to emphasize that his agreement with the Court's judgment hinged on the actual availability of FTC advisory opinions.  Otherwise a party, faced with the uncertain meaning of a provision of the FDCPA, could be sued even if it acts in good faith on an understanding of the law that later proves erroneous.  The availability of official advisory opinions solves that problem; were the FTC to prove dilatory in issuing them, Justice Breyer explained, he would view the case differently.

Justice Scalia joined the Court's opinion "except for its reliance on two legal fictions."  First, Justice Scalia disagreed with the Court's reliance on the history of the TILA to interpret the FDCPA.  He observed that the courts of appeals which had interpreted the TILA bona fide error defense did not discuss whether the defense applied to factual errors, which the FDCPA's defense assuredly does.  Instead, those courts of appeals only discussed clerical errors; if the majority wanted to rely on those opinions, Justice Scalia suggested, it should similarly limit the FDCPA.  Second, Justice Scalia upbraided the majority for making "fulsome use of that other legal fiction, legislative history . . . ."  Here, Justice Scalia contended, the majority compounded the sin of relying on legislative history by taking a biased view of the FDCPA's history and discounting those portions that undermined the Court's conclusion.  Nevertheless, because "[t]he Court's textual analysis stands on its own, without need of (or indeed any assistance from) the two fictions" he discussed, Justice Scalia concurred in the judgment.

Justice Kennedy's dissent, joined by Justice Alito, seems driven largely by what the two must view as an unfavorable outcome:  the ability of a plaintiff like Ms. Jerman to proceed with a costly class action suit against a defendant like Carlisle, without having shown actual damages as a result of Carlisle's legal error.  That danger is heightened by statutes, like the FDCPA, which provide attorney fees to the prevailing plaintiff.  Even if the victorious plaintiff gets de minimis damages, the availability of attorney fees for their trouble may cause attorneys to engage in barely meritorious litigation.

The dissent would thus read § 1692k(c) as it is "most naturally" read:  to include any bona fide error, whether it be one of law or one of fact.  That the statute speaks of an intentional "violation" of the Act implies a legal violation; thus, a bona fide error in the same context includes a legal error, by the dissent's reasoning.  The dissent argues that majority's reliance on the jurisprudence surrounding the word "willful" (and its absence from the FDCPA) is misplaced, as that jurisprudence surrounds criminal, not civil, infractions.

Further, the dissenters were unconvinced by the majority's argument that many laws constraint a lawyer's ability to engage in damn-the-torpedoes-full-steam-ahead litigation.  Instead, they wrote, in a case like this – in which the underlying law is unclear on whether a debt must be disputed in writing – a lawyer advising a debt collector is damned either way:  A debtor can argue that a collector (or a lawyer acting as a collector) violated the FDCPA if it demands a writing or if it fails to demand a writing.  The dissenters were similarly unconvinced by the "availability" (as the dissenters would have it) of the FTC advisory opinion as a method for insulating against the dangers that the dissenters anticipate.  They noted that the FTC has issued only four opinions, in response to seven requests, in the entire history of the FDCPA.

Finally, the dissent, like Justice Scalia, was unconvinced by the majority's logic surrounding the connection between TILA and the FDCPA.  Particularly noteworthy to the dissenters was the fact that Congress amended TILA's bona fide error defense in 1980 to specifically exclude legal error.  If Congress understood the original language – the language incorporated in the FDCPA – to already exclude legal error, why go to the trouble of amending it to make explicit that exclusion?

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The Court was relatively quiet last week; aside from the new editing feature, so was SCOTUSwiki.  Following last Monday's cert. grants in three cases, we've updated the Wiki to reflect the new additions to the Court's docket; Carachuri-Rosendo v. Holder, City of Ontario v. Quon, and Robertson v. U.S. ex rel. Watson now have pages of their own.

Looking back at the Court's ruling handed down in Alvarez v. Smith on December 8, Akin Gump's Josh Friedman wrote an opinion recap for SCOTUSblog, which was posted last Monday.  We've updated the Alvarez Wiki page to include Josh's analysis of the Court's reasoning in remanding the case.

We also updated a number of Wiki case pages to include merits briefs that were filed last week.  Reply briefs were added to the pages for American Needle v. NFL, Conkright v. Frommert, Abbott v. Abbott, and Jerman v. Carlisle.  (DISCLOSURE: Howe & Russell attorneys are lead counsel in Abbott and Jerman).  We added petitioners' briefs to the Wiki entries for Skilling v. United States, Berghuis v. Smith, and Health Care Service Corp. v. Pollitt, and we included new amicus briefs in the entries for Skilling, Kiyemba v. Obama, Berghuis v. Thompkins, and Hui v. Castaneda.

As always, we've continued to update individual Wiki pages to reflect ongoing media and blogosphere coverage of those cases.  Because the Court did not issue an opinion two weeks ago (and thus will not now do so until January), Citizens United v. FEC seems to have received the most attention, and the Wiki pages for two of the three newly granted cases "“ Quon and Carachuri-Rosendo "“ were updated to reflect considerable media coverage as well.

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We have also added new materials to the Wiki pages for the cases argued Tuesday and Wednesday.  The page for Dolan v. United States now includes an argument transcript and will soon be updated to include a recap of the proceedings, and we have also added an argument transcript to the case page for Krupski v. Costa Crociere. 

This week, reply briefs were filed in all of the cases scheduled for oral argument in the coming days.  As a result, we have added links to reply briefs to the case pages for Doe v. Reed, Rent-a-Center v. Jackson, and Hardt v. Reliance Standard Life Insurance Co., while the case page for Monsanto v. Geerson Seed Farms now includes links to two reply briefs, one for the petitioners and one for the federal respondents.

As we do every week, we have continued to update individual case pages to reflect new media and blogosphere coverage of particular cases.  Not surprisingly, following the Court's Tuesday ruling, United States v. Stevens received an overwhelming amount of media attention this week.

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The general perception is that the Court decides its big cases by five-to-four majorities on ideological lines.  For example, the conservative majority in Citizens United recognized a greater constitutional right for corporations to spend money in elections.  McDonald v. City of Chicago extended gun rights to states and localities.  Perdue v. Kenny A narrowly limited the ability of civil rights attorneys to receive an enhancement of their fee awards on the basis of great success.  And in a summary order, Hollingsworth v. Perry blocked the video transmission of the "Proposition 8" trial over gay marriage in California.

Much more rarely, conventional wisdom goes, Justice Kennedy "flips" to give a narrow win to the four "liberals."  So Christian Legal Society v. Martinez authorized universities in certain circumstances to deny funding to student groups that exclude certain students from membership. Padilla v. Kentucky held that attorneys have an obligation to advise their clients of the immigration consequences of pleading guilty.  And in Wellons v. Hall, the Court summarily ruled in favor of a death penalty defendant.

The liberal critique of the Court is that the conservative majority is moving the law decidedly to the right at every turn.  Thus, Citizens United overturned decades of precedent, and McDonald significantly expanded gun rights.

That is particularly true, it is said, with respect to the Court's "pro-business" bias.  By my count, the U.S. Chamber of Commerce filed briefs in fifteen cases, winning eleven.  Thus, Citizens United is a boon to corporations.  Free Enterprise Fund v. PCAOB accepted a business-driven attack on the body that issues regulations under the Sarbanes-Oxley law.  Then Morrison v. National Australia Bank sharply cut back on the ability to bring suits to remedy overseas securities fraud that harms U.S. consumers.  And the Court's aggressive effort to close the courthouse doors continued in Rent-A-Center, West v. Jackson, in which the Court held by a vote of five to four that a challenge to an arbitration agreement is itself subject to arbitration; however, in Stolt-Nielsen v. AnimalFeeds International Corp. the same five-member conservative majority limited the availability of that relief in cases in which arbitration could benefit plaintiffs by providing a forum for class-action litigation.  And in Hertz Corp. v. Friend the Court eliminated a common tool for keeping suits in state, rather than federal, courts.

Liberals are particularly focused on "arch-conservative" Justices Scalia and Thomas.  For example, those two Justices dissented to argue in Graham v. Florida that it is never "cruel and unusual punishment" to sentence a juvenile to life in prison without any possibility of parole "“ a position that even the conservative Chief Justice Roberts rejected.  And they alone dissented from the rulings in Jefferson v. Upton, holding that a court of appeals failed to consider a death penalty defendant's arguments in support of his claim that his attorney failed to investigate mitigating evidence; Presley v. Georgia, reaffirming a defendant's constitutional right to an open trial; and Holland v. Florida, finding that attorney neglect tolled the limitations period to file a habeas corpus application.

On the other side of the ideological divide, conservatives view the Court's left as "activist" "“ i.e., insufficiently deferential to the political branches of government and too willing to overturn precedent.  Justices Ginsburg, Breyer, and Sotomayor thus dissented in Holder v. Humanitarian Law Project to reject the government's position that the "material support" statute constitutionally forbids non-violent advocacy that is coordinated with organizations that have been designated as involved with terrorism.  And in Salazar v. Buono, the Court's left would have upheld an injunction against the statute transferring the "Mojave cross" to private hands.

Conservatives also believe that the left coddles criminals.  For example, in Skilling v. United States, Justices Stevens, Sotomayor, and Breyer dissented arguing, that the Court should expand the basis for overturning a criminal verdict based on pre-trial publicity.

Each of those characterizations of the Court obviously has some support, but in reality each is in significant part a caricature designed to fit certain preconceptions.  In a term with roughly ninety decided cases, it is always possible to pick out a few examples to support almost any proposition.  But a fair review shows that the Term's decisions, and the Justices themselves, were a varied and shifting mix.

Start with the Court's ideological divide.  Although some cases are decided five to four, that’s less than twenty percent of the cases this Term.  Roughly half the decisions are nine to zero.  Only slightly more than one in ten cases involved the narrow liberal-conservative divide (fewer, if we don't include cases in which we presume Justice Sotomayor would have voted with the left had she not been recused).

Though the Term ended (as it often does) with decisions decided along ideological lines, other five-to-four decisions that intuitively might have been decided on an ideological basis during the course of the Term were instead resolved by totally unpredictable alignments.  For example, the Court in Dolan v. United States broadly read judges' power to order restitution (a "conservative" outcome) by a majority of Thomas, Ginsburg, Breyer, Alito, and Sotomayor, over the dissent of Roberts, Stevens, Scalia, and Kennedy.  (This was the exceptionally rare case of the five most junior Justices joining together against all their senior colleagues.)  Then Magwood v. Patterson broadly permitted a habeas corpus petitioner who prevails in a habeas petition to bring a new challenge to his subsequent sentence (a "liberal" result) in an opinion by Thomas (!) joined by Scalia, Stevens, Breyer, and Sotomayor, over the dissent of Roberts, Kennedy, Ginsburg, and Alito.  Thomas also wrote the defendant-favoring opinion construing the Speedy Trial Act in Bloate v. United States, over the dissent of Justices Alito and Breyer.  In Shady Grove Orthopedic Associates v. Allstate Insurance Co., the Court held that state law cannot block federal class actions (a pro-plaintiff result) in an opinion by Justice Scalia (!) joined by Roberts, Stevens, Thomas, and Sotomayor, over the dissent of Kennedy, Ginsburg, Breyer, and Alito.

It is certainly fair to say that some of the most consequential cases of the Term are decided by that narrow conservative majority.  Citizens United and McDonald fit that description, as does the attorney's fees case, Perdue.

But it is inaccurate to describe the Court as methodically on the march to the right.  The ideologically confused majorities just described illustrate the point.  So do other decisions with a conservative orientation that pulled up well short of their farthest possible reaches.  Thus, the Free Enterprise Fund decision announced a critical proposition of constitutional law but left the PCAOB intact other than the relatively minor surgery of excising the "for-cause" removal provision of its governing statute.  McDonald did significantly change the understanding of the Second Amendment, but it’s far from clear that it will significantly affect states’ ability to regulate guns and gun possession.  Salazar v. Buono invalidated an injunction against the Mojave cross land-transfer statute (a conservative result).  But Justice Kennedy's opinion for the Court, joined by the Chief Justice, permitted the plaintiff to continue to pursue his claim under the Establishment Clause on remand.  In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Court not only rejected a property rights challenge to a state beach-erosion statute (a liberal result), but Justice Kennedy also declined to provide a fifth vote for the proposition that a court ruling could ever constitute a "taking" of private property requiring "just compensation."

Those more limited rulings in part reflect the fact that "“ contrary to liberal characterizations "“ the Court's conservatives are far from monolithic and instead hold very diverse views about various provisions of the Constitution and the Court's proper role.  In Buono (the Mojave cross case), Justice Alito rejected the view of Roberts and Kennedy that the plaintiffs could pursue their claim on remand; Scalia and Thomas declined to reach the merits because they concluded the plaintiff lacked standing.  In United States v. Comstock, which upheld Congress's power to provide for the civil commitment of sexually dangerous persons after the completion of their prison sentences, the Chief Justice joined in full in the left's broad interpretation of Congress's power under the Commerce Clause; Kennedy and Alito did not; and Scalia and Thomas would have invalidated the statute.  In Padilla (the case about advising clients about the immigration consequences of pleading guilty), Kennedy joined the left, Roberts and Alito articulated a middle ground standard, and only Scalia and Thomas would have found that the attorneys had no relevant obligation.  And in Citizens United itself, Alito (along with Thomas) joined an opinion by Justice Scalia defending the result on originalist grounds, but the Chief Justice did not; Alito in turn joined the Chief's discussion of stare decisis, but Scalia and Thomas did not.

Those differences within the Court's right also arise in other cases that illustrate liberals' profound misunderstanding of Justices Scalia and Thomas.  Decisions such as Graham (juvenile life without parole) and Presley (open courts) illustrate that those two Justices do take a narrow, government-favoring view of certain provisions of the Constitution.  But it is easy to overlook that their principled reading of other provisions regularly leads Scalia and Thomas to adopt the very most defendant-favoring positions on the Court.  In previous Terms, Scalia and Thomas have been a part of the majority revolutionizing both sentencing and the right of confrontation, which favor criminal defendants.  This Term, in Skilling, they would have invalidated the honest-services statute as unconstitutionally vague.  In Comstock, they would have invalidated the civil commitment statute as beyond Congress's powers.  So too in civil cases, their strict fidelity to text can lead to "liberal" results.  In Magwood (the case involving successive habeas applications), they joined Stevens, Breyer, and Sotomayor to form a five-Justice majority holding that the petitioner's application was permitted.  In Merck & Co. v. Reynolds, only Scalia and Thomas would have adopted the very most pro-plaintiff reading of the "discovery rule" for the statute of limitations in securities fraud actions.

The most consistently "conservative" Justice on the Court "“ if conservative is interpreted to mean expressing a consistent confidence in the government and narrow construction of the Constitution "“ is instead Justice Alito.  He was the most reliable vote for the position of the government, particularly in criminal cases.  Justice Alito alone dissented from the Court's decision in Stevens v. United States, holding that a statute which criminalizes distribution of videos depicting animal cruelty violates the First Amendment.  He also wrote solo opinions in Skilling (expressing a narrow view of the circumstances in which pre-trial publicity would preclude a fair trial); Buono (arguing against a remand to permit the plaintiff to make out an Establishment Clause claim); Holland v. Florida (narrowly interpreting the circumstances in which the time to file a habeas application would be tolled); and Bobby v. Van Hook (urging that the views of the American Bar Association deserve no special deference).

Another excellent illustration that the conservatives have not been aggressively ideological in applying the power that comes with their majority is the distribution of "summary reversals."  Generally speaking, these are cases in which there is no circuit conflict (the traditional basis for certiorari) but instead the Justices conclude that the lower courts significantly misapplied settled precedent.  So the Court issues an opinion reversing without even bothering to have the case briefed and argued.  If the Court's conservatives were committed to intervening only to move the law to the right, and if they refused to acknowledge the error of government-favoring rulings by the lower courts, summary reversals would be heavily biased towards the state.  (The Court does have, for example, a semi-regular practice of summarily reversing defendant-favoring habeas corpus rulings by certain liberal judges of the Ninth Circuit.)

But this Term, more summary reversals instead favored criminal defendants.  There were five summary rulings favoring the government in criminal cases:  Bobby v. Van Hook and Wong v. Belmontes (ineffective assistance of counsel); Michigan v. Fisher (police justification for entering a residence); McDaniel v. Brown (sufficiency of the evidence); and Thaler v. Haynes (deference to state court criminal rulings).   By contrast, seven summary opinions favored defendants, generally by broad majorities:  Presley (the open-trial case; 7-2); Wellons v. Hall (5-4), Corcoran v. Levenhagen (9-0), and Jefferson v. Upton (7-2) (habeas corpus procedure); Porter v. McCollum (ineffective assistance of counsel; 9-0); Wilkins v. Gaddy (prisoners' rights under the Eighth Amendment; 9-0); and Sears v. Upton (ineffectiveness of counsel; 5-4).

The liberal critique of the Court as grossly pro-corporate similarly does not hold water.  Citizens United is undeniably a pathbreaking case that will enhance the role of corporations in the political process.  So too, rulings in recent terms in cases such as Ashcroft v. Iqbal increased the prospect that defendants (which are often corporations) will have greater success in securing the early dismissal of lawsuits.

But it simply is not accurate to say more broadly that the Court consistently rules in favor of corporations or defendants.  Thus, the data on U.S. Chamber of Commerce briefs (i.e., that it prevailed in eleven of fifteen cases) is misleading because it does not account for the relative significance of the cases or the fact that the Chamber did not file briefs in five other cases in which plaintiffs prevailed.  For example, in the single largest civil rights litigation case of the Term, Lewis v. City of Chicago, another employer group (the Equal Employment Advisory Council) filed in support of the defendants' position unsuccessfully urging the application of a short statute of limitations period.  Another corporate group, the Defense Research Institute, filed unsuccessful briefs in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich (holding 7-2 that there is no mistake of law defense under the Fair Debt Collection Practices Act) and Hardt v. Reliance Standard Life Insurance Co. (holding 9-0 that an ERISA claimant who secures a court order remanding to the insurance company is eligible for attorney's fees).

Liberals who specifically assert that the Court is "closing the door" to litigants ignore decisions this Term that rejected efforts to erect hurdles to civil litigation through statutes of limitations (in Merck & Co. (the securities fraud case) and Krupski v. Costa Crociere S.p.A. (adopting 9-0 a broad interpretation of a plaintiff's right to have an amendment to her complaint "relate back" to her initial filing prior to the expiration of the statute of limitations)) and state laws barring class actions (Shady Grove).  And although the Court did limit suits under the securities laws (National Australia Bank) it rejected attempts to limit claims under the antitrust laws (American Needle v. NFL), the Investment Company Act (Jones v. Harris Associates) and the Fair Debt Collection Practices Act (Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich).

There isn't any more merit to the common critique from the right "“ that the more liberal members of the Court are "activist" in the sense that they are more likely to invalidate acts of Congress rather than showing appropriate deference to the political process and moreover are disrespectful of precedent.  In fact, the Court's more conservative Justices are significantly more activist in that sense.  That is no surprise:  so-called "activism" is in fact a reflection of who holds power on the Court.  When it was oriented to the left in the later years of the Warren Court and the Burger Court, liberal Justices favored moving the law (including particularly constitutional law) in that direction, invalidating legislation they found objectionable and overturning contrary precedent.  Now the shoe is on the other foot, and it is the conservatives who have the power to invalidate legislation that is contrary to the Constitution as they read it and to overturn earlier, liberal-leaning decisions.

By far, the most significant statute overturned this Term "“ both in terms of its practical implications and the extent to which it had received thorough legislative consideration "“ was the provision of the McCain-Feingold legislation limiting corporate participation in elections that was struck down in Citizens United.  In my opinion, the Court was also "activist" in reaching out to decide the constitutional question because it could instead have narrowly construed the statute not to apply to the movie in that case (just as it narrowly read the honest-services statute in Skilling).  After that, the McDonald guns rights ruling may invalidate dozens (and perhaps far more) gun regulations around the country.  And though the left and right dispute the point, there is a significant argument that Free Enterprise Fund calls into question the "for cause" removal provisions in many federal statutes.  It was also conservative Justices (other than Scalia) who were most willing to leave the door open to holding that it is unconstitutional for Washington State to require the disclosure of the identities of the signatories of the referendum in Doe v. Reed.

Among all the Justices, it is in fact Scalia and Thomas "“ frequently heralded by conservatives as ideal members of the Court "“ who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent.  They not only joined the Citizens United majority, but they would also have held unconstitutional the "honest services" statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).

Just as fascinating is Justice Thomas's openness to reconsidering almost every issue in the law that he views as wrongly decided.  This Term, he wrote eight separate opinions suggesting the reconsideration of existing law:  McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); United States v. O'Brien (jury trial rights); and Wilkins v. Gaddy (cruel and unusual punishment).

None of the points above is intended to deny (on the one hand) that the Court is in fact reasonably conservative or (on the other hand) that liberal Justices are perfectly capable of engaging in "activism."  Instead, my point is that the broad brush with which the Court is frequently characterized tends to obscure rather than illuminate.  It is a far more complicated institution.

I admit that the nuance and diversity among the Justices' views, and varied directions of their decisions, was more apparent to me this Term than in any other that I can remember.  It's worth pausing to consider why that might be true.  In addition to the fact that much depends on the precise mix of cases that happen to be reviewed, this may illustrate the point often made by the Justices that a change in the Court's composition has unexpected consequences.  Justice Sotomayor was appointed last year, of course, after the relatively recent confirmations of the Chief Justice and Justice Alito.  Before that, it had been more than a decade since the last change in membership.  In that earlier period,  now well behind the Court, the Justices had settled into a fairly regular pattern of votes in significant cases.

Relatedly, I suspect that Justice Stevens' own anticipation of his likely departure had some consequences this Term, as he shifted from his recent role of generally leading the left to both regularly writing separate dissents (he penned five solo dissents and two other solo opinions that were essentially dissents) and also joining the conservatives in significant cases (Humanitarian Law Project and New Process Steel v. NLRB (involving the validity of NLRB decisions made by a two-member board)).  If the Court's shifting membership is a factor, then we would expect to see still more changes next Term when Elena Kagan becomes an Associate Justice.

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