The following opinions were released by the U.S. Supreme Court on May 19, 2008:

• U.S. v. Rodriquez. Opinion of the Court by Alito, J., joined by Roberts, C.J., Scalia, Kennedy, Thomas, Breyer, JJ.; dissenting opinion by Souter, J., joined by Stevens, Ginsburg, JJ.. At issue is whether a “serious drug offense” for purposes of the minimum sentencing requirements of the Armed Career Criminals Act (”ACCA”) - which is defined as a crime “for which a maximum term of imprisonment of ten years or more is prescribed by law” - includes a drug possession crime that calls for a ten-year sentence only after applying a recidivism enhancement. The district court found that the prior sentences did not constitute “serious drug offense[s],” and the Ninth Circuit agreed. Reversing, the majority of the Court held that the Ninth Circuit’s interpretation that the maximum sentence involved was only five years, when the underlying statute called for a sentence of ten years for second offenses, contorted the meaning of the plain text of the ACCA. Slip op. at 4. The majority found that this result comported with the manifest purpose of the ACCA because “an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment.” Slip op. at 6. Dissenting, Justice Souter found that the majority chose one interpretation over an equally reasonable interpretation of ACCA’s ambiguous text, in violation of the Court’s tradition of lenity when analyzing competing reasonable interpretations. The dissent also found that it was unlikely that Congress would have chosen to defer to the states’ widely varying treatments of recidivist penalties in determining the “serious[ness]” of a drug offense.
• Department of Revenue of Kentucky v. Davis. Opinion for the Court, except as to Part III-B, by Souter, J., joined by Stevens, Breyer, JJ., in full, by Roberts, C.J., Ginsburg, J., except as to Part III.B, and by Scalia, J., except as to Parts III.B and IV; concurring opinion by Stevens, J.; concurring opinion, in part, by Roberts, C.J.; concurring opinion, in part, by Scalia, J.; opinion concurring in judgment, by Thomas, J.; dissenting opinion, by Kennedy, J., joined by Alito, J.; dissenting opinion, by Alito, J.. Under Kentucky’s income taxation scheme (and similar to taxation schemes in 41 other states), interest on municipal bonds issued from entities outside of Kentucky is taxable, while interest on Kentucky-generated municipal bond issues is not. Holding that this scheme does not violate the dormant Commerce Clause, the opinion for the Court observed the Court’s protocol for analyzing economically discriminatory state regulatory schemes, noting that such a scheme “will survive only if it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives,” and that, “[a]bsent discrimination for the forbidden purpose, however, the law will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Slip op. at 8 (internal quotation marks and citations omitted). The opinion for the Court then held that “Kentucky’s tax exemption favors a traditional government function without any differential treatment favoring local entities over substantially similar out-of-state interests. This type of law does not discriminate against interstate commerce for purposes of the dormant Commerce Clause.” Slip op. at 13 (internal quotation marks and citation omitted). In the disputed Part III.B, the plurality found that Kentucky’s taxation scheme could be upheld on market-participant grounds, finding that “The Kentucky tax scheme falls outside the forbidden paradigm because the Commonwealth’s direct participation favors, not local private entrepreneurs, but the Commonwealth and local governments. The Commonwealth enacted its tax code with an eye toward making some or all of its bonds more marketable.” Slip op. at 18. Justice Stevens noted that he concurred in the plurality’s analysis because the situation did not involve state participation in a commercial enterprise. Chief Justice Roberts concurred in part on the basis that the market-participant analysis of Part III.B was unnecessary to the Court’s resolution. Justice Scalia likewise noted in his concurrence that the plurality’s decision in Part III.A resolved the issue in favor of upholding Kentucky’s taxation scheme without engaging in the market-participant analysis, and additionally that a Pike balancing was never in the provenance of the courts. Justice Thomas concurred in the judgment, noting that he would discard with the Court’s entire negative Commerce Clause analysis entirely. Dissenting, Justice Kennedy found that the Court’s precedents “instruct that laws with either the purpose or the effect of discriminating against interstate commerce to protect local trade are void. These are the authorities relevant to the only part of the opinion that commands a majority.” Slip op. at 4. Justice Kennedy then observed, “The challenged state activity is differential taxation, not bond issuance. The state tax provision at issue could be repealed tomorrow without altering or impairing a single obligation in the bonds. It is the tax that matters; and Kentucky gives favored tax treatment to some securities but not others depending solely upon the State of issuance, and it does so to disadvantage bonds from other States.” Slip op. at 6. Justice Alito wrote in dissent to reiterate his dissent in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority.
• U.S. v. Williams. Opinion for the Court by Scalia, J., joined by Roberts, C.J., Stevens, Kennedy, Thomas, Breyer, Alito, JJ.; concurring opinion by Stevens, J., joined by Breyer, J.; dissenting opinion by Souter, J., joined by Ginsburg, J.. The Court held that § 503 of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, which prohibits the knowing advertisement, promotion, presentation, distribution, or solicitation of materials that are intended to be portrayed as obscene visual depictions of a minor engaged in sexually explicit activity or as a visual depiction of an actual minor engaged in sexually explicit activity, did not violate the First Amendment. The Court held that the categorical exclusion from First Amendment protections of material promoting illegal conduct did not rely on that promotion being of a commercial enterprise: “This mistakes the rationale for the categorical exclusion. It is based not on the less privileged First Amendment status of commercial speech, but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection.” Slip op. at 12. The Court then held, “The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it. There is no doubt that this prohibition falls well within constitutional bounds.” Slip op. at 13. The Court then emphasized that “A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. . . . Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.” Slip op. at 17. Justice Stevens concurred on the basis that a statute should be given all reasonable interpretations in order to bolster its constitutionality, and that the legislative intent supports the constitutional interpretation of the Act. Justice Souter dissented on the basis that the Act’s prohibition swept within it prohibition of some protected activity.
• U.S. v. Ressam. Opinion for the Court by Stevens, J., joined by Roberts, C.J., Kennedy, Souter, Ginsburg, Alito, JJ.; opinion concurring in part and concurring in judgment by Thomas, J., joined by Scalia, J.; dissenting opinion by Breyer, J.. The defendant attempted to enter the United States by car ferry at Port Angeles, Washington, with his car trunk containing explosives intended to be detonated at Los Angeles International Airport. The defendant gave the customs official a fake name, and incorrectly identified himself as a Canadian citizen; the explosives were subsequently found during a secondary inspection of his vehicle. The defendant was then convicted for a number of violations, including providing false information to a customs official and possessing explosives “during” the commission of this offense. See18 USC § 844(h). The Ninth Circuit reversed, finding that the statute’s requirement of “during” required that the possession of explosives must be in relation to the commission of the offense of providing false information. The Court reversed, holding that reading “during” to provide solely a temporal element, and not a functional element, was the natural meaning of the statute’s plain text. The Court also held that the statute’s history supported a finding that “during” did not carry a relationship requirement, as did a comparison of the statute to the Explosives Offenses Amendments. Justice Thomas concurred on the basis that the plain text connoted merely a temporal requirement, and that it was unnecessary to reach the questions of the legislative history or comparison to the Explosives Offenses Amendments. Justice Breyer dissented on the basis that the Court’s interpretation “would permit conviction of any individual who legally carries explosives at the time that he engages in a totally unrelated felony.”