Skip Navigation

Southern Oregon University

Paul Pavlich


 SUB JUDICE CASES (all likely to be decided before the end of June)

United States v Windsor

Questions Presented

Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group  (“BLAG”) of the United States House of Representatives has Article III standing in this case to defend the constitutionality of a federal statute that the executive branch has declined to defend.

Defense of Marriage Act of 1996 (“DOMA”):

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.


Court of Appeals (2d Cir) decision

"BLAG" brief
US brief
Windsor brief 

Hollingsworth v Perry

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners, proponents of the referendum defining marriage supra, have standing under Article III, § 2 of the Constitution to pursue appeal of a Federal District Court’s ruling invalidating the California law after state officials declined to appeal the district court’s judgment.

California Proposition 8:  Article I of the California Constitution is amended to read: Only marriage between a man and a woman is valid or recognized in California

Court of Appeals decision (9th Cir)

Respondent’s brief
Petitioner’s brief 

Relevant cases:

Bowers v. Hardwick (1986). Constitutionality of criminal statute punishing consensual sodomy upheld
Romer v Evans (1996) Kennedy opinion, (J. Roberts on challengers’ brief); Amendment (enacted by referendum) to the Colorado state constitution prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class invalidated as not rationally related to a legitimate government purpose (‘rational relationship test’)
Lawrence v. Texas
(2003)  Kennedy opinion;  Overturns Bowers holding intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment; invalidated laws that criminalized sodomy between adults acting in private, whatever the sex of the participants (5 justices on due process, 1 on equal protection)

Shelby County v Holder


Whether Congress’ decision in 2006 to reauthorize Section 5 “pre-clearance” process of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Voting Rights Act of 1965 (“VRA”) renewed in amended form in 1970, 1975, 1982 & 2006 each time including a “pre-clearance” process for select jurisdictions.

Section 5 applies to specified jurisdictions (states or subdivisions), and prohibits them from adopting or implementing any change in a “standard, practice, or procedure with respect to voting” without first obtaining preclearance from either the United States Attorney General or the United States District Court for the District of Columbia. To obtain preclearance, the jurisdiction must demonstrate that the proposed change does not have the purpose and will not have the effect of discriminating on the basis of race.

Section 4 Congress describes the jurisdictions it wished to cover by listing two voting-related criteria that it knew were shared by each such jurisdiction: (1) the use of a defined voting test or device as of November 1, 1964, and (2) a voter registration or turnout rate that was below 50% in the 1964 presidential election. Those criteria—often referred to as the “coverage formula”—do not themselves identify the particular voting problems with which Congress was most concerned. Rather, the criteria were “reverse- engineered” to describe in objective, voting-related terms the jurisdictions Congress had already determined it wanted to cover based on “evidence of actual voting discrimination.”  Jurisdictions may “bail out” or be “bailed in” to VRA Sec 4 & 5 through litigation.

States affected:  Class #1 Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia; 
Class #2  North Carolina, Arizona, Hawaii, Idaho, California, Connecticut, Massachusetts,  New Hampshire, New York, Wyoming,  Texas,  Florida, Michigan, South Dakota

Court of Appeals decision (DC)
Petitioner’s brief
Respondent’s (US) brief
Relevant Case:
Northwest Austin Mun. Util. Dist. No. One v. Holder
(“NAMUDNA”)  After the 2006 VRA reauthorization, petitioner filed suit seeking to “bail out” of coverage under Sections 4 & 5, and in the alternative challenging the constitutionality of the 2006 reauthorization of Section 5. The Supreme Court reversed the statutory bailout holding and declined to reach the constitutional question but indicated it was skeptical of Congress’s reauthorization based upon sometimes century old practices identified in Section ____________________________________________________________________

3.  AFFIRMATIVE ACTION:  Fisher v University of Texas

Question Presented
Whether the Equal Protection Clause of the Fourteenth Amendment,permits the University of Texas at Austin’s use of race as a factor in achieving greater diversity in undergraduate admissions decisions.

Longhorn Admissions Process:  About 80% of the seats in the entering class are filled through a plan that guarantees a spot to any student who graduates in the top ten percent of a Texas high school. But the remaining positions are filled by a second program that considers race among other factors to promote diversity in the make-up of smaller classes and academic departments.  Race is taken into account as part of a personal achievement index that is used along with an academic index — that is, one based largely on grades.  A given applicant’s race is just one factor in the personal achievement ranking, and the University insists that it does not control outcomes on its own; admissions officers look at each student, it insists, in a “holistic” way.

In practical operation, the Longhorn plan has achieved the “diversity” results the University sought: the University of Texas vaulted into the sixth spot nationally in producing undergraduate degrees for minority groups.   In the admissions in 2008, overall enrollment of black applicants had doubled, that of Hispanic applicants rose 1.5 times, and Asian-Americans, nearly ten percent.   Some part of that, of course, was due to changes in Texas’s overall population, with the state’s Hispanic population growing at a very rapid rate.

Abigail Fisher, who is Caucasian, applied for admission to the university.  But she was not in the top ten percent of her class, and she did not receive one of the remaining slots.  She then challenged her denial of admission, arguing that she was a victim of discrimination based on her race in violation of the Fourteenth Amendment’s Equal Protection Clause. Both the federal district court and U.S. Court of Appeals for the Fifth Circuit upheld the Texas plan.

Fisher may have a standing obstacle in that members of the court may require her to plead and prove that to she would have succeeded in getting into Longhorn U without the allegedly racially biased plan. The record on that question is not very helpful to Fisher.

Assuming the Supremes reach the merits, the question will be the correct application OR continuing vitality of Grutter v. Bollinger (2003) the last significant affirmative action case decided by the Court.  In Grutter the Court held that the Equal Protection Clause does not prohibit a school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Court further concluded that the law school's interest in obtaining a "critical mass" of minority students was indeed a "tailored use,” noting that sometime in the future, perhaps twenty-five years hence, racial affirmative action would no longer be necessary in order to promote diversity. The opinion read, "race-conscious admissions policies must be limited in time.  The argument in Fisher, is that with respect to Texas, that time is now.  The statistics indicate Texas has achieved its objective.  In the alternative the Court may decide that the country has reached that point and no affirmative action programs can satisfy the “strict scrutiny” test because the society has met its objectives.

Court of Appeals decision (5th Cir)
Petitioner’s brief
Respondent’s brief
Relevant Case:  Grutter v Bollinger




Respondent was arrested and charged in state court with assault; after respondent entered an Alford plea he was convicted of second-degree assault.  During respondent’s arrest, the state collected a sample of his DNA pursuant to the Maryland DNA Collection Act. by means of a swab of the inside of his cheek.  After the DNA profile was uploaded into the state database, it was matched to a profile from forensic evidence of a 2003 sexual assault.

Respondent moved to suppress evidence of the DNA match on the ground that the warrantless collection and analysis of his DNA violated the Fourth Amendment. The trial court denied respondent’s motion.  The trial court found respondent guilty of first-degree rape and sentenced him to life.

SUPREMES:  When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Using a buccal swab inside a person's cheek to obtain a DNA sample is a search under the Fourth Amendment.  The intrusiveness of the swab is negligible and that fact is of central relevance to determining whether the search is reasonable, “the ultimate measure of the constitutionality of a governmental search.” Where the arrestee/defendant was already in valid police custody for a serious offense supported by probable cause, the search is analyzed by reference to reasonableness, not individualized suspicion.  Reasonableness is determined by weighing the promotion of legitimate governmental interests against the degree to which the search intrudes upon an individual's privacy.



Respondent McNeely was stopped for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol, he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely's tested well above the legal limit, and he was charged with driving while intoxicated.  He moved to suppress the blood test result, arguing that taking his blood without a warrant violated the Fourth Amendment. The trial court agreed, concluding that the exigency exception to the warrant requirement was not satisfied by the simple fact that McNeely's blood alcohol was dissipating. Missouri Supreme Court affirmed.

SUPREMES:  Though a person's blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency justifying warrantless searches. Circumstances may make obtaining a warrant impractical and alcohol's dissipation will support an exigency, but that is a reason to decide each case on its facts, not to accept the "considerable overgeneralization" that a per se rule permitting warrantless blood alcohol  would reflect

SOTOMAYOR, opinion of the Court with respect to Parts I, II-A, II-B, and IV, SCALIA,
And an opinion with respect to Parts II-C and III, SCALIA, GINSBURG, and KAGAN, join
KENNEDY, concur in part.
ROBERTS, concur in part and dissent in part, BREYER and ALITO join.
THOMAS, dissent


Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers (and dog!) had engaged in a Fourth Amendment search unsupported by probable cause.

SUPREMES:  The investigation of Jardines' home was a search within the meaning of the Fourth Amendment.  When the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has undoubtedly occurred. At the Fourth Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. The area immediately surrounding and associated with the home — the curtilage — is part of the home itself for Fourth Amendment purposes. The officers entered the curtilage here: The front porch is the classic exemplar of an area "to which the activity of home life extends.

Officers need not "shield their eyes" when passing by a home "on public thoroughfares," but “no man can set his foot upon his neighbour's close without his leave," Entick v. Carrington, 2 Wils. K. B. 275. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is "no more than any private citizen might do." But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search.

Court held is was unnecessary to decide whether the officers violated Jardines' expectation of privacy under Katz v. United States.



Petitioners, Nigerian nationals residing in the United States, filed suit in federal court under the Alien Tort Statute (“ATS”), alleging that respondents-certain Dutch, British, and Nigerian corporations-aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The ATS provides that district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability.  SUPREMES granted certiorari, and ordered supplemental briefing on whether and under what circumstances courts may recognize a cause of action under the ATS, for violations of the law of nations occurring within the territory of a sovereign other than the United States.

SUPREMES:  The presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that presumption.  Passed as part of the Judiciary Act of 1789, the ATS permits federal courts to recognize private claims for international law violations under federal common law.  When the ATS was passed, three principal offenses against the law of nations had been identified by Blackstone, including piracy which while in theory gave US courts authority to adjudicate behavior on foreign territory, did not typically or frequently impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.

KENNEDY concur.
ALITO concur THOMAS join



QUESTION PRESENTED:  Are DNA molecules isolated by a patent claimant who alleges new and significant utilities not found in nature, patentable?

35 U.S.C. § 101 provides: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

Respondent obtained patent claims on two naturally-occurring human genes known as BRCA1 and BRCA2 (so named because one of the diseases to which the genes are linked is breast cancer). The claims are not limited to any form, variation, or structure of the BRCA1 or BRCA2 genes, and they cover the BRCA genes of every person in the United States, even genes respondent has never seen. 

Petioners challenged the patent and lost at every stage.  The exclusion of natural substances from eligibility for patents was the theory on which the Court relied Thursday in its unanimous ruling that a company cannot get a patent monopoly on the use and study of human genes that it isolates in the bloodstream, and them takes them out — without changing their natural character — for research.

The Court said the company actually did not create anything at all, but simply extracted the genetic material from its location in human blood, and setting it apart for study.

The Court, however, said that the company might be eligible to get a patent when it created a synthetic form of those genes — in other words, a laboratory imitation of them.   Such imitations, according to the ruling, do not exist in nature, and so do not run counter to the rule against patenting nature.

Thomas opinion, unanimous except Scalia who joins only in part
Scalia concur in part and concur in judgment

Petitioner’s brief
Respondent’s brief