29 June 2011
Hostility towards big litigation, a passionate embrace of First Amendment speech protection, and a vigorous new dissenting voice marked a relatively low-key, sixth term of the Roberts Court.
"The Court clearly is concerned about the cost and inefficiency of large litigation and those concerns are not limited ideologically," noted veteran Supreme Court litigator Carter Phillips of Sidley Austin.
The Court’s "strong emphasis on free speech and a potentially enduring shift in preemption analysis are signature developments in the 2010 term," added another Supreme Court regular, Patricia Millett, head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld.
And although freshman justices generally need a few terms to find their sea legs, "Justice Kagan, however, has already made her presence known and shown every sign of becoming one of its intellectual leaders," said Heather Gerken of Yale Law School.
Although the headline decisions of the term involved the Wal-Mart sex discrimination class action, violent video games and protestors at military funerals, the justices’ 75 signed opinions covered a wide swath of law, with important developments as well in patent, criminal procedure, bankruptcy and civil rights law.
What follows are insights into the just-ended term by some of the nation’s top Supreme Court litigators and scholars. We asked them to capture in their comments what they viewed as a highlight of the term – a trend, an individual case, or several cases.
Paul Smith, chair of Jenner & Block’s Appellate and Supreme Court Practice (argued in this term’s Brown v. Entertainment Merchants Association)
This has been the most interesting term for the First Amendment in memory, with the justices firming up roles that defy the usual ideological divide. Justice [Antonin] Scalia is now rivaling Justice [Anthony] Kennedy as the most consistent protector of speech rights. As a result, there is nearly always a majority willing to protect free speech. But Justice [Samuel] Alito continues to vote to deny protection to what he considers low-value or harmful speech, even if there is no applicable exception to First Amendment protection. Justice [Stephen] Breyer addresses First Amendment claims by engaging in fact-specific balancing of all the competing interests at stake in a given case. And Justice [Clarence] Thomas has staked out the remarkable position that minors have no First Amendment rights at all.
Carter Phillips, managing partner of the Washington office of Sidley & Austin (argued in this term’s General Dynamics Corp. v. U.S.; Chamber of Commerce v. Whiting; Brown v. Plata; CSX Transportation v. Alabama Dept. of Revenue, andKasten v. Saint-Gobain Performance Plastic)
The only real theme I picked up this term is the Court’s basic and continuing skepticism about very large litigations. It is obvious in the two biggest business cases – Wal-Mart v. Dukes and AEP v. Connecticut – but was also fairly evident in Janus Capital Group v. First Derivative Traders – perhaps the last indirect liability case under 10b-5 the Court will have to decide. The Court clearly is concerned about the cost and inefficiency of large litigation and those concerns are not limited ideologically. Wal-Mart was probably the closest thing to a blockbuster case this term. At least it will be fun to watch litigators fight over whether there is enough "glue" to bind claims together sufficiently to satisfy the Court’s new" test" of commonality under Rule 23(a). I still miss Justice [John Paul] Stevens at oral argument, but Justice [Elena] Kagan has proven herself a worthy replacement for him both on the bench and in her opinions, at least in terms of quality if not quantity. I do look forward to next term when there hopefully will be fewer recusals and more nine-person courts.
Patricia Millett, head of Supreme Court practice and co-head of national appellate practice at Akin Gump Strauss Hauer & Feld
The Court’s strong emphasis on free speech and a potentially enduring shift in preemption analysis are signature developments in the 2010 term.
With respect to free speech, the Court cemented a robust and unflinching protection for private speech, even as new technology compounds the reach and impact of such speech. The wide majorities in the violent videogame (Brown v. EMA) and funeral protests (Snyder v. Phelps) cases soundly rejected attempts at narrowing on the First Amendment’s protections based on the offensive content or potential impact of highly controversial speech. The Court’s five-vote majority for striking down campaign finance reform measures dealt a potentially serious blow to public financing efforts. In Sorrell v. IMS, moreover, Justice [Sonia] Sotomayor joined with Justice Kennedy to provide vigorous protection to speech pertaining to business transactions, a potential narrowing of commercial speech doctrine.
With respect to preemption, this term saw the disappearance of the historic "presumption against preemption." There also appeared to be apparent consolidation of preemption jurisprudence with the same five justices in the majority (or coming together to provide five votes) in every single preemption decision, whether finding or rejecting it. Justice Thomas’s opposition to implied preemption through a "purposes and objectives" analysis also appears to be influencing the Court’s jurisprudence, as Chamber of Commerce v. Whiting,PLIVA v. Mensing, and Williamson v. Mazda saw the Court demanding far more concrete evidence of impairment of federal law than in prior cases. Indeed, Whiting saw the Court discard the Executive Branch’s considered assessment of the impact of state laws on immigration, an area in which judicial deference to the political branches had previously been quite substantial.
Finally, Justice Kagan got her sea legs and found her voice as an analytically rigorous jurist and powerful writer apparently within minutes of her arrival on the Court.
Robert Long, chair of the Covington & Burling’s Appellate and Supreme Court Litigation Group
I have been struck by the emerging roles of the two newest justices, Elena Kagan and Sonia Sotomayor. Both appear to be settling in quickly at the Supreme Court. They play an active role in oral argument, and are usually in agreement. At a minimum, Justices Kagan and Sotomayor -- often joined by Justice Ruth Bader Ginsburg -- are likely to focus the Court on arguments that might not have gotten the same level of attention before they joined the Court. It will be interesting to see whether the two newest justices are able to influence the views of their colleagues. Justice Kagan, in particular, earned a reputation as a consensus-builder as dean of Harvard Law School, and her well-written opinions and cogent questions at oral argument have the potential to persuade her colleagues on close questions.
Deanne Maynard, chair of Morrison & Foerster’s Appellate and Supreme Court Practice Group (argued this term’s Ransom v. MBNA)
As in recent years, the Supreme Court continued its interest in patent law cases. But this term, the Court affirmed in all three of the patent cases it heard from the U.S. Court of Appeals for the Federal Circuit, the court responsible for deciding almost all patent-related appeals.
That is a notable shift. In the past decade, a grant of review in a patent case tended to signal that the Supreme Court was going to take a different path than had the Federal Circuit. For example, in eBay, MedImmune, KSR, Microsoft v. AT&T, and Quanta Computer, the Supreme Court reversed the Federal Circuit on fundamental questions in patent cases.
Not this term. While the Supreme Court again heard several patent cases, it affirmed in all three. Indeed, in Global-Tech Appliances v. SEB S.A. (regarding induced infringement), Stanford University v. Roche Molecular Systems (regarding the ownership of inventions created through government-funded research), and Microsoft v. i4i Limited Partnership (regarding the standard of proof for establishing invalidity), the Supreme Court sustained the Federal Circuit’s ruling by lopsided votes.
Yet the Supreme Court’s interest in patent law shows no signs of diminishing. In the past two weeks, the Court has granted review in three more patent cases for next term – Mayo Collaborative Services v. Prometheus Laboratories, Inc., Caraco Pharmaceutical Laboratories v. Novo Nordisk A/S, and Kappos v. Hyatt. It remains to be seen whether the trend from this term will continue. At the very least, petitioners in those cases cannot assume that the Court has granted to reverse.
Gregory Garre, chair of Latham & Watkins’ Supreme Court and Appellate Practice Group (argued in this term’s Williamson v. Mazda Motor of America)
Years from now the October 2010 term may best be remembered as the calm after the storm (of Citizens United v. FEC) and before the storm (of what may lie ahead for the Court). But what seems striking today looking back at the term is the relative degree of consensus among the justices.
For the second term in a row, the vast majority of decisions were decided by a 7-2 or greater margin. Justices Sotomayor and Kagan were materially more likely to join the majority than were their predecessors in their final years on the Court. And many of the biggest cases, like AEP v. Connecticut, Microsoft v. i4i, and Snyder v. Phelps, were decided unanimously or by wide margins. The justices even unanimously agreed that the Wal-Mart v. Dukes class action had been improperly certified (while splitting on whether the plaintiffs should be given an opportunity to try for certification again on remand).
No doubt the justices had their share of disagreements too, and the Court remains divided in important areas like campaign finance, preemption, and standing. But by and large, this term seems marked more by what the justices agreed upon than what they did not. And at least for the time being, the chief justice seems to be getting his wish of a more consensus-oriented Court.
John Elwood, partner in the Washington office of Vinson &Elkins (argued in this term’s Nevada Commission on Ethics v. Carrigan)
On a personal level, it has been a pleasure to learn the writing styles of the Court’s new justices. With the addition of Elena Kagan this term, the Court has two of its most creative writers serving simultaneously—she and Justice Scalia. Thus, this term saw the first-ever use in the U.S. Reports of the words "tutti-frutti" (by Scalia) and "ditto" (by Kagan,) among many others. Justice Kagan also became the second justice ever to use the word "chutzpah" in an opinion (other than in a quote). You can guess who was the first. (It was Scalia.)
The most consequential civil case this term may be Wal-Mart v. Dukes; the Court’s emphasis on analytical rigor and close scrutiny of evidence may do for class certification what Iqbal and Twombly have done for pleading requirements. Wal-Mart has been criticized by some members of Congress and civil rights groups, and there is already talk of a Ledbetter-style legislative "fix." But the Court’s holding in PLIVA v. Mensing that state-law drug-labeling suits are preempted by federal labeling regulations for generic drugs (although such suits are not preempted for brand-name drugs under Wyeth v. Levine), has largely escaped Congress’s attention, though that holding is extremely important given the prevalence of generic drugs.
In criminal law, J.D.B. v. North Carolina, holding a child’s age is relevant for Miranda custody determinations, continues the constitutional transformation of the justice system for juveniles begun in 2005’s Roper v. Simmons and continued in last term’s Graham v. Florida (holding, respectively, that the Eighth Amendment prohibits capital punishment and life without parole for juvenile offenders). But J.D.B. raises questions about whether special warnings and other procedural protections are needed so minors can exercise their rights, and whether courts must also consider other "objective" factors such as status as an alien and cognitive impairments.
Kevin Russell, partner in Goldstein, Howe & Russell in Bethesda, Md. (argued in this term’s Sossamon v. Texas)
It was a tough year for civil rights plaintiffs in the Supreme Court. They lost the vast majority of their cases this term, including some big ones – Walmart v. Dukes (involving certification of a nationwide sex discrimination class action), Ashcroft v. Al-kidd (attempting to hold the former Attorney General responsible for alleged abuse of the material witness statute); and Connick v. Thompson (regarding the liability of a District Attorney’s office for failing to adequately train its prosecutors on their Brady obligations).
To the extent it is possible to discern a trend among the disparate cases the Court reviews in any given year, the civil rights decisions this term continued a project by a majority of the Court to create greater leeway for governments and employers to manage their affairs without threat of litigation. (At least, that is how the Court sees it; critics would say the Court continues to dilute important civil rights and interfere with their effective enforcement).
There were a few wins for civil rights plaintiffs. The Court upheld a 9th Circuit decision requiring California to reduce its prison population in response to decades of constitutional violations arising from overcrowding (Brown v. Plata). And there were two areas in which civil rights plaintiffs continued their traditional success, even in a conservative Court.
The first was in a trio of retaliation cases (Straub v. Proctor Hospital, Kasten v. St. Gobain, Thompson v. N. American Stainless) in which the Court extended its practice of giving broad, practical construction to anti-retaliation provisions of civil rights and other statutes.
And the second was First Amendment cases, where the Court issued a series of decisions announcing broad protection for speech (striking down California’s restrictions on violent video games in Brown v. Entertainment Merchants), although often in contexts in which the civil rights community is ambivalent (e.g., hate speech, in Snyder v. Phelps; commercial speech, in Sorrell v. IMS) or hostile (e.g., campaign finance, in Arizona Free Enterprise Club v. Bennett).
Heather Gerken, Yale Law School
Justice Elena Kagan was the highlight of the term. Like many in the legal academy, I know and admire Justice Kagan, so I expected great things from her tenure on the Supreme Court. But I had assumed this would be a very quiet term for her. She was recused from many cases, junior justices are always assigned the least interesting majority opinions, and justices often need a couple of years on the Court before they get their sea legs.
Justice Kagan, however, has already made her presence known and shown every sign of becoming one of its intellectual leaders. She has been an active and intelligent participant in oral arguments. And she was written two dissents that were, to use a technical term, humdingers. Justice Kagan’s dissent in the taxpayer standing case (Arizona Christian School Tuition Organization v. Winn) was smart, lawyerly, and beautifully written. Her dissent in the Arizona public finance case (Arizona Free Enterprise v. Bennett) was even more impressive. Justice Kagan went toe to toe with the chief justice – an experienced judge and one of the Court’s finest lawyers -- and didn’t cede him an inch. Her prose was pointed and powerful. No argument made by the majority went unanswered. And she managed to convey complex analytic points in a highly accessible fashion. Even if you think the chief justice’s decision was right in the end, I think it’s fair to say Justice Kagan made him work for it.
All of this suggests that Justice Kagan is going to be an important presence on the Court. At the very least, she is on track to becoming as stylish and engaging a dissenter as Justice Scalia. Having seen Kagan’s leadership skills on display when she was dean of Harvard Law School, I also suspect Kagan will be able to do something that Scalia never managed to do: build a working coalition on the Court.
Mark Perry, partner in the Washington office of Gibson, Dunn & Crutcher (argued in this term’s Janus Capital Group v. First Derivative Traders)
This last term included a trio of securities fraud cases, each involving a different aspect of the Supreme Court’s 1988 decision in Basic Inc. v. Levinson.
Matrixx Initiatives, Inc. v. Siracusano reaffirmed Basic’s holding that the materiality of a statement or omission by a public company is a "fact-specific inquiry" that asks whether a reasonable investor would have thought it altered the "total mix" of information. In so doing, the Court refused to adopt a bright-line rule—specifically, a standard of "statistical significance"—for making materiality determinations.
Erica P. John Fund, Inc. v. Halliburton Co. ruled that securities plaintiffs are not required to prove the element of loss causation as a prerequisite to securing class certification. The Court made clear that this element is distinct from reliance, which Basic allows plaintiffs to establish using the "fraud-on-the-market presumption," while reserving the question "how and when [this presumption] may be rebutted."
Janus Capital Group, Inc. v. First Derivative Traders adopted the "clear rule" that "the maker of a statement is the entity with authority over the content of the statement and whether and how to communicate it." The Court further held that "attribution" of the statement to its maker is a necessary but not sufficient precondition to the Basic presumption of reliance.
The acting solicitor general filed amicus briefs supporting the investor-plaintiffs in all three cases. Both Matrixx and Halliburton were decided consistently with the government’s position, although neither afforded "deference" to the SEC. Janus squarely rejected the government’s position, explaining (without dissent on this point) "that we have previously expressed skepticism over the degree to which the SEC should receive deference regarding the private right of action." Since the SEC continues to maintain that its views on private litigation are entitled to deference, this issue promises to arise again in future cases.
Andrew Tauber, partner in the Washington office of Mayer Brown
Two of the term’s implied preemption cases—Williamson v. Mazda Motor and Pliva v. Mensing—offer illuminating contrasts to prior cases that help delineate the circumstances in which federal regulations will be found to preempt state-law tort claims.
In Williamson, the question was whether a regulation that gave vehicle manufacturers the choice between two design alternatives impliedly preempted a state-law product liability claim alleging that a manufacturer was liable for having adopted one alternative rather than the other. The Court held that the claim was not preempted. In 2000, in Geier v. American Honda Motor, the Court had considered the preemptive effect of another provision of the same regulation, which, like the provision at issue in Williamson, gave manufacturers a choice among design alternatives. Geier, however, held that the provision at issue there preempted a claim that the manufacturer had a state-law duty to choose one alternative over another. In Williamson, the Court explained the dispositive difference between the two cases: In Geier, the agency had given manufacturers a choice because doing so would advance agency objectives; in Williamson, the agency had afforded manufacturers a choice for cost-benefit reasons rather than to achieve substantive objectives.
In Mensing, the Court held that federal regulations preempt a state-law failure-to-warn claim brought against the manufacturer of a generic drug. In 2009, in Wyeth v. Levine, the Court had considered whether those same regulations preempt a failure-to-warn claim brought against a brand-name manufacturer and held that they did not. Why can failure-to-warn claims be brought against brand-name manufacturers but not generic manufacturers? Mensing explains that the divergent outcomes flow from the fact that federal regulations authorize brand-name manufacturers to unilaterally change the warnings on their drug labels but prohibit generic manufacturers from doing the same, thereby making it possible for brand-name manufacturers, but impossible for generic manufacturers, to independently comply with state-law warning requirements.
We now have a clearer understanding of when tort claims will be preempted by federal regulations.
Richard L. Hasen, University of California Irvine School of Law and author of Election Law Blog
On the surface, this year’s Supreme Court on campaign finance looks a lot like last year’s Supreme Court on campaign finance: a 5-4 majority striking down a law on First Amendment grounds, with the majority trumpeting the values of free speech and quashing the possibility that the government could promote equality in elections, and a dissent bemoaning the Court not understanding the competing state interests in promoting democracy and deterring corruption. So this year’s Arizona Free Enterprise v. Bennett is last year’s Citizens United v. FEC.
But maybe not. Paul Clement and Rick Pildes see this year’s case as showing a majority "energized" or at least not bothered by the public criticism (from the President on down) it faced for its decision in Citizens United allowing corporations to spend their treasury funds in candidate elections. But perhaps because my expectations were so low, I sensed a subtle positive change in the Court’s approach: It could have put the kibosh on all public financing plans, but it didn’t, ruling only that a particular matching fund feature of Arizona’s plan violated the First Amendment. It seemed to reinvigorate, at least for now, the relaxed standard of review, which applies to First Amendment challenges to campaign contribution limit laws. This could well save hundreds of laws across the country from attacks in the lower courts.
And most importantly, the Arizona opinion revealed a new campaign finance champion in Justice Kagan, whose caustic dissenting opinion in the Arizona case was only outdone by her intellectual brilliance, in what Sandy Levinson has called one of the best-written Supreme Court opinions in years.
Campaign finance reformers can expect to keep losing with this constellation of Justices, but it is a small victory of sorts not to lose as badly.
Suzette Malveaux, Catholic University Columbus School of Law
The confluence of two major cases this term—AT&T Mobility v. Concepcion and Wal-Mart v. Dukes—hit class actions hard in consumer and employment cases, leaving this critical procedural badly injured but not dead.
The first blow came in AT&T, which makes it easier for corporations to ban class actions altogether. Corporations have been increasingly requiring everyday Americans in consumer and employment contracts to give up their right to have a judge rather than an arbitrator resolve future disputes. Some arbitration agreements—offered on a take-it-or-leave-it basis— prohibit individuals from bringing their grievances as a class action. California, like other states, found certain of these class action bans unconscionable because they functioned as exculpatory clauses—effectively immunizing companies from complying with state consumer laws.
Abandoning federalism and states’ rights for deference to arbitration, the conservative majority held that the Federal Arbitration Act preempted California law. In light of this decision, companies are more likely to insert class action bans in their arbitration agreements—killing aggregation by contract.
And if that wasn’t enough, employees were dealt a second blow in Wal-Mart. There, in a 5-4 split, the conservative majority raised the bar, requiring plaintiffs to put forth significant proof of a policy of discrimination to meet the commonality criteria. Moreover, the Court unanimously concluded that back pay was not appropriate for the type of class action certified, contrary to almost 50 years of Title VII jurisprudence that has held otherwise.
This means that more Davids in the world will go up against Goliaths alone. To the extent that those with small claims and resources are unlikely to challenge powerful corporations on their own, corporate defendants will be given a pass. Even if individuals are compensated for individual harms, they cannot effectively challenge widespread misconduct without collective action. And in the event that government agencies cannot fill the gap left by the lack of private enforcement, the most egregious wrongdoing will be protected. Not inconsequentially, in the absence of aggregate litigation, federal judges will continue to labor under repetitive individual litigation and corporations will not enjoy the global peace class settlements often provide.
Undoubtedly, more class actions will die contractually or judicially as a result of this term. However, although the Court dealt two major blows to the class action, it arguably was not a knock out. In the absence of legislative action, this important procedural mechanism lives on.
Douglas Berman, Ohio State University Moritz College of Law and author of the Sentencing Law Blog
In the arena of substantive criminal law and punishment, perhaps the most significant things that the Supreme Court Justices did this past term really involved things that they did not do.
Consider the justices’ work in its most significant sentencing-related cases this past term. The Court in Plata v. Brown did not reverse the consequential decision by a special three-judge panel, which ordered California to cut dramatically its state prison population to redress unconstitutional conditions in badly overcrowded facilities. The Court in Pepper v. United States did not accept limits created by the Eighth Circuit on what information federal district judges may consider during an offender’s re-sentencing. And, in cases concerning severe federal sentencing terms for repeat offenders, other Justices did not take up Justice Scalia’s bold and impassioned recommendation to strike down part of the federal Armed Career Criminal Act as unconstitutionally vague.
More broadly, the Justices did not even take up this term any major constitutional cases involving substantive criminal law and punishment. In Spring 2010, blockbuster constitutional rulings were monthly events: McDonald v. Chicago addressed the Second Amendment’s application to the states; Padilla v. Kentucky set out new Sixth Amendment requirements for effective defense advice in the plea process; Graham v. Florida created new Eighth Amendment limits on extreme prison sentences for certain juvenile offenders. This Term did not include any sequels to these recent rulings, nor did it have even a single notable death penalty case.
It was not a do-nothing Supreme Court in the criminal justice arena: the justices resolved (often unanimously) a number of long-festering circuit splits over the application of federal sentencing statutes, and the past term included consequential Fourth Amendment, Confrontation Clause and Miranda rulings. But, perhaps as a result of the recent transition of personnel or just the need to take a pause to refresh, the Court seemed to take a "less is more" approach to many criminal justice issues this term. But with potential blockbusters concerning the constitutionality of GPS tracking and poor defense plea advice already on the docket for next term, the term just completed is likely more of an outlier than the start of a new trend.
John Eastman, Chapman University School of Law and founding director of the Center for Constitutional Jurisprudence
Another Supreme Court term is now in the history books. Although there were several sensational First Amendment cases (Snyder v. Phelps, for example, upholding obnoxious protests at military funerals, and Brown v. Entertainment Merchants Association), the Court’s adherence to a near-absolutist view of the First Amendment in those cases brooked no surprises. More significant for doctrinal development was another First Amendment case, albeit one raising Establishment Clause rather than Speech Clause claims: Arizona Christian School Tuition Organization v. Winn.
Arizona allows tuition tax credits for charitable donations to organizations that support private, mostly religious schools. The tax credit was challenged by Arizona taxpayers who claimed that it was an unconstitutional establishment of religion. Rather than reaching the merits of that claim, the Court used the case to begin to reconcile its taxpayer standing doctrine, which for decades has allowed taxpayer suits to assert challenges that government spending violated the Establishment Clause, but required "particularized harm" before taxpayers could challenge the constitutionality of any other government conduct. Because this was a tax credit rather than a spending case, the Court held that the narrow exception for taxpayer Establishment Clause challenges to governmental spending it had recognized in Flast v. Cohen did not apply. While Flast technically still survives, particularized harm is going to be a significant part of the plaintiff’s proof in future Establishment Clause challenges.
The Court also decided a couple of cases that might, perhaps, just possibly offer a slight window into the justices thinking on a couple of blockbuster cases heading to the Court in the next year or two (much like Soviet-ologists used to try to determine politburo power struggles by analyzing who was standing next to whom in formal photographs!). The pending constitutional challenges to the national health care law (aka "Obamacare") and to Arizona’s immigration law, SB1070, are most certainly headed to the Court, and one has to suspect that there might be some jockeying going on in the current cases with those challenges in mind.
Justice Kennedy is widely considered to be the critical swing vote on both matters, and defenders of Obamacare must be concerned about his opinion in Bond v. United States. Carole Bond had used some chemicals from her workplace to attack her former best friend once she discovered she was also her husband’s lover. Instead of being prosecuted by the State for assault, she was prosecuted by the federal government for violating a statute designed to implement the Chemical Weapons Ban Treaty. Bond challenged the constitutionality of the federal statute, but the Third Circuit held she did not even have standing to assert a federalism challenge. The Supreme Court unanimously reversed on the standing issue, but Justice Kennedy used some very strong pro-federalism and individual rights language in his opinion for the Court that, if translated to the health care litigation, would have him at least leaning toward sympathy with the constitutional challenges in those cases.
Similarly, the 5-3 decision in Chamber of Commerce v. Whiting, written by Chief Justice John Roberts Jr., cannot be good news for those seeking to overturn Arizona’s SB1070 immigration law. Arizona had previously passed a law that revoked the business license of any business in the state that knowingly employed illegal immigrants. Federal law had an express preemption clause that preempted state civil and criminal penalties, but the Court held that because licensing was neither, it was not preempted. Strict adherence to express preemption language, and the Court’s increasingly strong moves away from implied preemption, do not bode well for the Department of Justice’s double-implied preemption challenges to Arizona’s SB1070.