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AP US Government & Politics – Nichols
Supreme Court Cases – last updated 02-22-11
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How to use this document: The index notes the topics or areas of study in bold print with a list of pertinent cases following. The annotations for each
case are located after the index and are arranged in the same order. There is overlap in the designation of some of these cases. Wherever possible, the
location of the annotation of the case is indicated.
Judicial Jurisdiction/Review
Chisholm v. Georgia (1793)
Hylton v. U.S. (1796)
Marbury v. Madison (1803)
Fletcher v. Peck (1810)
Martin v. Hunter’s Lessee (1816)
McCulloch v. Maryland (1819) – See legislative authority
Ex parte McCardle (1869)
Hamdi v. Rumsfeld (2004) – See executive power
Hamdan v. Rumsfeld (2006) – See executive power
Incorporation of Bill of Rights
Barron v. Mayor and City Council of Baltimore (1833)
Gitlow v. New York (1925)
Palko v. Connecticut (1937)
Legislative Authority
Most of the cases that are based on challenges to legislative authority are found in the Federalism section.
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
NLRB v. Jones & Laughlin Steel Corporation (1937)
Watkins v. United States (1957)
South Carolina v. Katzenbach (1966)
Powell v. McCormack (1969)
Immigration and Naturalization Service v. Chadha (1983)
U.S. Term Limits, Inc. v. Thornton (1995)
Boumediene v. Bush (2008)
United States v. Comstock (2010)
Executive Power
Prize Cases (1863)
United States v. Curtiss-Wright Export Corporation (1936)
Korematsu v. United States (1944)
Youngstown Sheet and Tube Company v. Sawyer (1952)
United States v. Nixon (1974)
Dames and Moore v. Regan (1981)
Nixon v. Fitzgerald (1982)
Clinton v. Jones (1997)
Clinton v. City of New York (1998)
Hamdi v. Rumsfeld (2004)
Hamdan v. Rumsfeld (2006)
Medellin v. Texas (2008)
Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)
Federalism
Note that many of these cases are based on challenges to legislative authority; however, most are not duplicated in that section.
McCulloch v. Maryland (1819) – See legislative authority
Dred Scott v. Sandford (1857) – See 14th Amendment
Slaughterhouse Cases (1873)
Civil Rights Cases (1883)
Plessy v. Ferguson (1896) – See 14th Amendment
Lochner v. New York (1905)
Hammer v. Dagenhart (1918)
Adkins v. Children’s Hospital (1923)
NLRB v. Jones and Laughlin Steel Co. (1937) – See legislative authority
United States v. Darby Lumber (1941)
South Dakota v. Dole (1987)
Webster v. Reproductive Health Services (1989) – See reproductive privacy rights
Planned Parenthood v. Casey (1992) – See reproductive privacy rights
United States v. Lopez (1995)
Seminole Tribe v. Florida (1996)
Boerne v. Flores (1997)
Printz v. U.S. (1997)
Saenz v. Roe (1999)
Florida Prepaid v. College Savings Bank (1999)
Alden v. Maine (1999)
Stenberg v. Carhart (2000) – See reproductive privacy rights
United States v. Morrison (2000)
Gonzalez v. Raich (2005)
Ayotte v. Planned Parenthood (2005) – See reproductive privacy rights
Gonzalez v. Oregon (2006)
Watson v. Philip Morris Companies, Inc. (2007)
Massachusetts v. Environmental Protection Agency (2007)
Altria Group v. Good (2008)
Wyeth v. Levine (2009)
First Amendment – Religion, Establishment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Engel v. Vitale (1962)
Abington School District v. Schempp (1963)
Epperson v. Arkansas (1968
Lemon v. Kurtzman (1971)
Lynch v. Donnelly (1984)
Wallace v. Jaffree (1985)
Edwards v. Aguillard (1987)
Allegheny County v. Greater Pittsburgh ACLU (1989)
Board of Education of Westside Community Schools v. Mergens (1990)
Lee v. Weisman (1992)
Lamb’s Chapel v. Center Moriches School District (1993)
Rosenberger v. University of Virginia (1995)
Santa Fe Independent School Dist. V. Doe (2000)
Good News Club v. Milford Central School (2001)
Zelman v. Simmons-Harris (2002)
Elk Grove Unified School District v. Newdow (2004)
McCreary County v. ACLU of Kentucky (2005)
Van Orden v. Perry (2005)
Hein v. Freedom from Religion Foundation (2007)
Salazar v. Buono (2010)
Arizona Christian School Tuition Organization v. Winn (To be decided)
First Amendment – Religion, Free Exercise
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Reynolds v. United States (1879)
Cantwell v. Connecticut (1940)
Minersville v. Gobitas (1940)
Sherbert v. Verner (1963)
Wisconsin v. Yoder (1972)
McDaniel v. Paty (1978)
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
Locke v. Davy (2004)
Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006)
First Amendment – Expression, Assembly and Petition
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Schenck v. United States (1919)
Abrams v. United States (1919)
Gitlow v. New York (1925)
Dejonge v. Oregon (1937)
West Virginia State Board of Education v. Barnette (1943)
Dennis v. United States (1951)
United States v. O’Brien (1968)
Tinker v. DesMoines (1969) – student case
Brandenburg v. Ohio (1969)
Cohen v. California (1971)
Bates v. State Bar of Arizona (1977)
Village of Skokie v. National Socialist Party (1978)
Island Trees School District v. Pico (1982)
Bethel School District v. Fraser (1986) – student case
Texas v. Johnson (1989)
United States v. Eichman (1990)
R.A.V. v. St. Paul (1992)
Hurley v. Irish American GLIB Association (1995)
Schenck v. Pro-Choice Network of Western New York (1997)
Boy Scouts of America v. Dale (2000)
Hill v. Colorado (2000)
Virginia v. Black (2003)
Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
Morse v. Frederick (2007) – school case
Pleasant Grove v. Summum (2009)
Christian Legal Society v. Martinez (2010)
Schwarzenegger v. Entertainment Merchants Association (To be decided)
First Amendment – Press
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
John Peter Zenger Trial (1735)
Near v. Minnesota ex rel. Olson (1931)
Red Lion Broadcasting v. FCC (1969)
New York Times v. United States (1971)
Branzburg v. Hayes (1972)
Hazelwood v. Kuhlmeier (1988) – student case
First Amendment – Exceptions
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Chaplinsky v. New Hampshire (1942)
Roth v. United States (1957)
New York Times v. Sullivan (1964)
Miller v. California (1973)
Gertz v. Welch (1974)
New York v. Ferber (1982)
Hustler Magazine v. Falwell (1988)
Reno v. ACLU (1997)
Ashcroft v. Free Speech Coalition (2002)
Ashcroft v. ACLU (2004)
Second Amendment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
United States v. Miller (1939)
Quilici v. Morton Grove (7th Circuit 1983)
D.C. v. Heller (2008)
McDonald v. Chicago (2010)
Voting and Elections
Colegrove v. Green (1946)
Gomillion v. Lightfoot (1960
Baker v. Carr (1962)
Wesberry v. Sanders (1964)
Reynolds v. Sims (1964)
Avery v. Midland County TX (1968)
Davis v. Bandemer (1986)
Shaw v. Reno (1993)
Miller v. Johnson (1995)
Bush v. Gore (2000)
Vieth v. Jubelirer (2004)
League of United Latin American Citizens v. Perry (2006)
Washington State Grange v. Washington State Republican Party (2008)
Crawford v. Marion County Election Board (2008)
Campaign Finance
Note that many campaign finance cases have First Amendment rights at their core.
Buckley v. Valeo (1976)
Colorado Republican Federal Campaign Committee v. FEC (1996)
McConnell v. FEC (2003)
Randall v. Sorrell (2006)
Federal Election commission v. Wisconsin Right to Life (2007)
Davis v. Federal Election Commission (2008)
Citizens United v. Federal Election Commission (2010)
Privacy Rights, Personal Liberties
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Reproductive Privacy Rights
Griswold v. Connecticut (1965)
Eisenstadt v. Baird (1972) – See 14th Amendment Equal Protection
Roe v. Wade (1973)
Webster v. Reproductive Health Services (1989)
Planned Parenthood v. Casey (1992)
Stenberg v. Carhart (2000)
Ayotte v. Planned Parenthood (2005)
Gonzales v. Carhart (2007) and Gonzales v. Planned Parenthood Federation of America (2007)
Personal Liberties
Bowers v. Hardwick (1986)
NTEU v. Von Raab (1989)
Vernonia School District v. Acton (1995) – student case
Board of Education v. Earls (2002) – student case
Lawrence and Garner v. Texas (2003)
Rights of Criminal Defendants
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Fourth Amendment
Weeks v. U.S. (1914)
Mapp v. Ohio (1961)
Katz v. United States (1967)
Terry v. Ohio (1968)
Kyllo v. U.S. (2001)
Ferguson v. City of Charleston (2001)
U.S. v. Arvizu (2002)
Thornton v. U.S. (2004)
Georgia v. Randolph (2006)
Brendlin v. California (2007)
Safford Unified School District #1 v. Redding (2009)
Arizona v. Johnson (2009)
Fifth Amendment
Miranda v. Arizona (1966)
Dickerson v. United States (2000)
Maryland v. Shatzer (2010)
Berghuis v. Thompkins (2010)
Sixth Amendment
Powell v. Alabama (1932)
Johnson v. Zerbst (1938)
Betts v. Brady (1942)
Gideon v. Wainwright (1963)
Escobedo v. Illinois (1964)
Argersinger v. Hamlin (1972)
United States v. Booker (2005)
Melendez-Diaz v. Massachusetts (2009)
Eighth Amendment
Furman v. Georgia (1972)
Gregg v. Georgia (1976)
Atkins v. Virginia (2002)
Roper v. Simmons (2005)
Kennedy v. Louisiana (2008)
Baze and Bowling v. Rees (2008)
Graham v. Florida (2010)
Juvenile Justice
In re Gault (1967)
Eminent Domain – Fifth Amendment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Kelo v. City of New London (2005)
14th Amendment, Equal Protection, Due Process Discrimination, Affirmative Action
Civil Rights – the government protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals based on
categories such as race, sex, national origin, age, religion, or sexual orientation
Equal Protection, Due Process, Right to Die
Cruzan v. Director, Missouri Department of Health (1990)
Vacco v. Quill (1997)
Washington v. Glucksberg (1997)
Gonzales v. Oregon (2006)
14th Amendment, Discrimination
Dred Scott v. Sandford (1857)
Munn v. Illinois (1877)
Plessy v. Ferguson (1896)
Smith v. Allwright (1944)
Brown v. Board of Education of Topeka (1954)
Brown v. Board of Education II (1955)
Loving v. Virginia (1967)
Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971)
Eisenstadt v. Baird (1972)
Frontiero v. Richardson (1973)
Craig v. Boren (1976)
Rostker v. Goldberg (1981)
INS v. Lopez-Mendoza (1984)
United States v. Virginia (1996)
Ricci v. DeStefano (2009)
Affirmative Action
Sweatt v. Painter (1950)
Regents of the University of California v. Bakke (1978)
Richmond v. J.A. Croson Co.(1989)
Adarand Constructors v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
Parents Involved in Community Schools v. Seattle School District No. 1 (2007) – equal protection based on Michigan cases
Meredith v. Jefferson County Board of Education (2007) – equal protection based on Michigan cases
Commerce Clause to Enforce Civil Rights
Katzenbach v. McClung (1964)
Heart of Atlanta Motel v. U.S.(1964)
Miscellaneous
Copyright
MGM Studios v. Grokster (2005)
Judicial Jurisdiction/Review
Chisholm v. Georgia (1793)
Facts of the Case: In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the
supplies, Georgia did not deliver payments as promised. After the merchant's death, the executor of his estate, Alexander Chisholm, took the case to court in an
attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.
Question: Was the state of Georgia subject to the jurisdiction of the Supreme Court and the federal government?
Conclusion: In a 4-to-1 decision, the justices held that "the people of the United States" intended to bind the states by the legislative, executive, and judicial powers of
the national government. The Court held that supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia.
The Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. State conduct was
subject to judicial review.
Hylton v. U.S. (1796)
Facts of the Case: In 1794, Congress enacted a law entitled "An act to lay duties upon carriages for the conveyance of persons." The law assessed a tax of sixteen
dollars on each carriage owned by an individual or business. Hylton viewed the law as a direct tax in violation of the constitutional requirement that taxes passed by
Congress must be apportioned, that is, laid according to the population and the number of representatives from each state.
Question: Did Congress violate the Constitution and go beyond its taxing and spending powers in implementing the tax on carriages?
Conclusion: The Court held that the tax was legitimate. In one of the seriatim opinions (each justice writing for himself, there being no opinion of the Court as a whole)
which constituted the holding, Justice Chase argued that an apportioned tax on carriages would lead to inequalities in the tax burden between states. Furthermore,
he interpreted the terms "tax" and "duty" in Article I, Section 8 broadly, and concluded that the carriage tax was an indirect tax. Justice Iredell argued that to
administer an apportioned tax on carriages would be "absurd," for if a state had no carriages it would be impossible to implement the tax. He concluded that if a tax
could not be apportioned, then it was not a direct tax "in the sense of the constitution."
Marbury v. Madison (1803)
Facts of the Case: The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of
Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute
appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.
Question: Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he
requests?
Conclusion: Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and
paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law-conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.
Fletcher v. Peck (1810)
Facts of the Case: In 1795, the Georgia state legislature passed a land grant awarding territory to four companies. The following year, however, the legislature voided
the law and declared all rights and claims under it to be invalid. In 1800, John Peck acquired land that was part of the original legislative grant. He then sold the land
to Robert Fletcher three years later, claiming that past sales of the land had been legitimate. Fletcher argued that since the original sale of the land had been
declared invalid, Peck had no legal right to sell the land and thus committed a breach of contract.
Question: Could the contract between Fletcher and Peck be invalidated by an act of the Georgia legislature?
Conclusion: In a unanimous opinion, the Court held that since the estate had been legally "passed into the hands of a purchaser for a valuable consideration," the
Georgia legislature could not take away the land or invalidate the contract. Noting that the Constitution did not permit bills of attainder or ex post facto laws, the Court
held that laws annulling contracts or grants made by previous legislative acts were constitutionally impermissible.
Martin v. Hunter’s Lessee (1816)
Facts of the Case: Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the Revolution. He died in 1781 and left the land to his nephew,
Denny Martin, who was a British subject. The following year, the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia
granted a portion of this land to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was entitled to the property. The Supreme Court declared that
Fairfax was so entitled, but the Virginia courts, where the suit arose, refused to follow the Supreme Court's decision.
Question: Does the appellate power of the Supreme Court extend to the Virginia courts?
Conclusion: The Court rejected the claim that Virginia and the national government were equal sovereigns. Reasoning from the Constitution, Justice Story affirmed
the Court's power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.
McCulloch v. Maryland (1819) – See legislative authority
Ex parte McCardle (1869)
Facts of the Case: William McCardle was arrested by federal authorities in 1867 for writing and publishing a series of editorials in his Mississippi newspaper. The
editorials were sharply critical of Reconstruction. McCardle sought a writ of habeas corpus on the ground that the Reconstruction Acts under which he was arrested
were unconstitutional. McCardle appealed to the Supreme Court under an 1867 congressional statute that conferred jurisdiction on appeal to the High Court. After
hearing arguments in the case, but prior to announcing a decision, the Congress withdrew its 1867 act conferring jurisdiction.
Question: May the Congress withdraw jurisdiction from the High Court after that jurisdiction has been given?
Conclusion: The Court, speaking through Chase, validated congressional withdrawal of the Court's jurisdiction. The basis for this repeal was the exceptions clause of
Article III Section 2. But Chase pointedly reminded his readers that the 1868 statute repealing jurisdiction "does not affect the jurisdiction which was previously
exercised."
Incorporation of Bill of Rights
Note: The incorporated rights are found in cases throughout this document. This section deals with those cases that established selective incorporation.
Barron v. Mayor and City Council of Baltimore (1833)
Facts: John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the
harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses.
Question: Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating
the property's owner?
Conclusion: No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief
Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government.
Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the
Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
Gitlow v. New York (1925)
Facts of the Case: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and
class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial,
Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of
concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
Question: Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First
Amendment?
Conclusion: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th
Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such
utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide
that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be
punished even if her speech created no danger at all.
Palko v. Connecticut (1937)
Facts: Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of
Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death.
Question: Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the
states by virtue of the Fourteenth Amendment's due process clause?
Conclusion: The Supreme Court upheld Palko's second conviction. This case clarified the Court’s position on selective incorporation. In his majority opinion,
Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of
thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states.
Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's gas chamber in April 1938.
Legislative Authority
McCulloch v. Maryland (1819)
Facts: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W.
McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.
Question: The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with
congressional powers?
Conclusion: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national
government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers
not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance
thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."
Gibbons v. Ogden (1824)
Facts of the Case: A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were
duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a
steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special
operating permit from the state to navigate on its waters.
Question: Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce?
Conclusion: The Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade.
The New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which
included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall's was one of the
earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of
conducting interstate commerce was a power reserved to and exercised by the Congress.
NLRB v. Jones & Laughlin Steel Corporation (1937)
Facts of the Case: With the National Labor Relations Act of 1935, Congress determined that labor-management disputes were directly related to the flow of interstate
commerce and, thus, could be regulated by the national government. In this case, the National Labor Relations Board charged the Jones & Laughlin Steel Co. with
discriminating against employees who were union members.
Question: Was the Act consistent with the Commerce Clause?
Conclusion: Yes. The Court held that the Act was narrowly constructed so as to regulate industrial activities which had the potential to restrict interstate commerce.
The justices abandoned their claim that labor relations had only an indirect effect on commerce. Since the ability of employees to engage in collective bargaining (one
activity protected by the Act) is "an essential condition of industrial peace," the national government was justified in penalizing corporations engaging in interstate
commerce which "refuse to confer and negotiate" with their workers.
Watkins v. United States (1957)
Facts of the Case: In 1954, John Watkins, a labor organizer, was called upon to testify in hearings conducted by the House Committee on Un-American Activities.
Watkins agreed to describe his alleged connections with the Communist Party and to identify current members of the Party. Watkins refused to give information
concerning individuals who had left the Communist Party. Watkins argued that such questions were beyond the authority of the Committee.
Question: Did the activities of the Un-American Activities Committee constitute an unconstitutional exercise of congressional power?
Conclusion: Warren Court - In a 6-to-1 decision, the Court held that the activities of the House Committee were beyond the scope of congressional power. The Court
held that both the authorizing resolution of the Committee and the specific statements made by the Committee to Watkins failed to limit the Committee's power. The
Court found that because Watkins had not been given sufficient information describing the pertinency of the questions to the subjects under inquiry, he had not been
accorded a fair opportunity to determine whether he was within his rights in refusing to answer. The Due Process Clause of the Fifth Amendment thus invalidated
Watkins' conviction.
South Carolina v. Katzenbach (1966)
Facts of the Case: The Voting Rights Act of 1965 prevented states from using a "test or device" (such as literacy tests) to deny citizens the right to vote. Federal
examiners, under the Attorney General's jurisdiction, were empowered to intervene to investigate election irregularities.
Question: Did the Act violate the states' rights to implement and control elections?
Conclusion: Warren Court - The Court upheld the law. Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full remedial powers" to
prevent racial discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the right to vote since the
Fifteenth Amendment's adoption in 1870.
Powell v. McCormack (1969)
Facts of the Case: Adam Clayton Powell pecked at his fellow representatives from his unassailable perch in New York's Harlem. Powell had been embroiled in
controversy inside and outside Washington. When Powell failed to heed civil proceedings against him in New York, a judge held him in criminal contempt. His
problems were only beginning. He won reelection in 1966 but the House of Representatives voted to exclude him.
Question: May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence
as articulated in Article I Section 2 of the U.S. Constitution?
Conclusion: Warren Court - No. The Court noted that the proceedings against Powell were intended to exclude and not expel him from the chamber. That is an
important distinction to recognize since the House does have the power under Article I, Section 5 to expel members. However, expulsion was not the purpose of the
proceedings in this case. After analyzing the Framers' debates on this issue, Chief Justice Warren concluded that since Powell had been lawfully elected by his
constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him.
INS v. Chadha (1983)
Facts: In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the
United States Attorney General. Chadha had stayed in the U.S. past his visa deadline and was ordered to leave the country. The House of Representatives
suspended the Immigration judge's deportation ruling. This case was decided together with United States House of Representatives v. Chadha and United States
Senate v. Chadha.
Question: Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?
Conclusion: The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over
issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated
the "explicit constitutional standards" regarding lawmaking and congressional authority.
U.S. Term Limits v. Thornton (1995)
Facts of the Case: On November 3, 1992, Arkansas voters adopted Amendment 73 to their State Constitution. The "Term Limitation Amendment," in addition to
limiting terms of elected officials within the Arkansas state government, also provided that any person who served three or more terms as a member of the United
States House of Representatives from Arkansas would be ineligible for re-election as a US Representative from Arkansas. Similarly, the Amendment provided that
any person who served two or more terms as a member of the United States Senate from Arkansas would be ineligible for re-election as a US Senator from
Arkansas.
Question: Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the Constitution?
Conclusion: No. The Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution. A state
congressional term limits amendment is unconstitutional if it has the likely effect of handicapping a class of candidates and "has the sole purpose of creating
additional qualifications indirectly." Furthermore, "...allowing individual States to craft their own congressional qualifications would erode the structure designed by the
Framers to form a 'more perfect Union.'"
Boumediene v. Bush (2008)
Facts of the Case: In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their
involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the
Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of
the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's
motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The
U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to noncitizen detainees at Guantanamo. In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear
habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants.
When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was
unconstitutional under the Suspension Clause. The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it."
The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects
of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had
allowed petitions like Boumediene's to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and
that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to
aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare
reversal, the Supreme Court granted certiorari after initially denying review three months earlier.
Question: 1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at
the U.S. Naval Base at Guantanamo Bay, Cuba? 2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution? 3. Are
the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva
Conventions? 4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review?
Conclusion: A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered
valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee
Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from
seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court
reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice
Antonin Scalia filed separate dissenting opinions.
United States v. Comstock (2010)
Facts of the Case: Convicted sex offenders moved to dismiss petitions requesting their indefinite civil commitment under the Adam Walsh Child Protection and Safety
Act. A North Carolina federal district court dismissed the petitions. On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed. It held that the Protection and
Safety Act exceeded the scope of Congress' authority when it enacted a law that could confine a person solely because of "sexual dangerousness," and the
government need not even allege that this "dangerousness" violated any federal law.
Question: Did Congress have the constitutional authority to enact the Adam Walsh Protection and Safety Act?
Conclusion: Yes. The Supreme Court held that the Necessary and Proper Clause grants Congress authority sufficient to enact the Adam Walsh Protection and
Safety Act. With Justice Stephen G. Breyer writing for the majority, the Court pointed to five considerations that compelled its holding. (1) the Necessary and Proper
Clause grants broad authority. (2) The Court recognized that Congress has long delivered mental health care to federal prisoners. (3) Congress had good reason to
pass the statute as it has the power to protect nearby communities from the danger prisoners may pose. (4) The Tenth Amendment does not reserve a zone of
authority to the states in this context. (5) The Court recognized that the statute was narrow in scope and did not confer on Congress a general police power, which is
reserved to the states.
Justice Anthony M. Kennedy wrote separately, concurring in the judgment. He maintained that authority under the Necessary and Proper Clause is dependent upon
the "strength of the chain" from Congressional action and its enumerated power, not on the number of "links in the chain." Justice Samuel A. Alito also wrote
separately, concurring in the judgment. He cautioned that the majority opinion should not be construed as granting an unlimited ability by Congress to extend its
power.
Justice Clarence Thomas, joined in part by Justice Antonin G. Scalia, dissented. Justice Thomas argued that the Necessary and Proper Clause empowers Congress
only to enact laws that carry into execution one or more enumerated powers. Here, he argued that the Adam Walsh Protection and Safety Act did not carry into
execution an enumerated power.
Executive Power
Prize Cases (1863)
Facts of the Case: Lincoln proclaimed a blockade of southern ports in April 1861. Congress authorized him to declare a state of insurrection by the Act of July 13,
1861. By the Act of August 6, 1861, Congress retroactively ratified all Lincoln's military action. These cases involved the seizure of vessels bound for Confederate
ports prior to July 13, 1861.
Question: Did Lincoln act within his presidential powers defined by Article II when he ordered the seizures absent a declaration of war?
Conclusion: Taney Court - The President had the power to act. A state of civil war existed de facto after the firing on Fort Sumter (April 12, 1861) and the Supreme
Court would take this fact into account. Though neither Congress nor the President can declare war against a state of the Union, when states waged war against the
United States government, the President was "bound to meet it in the shape it presented itself,without waiting for Congress to baptize it with a name."
United States v. Curtiss-Wright Export Corporation (1936)
Facts of the Case: Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict in the Chaco. This
violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt.
Question: Did Congress in its Joint Resolution unconstitutionally delegate legislative power to the President?
Conclusion: The Court agreed that the President was allowed much room to operate in executing the Joint Resolution; it found no constitutional violation. Making
important distinctions between internal and foreign affairs, Justice Sutherland argued because "the President alone has the power to speak or listen as a
representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically.
Korematsu v. United States (1944)
Facts: During World War II, Presidential Executive Order 9066 and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from
areas deemed critical to national defense and potentially vulnerable to espionage. Korematsu remained in San Leandro, California and violated Civilian Exclusion
Order No. 34 of the U.S. Army.
Question: Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent?
Conclusion: The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that
compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril."
Youngstown Sheet and Tube Company v. Sawyer (1952)
Facts of the Case: In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize
and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America.
Question: Did the President have the constitutional authority to seize and operate the steel mills?
Conclusion: Vinson Court - In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no
congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in
Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker."
United States v. Nixon (1974)
Facts: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon
and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming
"executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch
or to secure the national interest. Decided together with Nixon v. United States.
Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?
Conclusion: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic
affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena
and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.
Dames and Moore v. Regan (1981)
Facts of the Case: In reaction to the seizure of the U.S. embassy and American nationals in Iran, President Jimmy Carter invoked the International Emergency
Economic Powers Act (IEEPA) and froze Iranian assets in the United States. When the hostages were released in 1981, Treasury Secretary Donald Reagan affirmed
the agreements made the Carter administration that terminated all legal proceedings against the Iranian government and created an independent Claims Tribunal.
Dames & Moore attempted to recover over $3 million owed to it by the Iranian government and claimed the executive orders were beyond the scope of presidential
power.
Question: Did the president have the authority to transfer Iranian funds and to nullify legal claims against Iran?
Conclusion: Burger Court - The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorization for the President
to order the transfer of Iranian assets. The Court further held that although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts
of Congress had "implicitly approved" of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of
the case.
Nixon v. Fitzgerald (1982)
Facts of the Case: In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a congressional committee about inefficiencies and
cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which President Nixon took responsibility. Fitzgerald
then sued Nixon for damages after the Civil Service Commission concluded that his dismissal was unjust.
Question: Was the President immune from prosecution in a civil suit?
Conclusion: Burger Court - Yes. The Court held that the President "is entitled to absolute immunity from damages liability predicated on his official acts." This
sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and
supported by our history."
Clinton v. Jones (1997)
Facts of the Case: Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state employee, she suffered several "abhorrent"
sexual advances from then Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her
state supervisors. Following a District Court's grant of Clinton's request that all matters relating to the suit be suspended, pending a ruling on his prior request to have
the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the District
Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed
the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity.
Question: Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his
taking office?
Conclusion: No. In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly
unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for
confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches
must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This,
the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.
Clinton v. City of New York (1998)
Facts: This case consolidates two separate challenges to the constitutionality of two cancellations, made by President William J. Clinton, under the Line Item Veto Act
("Act"). In the first, the City of New York, two hospital associations, a hospital, and two health care unions, challenged the
President's cancellation of a provision in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6 billion in taxes
levied against Medicaid providers by the State of New York. In the second, the Snake River farmer's cooperative and one of its individual members challenged the
President's cancellation of a provision of the Taxpayer Relief Act of 1997. The provision permitted some food refiners and processors to defer recognition of their
capital gains in exchange for selling their stock to eligible farmers' cooperatives. After a district court held the Act unconstitutional, the Supreme Court granted
certiorari on expedited appeal.
Question: Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I?
Conclusion: Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the farmers' cooperative suffered sufficiently
immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause,
legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by
canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. Such discretion,
the Court concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers.
Hamdi v. Rumsfeld (2004)
Facts:In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United States military in Afghanistan. He was accused of fighting for the Taliban
against the U.S., declared an "enemy combatant," and transfered to a military prison in Virginia. Frank Dunham, Jr., a defense attorney in Virginia, filed a petition for
a writ of certiorari in federal district court there, first on his own and then for Hamdi's father, in an attempt to have Hamdi's detention declared unconstitutional. He
argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial.
The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and
thus restrict their access to the court system.
The district court ruled for Hamdi, telling the government to release him. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the separation of
powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of
overseas conflict in a way that the judiciary simply is not." The panel therefore found that it should defer to the Executive Branch's "enemy combatant" determination.
Question: Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an
Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal
courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?
Conclusion: Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although
Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to
contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from
hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court
his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin
Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.
Hamdan v. Rumsfeld (2006)
Facts: Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghani forces and imprisoned by the U.S. military in Guantanamo Bay. He filed
a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a
military tribunal, which designated him an enemy combatant.
A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war
under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision,
however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress
and was therefore not unconstitutional.
Question: May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was the military commission
established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President?
Conclusion: Yes and no. The Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of Congress nor the inherent
powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the
commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could
therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed
classified by the military commission violated both of these, and the trial was therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John
Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision.
Medellin v. Texas (2008)
Facts of the Case: Jose Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in
Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is
a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately
dismissed by the Supreme Court (see Medellin v. Dretke), Medellin's case returned to the Texas Court of Criminal Appeals. Medellin's argument rested in part on a
ruling of the International Court of Justice (ICJ) holding that the U.S. had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that
their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left
open by the Supreme Court's 2006 decision in Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of the United States that instructed
state courts to comply with the ICJ's rulings by rehearing the cases. Medellin argued that the Constitution gives the President broad power to ensure that treaties are
enforced, and that this power extends to the treatment of treaties in state court proceedings.
The Texas Court of Criminal Appeals rejected each of Medellin's arguments and dismissed his petition. The court interpreted Sanchez-Llamas as standing for the
principle that rulings of the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise the Vienna Convention issue after
his trial would violate state procedural rules, and that those rules were not supplanted by the Convention. The President had no authority to order the enforcement in
state court of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.
Question: 1. Did the President act within his constitutional and statutory foreign affairs authority when he determined that states must comply with the U.S. treaty
obligation under the Vienna Convention by enforcing a decision of the International Court of Justice?
2. Does the Constitution require state courts to honor the treaty obligation of the U.S. by enforcing a decision of the International Court of Justice?
Conclusion: Roberts Court - The Court upheld the rulings of the Texas Court of Criminal Appeals in a 6-3 opinion written by Chief Justice John G. Roberts. The Court
held that the signed Protocol of the Vienna Convention did not make the treaty self-executing and, therefore, the treaty is not binding upon state courts until it is
enacted into law by Congress. Furthermore, Chief Justice Roberts characterized the presidential memorandum as an attempt by the executive branch to enforce a
non-self executing treaty without the necessary Congressional action, giving it no binding authority on state courts. Justice John Paul Stevens concurred in the
opinion and Justice Stephen Breyer, joined by Justices David Souter and Ruth Bader Ginsburg, authored a dissent.
Free Enterprise Fund v. Public company Accounting Oversight Board (2010)
Facts of the Case: The Free Enterprise Fund, a non-profit organization, brought suit challenging the constitutionality of Title I of the Sarbanes-Oxley Act. It alleged
that the creation of the Public Company Oversight Board (the Board) by the Act violated the Appointments Clause because it deprived the President from exercising
adequate control over the Board. However, the Board itself was under the direct supervision of the Securities and Exchange Commission (SEC), all of whose
commissioners are appointed by and can be removed by the President.
The U.S. Court of Appeals for the D.C. Circuit held that the creation of the Public Company Accounting Oversight Board did not violate either the Appointments
Clause or the separation of powers principle. It reasoned that the Board’s members were inferior officers under the supervision of the SEC and thus were not
obligated to be appointed by the President. Also, the court noted that the President’s ability to remove members of the SEC, who in turn could remove members of
the Board, preserved the Constitution’s separation of powers.
Question: 1) Does the Sarbanes-Oxley Act violate the the separation of powers doctrine by giving broad powers to the Board while simultaneously preventing the
President of the power to appoint or remove Board members? 2) Did the court of appeals correctly hold that the Board members were inferior officers under the direct
supervision of the SEC even though the SEC cannot supervise those members individually and can only remove them for just cause? 3) Does the Sarbanes-Oxley
Act violate the Appointments Clause even if the Board’s members are inferior because the SEC is not an official department or because the commissioners are not
the head of the SEC?
Conclusion: Yes. Yes. Not answered. The Supreme Court held that the "for-cause" limitation on the removal of Board members is unconstitutional because it
contravenes the Constitution's separation of powers. With Chief Justice John G. Roberts, Jr., writing for the majority, the Court reasoned because the Act protects
Board members from removal except for good cause, but withdraws from the President any decision on whether good cause exists, the Act deprives the President
the power to hold Board members accountable. Such an arrangement contradicts Article II's vesting of the executive power in the president. The Court further held
that the unconstitutionality of the removal provision did not make unconstitutional the entire Board. The Court concluded that the Board may continue to function as
before, but its members may be removed at will by the Commission. Lastly, the Court held that the Board's appointment is consistent with the Appointments Clause
of the Constitution. The Court reasoned that Board members are inferior officers, and, thus, their appointment may permissibly be vested in the "Head of the
Department." Here, the Commission constitutes the "Head of the Department."
Justice Stephen G. Breyer, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor, dissented. He agreed that the members of the Board
are inferior officers. However, he disagreed that the Act unconstitutionally interferes with the President's executive power.
Federalism
Note that many of these cases are based on challenges to legislative authority; however, most are not duplicated in that section.
McCulloch v. Maryland (1819) – See legislative authority
Dred Scott v. Sandford (1857) – See 14th Amendment
Slaughterhouse Cases (1873)
Facts of the Case: Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this created
"involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of "liberty and property without due process of
law."
Question: Did the creation of the monopoly violate the Thirteenth and Fourteenth Amendments?
Conclusion: No. The involuntary servitude claim did not forbid limits on the right to use one's property. The equal protection claim was misplaced since it was
established to void laws discriminating against blacks. The due process claim simply imposes the identical requirements on the states as the fifth amendment
imposes on the national government. The Court devoted most of its opinion to a narrow construction of the privileges and immunities clause, which was interpreted to
apply to national citizenship, not state citizenship.
Civil Rights Cases (1883)
Facts of the Case: The Civil Rights Act of 1875 affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and
places of public amusement. Though privately owned, these businesses were like public utilities, exercising public functions for the benefit of the public and, thus,
subject to public regulation. In five separate cases, a black person was denied the same accommodations as a white person in violation of the 1875 Act.
Question: Does the Civil Rights Act of 1875 violate the 10th Amendment of the Constitution which reserves all powers not granted to the national government to the
states or to the people?
Conclusion: The Fourteenth Amendment restrains only state action. And the fifth section of the Amendment empowers Congress only to enforce the prohibition on
state action. The amendment did not authorize national legislation on subjects which are within the domain of the state. Private acts of racial discrimination were
simply private wrongs that the national government was powerless to correct.
Plessy v. Ferguson (1896) – See 14th Amendment
Lochner v. New York (1905)
Facts of the Case: The state of New York enacted a statute forbidding bakers to work more than 60 hours a week or 10 hours a day.
Question: Does the New York law violate the liberty protected by due process of the Fourteenth Amendment?
Conclusion: The Court invalidated the New York law. The majority (through Peckham) maintained that the statute interfered with the freedom of contract, and thus the
Fourteenth Amendment's right to liberty afforded to employer and employee. The Court viewed the statute as a labor law; the state had no reasonable ground for
interfering with liberty by determining the hours of labor.
Hammer v. Dagenhart (1918)
Facts of the Case: The Keating-Owen Child Labor Act prohibited the interstate shipment of goods produced by child labor. Reuben Dagenhart's father had sued on
behalf of his freedom to allow his fourteen year old son to work in a textile mill.
Question: Does the congressional act violate the Commerce Clause, the Tenth Amendment, or the Fifth Amendment?
Conclusion: White Court - Day spoke for the Court majority and found two grounds to invalidate the law. Production was not commerce, and thus outside the power
of Congress to regulate. And the regulation of production was reserved by the Tenth Amendment to the states. Day wrote that "the powers not expressly delegated to
the national government are reserved" to the states and to the people. In his wording, Day revised the Constitution slightly and changed the intent of the framers: The
Tenth Amendment does not say "expressly." The framers purposely left the word expressly out of the amendment because they believed they could not possibly
specify every power that might be needed in the future to run the government.
Adkins v. Children’s Hospital (1923)
Facts of the Case: In 1918, Congress enacted a law which guaranteed a minimum wage to women and children employed in the District of Columbia. This case was
decided together with Children's Hospital v. Lyons.
Question: Did the law interfere with the ability of employers and employees to enter into contracts with each other without assuring due process of law, a freedom
guaranteed by the Fifth Amendment?
Conclusion: The Court found that upholding the statute would dangerously extend the police power of the state and, thus, found it unconstitutional. Justice
Sutherland recognized that the freedom of individuals to make contracts is not absolute and curtailments of this right may be justified in the face of "exceptional
circumstances." However, in this case, the statute's implementation procedures were overly vague and did not act to regulate the character or method of wage
payments, or the conditions and hours of labor, areas in which regulation to protect the public welfare were legitimate. The Congress simply had enacted a "pricefixing law."
NLRB v. Jones and Laughlin Steel Co. (1937) – See legislative authority
United States v. Darby Lumber (1941)
Facts of the Case: In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages, maximum weekly
hours, and child labor. Corporations which engaged in interstate commerce or produced goods which were sold in other states were punished for violating the
statute.
Question: Was the act a legitimate exercise of Congress's power to regulate interstate commerce?
Conclusion: Hughes Court - The unanimous Court affirmed the right of Congress to exercise "to its utmost extent" the powers reserved for it in the Commerce
Clause. Relying heavily on the Court's decision in Gibbons v. Ogden (1824), Justice Stone argued that the "motive and purpose of a regulation of interstate
commerce are matters for the legislative judgment . . . over which the courts are given no control." Congress acted with proper authority in outlawing substandard
labor conditions since they have a significant impact on interstate commerce.
South Dakota v. Dole (1987)
Facts of the Case: In 1984, Congress enacted legislation ordering the Secretary of Transportation to withhold five percent of federal highway funds from states that
did not adopt a 21-year-old minimum drinking age. South Dakota, a state that permitted persons 19 years of age to purchase alcohol, challenged the law.
Question: Did Congress exceed its spending powers, or violate the Twenty-first Amendment, by passing legislation conditioning the award of federal highway funds
on the states' adoption of a uniform minimum drinking age?
Conclusion: Rehnquist Court - No. In a 7-to-2 decision, the Court held that Congress, acting indirectly to encourage uniformity in states' drinking ages, was within
constitutional bounds. The Court found that the legislation was in pursuit of "the general welfare," and that the means chosen to do so were reasonable. The Court
also held that the Twenty-first Amendment's limitations on spending power were not prohibitions on congressional attempts to achieve federal objectives indirectly.
The five percent loss of highway funds was not unduly coercive.
Webster v. Reproductive Health Services (1989) – See reproductive privacy rights
United States v. Lopez (1995)
Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under
Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal
criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone."
Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release.
Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the
power of Congress to legislate under the Commerce Clause?
Conclusion: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial
effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.
Seminole Tribe v. Florida (1996)
Facts of the Case: The Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory
Act (IGRA). Under the IGRA, the Tribe may engage in gaming (i.e., casino gambling) activities subject to Florida's good faith regulations. Florida moved to dismiss
the Tribe's action, alleging that the lawsuit violated Florida's sovereign immunity. On appeal from the District Court's denial of Florida's motion to dismiss the lawsuit,
the Court of Appeals reversed, holding that the Eleventh Amendment shielded Florida from federal suit and that under Ex Parte Young, the Tribe may not enforce its
right to good faith negotiations by naming Florida's governor as a party to the suit.
Question: Does the Eleventh Amendment provide Florida with immunity from the Tribe lawsuit?
Conclusion: Yes. In a 5-to-4 decision, The Court held that Congress did intend to abrogate states' sovereign immunity under the IGRA but that the Indian Commerce
Clause (and by implication the Commerce Clause) did not give Congress that power. Under the Eleventh Amendment, all states are regarded as sovereign entities.
Such sovereignty inherently implies that states may not be sued by parties without their consent, even if they are given authority to regulate those parties' activities
through receipt of federal funds. Finally, Ex Parte Young's ruling does not justify the Tribe's suit against Florida's governor in light of certain IGRA provisions which
specifically prohibit such an action.
Boerne v. Flores (1997)
Facts of the Case: The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA),
by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic
preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local
preservation ordinance. On appeal from the Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the Court granted Boerne's request for
certiorari.
Question: Did Congress exceed its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local ordinances to federal
regulation?
Conclusion: Yes. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling
government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in
an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the
Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. With
respect to this case, specifically, there was no evidence to suggest that Boerne's historic preservation ordinance favored one religion over another, or that it was
based on animus or hostility for free religious exercise.
Printz v. United States (1997)
Facts of the Case: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks
on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard
Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively. In both cases
District Courts found the background-checks unconstitutional, but ruled that since this requirement was severable from the rest of the Brady Bill a voluntary
background-check system could remain. On appeal from the Ninth Circuit's ruling that the interim background-check provisions were constitutional, the Supreme
Court granted certiorari and consolidated the two cases deciding this one along with Mack v. United States.
Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by
performing those duties called for by the Brady Bill's handgun applicant background-checks?
Conclusion: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while
Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership,
the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill
could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in
writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.
Saenz v. Roe (1999)
Facts of the Case: Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), states receiving Temporary Assistance to Needy
Families (TANF) can pay the benefit amount of another State's TANF program to residents who have lived in the State for less than 12 months. When California
announced it would enforce this option, Brenda Roe brought this class action, on behalf of other first year residents, challenging the constitutionality of the durational
residency requirement. On appeal from successive adverse rulings in the lower courts, the Supreme Court granted Rita Saenz, the Director of California's
Department of Social Services, certiorari.
Question: Does a state statute, authorizing states receiving Temporary Assistance to Needy Families to pay the benefit amount of another State's TANF to its first
year residents, violate the Fourteenth Amendment's right-to-travel protections?
Conclusion: Yes. In a 7-to-2 decision, the Court held that the Fourteenth Amendment protects the right to travel in three ways by: allowing citizens to move freely
between states, securing the right to be treated equally in all states when visiting, and securing the rights of new citizens to be treated like long-time citizens of a
state. The Court explained that by paying first-year residents the same TNF benefits they received in their state of origin, states treated new residents differently than
others who have lived in their borders for over one year. As such, enforcement of the PRWORA power unconstitutionally discriminated among residents.
Florida Prepaid v. College Savings Bank (1999)
Facts of the Case: Immediately after the Patent and Plant Variety Protection Remedy Clarification Act (Act) changed patent laws to abrogate state's sovereign
immunity, College Savings Bank (College) filed a patent infringement suit against Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid), a
Florida state entity. Florida Prepaid asked that College's suit be dismissed and that the Act be declared unconstitutional, based on Seminole Tribe of Florida v.
Florida (517 US 44) which upheld state sovereign immunity. The United States joined College looking to uphold the Act's constitutionality. After agreeing with
College, the District Court denied Florida Prepaid's dismissal motion. When the Federal Circuit affirmed, Florida
Prepaid appealed and the Supreme Court granted certiorari.
Question: Did nullification of state sovereign immunity, under the Patent and Plant Variety Protection Remedy Clarification Act, constitute valid legislation?
Conclusion: No. In a 5-to-4 opinion, the Court began by noting that there was no doubt that the Act intended to abrogate states' immunity from patent infringement.
The Court then added that neither the Commerce Clause nor the Patent Clause give Congress the power to curtail state sovereign immunity from patent infringement
claims. The Court reasoned that although the Fourteenth Amendment authorizes Congress to pass "appropriate legislation" to protect parties from being deprived of
property without due process, this in itself does not permit the abrogation of state sovereign immunity. Only a showing of a consistent pattern of state patent
violations, and a lack of adequate legal remedies to address such violations, would justify a limited effort to suspend a state's sovereign immunity. Since College
made no such showing, and since the Act's language was overly broad in its scope, the Court dismissed College's suit and declared unconstitutional corresponding
segments of the Act.
Alden v. Maine (1999)
Facts of the Case: A group of probation officers sued their employer, the State of Maine, in 1992 alleging that the state had violated the overtime provisions of the
1938 Fair Labor Standards Act. Following the Court's decision in Seminole Tribe v. Florida (1996)_which held that States are immune from private suits in federal
court and that Congress lacks the authority to abrogate that immunity_the probation officers' suit was dismissed in Federal district court. Alden and the other
probation officers then sued Maine again for violating the Fair Labor Standards Act, this time in state court. The state trial court and the state supreme court both held
that Maine had sovereign immunity and could not be sued by private parties in their own court.
Question: May Congress use its powers under Article I of the Constitution to abrogate a state's sovereign immunity from private suits in its own courts?
Conclusion: No. A sharply divided court held in a 5-4 decision that Congress may not use its Article I powers to abrogate the states' sovereign immunity. Both the
terms and history of the eleventh amendment suggest that States are immune from suits in their own courts. And more generally, the original understanding of the
Constitution's structure and the terms of the tenth amendment confirm that states retained much of their sovereignty despite their agreeing that the national
government would be supreme when exercising its enumerated powers.
Stenberg v. Carhart (2000) – See reproductive privacy rights
U.S. v. Morrison (2000)
Facts of the Case: In 1994, while enrolled at Virginia Polytechnic Institute (Virginia Tech), Christy Brzonkala alleged that Antonio Morrison and James Crawford, both
students and varsity football players at Virginia Tech, raped her. In 1995, Brzonkala filed a complaint against Morrison and Crawford under Virginia Tech's Sexual
Assault Policy. After a hearing, Morrison was found guilty of sexual assault and sentenced to immediate suspension for two semesters. Crawford was not punished.
A second hearing again found Morrison guilty. After an appeal through the university's administrative system, Morrison's punishment was set aside, as it was found to
be "excessive." Ultimately, Brzonkala dropped out of the university. Brzonkala then sued Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that
Morrison's and Crawford's attack violated 42 USC section 13981, part of the Violence Against Women Act of 1994 (VAWA), which provides a federal civil remedy for
the victims of gender-motivated violence. Morrison and Crawford moved to dismiss Brzonkala's suit on the ground that section 13981's civil remedy was
unconstitutional. In dismissing the complaint, the District Court found that that Congress lacked authority to enact section 13981 under either the Commerce Clause
or the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for it. Ultimately, the Court of Appeals affirmed.
Question: Does Congress have the authority to enact the Violence Against Women Act of 1994 under either the Commerce Clause or Fourteenth Amendment?
Conclusion: No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that Congress lacked the authority to enact a statute under the
Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce nor did it redress harm
caused by the state. Chief Justice Rehnquist wrote for the Court that [i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a
remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."
Dissenting, Justice Stephen G. Breyer argued that the majority opinion "illustrates the difficulty of finding a workable judicial Commerce Clause touchstone."
Additionally, Justice David H. Souter, dissenting, noted that VAWA contained a "mountain of data assembled by Congress...showing the effects of violence against
women on interstate commerce."
Gonzales v. Raich (2005)
Facts of the Case: In 1996 California voters passed the Compassionate Use Act, legalizing marijuana for medical use. California's law conflicted with the federal
Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctor-prescribed marijuana from
a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court.
The medical marijuana users argued the Controlled Substances Act - which Congress passed using its constitutional power to regulate interstate commerce exceeded Congress' commerce clause power. The district court ruled against the group. The Ninth Circuit Court of Appeals reversed and ruled the CSA
unconstitutional as it applied to intrastate (within a state) medical marijuana use. Relying on two U.S. Supreme Court decisions that narrowed Congress' commerce
clause power - U.S. v. Lopez (1995) and U.S. v. Morrison (2000) - the Ninth Circuit ruled using medical marijuana did not "substantially affect" interstate commerce
and therefore could not be regulated by Congress.
Question: Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress' power under the commerce clause as applied to the intrastate cultivation and
possession of marijuana for medical use?
Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the commerce clause gave Congress authority to prohibit the local
cultivation and use of marijuana, despite state law to the contrary. Stevens argued that the Court's precedent "firmly established" Congress' commerce clause power
to regulate purely local activities that are part of a "class of activities" with a substantial effect on interstate commerce. The majority argued that Congress could ban
local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana
market, making the regulation of intrastate use "essential" to regulating the drug's national market. The majority distinguished the case from Lopez and Morrison. In
those cases, statutes regulated non-economic activity and fell entirely outside Congress' commerce power; in this case, the Court was asked to strike down a
particular application of a valid statutory scheme.
Ayotte v. Planned Parenthood (2005) – See reproductive privacy rights
Gonzalez v. Oregon (2006)
Facts of the Case: In 1994 Oregon enacted the Death with Dignity Act, the first state law authorizing physicians to prescribe lethal doses of controlled substances to
terminally ill patients. Attorney General John Ashcroft declared in 2001 that physician-assisted suicide violated the Controlled Substances Act of 1970 (CSA).
Ashcroft threatened to revoke the medical licenses of physicians who took part in the practice. Oregon sued Ashcroft in federal district court. That court and, later the
Ninth Circuit, held Ashcroft''s directive illegal. The courts held that the CSA did not authorize the attorney general to regulate physician-assisted suicide, which was
the sort of medical matter historically entrusted to the states.
Question: Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?
Conclusion: Roberts Court - No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from
engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to
declare a medical practice authorized under state law to be illegitimate.
Watson v. Philip Morris Companies, Inc. (2007)
Facts of the Case: Lisa Watson filed a class action lawsuit against the tobacco company Philip Morris, claiming that the company had violated Arkansas law by
misrepresenting the amount of tar and nicotine in cigarettes branded as "light." Seeking to have the case removed to federal court, Philip Morris invoked 28 U.S.C.
1442(a)(1), which allows removal when a party is sued for actions taken while "acting under" a federal officer. Philip Morris claimed that it was acting under the direct
control of regulations promulgated by the Federal Trade Commission (FTC), so 28 U.S.C. 1442(a)(1) applied. After the federal District Court denied Watson's motion
to have the case sent back to state court, Watson appealed.
The dispute centered on the degree of control exercised by the FTC over Philip Morris. The U.S. Court of Appeals for the Eighth Circuit affirmed the lower court's
ruling in favor of Philip Morris, allowing the case to continue in the federal court system. The Eighth Circuit held that the question of whether 28 U.S.C. 1442(a)(1)
applies "depends on the detail and specificity of the federal direction of the defendant's activities and whether the government exercises control over the defendant."
In the case of the tobacco industry, the Eighth Circuit found "unprecedented" government involvement, including detailed FTC regulations concerning the testing and
disclosure of tar and nicotine levels. Therefore, Philip Morris was "acting under a federal officer" and consequently entitled to remove the case to federal court.
Question: Is the need to comply with Federal Trade Commission advertising regulations sufficient to establish that a tobacco company is a "person acting under a
federal officer" for purposes of 28 U.S.C. 1442(a)(1)?
Conclusion: Roberts Court - No. In a unanimous opinion written by Justice Stephen Breyer, the Court ruled that Philip Morris could not remove its case to federal
court, because it was not "acting under a federal officer" in the sense of the statute. Justice Breyer wrote that "broad language is not limitless. And a liberal
construction nonetheless can find limits in a textís language, context, history, and purposes." The Court held that the phrase "acting under" connotes a subordinate
acting to assist his superior. A company complying with a regulation, no matter how restrictive, was not in the type of relationship covered by the statute. Philip Morris
analogized its situation to government contractors that have been held to fall under the statute, but the Court ruled that the contractor's contractual "principal/agent"
relationship assisted the government in a way that Philip Morris's mere compliance with stringent regulations did not.
Massachusetts v. Environmental Protection Agency (2007)
Facts of the Case: Massachusetts and several other states petitioned the Environmental Protection Agency (EPA), asking EPA to regulate emissions of carbon
dioxide and other gases that contribute to global warming from new motor vehicles. Massachusetts argued that EPA was required to regulate these "greenhouse
gases" by the Clean Air Act - which states that Congress must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare."
EPA denied the petition, claiming that the Clean Air Act does not authorize the Agency to regulate greenhouse gas emissions. Even if it did, EPA argued, the Agency
had discretion to defer a decision until more research could be done on "the causes, extent and significance of climate change and the potential options for
addressing it." Massachusetts appealed the denial of the petition to the Court of Appeals for the D.C. Circuit, and a divided panel ruled in favor of EPA.
Question: 1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act?
2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases?
Conclusion: No and yes. By a 5-4 vote the Court reversed the D.C. Circuit and ruled in favor of Massachusetts. The opinion by Justice John Paul Stevens held that
Massachusetts, due to its "stake in protecting its quasi-sovereign interests" as a state, had standing to sue the EPA over potential damage caused to its territory by
global warming. The Court rejected the EPA's argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to
regulate "air pollution agent[s]". The Act's definition of air pollutant was written with "sweeping," "capacious" language so that it would not become obsolete. Finally,
the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations. The Court held that if the EPA wishes to
continue its inaction on carbon regulation, it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to
climate change." Chief Justice Roberts's dissenting opinion argued that Massachusetts should not have had standing to sue, because the potential injuries from
global warming were not concrete or particularized (individual and personal). Justice Scalia's dissent argued that the Clean Air Act was intended to combat
conventional lower-atmosphere pollutants and not global climate change.
Altria Group v. Good (2008)
Facts of the Case: A group of cigarette smokers brought this claim against Altria, the cigarette manufacturer, in federal court in Maine. The smokers asserted that
Altria's advertisement claiming that its product was "light" and had "lowered tar and nicotine" constituted misrepresentations under the Maine Unfair Trade Practices
Act. The United States District Court for the District of Maine granted summary judgment in favor of Altria on the claim.
The U.S. Court of Appeals for the First Circuit, however, reversed the lower court and found in favor of the plaintiff smokers. The court held that the Maine Act was
not preempted, either explicitly or implicitly, by a similar federal act, the Federal Cigarette Labeling and Advertising Act, and that Altria's assertions did in fact
constitute misrepresentations under the Maine Act.
Question: Does federal preemption of the Maine Unfair Trade Practices Act hinge on the express or implied nature of the allegedly fraudulent misrepresentations?
Conclusion: Roberts Court - No. In a 5-4 decision, the Supreme Court affirmed the United States Court of Appeals for the First Circuit. Justice John Paul Stevens
writing for the majority held that the Federal Cigarette Labeling and Advertising Act (FCLAA) did not expressly or impliedly preempt all claims related to "smoking and
health" under the Maine Unfair Trade Practices Act (MUTPA). Adopting the reasoning it used in Cipollone, the court found that claims based on a common law legal
duty ("predicate-duty" approach), like a manufacturer's duty not to misrepresent its products, were not preempted simply because they related to cigarette
manufacturers and the labeling of its products.
Justice Clarence Thomas joined by Chief Justice John G. Roberts, Justice Antonin G. Scalia, and Justice Samuel A. Alito Jr. dissented. Justice Thomas disagreed
with the majority's adoption of the "predicate-duty" approach from Cipollone arguing it was confusing and unworkable. Rather, he argued that the Court should adopt
a clear test that expressly pre-empts any state law claim that "imposes an obligation…because of the effect of smoking upon health."
Wyeth v. Levine (2009)
Facts of the Case: Diana Levine filed this personal injury action against Wyeth, the drug manufacturer, in state court in Vermont. Ms. Levine had intravenously
injected Phenergan, a drug made by Wyeth and used to prevent allergies and motion sickness, into her arm, and complications arising from the injection eventually
led to the amputation of her arm. Ms. Levine brought this claim asserting that Wyeth had failed to include a warning label describing the possible arterial injuries that
could occur from negligent injection of the drug. Wyeth argued that because their warning label had been deemed acceptable by the FDA, a federal agency, any
Vermont state regulations making the label insufficient were preempted by the federal approval. The Superior Court of Vermont found in favor of Ms. Levine and
denied Wyeth's motion for a new trial.
The Supreme Court of Vermont affirmed this ruling on appeal, holding that the FDA requirements merely provide a floor, not a ceiling, for state regulation. Therefore,
states are free to create more stringent labeling requirements than federal law provides.
Question: Does federal law preempt state law in a personal injury action against a drug manufacturer for failing to include an appropriate warning label where the
drug in question met the labeling requirements of the Food and Drug Administration?
Conclusion: Roberts Court - No. The Supreme Court affirmed the Supreme Court of Vermont holding that federal law did not preempt Ms. Levine's state-law claim
that Wyeth's labeling of Phenergan failed to warn of the dangers of its intravenous administration. With Justice John Paul Stevens writing for the majority and joined
by Justice Anthony M. Kennedy, Justice David H. Souter, Justice Ruth Bader Ginsburg, and Justice Stephen G. Breyer, the Court first rejected Wyeth's argument
that by unilaterally changing its labeling of Phenergan, it would have violated federal labeling regulations. Rather, the Court asserted that the manufacturer bears
ultimate responsibility for the content of its labels at all times. The Court then rejected Wyeth's argument that requiring it to comply with the state-law duty to provide a
stronger warning would interfere with Congress' purpose of entrusting the FDA with drug labeling decisions. Rather, the Court reasoned that Congress did not intend
to preempt state-law failure to warn actions when it created the Food, Drug, and Cosmetic Act.
Justice Breyer wrote a separate concurring opinion noting that the FDA may create regulations that preempt state law tort claims, but such a regulation was not at
issue in Ms. Levine's case. Justice Clarence Thomas wrote separately, concurring only in the judgment. He criticized the majority opinion for implicitly endorsing a
"far-reaching implied pre-emption doctrine" where the Court invalidates state laws based on perceived conflicts with federal statutes by extrapolating from evidence
not found in the text of the statute itself. Justice Samuel A. Alito dissented and was joined by Chief Justice John G. Roberts and Justice Antonin G. Scalia. He
disagreed with the Court's holding that a jury, rather than the FDA is ultimately responsible for regulating warning labels for prescription drugs. He argued this is
incompatible with the Court's precedent in Geier v. American Honda Motor Co., which established the principles of conflict preemption.
First Amendment – Religion, Establishment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Engel v. Vitale (1962)
Facts of the Case: The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an
attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we
acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country."
Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?
Conclusion: Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York
officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which
had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans.
Abington School District v. Schempp (1963)
Facts of the Case: The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public
schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington
Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -Murray v. Curlett -- a Baltimore statute required Bible-reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother,
professed atheists -- challenged the prayer requirement.
Question: Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious
freedom of students as protected by the First and Fourteenth Amendments?
Conclusion: The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First
Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark,
the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the
Establishment Clause.
Epperson v. Arkansas (1968)
Facts of the Case: The Arkansas legislature passed a law prohibiting teachers in public or state-supported schools from teaching, or using textbooks that teach,
human evolution. Epperson, a public school teacher, sued, claiming the law violated her First Amendment right to free speech as well as the Establishment Clause.
The State Chancery Court ruled that it violated his free speech rights; the State Supreme Court reversed.
Question: Does a law forbidding the teaching of evolution violate either the free speech rights of teachers or the Establishment clause of the First Amendment?
Conclusion: Yes. Seven members of the Court held that the statute violated the Establishment clause. Writing for the Court, Justice Abe Fortas stated that the law
had been based solely on the beliefs of fundamentalist Christians, who felt that evolutionary theories directly contradicted the biblical account of Creation. This use of
state power to prohibit the teaching of material objectionable to a particular sect ammounted to an unconstitutional Establishment of religion. Justice Fortas wrote,
"The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a
scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The two other members of the Court concurred in the
result, writing that it violated either the Due Process clause of the 14th Amendment (because it was unconstitutionally vague) or the Free Speech clause of the First
Amendment.
Lemon v. Kurtzman (1971)
Facts of the Case: This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies
over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for
secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each
statute made aid available to "church-related educational institutions."
Question: Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "churchrelated educational institutions"?
Conclusion: Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute
must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government
entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state
surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an
unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.
Lynch v. Donnelly (1984)
Facts of the Case: The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. The display included such objects
as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. The crèche had been included in the display for over 40
years. Daniel Donnelly objected to the display and took action against Dennis Lynch, the Mayor of Pawtucket.
Question: Did the inclusion of a nativity scene in the city's display violate the Establishment Clause of the First Amendment?
Conclusion: No. In a 5-to-4 decision, the Court held that notwithstanding the religious significance of the crèche, the city had not violated the Establishment Clause.
The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message.
The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The Court held that the symbols posed
no danger of establishing a state church and that it was "far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country."
Wallace v. Jaffree (1985)
Facts of the Case: An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three
of Jaffree's children attended public schools in Mobile.
Question: Did Alabama law violate the First Amendment's Establishment Clause?
Conclusion: Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the
state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation
from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular
purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause.
Edwards v. Aguillard (1987)
Facts of the Case: A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the
teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced
forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation,
teachers were obligated to discuss the other as well.
Question: Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution, violate the Establishment Clause of the First
Amendment as applied to the states through the Fourteenth Amendment?
Conclusion: Yes. The Court held that the law violated the Constitution. Using the three-pronged test that the Court had developed in Lemon v. Kurtzman (1971) to
evaluate potential violations of the Establishment Clause, Justice Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted
to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine
central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial
support of government to achieve a religious purpose."
Allegheny County v. Greater Pittsburgh ACLU (1989)
Facts of the Case: Two public-sponsored holiday displays in Pittsburgh, Pennsylvania, were challenged by the American Civil Liberties Union. The first display
involved a Christian nativity scene inside the Allegheny County Courthouse. The second display was a large Chanukah menorah, erected each year by the Chabad
Jewish organization, outside the City-County building. The ACLU claimed the displays constituted state endorsement of religion. This case was decided together with
Chabad v. ACLU and City of Pittsburgh v. ACLU of Greater Pittsburgh.
Question: Did the public displays violate the Establishment Clause of the First Amendment?
Conclusion: In a 5-to-4 decision, the Court held that the crèche inside the courthouse unmistakably endorsed Christianity in violation of the Establishment Clause. By
prominently displaying the words "Glory to God for the birth of Jesus Christ," the county sent a clear message that it supported and promoted Christian orthodoxy.
The Court also held, however, that not all religious celebrations on government property violated the Establishment Clause. Six of the justices concluded that the
display involving the menorah was constitutionally legitimate given its "particular physical setting."
Board of Education of Westside Community Schools v. Mergens (1990)
Facts of the Case: The school administration at Westside High School denied permission to a group of students to form a Christian club with the same privileges and
meeting terms as other Westside after-school student clubs. In addition to citing the Establishment Clause, Westside refused the club's formation because it lacked a
faculty sponsor. When the school board upheld the administration's denial, Mergens and several other students sued. The students alleged that Westside's refusal
violated the Equal Access Act, which requiremes that schools in receipt of federal funds provide "equal access" to student groups seeking to express "religious,
political, philosophical, or other content" messages. On appeal from an adverse District Court ruling, the Court of Appeals found in favor of the students. The
Supreme Court granted Westside certiorari.
Question: Was Westside's prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act
unconstitutional?
Conclusion: No. In distinguishing between "curriculum" and "noncurriculum student groups," the Court held that since Westside permitted other noncurricular clubs, it
was prohibited under the Equal Access Act from denying equal access to any after-school club based on the content of its speech. The proposed Christian club
would be a noncurriculum group since no other course required students to become its members, its subject matter would not actually be taught in classes, it did not
concern the school's cumulative body of courses, and its members would not receive academic credit for their participation. The Court added that the Equal Access
Act was constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, or other types of speech.
As such, the Act protected the Christian club's formation even if its members engaged in religious discussions. This decision was 8-1 with Stevens dissenting.
Lee v. Weisman (1992)
Facts of the Case: In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school
principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi
from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were
recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions
at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted
certiorari.
Question: Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment?
Conclusion: Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a
public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand
respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government
may not compose official prayers to recite as part of a religious program carried on by government.
Lamb's Chapel v. Center Moriches School District (1993)
Facts of the Case: A New York law authorized schools to regulate the after-hour use of school property and facilities. The Center Moriches School District, acting
under the statute, prohibited the use of its property by any religious group. The District refused repeated requests by Lamb's Chapel to use the school's facilities for
an after-hours religious-oriented film series on family values and child rearing. The Chapel brought suit against the School District in federal court.
Question: Did the District violate the First Amendment's freedom of speech when it denied Lamb's Chapel the use of school premises to show religious-oriented
films?
Conclusion: Yes, by a unaminous vote. The Supreme Court's holding consisted of two parts. First, the District violated freedom of speech by refusing the Chapel's
request to show movies on school premises solely because such movies were religiously oriented. While non-public schools are permitted under New York law to
restrict access to their premises based on subject matter or speaker identity, such restrictions must be reasonable and "viewpoint neutral." In this case, the District's
restriction was neither reasonable nor viewpoint neutral, since it allowed the presentation of all other views about family values and child rearing - except those which
were presented from a religious perspective. Second, a grant of permission to the Chapel to use the District's premises would not have amounted to an
establishment of religion. This is because the showing of the films would neither be school-sponsored during school hours nor closed to the public.
Rosenberger v. University of Virginia (1995)
Facts of the Case: Ronald W. Rosenberger, a University of Virginia student, asked the University for $5,800 from a student activities fund to subsidize the publishing
costs of Wide Awake: A Christian Perspective at the University of Virginia. The University refused to provide funding for the publication solely because it "primarily
promotes or manifests a particular belief in or about a diety or an ultimate reality," as prohibited by University guidelines.
Question: Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources that it made
available to secular student-run magazines?
Conclusion: Yes. The Court, in a 5-to-4 opinion, held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial
burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to
promote speech at all, it must promote all forms of it equally. Furtheremore, because it promoted past publications regardless of their religious content, the Court
found the University's publication policy to be neutral toward religion and, therefore, not in violation of the establishment clause. The Court concluded by stating that
the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. The exclusion of several views is as offensive to free
speech as the exclusion of only one. The University must provide a financial subsidy to a student religious publication on the same basis as other student
publications.
Agostini v. Felton (1997)
Facts of the Case: This suit was brought by a New York parochial school board, and some of its student's parents, as a challenge to a District Court ruling upholding
the twelve-year-old decision set out in Aguilar v. Felton (473 US 402). The decision in Aguilar prohibited public school teachers from teaching in parochial schools as
a violation of the Establishment Clause. On appeal from the Second Circuit's affirmance of a District Court's denial of the parent's challenge, the Supreme Court
granted certiorari.
Question: Is the Establishment Clause violated when public school teachers instruct in parochial schools?
Conclusion: No. The Court overruled its decision in Aguilar v. Felton. The Court held that there was no evidence to support its former presumption that the entrance
of public school teachers into parochial schools will inevitably lead to the indoctrination of state-sponsored religion. The New York program under which public school
teachers were sent into parochial schools did not provide parochial schools with any incentive, financial or other, to establish religion in order to attract public school
teachers. The Court added that under its new view, only those policies which generate an excessive conflict between church and state will be deemed to violate the
Establishment Clause. As such, one should no longer find that all entanglements between church and state have a distinctly positive or negative impact on religion.
Santa Fe Independent School Dist. v. Doe (2000)
Facts of the Case: Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer, described as overtly Christian, over the
public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the
Establishment Clause of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the District) from implementing its policy
as it stood. While the suit was pending, the District adopted a new policy, which permitted, but did not require, student-initiated and student-led prayer at all the home
games and which authorized two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the
spokesperson to deliver them. After the students authorized such prayers and selected a spokesperson, the District Court entered an order modifying the policy to
permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. The
District petitioned for a writ of certiorari, claiming its policy did not violate the Establishment Clause because the football game messages were private student
speech, not public speech.
Question: Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at football games violate the Establishment Clause
of the First Amendment?
Conclusion: Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the District's policy permitting student-led, student-initiated prayer at
football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and
taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government
endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In
dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristle[d]
with hostility to all things religious in public life."
Good News Club v. Milford Central School (2001)
Facts of the Case: Under New York law, Milford Central School policy authorizes district residents to use its building after school for certain activities. Stephen and
Darleen Fournier were district residents eligible to use the school's facilities. They sought approval of their proposed use and sponsorship of the Good News Club, a
private Christian organization for children. The Fourniers submitted a request to hold the Club's weekly afterschool meetings at the school. Milford denied the request
reasoning that the proposed use, including singing songs, hearing Bible lessons, memorizing scripture, and praying, was the equivalent of religious worship
prohibited by the community use policy. The Club filed suit alleging that the denial violated its free speech rights under the First and Fourteenth Amendments.
Ultimately, the District Court granted Milford summary judgment. In affirming, the Court of Appeals held that because the subject matter of the Club's was
"quintessentially religious", and the activities "fall outside the bounds of pure 'moral and character development,'" Milford's policy of excluding the Club's meetings
was constitutional subject discrimination, not unconstitutional viewpoint discrimination.
Question: Did Milford Central School violate the First Amendment free speech rights of the Good News Club when it excluded the Club from meeting after hours at
the school? If a violation occurred, was it justified by Milford's concern that permitting the Club's activities would violate the Establishment Clause?
Conclusion: Yes and no. In a 6-3 opinion delivered by Justice Clarence Thomas, the Court held that "Milford's restriction violates the Club's free speech rights and
that no Establishment Clause concern justifies that violation." "When Milford denied the Good News Club access to the school's limited public forum on the ground
that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First
Amendment," wrote Justice Thomas.
Zelman v. Simmons-Harris (2002)
Facts of the Case: Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to
attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed
to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82
percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in
religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on
the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed.
Question: Does Ohio's school voucher program violate the Establishment Clause?
Conclusion: No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The
Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious
institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived
endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral
with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It
permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private
choice."
Elk Grove Unified School District v. Newdow (2004)
Facts of the Case: Michael Newdow's daughter attended public school in the Elk Grove Unified School District in California. Elk Grove teachers began school days by
leading students in a voluntary recitation of the Pledge of Allegiance, including the words "under God" added by a 1954 Congressional act. Newdow sued in federal
district court in California, arguing that making students listen - even if they choose not to participate - to the words "under God" violates the establishment clause of
the U.S. Constitution's First Amendment.
The district court dismissed Newdow's complaint for lack of standing, because he and the mother of his daughter are divorced and he does not have custody. The
U.S. Ninth Circuit Court of Appeals reversed, holding that Newdow did have standing "to challenge a practice that interferes with his right to direct the religious
education of his daughter." The Ninth Circuit ruled that Congress's 1954 act adding the words "under God" to the Pledge and the school district policy requiring it be
recited both violated the First Amendment's establishment clause.
Question: Does Michael Newdow have standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in
reciting the Pledge of Allegiance? Does a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which
includes the words "under God," violate the Establishment Clause of the First Amendment?
Conclusion: In an opinion authored by Justice John Paul Stevens, the Supreme Court found that Newdow did not have standing to bring suit because he did not have
sufficient custody over his daugther. "When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its
hand rather than reach out to resolve a weighty question of federal constitutional law," Justice Stevens wrote. Because it found that Newdow did not have standing,
the Court failed to reach the constitutional question. Chief Justice Renquist and Justices Sandra Day O'Connor and Clarence Thomas all wrote seperate
concurrences, saying that requiring teachers to lead the Pledge is constitutional.
McCreary County v. ACLU of Kentucky (2005)
Facts of the Case: The American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for displaying framed copies of the Ten
Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment's establishment clause, which prohibits the
government from passing laws "respecting an establishment of religion." The district court and the Sixth Circuit Court of Appeals ruled the displays violated the
establishment clause.
Question: 1. Do Ten Commandments displays in public schools and in courthouses violate the First Amendment's establishment clause, which prohibits government
from passing laws "respecting an establishment of religion?" 2. Was a determination that the displays' purpose had been to advance religion sufficient for the
displays' invalidation?
Conclusion: Yes and yes. In a 5-4 opinion delivered by Justice David Souter, the majority held that the displays violated the establishment clause because their
purpose had been to advance religion. In the case of each of the displays, the Court held, an observer would have concluded that the government was endorsing
religion. The first display for presenting the Ten Commandments in isolation; the second for showing the Commandments along with other religious passages; the
third for presenting the Commandments in a presentation of the "Foundations of American Law," an exhibit in which the county reached "for any way to keep a
religious document on the walls of courthouses."
Van Orden v. Perry (2005)
Facts of the Case: Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building
building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which
prohibits the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and
said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion.
Question: Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the
government from passing laws "respecting an establishment of religion?"
Conclusion: No. In 5-4 decision, and in a four-justice opinion delivered by Chief Justice William H. Rehnquist, the Court held that the establishment clause did not bar
the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten
Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message
consistent with a religious doctrine does not run afoul of the establishment clause."
Hein v. Freedom from Religion Foundation (2007)
Facts of the Case: Shortly after taking office, President Bush created by executive order the Office of Faith-Based and Community Initiatives, a program aimed at
allowing religious charitable organizations to compete alongside non-religious ones for federal funding. Another executive order instructed various executive
departments to hold conferences promoting the Faith-Based Initiative. The Freedom from Religion Foundation sued, alleging that the conferences favored religious
organizations over non-religious ones and thereby violated the Establishment Clause of the First Amendment. The government argued that there was no "Case or
Controversy" as required by Article III of the Constitution. According to the government, the Foundation had no standing to sue, because the Foundation had not
been harmed in any way by the conferences. The fact that an individual pays taxes to the federal government is not normally enough to give the individual standing to
challenge a federal program, but the Foundation noted that exceptions have been made for Establishment Clause challenges (see Flast v. Cohen and Bowen v.
Kendrick).
The District Court ruled that the Foundation lacked standing to sue. The court held that the exceptions only covered challenges to specific congressional
expenditures, not executive-branch actions funded by the general funds allotted to the executive departments. The U.S. Court of Appeals for the Seventh Circuit
reversed, ruling that any taxpayer has standing to bring an Establishment Clause challenge against an executive-branch program, whether funded by a specific
congressional grant or by a discretionary use of a general appropriation.
Question: Do taxpayers have standing to bring an Establishment Clause challenge against Executive Branch actions funded by general appropriations rather than by
any specific congressional grant?
Conclusion: No. By a 5-4 vote, the Court ruled that citizens do not have standing as taxpayers to bring Establishment Clause challenges against Executive Branch
programs that are funded by appropriations for general administrative expenses. Justice Samuel Alito's plurality opinion called Flast v. Cohen a "narrow exception" to
the general rule that taxpayer status does not grant standing to sue the government, and held that Flast did not support the Seventh Circuit's broad interpretation. In
order to have standing under Flast, a taxpayer must not only challenge a policy on the basis of the Establishment Clause, but also bring the challenge against a
congressional expenditure. Since no specific congressional appropriation was implicated in the suit, the Court ruled that there was no "Case or Controversy" under
the Flast exception. To extend Flast to executive actions, the Court said, would threaten the separation of powers by relaxing the doctrine of standing and turning
federal courts into "general complaint bureaus." In a separate concurring opinion, Justice Scalia called the plurality's distinction "utterly meaningless," and argued that
Flast should be overruled. Justice Souter argued in dissent that "When executive agencies spend identifiable sums of tax money for religious purposes, no less than
when Congress authorizes the same thing, taxpayers suffer injury."
Salazar v. Buono (2010)
Facts of the Case: In 1934, the Veterans of Foreign Wars built a wooden cross on top of Sunrise Rock in the Mojave National Preserve (Preserve) as a memorial to
those who died in World War I. The original cross no longer exists, but has been rebuilt several times. Frank Buono, a former Preserve employee, filed suit in a
California federal district court seeking to prevent the permanent display of the cross. The genesis of his suit occurred in 1999 when a request to build a Buddhist
shrine in the Preserve, near the cross, was denied. He argued that the cross' display on federal property violated the Establishment Clause of the First Amendment.
The district court agreed and the cross was covered.
While the case was pending, Congress designated Sunrise Rock a national memorial and barred its dismantling with the use of federal funds. One year later, by land
swap, Congress made Sunrise Rock private property in exchange for another parcel of land. Mr. Buono moved to not only enforce the previous court order
preventing the display of the cross, but also to prohibit the land swap. The district court granted both motions. The Secretary of the Interior appealed, arguing that the
district court abused its discretion.
On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court did not abuse its discretion. The court reasoned that the government failed to
show that the district court's fact findings or legal standards were clearly erroneous, nor did it show that the district court made an error in judgment.
Question: 1) Can Mr. Buono's suit be maintained when he is merely offended by the fact that public land on which a cross is displayed is not a forum for other
religious symbols? 2) Did the U.S. Court of Appeals for the Ninth Circuit err in not giving effect to Congress's land swap where Sunrise Rock was made private land?
Conclusion: Yes. Yes. The Supreme Court reversed the Ninth Circuit. With Justice Anthony M. Kennedy writing for the plurality, the Court held that Mr. Buono has
standing to maintain this action. Justice Kennedy reasoned that when a party obtains a judgment in its favor, like Mr. Buono, it acquires a "judicially cognizable"
interest in ensuring compliance with that judgment. The plurality also held that the district court erred in preventing the government from implementing the landtransfer statute in order to protect Mr. Buono's rights. A court may not order an injunction when it fails to consider all the circumstances bearing on the need for
preventive relief. The district court failed to consider the context in which the land-transfer statute was enacted. Justice Kennedy concluded that upon remand the
court should conduct a proper inquiry into the continued need for preventive relief in light of the statute.
Justice Samuel A. Alito wrote separately, concurring in part and concurring in the judgment. The district court should not reach the issue whether the implementation
of the land-transfer statute would violate the district court's injunction or the Establishment Clause of the First Amendment. Justice Antonin G. Scalia, joined by
Justice Clarence Thomas, also wrote separately, concurring in the judgment. Mr. Buono lacked standing; and therefore, the Supreme Court should not have
addressed the merits of his claim. Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotamayor, dissented. The district court was correct
in preventing the enforcement of Congress' land-transfer statute because the statute was designed to leave the cross in place thus violating the Establishment
Clause.
Arizona Christian School Tuition Organization v. Winn (To be decided)
Facts: In 1997, Arizona passed a statute permitting residents to contribute up to $500 ($1,000 for married couples) that they would otherwise pay in taxes to a
nonprofit "school tuition organization" of their choice. STOs are charitable groups that give scholarships to students in private schools.
Because many STOs provide their scholarships to religious schools, a group of citizens sued, challenging the program as an unconstitutional establishment of
religion and asking the courts to kill it. Last year the Ninth Circuit Court of Appeals agreed and struck it down.
Questions: 1. Do Respondents lack taxpayer standing because they do not allege, nor can they, that the Arizona Tuition Tax Credit involves the expenditure or
appropriation of state funds?
2. Is the Respondents' alleged injury-which is solely based on the theory that Arizona's tax credit reduces the state's revenue-too speculative to confer taxpayer
standing, especially when considering that the credit reduces the state's financial burden for providing public education and is likely the catalyst for new sources of
state income?
3. Given that the Arizona Supreme Court has authoritatively determined, under state law, that the money donated to tuition granting organizations under Arizona's tax
credit is private, not state, money, can the Respondents establish taxpayer standing to challenge the decisions of private taxpayers as to where they donate their
private money?
First Amendment – Religion, Free Exercise
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Reynolds v. United States (1879)
Facts of the Case: George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a
Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court.
Question: Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice?
Conclusion: No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The
First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy
could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.
Cantwell v. Connecticut (1940)
Facts of the Case: Jesse Cantwell and his son were Jehovah's Witnesses; they were proselytizing a predominantly Catholic neighborhood in Connecticut. The
Cantwells distributed religious materials by travelling door-to-door and by approaching people on the street. After voluntarily hearing an anti-Roman Catholic
message on the Cantwells' portable phonograph, two pedestrians reacted angrily. The Cantwells were subsequently arrested for violating a local ordinance requiring
a permit for solicitation and for inciting a breach of the peace.
Question: Did the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights?
Conclusion: Yes. In a unanimous decision, the Court held that while general regulations on solicitation were legitimate, restrictions based on religious grounds were
not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments.
The Court also held that while the maintenance of public order was a valid state interest, it could not be used to justify the suppression of "free communication of
views." The Cantwells' message, while offensive to many, did not entail any threat of "bodily harm" and was protected religious speech.
Minersville School District v. Gobitis(1940)
Note : This case may be used from a First Amendment expression or religion perspective
Facts of the Case: Lillian and William Gobitis were expelled from the public schools of Minersville, Pennsylvania, for refusing to salute the flag as part of a daily
school exercise. The Gobitis children were Jehovah's Witnesses; they believed that such a gesture of respect for the flag was forbidden by Biblical commands.
Question: Did the mandatory flag salute infringe upon liberties protected by the First Amendment Free Exercise Clause and Fourteenth Amendment?
Conclusion: No. In an 8-to-1 decision, the Court declined to make itself "the school board for the country" and upheld the mandatory flag salute. The Court held that
the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values" and that national unity was "the basis of national security." The flag,
the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the
common schools an attachment to the institutions of their country."
Sherbert v. Verner (1963)
Facts of the Case: Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of
her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work.
Question: Did the denial of unemployment compensation violate the First and Fourteenth Amendments?
Conclusion: Yes. The Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely
exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right.
Wisconsin v. Yoder (1972)
Facts of the Case: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite
Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to
such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.
Question: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of
parents who refused to send their children to school for religious reasons?
Conclusion: In a unamimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's
interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and
programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of
high school would not produce the benefits of public education cited by Wisconsin to justify the law.Justice William O. Douglas filed a partial dissent but joined with
the majority regarding Yoder.
McDaniel v. Paty (1978)
A Tennessee law barring members of the clergy from public office was overturned because it directly targeted people because of their religious profession.
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Facts of the Case: Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as
part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The
counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related
"misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled
employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660
(1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this
prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.
Question: Does the state law violate the Free Exercise Clause of the First Amendment?
Conclusion: No. Justice Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the
prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service,
payment of taxes, vaccination requirements, and child-neglect laws. This decision was a key factor in Congress passing the Religious Freedom Restoration Act,
1993. This act was later struck down by the Supreme Court in Boerne v. Flores (1997) – see Federalism cases.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
Facts of the Case: The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used animal sacrifice as a form of worship in
which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. Shortly after the announcement of the
establishment of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited
possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities.
Question: Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause?
Conclusion: Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental
interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances
singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious
belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict strutiny
Locke v. Davy (2004)
Facts of the Case: The Washington State Promise Scholarship, created by the state legislature in 1999, gives college scholarship money to talented students.
However, this money cannot be used to obtain a degree in theology if the program is taught to cause belief. Washington's constitution prohibits funding religious
instruction. The 1969 state code applied this ban to college financial aid.
Joshua Davey forfeited his Promise Scholarship money in order to major in pastoral ministries at a private Christian college. Davey filed suit in U.S. district court,
claiming the state constitution's ban on funding religious instruction violated his First Amendment right to free exercise of religion (in the U.S. Constitution). The
district court rejected Davey's claim. The Ninth Circuit Court of Appeals reversed, concluding Davey's free exercise rights were violated.
Question: If a state provides college scholarships for secular instruction, does the First Amendment's free exercise clause require a state to fund religious instruction?
Conclusion: No. In a 7-2 opinion delivered by Chief Justice William Rehnquist, the Court ruled that a state does not violate the First Amendment's free exercise
clause when it funds secular college majors but excludes devotional theology majors. The Court rejected Davey's argument that the state scholarship program is
unconstitutional because it is not neutral toward religion. "The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the
Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause. Unlike laws and
programs the Court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution "suggests animus towards
religion." States have a "historic and substantial interest" in excluding religious activity from public funding.
Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006)
Facts of the Case: O Centro Espirita Benficiente Uniao do Vegetal (UDV), a religious organization, brought suit in federal court to prevent the government from
interfering with UDV's use of hoasca, a substance used during religious ceremonies that contains a drug prohibited by the Controlled Substances Act. UDV argued
that the Religious Freedom Restoration Act, which prohibits substantial imposition on religious practices in the absence of a compelling government interest,
established their right to use hoasca.
The district court sided with UDV and the Tenth Circuit Court of Appeals affirmed, finding that the government had not sufficiently proved the alleged health risks
posed by hoasca and could not show a substantial risk that the drug would be abuse recreationally. In response to the Attorney General's argument that prohibiting
the drug was required by an international treaty, the court ruled that the government had failed to "narrowly tailor" its prohibition of the drug.
Question: Does the Religious Freedom Restoration Act of 1993 require the government to permit the importation, distribution, possession and use of an otherwise
illegal drug by a religious organization when Congress has found that the drug has a high potential for abuse, is unsafe for use even under medical supervision, and
violates an international treaty when imported or distributed?
Conclusion: Yes. In a unanimous 8-0 decision (Justice Alito not participating), the Court held that the government had failed to prove a compelling interest in
regulating the UDV's use of drugs for religious purposes. Writing for the Court, Chief Justice John Roberts rejected the government's argument that the Controlled
Substances Act could accommodate no exceptions. On the contrary, Justice Roberts wrote, the Court is required by the RFRA to examine individual religious
freedom claims and grant exceptions to generally-applicable laws where no compelling government interest can be shown.
The Court also rejected the argument that an exception for UDV was precluded by international treaty. The government failed to submit "evidence addressing the
international consequences of granting an exemption for the UDV," instead citing "the general importance of honoring international obligations and of maintaining the
leadership position of the United States in the international war on drugs." The Court held that such general government interests were not sufficient to satisfy the
compelling interest standard.
First Amendment – Expression, Assembly and Petition
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Schenck v. United States (1919)
Facts of the Case: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the
capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was
charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
Conclusion: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the
circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.
Abrams v. United States (1919)
Facts of the Case: The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists"
denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution.
The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were
sentenced to 20 years in prison.
Question: Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?
Conclusion: No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal
to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to
curtail war production. Holmes and Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a classic
libertarian pronouncement.
Gitlow v. New York (1925)
Facts of the Case: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and
class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial,
Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of
concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
Question: Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First
Amendment?
Conclusion: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th
Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such
utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide
that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be
punished even if her speech created no danger at all.
De Jonge v. Oregon (1937)
Facts of the Case: On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience regarding jail conditions in the county and a
maritime strike in progress in Portland. While the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal
syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a
means of accomplishing or effecting industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal, arguing that the evidence
was insufficient to warrant his conviction. Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge with criminal syndicalism,
but rather that he presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party,
which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage.
Question: Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth Amendment?
Conclusion: Yes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Oregon statute, as applied, violated the due process clause of
the Fourteenth Amendment. After reviewing the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held under the auspices
of the Communist Party. The Court reasoned that to preserve the rights of free speech and peaceable assembly - principles embodied in the Fourteenth Amendment
- not the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech
must be examined, which had not occurred in De Jonge's case. Justice Harlan Fiske Stone took no part in the consideration or decision of the case.
West Virginia State Board of Education v. Barnette (1943)
Facts of the Case: The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils
were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency.
Question: Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
Conclusion: In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute
the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of
opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any
fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein."
Dennis v. United States (1951)
Facts of the Case: In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it
unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts
upheld the conviction.
Question: Did the Smith Act's restrictions on speech violate the First Amendment?
Conclusion: In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First
Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those
ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences of an attempted putsch, the
Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.
United States v. O'Brien (1968)
Facts of the Case: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal
law that made the destruction or mutilation of drafts card a crime.
Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech?
Conclusion: No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic
speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it
clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First
Amendment freedoms is not greater than is essential to the furtherance of that interest."
Tinker v. Des Moines Ind. Comm. School Dist. (1969)
Facts of the Case: John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to
protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing
that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove
them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were
suspended until after New Year's Day.
Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech
protections?
Conclusion: The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free
expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially
interfere with appropriate school discipline.
Brandenburg v. Ohio (1969)
Facts of the Case: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law
made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as
assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as
protected by the First and Fourteenth Amendments?
Conclusion: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate
speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The
criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent
lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
Cohen v. California (1971)
Facts of the Case: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT.
STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any
neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.
Question: Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First
Amendment?
Conclusion: Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides,
there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that
"one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the
expression of ideas).
Bates v. State Bar of Arizona (1977)
Facts of the Case: In regulating the Arizona Bar, the Supreme Court of Arizona restricted advertising by attorneys. Bates was a partner in a law firm which sought to
provide low-cost legal services to people of moderate income who did not qualify for public legal aid. Bates and his firm would only accept routine legal matters (many
of which did not involve litigation) and depended on a large number of patrons given the low financial return from each client. In assessing their concept of legal
services, Bates's firm decided that it would be necessary to advertise its availability and low fees.
Question: Did the Arizona rule, which restricted legal advertising, violate the freedom of speech of Bates and his firm as guaranteed by the First and Fourteenth
Amendments?
Conclusion: The Court found that the rule violated the First and Fourteenth Amendments. Justice Blackmun argued that commercial speech does merit First
Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to
allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the
administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.
National Socialist Party v. Skokie (1977)
Facts of the Case: The National Socialist Party, a minor political party that is an American version of the Nazi party, wanted to exercise its First Amendment right to
assemble by marching in Skokie, Illinois. A large number of Holocaust survivors live in Skokie and the town passed a number of ordinances to attempt to stop the
march. The ACLU provided legal assistance to the party to protect their First Amendment rights. The Skokie residents saw the Nazi uniforms as “fighting words” and
reasoned that the town could regulate the speech to prevent violence. A state court agreed with the town and entered an injunction prohibiting the Nazis from
marching in Skokie. The ACLU asked the Illinois Supreme Court for a stay and for an expedited appeal – both were denied and the issue came before the Supreme
Court.
Question: Should the Illinois Supreme Court have granted a stay pending the appeal on the injunction against Appellants, denying them the right to demonstrate in
the village of Skokie?
Conclusion: 1. The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim
that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards,
including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right.
Island Trees School District v. Pico (1982)
Facts of the Case: The Island Trees Union Free School District's Board of Education (the "Board"), acting contrary to the recommendations of a committee of parents
and school staff, ordered that certain books be removed from its district's junior high and high school libraries. In support of its actions, the Board said such books
were: "anti-American, anti-Christian, anti-Semitic, and just plain filthy." Acting through his friend Francis Pico, and on behalf of several other students, Steven Pico
brought suit in federal district court challenging the Board's decision to remove the books. The Board won; the U.S. Court of Appeals for the Second Circuit reversed.
The Board petitioned the U.S. Supreme Court, which granted certiorari.
Question: Did the Board of Education's decision to ban certain books from its junior high and high school libraries, based on their content, violate the First
Amendment's freedom of speech protections?
Conclusion: Yes. Although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is
secondary to the transcendent imperatives of the First Amendment. The Court, in a 5-to-4 decision, held that as centers for voluntary inquiry and the dissemination of
information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the Board could not restrict the availability of books
in its libraries simply because its members disagreed with their idea content.
Bethel School District v. Fraser (1986)
Facts of the Case: At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In
his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel
High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or
gestures." Fraser was suspended from school for two days.
Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
Conclusion: No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished
between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual
content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since
such discourse was inconsistent with the "fundamental values of public school education."
Texas v. Johnson (1989)
Facts of the Case: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration
policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the
Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
Conclusion: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that
Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or
expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used
to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit
the expression of an idea simply because society finds the idea itself offensive or disagreeable."
United States v. Eichman (1990)
Facts of the Case: In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which
may be "commonly displayed." The law did, however, allow proper disposal of a worn or soiled flag. Several prosecutions resulted from the Act. Eichman set a flag
ablaze on the steps of the U.S. Capitol while protesting the government's domestic and foreign policy. Another prosecution (United States v. Haggerty) resulted from
a flag-burning in Seattle protesting the passage of the Flag Protection Act.Both cases (Eichman's and Haggerty's) were argued together.
Question: Did the Act violate freedom of expression protected by the First Amendment?
Conclusion: In a 5-to-4 decision, coming on the heels of a similar holding in Texas v. Johnson (1989), the Court struck down the law because "its asserted interest is
related to the suppression of free expression and concerned with the content of such expression." Allowing the flag to be burned in a disposal ceremony but
prohibiting protestors from setting it ablaze at a political protest made that clear, argued Justice Brennan in one of his final opinions.
R.A.V. v. St. Paul (1992)
Facts of the Case: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local biasmotivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion
or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court.
Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?
Conclusion: Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the
subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas
expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers.
Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."
Hurley v. Irish American GLIB Association (1995)
Facts of the Case: In 1993, the South Boston Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick's Day Parade. The Council
refused a place in the event for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). The group attempted to join to express its members' pride in
their Irish heritage as openly gay, lesbian, and bisexual individuals. The Massachusetts State Court ordered the Veterans' Council to include GLIB under a state law
prohibiting discrimination on account of sexual orientation in public accommodations. The Veterans' Council claimed that forced inclusion of GLIB members in their
privately-organized parade violated their free speech.
Question: Did a Massachusetts State Court's mandate to Boston's Veterans' Council, requiring it to include GLIB members in its parade, violate the Council's free
speech rights as protected by the First and Fourteenth Amendments?
Conclusion: Yes. A unanimous court held that the State Court's ruling to require private citizens who organize a parade to include a group expressing a message that
the organizers do not wish to convey violates the First Amendment by making private speech to the public accommodation requirement. Such an action "violate[s] the
fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."
Schenck v. Pro-Choice Network of Western New York (1997)
Facts of the Case: This action was filed by the Pro-Choice Network of Western New York (PCN), on behalf of health care providers, to enjoin Schenck and others
from continuously staging blockades and other disruptive illegal activities in front of abortion clinics. After its restraining order proved ineffective, a District Court
issued a preliminary injunction creating "fixed buffer zones" which prohibited demonstrations within fifteen feet of entrances to abortion clinics, parking lots, or
driveways. The court also created "floating buffer zones" prohibiting demonstrators from coming within fifteen feet of people or vehicles seeking access to the clinics.
Following the Appellate Court's decision to uphold the District Court's ruling that the "buffer zones" were constitutional, the Supreme Court granted Schenck certiorari.
Question: Did either or both types of "buffer zones" violate Schenck's First Amendment right to freedom of speech.
Conclusion: The Court held that while the "fixed buffer zones" were constitutional, the "floating buffer zones" were not. It distinguished between the two types of
"buffer zones." The Court supported the "fixed buffer zones" because they protected the government's interest in public safety, by preventing protesters from
engaging in unlawful conduct (i.e. spitting on and shouting in clinic users' faces, blocking doorways), while still allowing them to be heard from a short distance.
"Floating buffer zones," by contrast, were struck down by the Court since they imposed a greater burden on free speech than was required to protect the
government's interest in public safety and free traffic flow. The Court found that forcing demonstrators to remain at least 15 feet away from the people they wished to
communicate with would create an inordinate amount of dangerous confusion and congestion.
Boy Scouts of America v. Dale (2000)
Facts of the Case: The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization
discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New
Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization,
asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New
Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy
Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The court's
Appellate Division held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its
connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy
Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not
violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their
purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message.
Question: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar
homosexuals from serving as troop leaders?
Conclusion:Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require
the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a
constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual
conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message,
both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
Hill v. Colorado (2000)
Facts of the Case: A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of
another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that]
person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in
state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute
imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of
communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after
holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals
reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper
balance between a person's right to protest and a person's right to medical treatment.
Question: Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking,
displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker?
Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are
constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although
the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place
any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however,
make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote
for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence
Thomas, and Anthony M. Kennedy dissented.
Virginia v. Black (2003)
Facts of the Case: Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person...,
with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such
burning...shall be prima facie evidence of an intent to intimidate a person or group." At trial, Black objected on First Amendment grounds to a jury instruction that
cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of
violating the statute, but reserved the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence
provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie
evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech.
Question: Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of
persons, violate the First Amendment?
Conclusion: Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may
ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima
facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter
portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so
that that court could have an opportunity to construe the cross-burning statute's prima-facie-evidence provision. Justice David H. Souter, joined by Justices Anthony
M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed
the invalidation of Black's conviction. Justice Clarence Thomas dissented.
Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
Facts of the Case: The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military recruiters
the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools'
First Amendment rights to expressive association by requiring them to assist in military recruitment. The district court rejected the suit, but a Third Court of Appeals
panel reversed. It held that, while the schools still had the right to forfeit funds so as to avoid unwanted endorsement of military policy under the amendment, forcing
the schools to make such a decision was unconstitutional. Congress could not require them to forfeit a constitutional right in order to receive federal funds.
Question: Does the Solomon Amendment, which witholds certain federal funds from colleges and universities that restrict the access of military recruiters to students,
violate the First Amendment?
Conclusion: No. The Supreme Court, in a unanimous opinion written by Chief Justice John Roberts, held that the Solomon Amendment regulated conduct, not
speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the
recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to
make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not
prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of
federal funds."
Morse v. Frederick (2007)
Facts of the Case: At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking.
Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of
material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right
to freedom of speech.
The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity
from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which
extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message
rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any
reasonable principal would have known that Morse's actions were unlawful.
Question: 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised
events? 2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a
student for displaying a banner with a drug reference at a school-supervised event?
Conclusion: Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that
promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this
right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message,
though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the
Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by
Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish
to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent
conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit
unfettered debate, even among high-school students [...]."
Pleasant Grove v. Summum (2009)
Facts of the Case: Summum, a religious organization, sent a letter to the mayor of Pleasant Grove, Utah asking to place a monument in one of the city's parks.
Although the park already housed a monument to the Ten Commandments, the mayor denied Summum's request because the monument did not "directly relate to
the history of Pleasant Grove." Summum filed suit against the city in federal court citing, among other things, a violation of its First Amendment free speech rights.
The U.S. District Court for the District of Utah denied Summum's request for a preliminary injunction.
The U.S. Court of Appeals for the Tenth Circuit reversed the district court and granted Summum's injunction request. The Tenth Circuit held that the park was in fact
a "public" forum, not a non-public forum as the district court had held. Furthermore, Summum demonstrated that it would suffer irreparable harm if the injunction were
to be denied, and the interests of the city did not outweigh this potential harm. The injunction, according to the court, was also not against the public interest.
Question: Does a city's refusal to place a religious organization's monument in a public park violate that organization's First Amendment free speech rights when the
park already contains a monument from a different religious group?
Conclusion: No. The Supreme Court reversed the Tenth Circuit holding that the placement of a monument in a public park is a form of government speech and
therefore not subject to scrutiny under the Free Speech Clause of the First Amendment. With Justice Samuel A. Alito writing for the majority and joined by Chief
Justice John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer,
the Court reasoned that since Pleasant Grove City had retained final authority over which monuments were displayed, the monuments represented an expression of
the city's viewpoints and thus government speech.
Justice Stevens, joined by Justice Ginsburg, wrote a separate concurring opinion that largely embraced the majority's reasoning. Justice Scalia, joined by Justice
Thomas, also wrote a separate concurring opinion. Agreeing with the Court's reasoning, he also noted that there were likely no violations of the Establishment Clause
of the First Amendment on the part of Pleasant Grove City. He argued that displays of the Ten Commandments had been construed by the Court as "having an
undeniable historical meaning" and thus did not attempt to establish a religion. Justice Breyer also wrote a separate concurring opinion in which he noted that
"government speech" should be considered a rule of thumb and not a rigid category. He stated that sometimes the Court should ask "whether a government's actions
burdens speech disproportionately in light of the action's tendency to further a legitimate government objective." Justice Souter also wrote separately, concurring in
the judgment, but warning that public monuments should not be considered government speech categorically.
Christian Legal Society v. Martinez (2010)
Facts of the Case: The Christian Legal Society Chapter of the University of California, Hastings College of Law (CLS) filed suit against the university in a California
federal district for violating its First Amendment rights. The Hastings College of Law failed to recognize the CLS as an official student organization because state law
requires all registered student organizations to allow "any student to participate, become a member, or seek leadership positions, regardless of their status or
beliefs." In contrast, CLS requires its members to attest in writing that "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's
son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of
regeneration; [and] Jesus Christ, God's son, is Lord of my life." The district court dismissed the case.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the school's conditions on recognizing student groups were viewpoint neutral and
reasonable. Therefore, the school's conditions did not violate the CLS's First Amendment rights.
Question: Did the Ninth Circuit err when its holding runs directly contrary to the Seventh Circuit's 2006 decision in Christian Legal Society v. Walker?
Conclusion: No. The Supreme Court affirmed the Ninth Circuit, holding that the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to
the student organization forum; and, therefore, did not transgress First Amendment limitations. With Justice Ruth Bader Ginsburg writing for the majority, the Court
reasoned that the same considerations that have led the Court to apply a less restrictive level of scrutiny to speech in limited public forums, counseled the same
result in this case. The Court further reasoned that, considering this constitutional inquiry occurs in the education context, Hasting's all-comers policy is reasonable
and viewpoint neutral.
Justice John Paul Stevens, wrote separately, concurring. He agreed with the Court's holding and answered an argument raised by CLS that Hasting's
Nondiscrimination Policy would be "plainly unconstitutional" if addressed in this case. He disagreed with CLS noting that while the First Amendment may protect CLS'
discriminatory practices off campus, it does not require a public university to validate or support such practices. Justice Anthony M. Kennedy also concurred. He
noted that to be effective, a limited forum will exclude some speakers based on their affiliation, as occurred in this case. Justice Samuel A. Alito, joined by Chief
Justice John G. Roberts and Justices Antonin Scalia and Clarence Thomas, dissented. He critiqued the majority for expounding the principle: "no freedom for
expression that offends prevailing standards of political correctness in our country's institutions of higher learning." He argued that the majority arms public institutions
with a "handy weapon" for suppressing the speech of unpopular groups.
Schwarzenegger v. Entertainment Merchants Association (To be decided)
Facts of the Case: Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of
California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly-enacted law
that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. The district court found in favor of the plaintiffs and
prevented the enforcement of the law.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute "obscenity" under the First Amendment, (2)
the state did not not have a compelling in interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the
state had a compelling interest, the law was not narrowly tailored enough to meet that objective.
Question:Does the First Amendment bar a state from restricting the sale of violent video games to minors?
First Amendment – Press
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation)
John Peter Zenger Trial (1735)
John Peter Zenger (1697-1746) was a German American newspaper publisher and printer, born in the Upper Palatinate (now in Bavaria, Germany). He immigrated
to America in 1710. In 1730, Zenger founded the New York Weekly Journal, a newspaper backed by a group of influential local figures. Zenger printed his backers'
articles criticizing the colonial governor of New York, and on November 17, 1734, he was arrested and imprisoned on charges of seditious libel. The ScottishAmerican lawyer Andrew Hamilton defended Zenger during the trial, which took place in 1735. Hamilton eloquently argued that the antiadministration allegations
printed in the Journal were true and therefore not libelous. Despite the contrary opinion of the judge, the jury accepted Hamilton's thesis and declared Zenger not
guilty. This verdict is considered the first milestone in the history of American freedom of the press.
Near v. Minnesota ex rel. Olson (1931)
Facts of the Case: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters.
Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law
provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and
defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.
Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment?
Conclusion: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against
previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the
First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or
otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
Red Lion Broadcasting v. FCC (1969)
Facts of the Case: The Federal Communications Commission's (FCC) fairness doctrine requires radio and television broadcasters to present a balanced and fair
discussion of public issues on the airwaves. The doctrine is composed of two primary requirements concerning personal attacks in the context of public issue debates
and political editorializing. The FCC conditioned its renewal of broadcast licenses on compliance with its regulations. Red Lion Broadcasting challenged the
application of the fairness doctrine with respect to a particular broadcast. In a companion case (United States v. Radio Television News Directors Association
(RTNDA)), the fairness doctrine's requirements concerning any broadcast were challenged.
Question: Do the FCC's fairness doctrine regulations, concerning personal attacks made in the context of public issue debates and political editorializing, violate the
First Amendment's freedom of speech guarantees?
Conclusion: In a unanimous decision, the Court held that the fairness doctrine was consistent with the First Amendment. Writing for the Court, Justice White argued
that spectrum scarcity made it "idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or
publish." The Court held that the FCC's fairness doctrine regulations enhanced rather than infringed the freedoms of speech protected under the First Amendment.
With respect to the regulation of personal attacks made in the context of public issue debates, the FCC's requirement that the subject of the attack be provided with a
tape, transcript, or broadcast summary, as well as an opportunity to respond without having to prove an inability to pay for the "air-time," insured a balanced and open
discussion of contested issues. The requirement that political editorializing be presented for and against both sides of the debated issues also contributed to the
balanced discussion of public concerns.
New York Times v. United States (1971)
Facts of the Case: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post
from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that
prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.
Question; Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?
Conclusion: Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this
case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment."
Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint
was unjustified.
Branzburg v. Hayes (1972)
Facts of the Case: After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote
a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes.
Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v.
Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information.
Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.
Question: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as
guaranteed by the First Amendment?
Conclusion: No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and
did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to
publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does
not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence
when summoned to testify in court.
Hazelwood School District v. Kuhlmeier (1988)
Facts of the Case: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E.
Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that
the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.
Question:Did the principal's deletion of the articles violate the students' rights under the First Amendment?
Conclusion: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The
Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to
sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial
control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds,
the Court held, met this test.
First Amendment – Exceptions
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Chaplinsky v. New Hampshire (1942)
Facts of the Case: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and
convicted under a state law for violating a breach of the peace.
Question: Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment?
Conclusion: No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection.
In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."
Roth v. United States (1957)
Facts of the Case: Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal
obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for
selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.
Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom
of expression as guaranteed by the First Amendment?
Conclusion: In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech
or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without
redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards,
the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and
satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).
New York Times v. Sullivan (1964)
Facts of the Case: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev.
Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B.
Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that
the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense
claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.
Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to
factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
Conclusion: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when
statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case
collapsed.
Miller v. California (1973)
Facts of the Case: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting
the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.
Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?
Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity
established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person,
applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.
Gertz v. Welch (1974)
Facts of the Case: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John
Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz
lost his libel suit because a lower court found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York
Times v. Sullivan (1964).
Question: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a
public figure?
Conclusion: The Court reversed the lower court decision and held that Gertz's rights had been violated. Justice Powell argued that the application of the New York
Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell
advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye.
However, continued Powell, the actual malice standard did not lose all significance in cases involving ordinary citizens as he advised states to use it in assessing
claims for punitive damages by citizens suing for libel.
New York v. Ferber (1982)
Facts of the Case: A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by
distributing material which depicts such performances.
Question: Did the law violate the First and Fourteenth Amendments?
Conclusion: No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual
exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical,
and sexual abuse associated with pornography while not violating the First Amendment.
Hustler Magazine v. Falwell (1988)
Facts of the Case: A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign,
claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover
damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a
total of $150,000 in damages. Hustler Magazine appealed.
Question: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in
their suffering emotional distress?
Conclusion: Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress
without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of
protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech
could not reasonably be construed to state actual facts about its subject.
Reno v. ACLU (1997)
Facts of the Case: Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from
unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which
depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from
enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno
appealed directly to the Supreme Court as provided for by the Act's special review provisions.
Question: Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their
definitions of the types of internet communications which they criminalized?
Conclusion: Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech.
The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact on adults),
provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive"
material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions,
protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address
any Fifth Amendment issues.
Ashcroft v. Free Speech Coalition (2002)
Facts of the Case: The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer
or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is
"advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct."
The Free Speech Coalition, an adult-entertainment trade association, and others filed suit, alleging that the "appears to be" and "conveys the impression" provisions
are overbroad and vague and, thus, restrain works otherwise protected by the First Amendment. Reversing the District Court, the Court of Appeals held the CPPA
invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller v. California, 413 U.S. 15, nor produced by
the exploitation of real children as in New York v. Ferber, 458 U.S. 747.
Question: Does the Child Pornography Prevention Act of 1996 abridge freedom of speech where it where it proscribes a significant universe of speech that is neither
obscene under Miller v. California nor child pornography under New York v. Ferber?
Conclusion: Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and
unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link
between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in
Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the
categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents
or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy.
Ashcroft v. American Civil Liberties Union (2004)
Facts: Congress passed the Child Online Protection Act (COPA) to prevent minors from accessing pornography online. The American Civil Liberties Union (ACLU)
and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District
Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, holding that because the act used "community standards" to decide which material was
harmful to minors, it would prohibit material that was felt offensive in the most "puritanical" communities from being displayed in more "tolerant" ones.
On appeal, the Supreme Court ruled that the "community standards" provision alone did not make the act unconstitutional and sent the case back to the Third Circuit
for further evaluation.
The Third Circuit again prohibited implementation of the act, holding that it was likely to fail the "strict scrutiny" test because it was not narrowly tailored - that is, it
prevented online publishers from publishing some material that adults had a right to access - and because it did not use the least restrictive means possible to protect
children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech). For similar reasons,
the panel found that the act was unconstitutionally "overbroad" - that is, it applied to too much protected material.
Question: Is the Child Online Protection Act's requirement that online publishers prevent children from accessing "material that is harmful to minors" likely to violate
the First Amendment by restricting too much protected speech and using a method that is not the least restrictive one available?
Conclusion: Yes. In an interesting 5-to-4 vote, with Justices Kennedy, Stevens, Souter, Thomas and Ginsburg on one side and Chief Justice Rehnquist and Justices
Scalia, Breyer and O'Connor on the other, the Court found that Congress had not yet met its burden to show that the COPA requirements were more effective than
other methods of preventing minors. Justice Anthony Kennedy, in the majority opinion, wrote that the district court's injunction "was not an abuse of discretion,
because on this record there are a number of plausible, less restrictive alternatives to the statute." The majority also emphasized that barring the statute's
enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material.
Second Amendment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
United States v. Miller (1939)
Facts: The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18
inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act.
Question: 1. Was the Act unconstitutional as an invasion of the reserved powers of the States. 2. Was the Act violative of the Second Amendment
of the Federal Constitution.
Conclusion: No. No. The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable
relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen
the right to keep and bear such a weapon.
Quilici v. Morton Grove (7th Circuit 1983)
In 1981, Morton Grove became the first town in America to prohibit the possession of handguns. Victor Quilici, a local lawyer, sued the city (Quilici v. Morton Grove).
The federal district court as well as the Appellate Court ruled the Morton Grove ordinance to be constitutional, thus upholding the gun ban. The U.S. Supreme Court
declined to hear the case, letting the lower court decision stand.
D.C. v. Heller (2008)
Facts of the Case: For the first time in seventy years, the Court will hear a case regarding the central meaning of the Second Amendment and its relation to gun
control laws. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal
firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment
right to bear arms. The federal trial court in Washington D.C. refused to grant the plaintiffs relief, holding that the Second Amendment applies only to militias, such as
the National Guard, and not to private gun ownership.
The U.S. Court of Appeals for the District of Columbia Circuit disagreed, voting two to one that the Second Amendment does in fact protect private gun owners such
as plaintiffs. Petitioners agree with the trial court's decision that the Second Amendment applies only to militias, and further argue that (a) the Second Amendment
should not apply to D.C. because it is a federal enclave rather than a state, and (b) that the D.C. legislation merely regulates, rather than prohibits, gun ownership.
Respondents, although disagreeing on the merits, have also urged the Court to review the case in order to clearly define the relationship between federal gun control
laws and the Second Amendment.
Question: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful
firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any stateregulated militia, but who wish to keep handguns and other firearms for private use in their homes?
Conclusion: Yes. In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia,
and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as
well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court. Justices John
Paul Stevens and Stephen Breyer filed dissenting opinions, each joined by the other as well as Justices David Souter and Ruth Bader Ginsburg. Justice Stevens
argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are
lawful. Justice Breyer agreed with Stevens' argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of
firearms would have to be "unreasonable or inappropriate" to violate the Second Amendment. In Breyer's view, the D.C. laws at issue in this case were both
reasonable and appropriate.
McDonald v. Chicago (2010)
Facts of the Case: Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of
Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that
the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the
Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.
Question: Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process
clauses and thereby made applicable to the states?
Conclusion: The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms
for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to
the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth
Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of
its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's
handgun ban violated an individual's right to keep and bear arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in
Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately
incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or
Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process
Clause.
Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice John Paul Stevens' dissent. Justice Clarence
Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but
disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more
appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second
Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G.
Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or
underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the Fourteenth Amendment.
Voting and Elections
Colegrove v. Green (1946)
Facts: Kenneth W. Colegrove, a citizen of Illinois and a Northwestern University political scientist, brought suit against Illinois officials to enjoin them from holding an
upcoming election. Colegrove argued that the congressional districts "lacked compactness of territory and approximate equality of population."
Question: Did the Illinois congressional districts unconstitutionally violate principles of fair apportionment?
Conclusion: The Court held that the Illinois districts were constitutional, largely because existing laws imposed no requirements "as to the compactness, contiguity
and equality in population of districts." In a plurality opinion, Frankfurter declined to involve the Court in the districting process, arguing that the political nature of
apportionment precluded judicial intervention. "The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the
ample powers of Congress."
Gomillion v. Lightfoot (1960)
Facts of the Case: An act of the Alabama legislature re-drew the electoral district boundaries of Tuskegee, replacing what had been a region with a square shape
with a twenty-eight sided figure. The effect of the new district was to exclude essentially all blacks from the city limits of Tuskegee and place them in a district where
no whites lived.
Question: Did the redrawing of Tuskegee's electoral district boundaries violate the Fifteenth Amendment of the Constitution which prevents the United States or any
individual state from denying a citizen the right to vote on account of race, color, or previous condition of servitude?
Conclusion: The unanimous Court held that Act 140 of the Alabama legislature violated the Fifteenth Amendment. Justice Frankfurter admitted that states are
insulated from judicial review when they exercise power "wholly within the domain of state interest." However, in this case, Alabama's representatives were unable to
identify "any countervailing municipal function" which the act was designed to serve. It was clear to the Court that the irregularly shaped district was drawn with only
one purpose in mind, namely, to deprive blacks of political power.
Baker v. Carr (1962)
Facts: Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state's General Assembly was virtually
ignored. Baker's suit detailed how Tennessee's reapportionment efforts ignored significant economic growth and population shifts within the state.
Question: Did the Supreme Court have jurisdiction over questions of legislative apportionment?
Conclusion: In an opinion which explored the nature of "political questions" and the appropriateness of Court action in them, the Court held that there were no such
questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the
Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted.
Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation.
Wesberry v. Sanders (1964)
Facts: James P. Wesberry, Jr. filed a suit against the Governor of Georgia, Carl E. Sanders, protesting the state's apportionment scheme. The Fifth Congressional
District, of which Wesberry was a member, had a population two to three times larger than some of the other districts in the state. Wesberry claimed this system
diluted his right to vote compared to other Georgia residents.
Question: Did Georgia's congressional districts violate the Fourteenth Amendment or deprive citizens of the full benefit of their right to vote?
Conclusion: The Court held that Georgia's apportionment scheme grossly discriminated against voters in the Fifth Congressional District. Because a single
congressman had to represent two to three times as many people as were represented by congressmen in other districts, the Georgia statute contracted the value of
some votes and expanded the value of others. The Court recognized that "no right is more precious" than that of having a voice in elections and held that "[t]o say
that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the
principle of a House of Representatives elected 'by the People. . .'"
Reynolds v. Sims (1964)
Facts of the Case: In 1961, M.O. Sims, David J. Vann (Vann v. Baggett), John McConnell (McConnell v. Baggett), and other voters from Jefferson County, Alabama,
challenged the apportionment of the state legislature. The Alabama Constitution prescribed that each county was entitled to at least one representative and that there
were to be as many senatorial districts as there were senators. Population variance ratios of as great as 41-to-1 existed in the Senate.
Question: Did Alabama's apportionment scheme violate the Fourteenth Amendment's Equal Protection Clause by mandating at least one representative per county
and creating as many senatorial districts as there were senators, regardless of population variances?
Conclusion: In an 8-to-1 decision, the Court upheld the challenge to the Alabama system, holding that Equal Protection Clause demanded "no less than substantially
equal state legislative representation for all citizens...." Noting that the right to direct representation was "a bedrock of our political system," the Court held that both
houses of bicameral state legislatures had to be apportioned on a population basis. States were required to "honest and good faith" efforts to construct districts as
nearly of equal population as practicable.
Avery v. Midland County TX (1968)
The decision reaffirms equal protection rights by providing for one person one vote on local level.
Davis v. Bandemer (1986)
Facts of the Case: A group of Democrats challenged Indiana's 1981 state apportionment scheme on the ground of political gerrymandering. The Democrats argued
that the apportionment unconstitutionally diluted their votes in important districts, violating their rights. A three-judge District Court sustained the Democrats'
challenge.
Question: Did Indiana's 1981 state apportionment violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: No. The Court held that while the apportionment law may have had a discriminatory effect on the Democrats, that effect was not "sufficiently adverse" to
violate the Equal Protection Clause. The mere lack of proportional representation did not unconstitutionally diminish the Democrats' electoral power. The Court also
ruled that political gerrymandering claims were properly justiciable under the Equal Protection Clause, noting that judicially manageable standards could be discerned
and applied in such cases.
Shaw v. Reno (1993)
Facts: The U.S. Attorney General rejected a North Carolina congressional reapportionment plan because the plan created only one black-majority district. North
Carolina submitted a second plan creating two black-majority districts. One of these districts was, in parts, no wider than the interstate road along which it stretched.
Five North Carolina residents challenged the constitutionality of this unusually shaped district, alleging that its only purpose was to secure the election of additional
black representatives. After a three-judge District Court ruled that they failed to state a constitutional claim, the residents appealed and the Supreme Court granted
certiorari.
Question: Did the North Carolina residents' claim, that the State created a racially gerrymandered district, raise a valid constitutional issue under the Fourteenth
Amendment's Equal Protection Clause?
Conclusion: Yes. The Court held that although North Carolina's reapportionment plan was racially neutral on its face, the resulting district shape was bizarre enough
to suggest that it constituted an effort to separate voters into different districts based on race. The unusual district, while perhaps created by noble intentions, seemed
to exceed what was reasonably necessary to avoid racial imbalances. After concluding that the residents' claim did give rise to an equal protection challenge, the
Court remanded - adding that in the absence of contradictory evidence, the District Court would have to decide whether or not some compelling governmental
interest justified North Carolina's plan.
Miller v. Johnson (1995)
Facts of the Case: Between 1980 and 1990, only one of Georgia's ten congressional districts was majority-black. According to the 1990 decennial census, Georgia's
black population of 27% entitled blacks to an additional eleventh congressional seat, prompting Georgia's General Assembly to re-draw the state's congressional
districts. After the Justice Department refused pre-clearance of several of the Assembly's proposed new districts, the Assembly was finally successful in creating an
additional majority-black district through the forming of an eleventh district. This district, however, was called a "geographic monstrosity" because it extended 6,784.2
square miles from Atlanta to the Atlantic Ocean. In short, "the social, political, and economic makeup of the Eleventh District tells a tale of disparity, not community."
Question: Is racial gerrymandering of the congressional redistricting process a violation of the Equal Protection Clause?
Conclusion: Yes. In some instances, a reapportionment plan may be so highly irregular and bizarre in shape that it rationally cannot be understood as anything other
than an effort to segregate voters based on race. Applying the rule laid down in Shaw v. Reno requires strict scrutiny whenever race is the "overriding, predominant
force" in the redistricting process.
Bush v. Gore (2000)
Facts: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the
certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand
9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots
which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and
his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's
decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.
Question: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts
violate the Equal Protection and Due Process Clauses of the Constitution?
Conclusion: Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per
curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in
practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other
procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted
to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present
case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme
Court's decision made new election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed with the per curiam holding that the
Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be
fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida
Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.
Vieth v. Jubelirer (2004)
Facts of the Case: After the 2000 census reduced the size of the Pennsylvania Congressional delegation by two members, the Republican-controlled state legislature
passed a redistricting plan that clearly benefitted Republican candidates. Several members of the Democratic party sued in federal court, claiming that the plan was
unconstitutional because it violated the one-person, one-vote principle of Article I, Section 2 of Constitution, the Equal Protection clause, the Privileges and
Immunities clause, and the freedom of association.
The district court dismissed all but the Article I, Section 2 claim. It held that the voters bringing the suit had not proved that they would be denied representation, only
that they would be represented by Republican officials. Because the plaintiffs (those bringing the suit) were not denied the right to vote, to be placed on the ballot
box, to associate as a party, or to express their political opinions, their political discrimination claims failed.
However, the court found the act unconstitutional because it created districts with different numbers of voters, thereby violating the one-person, one-vote principle.
Because the plaintiffs had shown that it was possible to create districts with smaller differences, and because the defendants had failed to justify the disparities
resulting under their plan, it was therefore unconstitutional.
Question: Can voters affiliated with a political party sue to block implementation of a Congressional redistricting plan by claiming that it was manipulated for purely
political reasons? Does a state violate the Equal Protection clause of the 14th Amendment when it disregards neutral redistricting principles (such as trying to avoid
splitting municipalities into different Congressional districts) in order to achieve an advantage for one political party? Does a state exceed its power under Article I of
the Constitution when it draws Congressional districts to ensure that a minority party will consistently win a super-majority of the state's Congressional seats?
Conclusion: In a split decision that had no majority opinion, the Court decided not to intervene in this case because no appropriate judicial solution could be found.
Justice Antonin Scalia, for a four-member plurality, wrote that the Court should declare all claims related to political (but not racial) gerrymandering nonjusticiable,
meaning that courts could not hear them. Because no court had been able to find an appropriate remedy to political gerrymandering claims in the 18 years since the
Court decided Davis v. Bandemer, 478 U.S. 109, which had held that such a remedy had not been found yet but might exist, Scalia wrote that it was time to
recognize that the solution simply did not exist.
Justice Anthony Kennedy, however, wrote in his concurring opinion (which provided the deciding fifth vote for the judgment) that the Court should rule narrowly in this
case that no appropriate judicial solution could be found, but not give up on finding one eventually.
League of United Latin American Citizens v. Perry (2006)
Facts of the Case: In 2003, the Texas State Legislature passed a redistricting plan that replaced the one created by a federal judge following the 2000 census. Critics
of the plan charged that it was unconstitutional and violated section 2 the Voting Rights Act because it diluted racial minority voting strength and was designed to
maximize partisan advantage. A three-judge district court panel disagreed, finding that the plan was constitutional and that the legislature had the right to redistrict in
2003 using census data from 2000.
The case was appealed to the U.S. Supreme Court, but while it was pending the Court decided Vieth v. Jubelirer, another redistricting case from Pennsylvania.
Justice Anthony Kennedy, the deciding vote in that case, wrote that the Court could hear claims of partisan discrimination in redistricting cases, but left open the
question of the test those claims would be subjected to.
The three-district panel in this case then affirmed its earlier decision, finding that the Texas redistricting plan was not substantively unfair.
Question: Did the Texas legislature violate the Constitution and and the Voting Rights Act when it used 2000 census data to redistrict in 2003 for partisan advantage,
resulting in districts that (by 2003 numbers) did not conform to the one person, one vote standard?
Conclusion: The Supreme Court held that the Texas Legislature's redistricting plan did not violate the Constitution, but that part of the plan violated the Voting Rights
Act. Justice Anthony Kennedy, writing for a majority of the justices, stated that District 23 had been redrawn in such a way as to deny Latino voters as a group the
opportunity to elect a candidate of their choosing, thereby violating the Voting Rights Act. Justice Kennedy also wrote, however, that nothing in the Constitution
prevented the state from redrawing its electoral boundaries as many times as it wanted, so long as it did so at least once every ten years.
Washington State Grange v. Washington State Republican Party (2008)
Facts of the Case: The State of Washington reconstructed its primary election system according to Initiative 872, which was passed into law by a majority general
vote in 2004. The initiative was endorsed by the Washington State Grange and created a new "modified blanket primary" system where each candidate on the ballot
could affiliate with the party of his choosing regardless of whether the party approved of his candidacy. Political parties claimed that this system violated their First
and Fourteenth Amendment rights of free association, arguing that control over which candidates to endorse constituted an essential function of association. The
Grange argued that the primary was nonpartisan.
The U.S. Court of Appeals for the Ninth Circuit affirmed a District Court decision, ruling that since "party designation is a powerful, partisan message that voters may
rely upon in casting a vote," Initiative 872 "constitutes a severe burden upon the parties' associational rights." (The case was consolidated with Washington v.
Washington State Republican Party for argument before the Supreme Court.)
Question: Does Washington's "modified blanket primary" system violate the First and Fourteenth Amendment right to freedom of association by denying political
parties control over which candidates to endorse?
Conclusion: In a 7-2 opinion, the Court reversed the Ninth Circuit's ruling and held the party affiliation provision constitutional. Writing for the majority, Justice
Clarence Thomas explained that the state law never referred to the candidates as nominees of any particular party. Rather, the nominees were simply asserting
which party they preferred to be associated with, and the Court found no convincing evidence that this association would lead voters to believe that the particular
party actually endorsed the nominee. Chief Justice John G. Roberts concurred in the judgment, joined by Justice Samuel Alito. Justice Antonin Scalia filed a
dissenting opinion, joined by Justice Anthony Kennedy.
Crawford v. Marion County Election Board (2008)
Facts of the Case: In 2005, the Indiana Legislature passed a law requiring all voters who cast a ballot in person to present a photo ID issued by the United States or
the State of Indiana. Plaintiffs including the local Democratic Party and interest groups representing minority and elderly citizens argued that the law constituted an
undue burden on the right to vote. At trial, the plaintiffs did not produce any witnesses who claimed they would be unable to meet the law’s requirements. The district
court and the court of appeals both upheld the law. However, the three-judge appellate panel was deeply divided. Dissenting Judge Terrence Evans claimed that the
law was a thinly-veiled attempt to dampen turnout by those likely to vote for Democratic candidates.
Question: Does a law that requires voters to present either a state or federal photo identification unduly burden citizens’ right to vote?
Conclusion: By a vote of 6 to 3, the Court upheld the law, concluding that the photo I.D. requirement was closely related to Indiana's legitimate state interests in
preventing voter fraud. The slight burden the law imposed on voters' rights did not outweigh these interests, which the Court characterized as "neutral and
nondiscriminatory." Although there was no majority opinion, the Court's decision included concurring opinions written by Justices John Paul Stevens and Antonin
Scalia. Justices David Souter and Stephen Breyer each wrote dissenting opinions. Justice Ruth Bader Ginsburg joined Justice Souter's dissent.
Campaign Finance
Note that many campaign finance cases have First Amendment rights at their core.
Buckley v. Valeo (1976)
Facts of the Case: In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to
candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of
contributions above a certain threshold amount. The Federal Election Commission was created to enforce the statute.
Question: Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of
1954, violate the First Amendment's freedom of speech and association clauses?
Conclusion: In this complicated case, the Court arrived at two important conclusions. First, it held that restrictions on individual contributions to political campaigns
and candidates did not violate the First Amendment since the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding
against unscrupulous practices. Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by
candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. Since these practices do
not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government
interest great enough to warrant a curtailment on free speech and association.
Colorado Republican Federal Campaign Committee v. FEC (1996)
Facts of the Case: Before the Colorado Republican Party selected its 1986 senatorial candidate, its Federal Campaign Committee bought radio advertisements
attacking the Democratic Party's likely candidate. The Federal Election Commission (FEC) brought suit charging that the Colorado Republican Federal Campaign
Committee had violated the "Party Expenditure Provision" of the Federal Election Campaign Act of 1971 (FECA), which imposes dollar limits upon political party
"expenditure[s] in connection with the general election campaign of a [congressional] candidate." The Colorado Party defended itself by claiming that the FECA
expenditure limitations violated the First Amendment as applied to its advertisements, and filed a counterclaim seeking to raise a challenge to the Provision as a
whole. The District Court held that the Provision did not cover the expenditure at issue. Therefore, the court entered summary judgment for the Colorado Party and it
dismissed the counterclaim as moot. The Court of Appeals ruled that the Provision covered this expenditure and satisfied the Constitution. Subsequently, the court
ordered judgment for the FEC.
Question: Do the federal campaign-financing limits on the amount of money political parties may spend on congressional races, as established by the Federal
Election Campaign Act of 1971, violate First Amendment rights when applied to expenditures a political party has made independently of any candidate's campaign?
Conclusion: Yes. In a plurality decision, Justice Stephen G. Breyer announced the judgment of the Court and authored an opinion, in which the Court ruled that the
First Amendment prohibits the application of the Party Expenditure Provision of the Federal Election Campaign Act of 1971 (FECA) to the kind of expenditure at issue
here-an expenditure that the political party has made independently, without coordination with any candidate. Justices O'Connor and Souter joined Justice Breyer.
Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia, concluded that, on its face, FECA violates the First Amendment when it restricts as a
"contribution" a political party's spending "in cooperation, consultation, or concert, with_a candidate." Justice Thomas concluded that the Provision is unconstitutional
not only as applied to the Colorado Republican Federal Campaign Committee, but also on its face. Dissenting, Justices Stevens and Ginsburg agreed with the
judgment of the Court of Appeals.
McConnell v. FEC (2003)
Facts of the Case: In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent
during--political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions
were a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the
solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior
to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated
expenditures").
The campaign finance reform bill contained an unusual provision providing for an early federal trial and a direct appeal to the Supreme Court of the United States, bypassing the typical federal judicial process. In May a special three-judge panel struck down portions of the Campaign Finance Reform Act's ban on soft-money
donations but upheld some of the Act's restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the Supreme Court could hear
and decide the resulting appeals.
Question: 1. Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of
the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?
2. Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech
clause?
Conclusion: With a few exceptions, the Court answered "no" to both questions in a 5-to-4 decision written by Justices Sandra Day O'Connor and John Paul Stevens.
Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign
expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was
minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial
contributions and... the appearance of corruption" that might result from those contributions.
In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements
paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and
Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get
around the contribution limits.
The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found
that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for
state and local elections.
Randall v. Sorrell (2006)
Facts of the Case: In 1997 Vermont passed a campaign finance law, Act 64, which imposed strict limits both on expenditures by candidates for office during the
election cycle and on the contributions of individuals, political groups, and parties. Neil Randall, a state legislator, sued Vermont Attorney General William Sorrell,
arguing that the limits were unconstitutional infringements on First Amendment freedom of speech. In Randall's view, the Supreme Court had declared all
expenditure limits unconstitutional in Buckley v. Valeo, and Act 64's contribution limits were unconstitutionally low. Sorrell countered that Buckley was outmoded
because that Court had not considered one of Vermont's justifications, namely that expenditure limits prevent candidates from spending too much time trying to raise
money. Sorrell also argued that Vermont's interests in combating corruption and ensuring fair elections justified the contribution limits. The District Court struck down
the expenditure limits, but upheld most of the contribution limits. Only the limits on contributions by political parties - under which national, state, and local parties
together could give only $400 to a statewide candidate - were unconstitutionally low. Both parties appealed the ruling to the Second Circuit Court of Appeals. The
Circuit Court reversed, ruling that all of Vermont's contribution limits were constitutional. The Second Circuit also found that the expenditure limits would be
constitutional as long as they were "narrowly tailored" to the state's interests.
Question: (1) Do expenditure limits for political candidates violate the First Amendment's guarantee of freedom of speech? (2) Are Vermont's contribution limits of
$200-$400 per candidate for individuals, political groups, and political parties unconstitutionally low under the First Amendment?
Conclusion: Yes and yes. The Court reversed the Circuit Court and invalidated Vermont's Act 64 by a 6-3 vote. The opinion by Justice Stephen Breyer held that the
Court should let stand the Buckley decision and its invalidation of expenditure limits. Vermont's argument that such limits prevent candidates from spending too much
time fund-raising was deemed irrelevant because it was "perfectly obvious" and would not have changed the result in Buckley. The Court affirmed that some limits on
political contributions are constitutional, but perceived "danger signs" indicating that Vermont's exceptionally low limits could prevent candidates from campaigning
effectively. Applying a 5-part test, the Court held that Vermont's contribution limits were "disproportionate to the public purposes they were enacted to advance."
Justice Souter wrote a dissent, joined by Justices Ginsburg and Stevens, in which he argued that the contribution limits should be upheld and the expenditure limits
should be referred to the lower courts for a determination of whether they were the "least restrictive means" of accomplishing Vermont's goals. Justice Stevens wrote
a separate dissent arguing that Buckley should be overruled as it pertains to expenditure limits.
Federal Election Commission v. Wisconsin Right to Life (2007)
Facts of the Case: Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements encouraging viewers to contact two U.S.
Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign
Reform Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the
Federal Election Commission (FEC), claiming that the BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as applied"
challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In McConnell v. Federal Election Commission, the Court had upheld
Congress's power to regulate "express advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads" rather than
express advocacy. WRTL also argued that the government lacked a compelling interest sufficient to override the corporation's First Amendment free speech interest.
The FEC countered that WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but are intended to affect an election.
A three-judge District Court agreed with WRTL's arguments and ruled the BCRA unconstitutional as applied to the ads. The court refused the FEC's request that it
inquire into the intent and likely effect of the ads, because those determinations would be impractical and would have a chilling effect on protected speech. Analyzing
only the explicit content of the ads, the court found them to be legitimate issue ads and not express advocacy or sham issue ads. The court also held that the
government's justification for banning express advocacy ads by corporations - the need to reduce political corruption and public cynicism - did not apply to ads that
do not endorse or oppose a candidate. Therefore, the court ruled that the government lacked a compelling interest to justify the burden on WRTL's First Amendment
rights.
Question: Is the Bipartisan Campaign Reform Act's ban on the use of corporate treasury funds for political advertisements in the 60 days before an election
unconstitutional as applied to advertisements that do not explicitly endorse or oppose a candidate?
Conclusion: Yes. By a 5-4 vote the Court ruled that BCRA's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's. Chief
Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can
concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express
advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political
speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation
other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate
advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate
wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the
benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the
majority of implicitly overruling McConnell v. FEC.
Davis v. Federal Election Commission (2008)
Facts of the Case: Jack Davis, a wealthy Democratic candidate for Congress from New York’s 26th Congressional District, brought this claim challenging the
constitutionality of the so-called ‘Millionaire’s Amendment’ to the 2002 campaign finance law. Davis argued in the district court that the law, which basically raises the
contribution cap for individuals running against self-financed candidates, violated the First Amendment and the Equal Protection principle implicit in the Fifth
Amendment. The district court rejected both of these claims, stating first that the law did not implicate the First Amendment because it did not impede Davis’ ability to
spend money in support of his message, noting that it actually led to a higher level of speech in the race overall. The district court similarly rejected Davis’ Fifth
Amendment claim, reasoning that although Davis may have been held to higher reporting standards than his opponent, his disproportionate wealth meant that the
two candidates were not similarly situated and, therefore, the Equal Protection Clause did not apply. The campaign finance law allows direct appeal to the Court,
which will consider whether Davis has standing to bring the First Amendment claim before deciding the case on the merits.
Question: Does the Millionaire’s Amendment to the 2002 campaign finance law, which raises the contribution limit for those running against a self-financed candidate,
violate free speech clause of the First Amendment and the equal protection principle of the Fifth Amendment?
Conclusion: Yes. Although all nine Justices agreed that Davis had standing to argue his case before the Court, only a 5-4 majority held that the contribution limits
violated the First Amendment. In his majority opinion, Justice Samuel Alito noted that the Court had never upheld the constitutionality of a law imposing different
contribution limits for candidates competing against one another. Because the Court found the laws in violation of the First Amendment, it did not reach the question
of whether the Fifth Amendment was also violated. Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, filed an
opinion concurring in part and dissenting in part, agreeing with the majority that Davis had standing but citing the reasoning of the district court to argue that the
contribution cap did not violated the First or Fifth Amendment. Justice Ginsburg, joined by Justice Breyer, wrote a separate opinion concurring in part and dissenting
in part, agreeing with Justice Stevens's argument but basing it on slightly different grounds.
Citizens United v. Federal Election Commission (2010)
Facts of the Case: Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to
prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hilary
Rodham Clinton would make a good president.
In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Electioneering
communication is "any broadcast, cable, or satellite communication which -- (I) refers to a clearly identified candidate for Federal office; (II) is made within -- (aa) 60
days before a general, special, or runoff election for the office sought by the candidate; or (bb) 30 days before a primary or preference election, or a convention or
caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate." Accordingly, Section 203 of the BCRA prevents
corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such
communication and a disclaimer when the communication is not authorized by the candidate it intends to support.
Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2)
Sections 201 and 203 are also unconstitutional as applied to the circumstances.
The United States District Court denied the injunction. The court held that Section 203 on its face was not unconstitutional reasoning that the Supreme Court in
McConnell v. FEC had already reached that determination. It also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform
voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not
unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized the disclosure of donors "might be
unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause", but those circumstances did not exist in Citizen
United's claim.
Question:
1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the
statute as constitutional?
2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political
speech" and not regulable "campaign speech"?
3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?
4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to
regulation under the BCRA?
Conclusion: No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. By a 5-to-4 vote along
ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited.
There, the Court held that political speech may be banned based on the speaker's corporate identity. With Justice Anthony M. Kennedy wrote for the majority joined
by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices
Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true
because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional,
reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court
also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.
In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its
attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment
issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens'
understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling
governmental interests to curb corporations' ability to spend money during local and national elections.
Privacy Rights, Personal Liberties
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Reproductive Privacy Rights
Griswold v. Connecticut (1965)
Facts: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information,
instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which
criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception.
Question: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
Conclusion:Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones,
that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations.
The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
Eisenstadt v. Baird (1972) – See 14th Amendment Equal Protection
Roe v. Wade (1973)
Facts of the Case: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life.
After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her
argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her
new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Question: Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?
Conclusion: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth
Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and
third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.
Notes: Decision determined that “strict scrutiny” must be applied whenever restraints were applied to a fundamental right such as privacy.
Webster v. Reproductive Health Services (1989)
Facts: In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each
human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or
assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability
tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions.
Question: Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional.
First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional
question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to
governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisionsof the law.
Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of
viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade.
Planned Parenthood v. Casey (1992)
Facts of the Case: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent
and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure).
A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several
abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their
right to abortions as guaranteed by Roe v. Wade?
Conclusion: In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a
new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing
an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the
only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three
justices.
Stenberg v. Carhart (2000)
Facts of the Case: A Nebraska law prohibited any "partial birth abortion" unless that procedure was necessary to save the mother's life. It defined "partial birth
abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the... child," and defined the latter phrase to mean
"intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will
kill the... child and does kill the... child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice
medicine. Leroy Carhart, a Nebraska physician who performs abortions in a clinical setting, brought suit seeking a declaration that the statute violates the U.S.
Constitution, claiming the law was unconstitutionally vague and placed an undue burden on himself and female patients seeking abortions. The District Court held the
statute unconstitutional. The Court of Appeals affirmed.
Question: Does the Nebraska statute, which makes the performance of a "partial birth abortions" a crime, violate the liberty protected by due process of the
Fourteenth Amendment in the U.S. Constitution?
Conclusion: Rehnquist Court - Yes. In a complicated 5-4 decision delivered by Justice Stephen G. Breyer, the Court held that "Nebraska's statute criminalizing the
performance of "partial birth abortion[s]" violates the U.S. Constitution, as interpreted in Casey and Roe." The sharply divided Court struck down the statute because
it placed an undue burden on a woman's right to have an abortion and did not allow for exception in cases of threatened health. "All those who perform abortion
procedures using that method must fear prosecution, conviction, and imprisonment," that results in "an undue burden upon a woman's right to make an abortion
decision," wrote Justice Breyer for the Court. Justice Antonin Scalia's dissent concluded that "[t]he notion that the Constitution of the United States... prohibits the
States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."
Ayotte v. Planned Parenthood (2005)
Facts of the Case: After New Hampshire's state legislature approved the Parental Notification Prior to Abortion Act but before the act went into effect, Planned
Parenthood of Northern New England challenged the law in federal district court. They claimed that the law, which requires that parents be notified before their minor
daughter has an abortion, violated the "undue burden" test laid out in Planned Parenthood v. Casey, a 1992 Supreme Court decision that reformulated the
constitutional protections given to abortion in Roe v. Wade. Specifically, they argued that an exemption in the law for abortions necessary to prevent the death of the
mother, but not for those abortions necessary to protect merely her health, was unconstitutionally narrow.
The federal district court agreed, rejecting the argument of New Hampshire's Attorney General that the judicial bypass procedure included in the law, in which a judge
could approve an abortion without parental notification for a minor who showed she was mature enough to make the decision on her own, could be used to permit
abortions necessary to protect the health of the mother. The judge also rejected New Hampshire's argument that the law could not be challenged until it had actually
been implemented. A First Circuit Court of Appeals panel unanimously affirmed the decision.
Question: May Planned Parenthood of Northern New England challenge the constitutionality of the Parental Notification Prior to Abortion Act in federal court before it
is put into effect? Does the Parental Notification Prior to Abortion Act, through the judicial bypass procedure or other safeguards, adequately protect the health of
minors seeking abortions?
Conclusion: Roberts Court - In a rare unanimous decision regarding abortion, the Supreme Court sidestepped the most contentious questions of the case and
focused instead on the proper remedy when a portion of a statute is found unconstitutional. Justice Sandra Day O'Connor, writing for the Court, held that the statute
would be unconstitutional when applied to the very small percentage of minors for whom an emergency abortion would be necessary to avert serious damage to their
health. The lower court's decision to invalidate the entire statute based on its unconstitutional results in this small percentage of cases, however, was unnecessary.
Instead, O'Connor wrote, "in this case the lower courts can issue a declaratory judgment and an injunction prohibiting [only] the statute's unconstitutional application."
O'Connor warned, however, that a court should be wary of upholding an act while strike down some of its applications when it was obvious that a legislature would
prefer the entire act be declared unconstitutional. Because of some disagreement about which course the legislature would have preferred - wholesale nullification or
narrower individual rulings - the Court remanded the case to lower court to determine legislative intent.
Gonzales v. Carhart (2007) and Gonzales v. Planned Parenthood Federation of America (2007)
Facts of the Case: In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The controversial concept of partial-birth abortion is
defined in the Act as any abortion in which the death of the fetus occurs when "the entire fetal head [...] or [...] any part of the fetal trunk past the navel is outside the
body of the mother." Dr. Leroy Carhart and other physicians who perform late-term abortions sued to stop the Act from going into effect. The plaintiffs argued that the
Act could apply to a more common abortion procedure known as "D&E" ("dilation and evacuation"), as well as to the less common "intact D&E," sometimes called
D&X ("dilation and extraction"). With this application the Act would ban most late-term abortions and thus be an unconstitutional "undue burden" on the right to an
abortion, as defined by the Supreme Court in Planned Parenthood v. Casey. The plaintiffs also argued that the Act's lack of an exception for abortions necessary to
protect the health of the mother rendered it unconstitutional under the Supreme Court's decision in Stenberg v. Carhart, regardless of Congress's finding in the Act
that partial-birth abortions are never medically necessary.
A federal District Court agreed and ruled the Act unconstitutional on both grounds. The government appealed to the Court of Appeals for the Eighth Circuit. The
government argued that the Act only bans a narrow category of abortion procedures, and that a health exception is not required when Congress determines that a
banned abortion procedure is never necessary for the health of the mother. The Eighth Circuit disagreed and upheld the District Court, ruling that a health exception
is required for all bans on abortion procedures when "substantial medical authority" supports the necessity of the procedure. The Circuit Court ruled that the ongoing
disagreement among medical experts over the necessity of intact D&E abortions was sufficient to establish that the Act was unconstitutional without a health
exception. The Circuit Court did not reach the question of whether the Act was so broad as to qualify as an unconstitutional "undue burden."
Question: Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an
exception for partial-birth abortions necessary to protect the health of the mother?
Conclusion: No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on
the right to an abortion. Justice Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most reasonable interpretation, the Act applies
only to the intact D&E method (also known as "partial-birth abortion") and not to the more common D&E procedure. The Act's application was limited by provisions
that restrict enforcement to cases where the physician intends to perform an intact D&E and delivers the still-living fetus past specific "anatomical landmarks."
Because the majority found that the Act applies only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue
burden on the decision to obtain an abortion. The Court also held that Congress, after finding intact D&E never to be medically necessary, could validly omit a health
exception from the ban, even when "some part of the medical community" considers the procedure necessary. To require the exception whenever "medical
uncertainty" exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical profession." The Court left open the possibility
that an as-applied challenge could be brought against the Act if it were ever applied in a situation in which an intact D&E was necessary to preserve a woman's
health. Justice Ginsburg's dissent disputed the majority's claim that the opinion was consistent with the Casey and Stenberg precedents and said "The Court's
hostility to the right Roe and Casey secured is not concealed."
Personal Liberties
Bowers v. Hardwick (1986)
Facts: Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of
his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court.
Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute
was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.
Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which
make such conduct illegal?
Conclusion: No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron
White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty"
(Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to
commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and
send the Court down the road of illegitimacy.
NTEU v. Von Raab (1989)
Facts of the Case: In 1986, the United States Customs Service implemented a drug testing program for certain employees who either carry firearms, are involved in
intercepting drugs as they enter the country, or are in high level positions involving classified information.
Question: Did the regulations violate the Fourth Amendment?
Conclusion: No. The Court held that the "substantial interests" of the government in stifling the drug trade justified "departure from the ordinary warrant and probable
cause requirements" associated with searches. The fact that customs personnel are the country's "first line of defense" against drug smugglers and they are exposed
to a sometimes aggressive criminal element, places them in a unique and important position in which they have a "diminished expectation of privacy."
Vernonia School District v. Acton (1995)
Facts: An official investigation led to the discovery that high school athletes in the Vernonia School District participated in illicit drug use. School officials were
concerned that drug use increases the risk of sports-related injury. Consequently, the Vernonia School District of Oregon adopted the Student Athlete Drug Policy
which authorizes random urinalysis drug testing of its student athletes. James Acton, a student, was denied participation in his school's football program when he and
his parents refused to consent to the testing.
Question: Does random drug testing of high school athletes violate the reasonable search and seizure clause of the Fourth Amendment?
Conclusion: No. The reasonableness of a search is judged by "balancing the intrusion on the individual's Fourth Amendment interests against the promotion of
legitimate governmental interests." In the case of high school athletes who are under State supervision during school hours, they are subject to greater control than
over free adults. The privacy interests compromised by urine samples are negligible since the conditions of collection are similar to public restrooms, and the results
are viewed only by limited authorities. Furthermore, the governmental concern over the safety of minors under their supervision overrides the minimal, if any,
intrusion in student-athletes' privacy.
Board of Education v. Earls (2002)
Facts: The Student Activities Drug Testing Policy adopted by the Tecumseh, Oklahoma School District (School District) requires all middle and high school students
to consent to urinalysis testing for drugs in order to participate in any extracurricular activity. Two Tecumseh High School students and their parents brought suit,
alleging that the policy violates the Fourth Amendment. The District Court granted the School District summary judgment. In reversing, the Court of Appeals held that
the policy violated the Fourth Amendment. The appellate court concluded that before imposing a suspicionless drug-testing program a school must demonstrate
some identifiable drug abuse problem among a sufficient number of those tested, such that testing that group will actually redress its drug problem, which the School
District had failed to demonstrate.
Question: Is the Student Activities Drug Testing Policy, which requires all students who participate in competitive extracurricular activities to submit to drug testing,
consistent with the Fourth Amendment?
Conclusion: Yes. In a 5-4 opinion delivered by Justice Clarence Thomas, the Court held that, because the policy reasonably serves the School District's important
interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education's general regulation of
extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results
was minimally intrusive on the students' limited privacy interest. "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug
testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a
reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren," wrote Justice Thomas.
Lawrence and Garner v. Texas (2003)
Facts of the Case: Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and
another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in
violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the
statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.
Question: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by samesex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal
convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth
Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Conclusion: No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of
the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of
Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty
under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the
government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the
individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices
Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.
Rights of Criminal Defendants
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Fourth Amendment
Weeks v. U.S. (1914)
Facts of the Case: Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This
was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions.
Question: Did the search and seizure of Weeks' home violate the Fourth Amendment?
Conclusion: In a unanimous decision, the Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held
that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence
against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no
value whatsoever. This was the first application of what eventually became known as the "exclusionary rule."
Mapp v. Ohio (1961)
Facts: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction
on the basis of freedom of expression.
Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be
admitted in a state criminal proceeding?)
Conclusion: The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution
is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and
controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court
on a troubled course of determining how and when to apply the exclusionary rule.
Katz v. United States (1967)
Facts of the Case: Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, Federal agents attached an
eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eightcount indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challanged his conviction arguing that
the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth
itself. The Court granted certiorari.
Question: Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a
public pay phone?
Conclusion: Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied
was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring
opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.
Terry v. Ohio (1968)
Facts: Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and
frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.
Question: Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?
Conclusion: In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons
seized could be introduced into evidence against Terry. -Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on
more than a "hunch" and that "a reasonably prudent man would have been warranted inbelieving [Terry] was armed and thus presented a threat to the officer's safety
while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety
incident to the investigation.
Kyllo v. U.S. (2001)
Facts of the Case: A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his triplex. The
imaging was to be used to determine if the amount of heat emanating from the home was consistent with the high-intensity lamps typically used for indoor marijuana
growth. Subsequently, the imaging revealed that relatively hot areas existed, compared to the rest of the home. Based on informants, utility bills, and the thermal
imaging, a federal magistrate judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug
charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. Ultimately affirming, the Court of
Appeals held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he
had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots'
on the roof and exterior wall."
Question: Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in
violation of the Fourth Amendment?
Conclusion: Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as here, the Government uses a device that is not in general
public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively
unreasonable without a warrant." In dissent, Justice John Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that gathered
data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy," and were, thus, "information in the public domain."
Ferguson v. City of Charleston (2001)
Facts of the Case: After an increase in the use of cocaine by patients receiving prenatal care, the Medical University of South Carolina (MUSC) started to cooperate
with Charleston to formulate a policy to prosecute mothers whose children tested positive for drugs at birth. MUSC obstetrical patients were arrested after testing
positive for cocaine. They filed suit challenging the policy's validity on the theory that warrantless and nonconsensual drug tests conducted for criminal investigatory
purposes were unconstitutional searches. Among the District Court's actions was an instruction to the jury to find for the patients unless they had consented to such
searches. The jury found in favor of the city. In affirming, the Court of Appeals held that the searches were reasonable, reasoning that special needs may, in certain
exceptional circumstances, justify a search policy designed to serve non-law-enforcement ends.
Question: Is a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes an unreasonable
search in violation of the Fourth Amendment if the patient has not consented to the procedure?
Conclusion: Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the diagnostic tests constituted an unreasonable search if the patient
has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from
the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Examining the "special needs" exception to the Fourth
Amendment, Justice Stevens wrote that a special need is "divorced from the State's general interest in law enforcement," and that under the city's view "virtually any
nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate...purpose."
United States v. Arvizu (2002)
Facts of the Case: In 1998, Ralph Arvizu was stopped by Border Patrol Agent Clinton Stoddard while driving on an unpaved road in a remote area of southeastern
Arizona. A number of factors prompted Stoddard to stop Arvizu, including his slowing down, his failure to acknowledge the agent, the raised position of the children's
knees, and their odd waving. After receiving permission to search the vehicle, Stoddard found more than 100 pounds of marijuana. Arvizu was charged with
possession with intent to distribute. Arvizu moved to suppress the marijuana, arguing among other things that Stoddard did not have reasonable suspicion to stop the
vehicle as required by the Fourth Amendment. Denying the motion, the District Court cited a number of facts that gave Stoddard reasonable suspicion to stop the
vehicle, including its location. In reversing, the Court of Appeals held that the District Court relied on factors that carried little or no weight in reasonable-suspicion
calculus and that the remaining factors were not enough to render the stop permissible. In the appellate court's view, fact-specific weighing of circumstances or other
multifactor tests introduced uncertainty and unpredictability into the Fourth Amendment analysis, making it necessary to clearly delimit the factors that an officer may
consider in making stops such as this one.
Question: Did a border agent have reasonable suspicion to believe that Ralph Arvizu was engaged in illegal activity based on a number of factors?
Conclusion: Yes. In a unanimous opinion delivered by Chief Justice William H. Rehnquist, the Court held that the Court of Appeals' methodology was contrary to its
prior decisions and that it reached the wrong result in this case. The Court concluded that Stoddard had reasonable suspicion to believe that Arvizu was engaged in
illegal activity, having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District
Court Judge. The Court reasoned that, although each factor alone could have appeared innocent, when taken together they sufficed to form a particularized and
objective basis for Stoddard's stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment. Justice Antonin Scalia wrote a
concurring opinion.
Thornton v. U.S. (2004)
Facts of the Case: Marcus Thornton was stopped after getting out of his vehicle by a police officer who had noticed that the license plate on Thornton's Lincoln Town
Car belonged to a Chevy two-door car. During his conversation with Thornton, the officer asked if he could search him. During the search he found two bags of
drugs. The officer arrested Thornton, then searched his vehicle (which Thornton had already exited by the time the police officer spoke with him, though the officer
had seen him exit it). In the vehicle the officer found a gun.
Thornton was convicted of drug and firearms offenses. On appeal, he moved to have the gun dismissed as evidence because, he claimed, it had been found as the
result of an unconstitutional search. He argued that the officer had contacted him after he had left the vehicle and that the search therefore did not fall within the
"search incident to arrest" exception to the Fourth Amendment warrant requirement (the exception allows police to search the person being arrested and the area
"within his immediate control").
A Fourth Circuit Court of Appeals panel rejected his argument, holding that requiring officers to signal their intent to arrest a person before he exited his vehicle would
be dangerous because it would give him a chance to get any weapons in the vehicle or to use the vehicle to get away or run over the officers.
Question: Under the "search incident to arrest" exception to the Fourth Amendment, may police search the vehicle of a person they have arrested if they did not
make contact with him until after he left the vehicle?
Conclusion: Yes. In a 7-to-2 decision, the Court ruled that forcing officers to decide whether a suspect had noticed them before exiting the car (with the understanding
that only if he had could the car be searched) would be too subjective and leave officers uncertain of whether they could perform searches. Further, it found that
weapons or contraband inside a vehicle could still be easily accessed by someone who had just exited it, providing the same reason for searching the vehicle that
was present in cases where suspects were arrested while still inside it (that is, the possibility that illegal material would be destroyed or officers attacked with
concealed weapons). Chief Justice Rehnquist, in the majority opinion, wrote, "Once an officer determines there is probable cause to make an arrest, it is reasonable
to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment."
Georgia v. Randolph (2006)
Facts of the Case: Scott Randolph was arrested for drug possession after police found cocaine in his home. The police did not have a warrant to search the home,
but Randolph's wife consented to the search. Randolph was also present at the time of the search, however, and objected to the police request. At trial, his attorney
argued that the search was unconstitutional because of Randolph's objection, while the prosecution argued that the consent of his wife was sufficient. The trial court
ruled for the prosecution, but the appellate court and Georgia Supreme Court both sided with Randolph, finding that a search is unconstitutional if one resident
objects, even if another resident consents.
Question: Can police search a home when one physically present resident consents and the other physically present resident objects?
Conclusion: No. In a 5 to 3 decision, the Supreme Court held that when two co-occupants are present and one consents to a search while the other refuses, the
search is not constitutional. Justice David Souter, in the majority opinion, compared the reasonableness of such a search to a more casual interaction. Souter wrote,
"it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter
when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions." A police search in
such circumstances, Souter wrote, would therefore not meet the reasonableness requirement of the Fourth Amendment.
Brendlin v. California (2007)
Facts of the Case: Police stopped Karen Simeroth's car for having expired registration tabs. Bruce Brendlin, who had a warrant out for his arrest, was riding in the
passenger seat. Police found methamphetamine, marijuana, and drug paraphernalia in the car and on Simeroth's person. In a California trial court, Brendlin filed a
motion to suppress the evidence obtained at the traffic stop, claiming that the stop was an unreasonable seizure in violation of the Fourth Amendment. The trial court
found that Brendlin had never been detained or "seized" within the meaning of the Fourth Amendment. It denied the motion, and Brendlin pleaded guilty to
manufacturing methamphetamine. A California Court of Appeal reversed, holding that a traffic stop necessarily results in a Fourth Amendment seizure.
The California Supreme Court reversed the Court of Appeal and ruled for California. The court held that the driver of the car is the only one detained in a traffic stop.
The movement of any passengers is also stopped as a practical matter, but the court considered this merely a necessary byproduct of the detention of the driver. The
court held that Brendlin had been free to leave the scene of the traffic stop or to simply ignore the police. Since he was never "seized," however, he could not claim a
violation of the Fourth Amendment.
Question: When a vehicle is subject to a traffic stop, is a passenger in the vehicle "detained" for purposes of the Fourth Amendment?
Conclusion: Yes. In a unanimous opinion written by Justice David Souter, the Court held that when a vehicle is stopped at a traffic stop, the passenger as well as the
driver is seized within the meaning of the Fourth Amendment. The justices said, "We resolve this question by asking whether a reasonable person in Brendlin's
position when the car stopped would have believed himself free to 'terminate the encounter' between the police and himself." The Court held that Brendlin would
have reasonably believed himself to be intentionally detained and subject to the authority of the police. Thus, he was justified in asserting his Fourth Amendment
protection against unreasonable seizure. The Court noted that its ruling would not extend to more incidental restrictions on freedom of movement, such as when
motorists are forced to slow down or stop because other vehicles are being detained. To accept the state's arguments, however, would be to "invite police officers to
stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal."
Safford Unified School District #1 v. Redding (2009)
Facts of the Case: Savana Redding, an eighth grader at Safford Middle School, was strip-searched by school officials on the basis of a tip by another student that
Ms. Redding might have ibuprofen on her person in violation of school policy. Ms. Redding subsequently filed suit against the school district and the school officials
responsible for the search in the District Court for the District of Arizona. She alleged her Fourth Amendment right to be free of unreasonable search and seizure was
violated. The district court granted the defendants' motion for summary judgment and dismissed the case. On the initial appeal, the U.S. Court of Appeals for the
Ninth Circuit affirmed. However, on rehearing before the entire court, the court of appeals held that Ms. Redding's Fourth Amendment right to be free of unreasonable
search and seizure was violated. It reasoned that the strip search was not justified nor was the scope of intrusion reasonably related to the circumstances.
Question:
1) Does the Fourth Amendment prohibit school officials from strip searching students suspected of possessing drugs in violation of school policy?
2) Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983?
Conclusion: Sometimes, fact dependent. No. The Supreme Court held that Savanna's Fourth Amendment rights were violated when school officials searched her
underwear for non-prescription painkillers. With David H. Souter writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia,
Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, and in part by Justices John Paul Stevens and Ruth Bader Ginsburg, the Court reiterated that, based
on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature of the infraction." Here, school officials did not have sufficient suspicion to warrant
extending the search of Savanna to her underwear. The Court also held that the implicated school administrators were not personally liable because "clearly
established law [did] not show that the search violated the Fourth Amendment." It reasoned that lower court decisions were disparate enough to have warranted
doubt about the scope of a student's Fourth Amendment right.
Justice Stevens wrote separately, concurring in part and dissenting in part, and was joined by Justice Ginsburg. He agreed that the strip search was unconstitutional,
but disagreed that the school administrators retained immunity. He stated that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13year old child is an invasion of constitutional rights of some magnitude." Justice Ginsburg also wrote a separate concurring opinion, largely agreeing with Justice
Stevens point of dissent. Justice Clarence Thomas concurred in the judgment in part and dissented in part. He agreed with the majority that the school administrators
were qualifiedly immune to prosecution. However, he argued that the judiciary should not meddle with decisions school administrators make that are in the interest of
keeping their schools safe.
Arizona v. Johnson (2009)
Facts of the Case: Lemon Johnson was riding in the backseat of a car when it was pulled over by the state police in Sugar Hill, Arizona. The officers had scanned the
license of the car and found that it had a "mandatory insurance suspension." Although the stop was solely predicated on the suspended license, the officers began to
question the car's occupants, including Johnson, about gang activity in the area. Based on certain circumstantial evidence, such as Johnson's possession of a police
scanner, the officers asked Johnson to exit the car so that they could question him further. Although Johnson was free to stay in the car, he voluntarily exited and a
subsequent search of his person by the officers revealed a handgun and a small amount of marijuana. Based on evidence obtained during this search, Johnson was
convicted in Arizona state court of (1) the unlawful possession of a weapon as a prohibited possessor and (2) possession of marijuana. Johnson appealed, arguing
that the evidence recovered from the search should have been suppressed because the officers did not have probable cause to search him at the time of his arrest
and therefore did so in violation of his rights under the Fourth Amendment.
The Court of Appeals of Arizona agreed with Johnson and reversed his conviction and sentence. The court found that the officers had no reason to believe that
Johnson was involved in any criminal activity when he was searched. The officers requested that Johnson step out of the car to discuss gang activity, not because
the officers feared that their safety was threatened, thus it was part of a consensual encounter between the officers and Johnson. Therefore, the court said, the
officers' subsequent search of Johnson was illegal and unconstitutional.
Question: Do officers violate the Fourth Amendment's protection against unreasonable searches and seizures when, after making a routine traffic stop, they search
an individual who is consensually conversing with those officers?
Conclusion: No. In a unanimous opinion written by Justice Ruth Bader Ginsburg, the Supreme Court reversed the Arizona Court of Appeals. It held that Mr.
Johnson's encounter with police officers was not consensual and therefore did not violate his Fourth Amendment protection against unreasonable search and
seizure. The Court reasoned that lawful traffic stops entail the "temporary seizure of driver and passengers" that continues for the duration of the stop. Officer
inquiries into matters unrelated to the stop do not transform the event into a "consensual" encounter whereby the driver or passenger is free to go as he or she
pleases. Therefore, the police officers who frisked Mr. Johnson were not constitutionally required to depart the scene without first ensuring that he was not armed and
dangerous, so long as they reasonably suspected he was armed and dangerous.
Rights of Criminal Defendants
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Fifth Amendment
Miranda v. Arizona (1966)
Facts: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody
or otherwise deprived of [their] freedom in any significant way." In Vignera v. New York, the petitioner was questioned by police, made oral admissions, and signed
an inculpatory statement all without being notified of his right to counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI, interrogated,
and made to sign statements without being notified of his right to counsel. Lastly, in California v. Stewart, local police held and interrogated the defendant for five
days without notification of his right to counsel. In all these cases, suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut
them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation.
Question: Does the police practice of interrogating individuals without notifiying them of their right to counsel and their protection against self-incrimination violate the
Fifth Amendment?
Conclusion: The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of
procedural safeguards "effective to secure the privilege against self-incrimination." The Court noted that "the modern practice of in-custody interrogation is
psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically
outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during
interrogations.
Dickerson v. United States (2000)
Facts of the Case: During questioning about a robbery he was connected to, Charles Dickerson made statements to authorities admitting that he was the getaway
driver in a series of bank robberies. Dickerson was then placed under arrest. The timing of his statement is disputed. The FBI and local detectives testified that
Dickerson was advised of his Miranda rights, established in Miranda v. Arizona, and waived them before he made his statement. Dickerson said he was not read his
Miranda warnings until after he gave his statement. After his indictment for bank robbery, Dickerson filed a motion to suppress the statement that he made on the
ground that he had not received Miranda warnings before being interrogated. The government argued that even if the Miranda warnings were not read, the statement
was voluntary and therefore admissible under 18 USC Section 3501, which provides that "a confession shall be admissible in evidence if it is voluntarily given." The
District Court granted Dickerson's motion, finding that he had not been read his Miranda rights or signed a waiver until after he made his statement, but the court did
not address section 3501. In reversing, the Court of Appeals acknowledged that Dickerson had not received Miranda warnings, but held that section 3501 was
satisfied because his statement was voluntary. The court held that "Congress enacted section 3501 with the express purpose of legislatively overruling Miranda and
restoring voluntariness as the test for admitting confessions in federal court."
Question: May Congress legislatively overrule Miranda v. Arizona and its warnings that govern the admissibility of statements made during custodial interrogation?
Conclusion: No. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that Miranda governs the admissibility of statements made during
custodial interrogation in both state and federal courts. "Miranda has become embedded in routine police practice to the point where the warnings have become part
of our national culture," wrote Rehnquist. "Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda
ourselves," concluded the Chief Justice. Dissenting, Justice Antonin Scalia, joined by Justice Clarence Thomas, blasted the Court's ruling, writing that the majority
opinion gave needless protection to "foolish (but not compelled) confessions."
Shatzer v. Maryland (2010)
Facts of the Case: In August 2003, a detective from the Hagerstown, MD Police Department interviewed Michael Blain Shatzer Sr. regarding allegations that he had
sexually abused his three-year old child. At the time, Mr. Shatzer was incarcerated on an unrelated offense involving sexual abuse of another child. After Mr. Shatzer
invoked his Fifth Amendment rights to counsel and to remain silent, the interview was terminated. The investigation was subsequently closed, only to be reopened in
January 2006 on the prompting of Mr. Shatzer's wife, when she recognized her child could make more specific allegations about Mr. Shatzer's alleged sexual abuse.
Thereafter in March 2006, another detective from the Hagerstown Police Department, who was aware that Mr. Shatzer had been under investigation, but was not
aware that Mr. Shatzer had previously invoked his Fifth Amendment rights to counsel and to remain silent, interviewed him. At this interview, Mr. Shatzer was advised
of his Fifth Amendment rights, which he waived, and then confessed to specific instances of sexual abuse involving his child.
Prior to trial, Mr. Shatzer moved to suppress the confessions he made in the March 2006 interview arguing that his 2003 invocation of his Fifth Amendment rights
was still applicable. Under Edwards v. Arizona rendered the confession inadmissible. The motion was denied and a Maryland trial court convicted him of sexual child
abuse. On appeal, the Court of Appeals of Maryland reversed, holding that the protections of Edwards applies for an inmate who has been continually incarcerated
and had previously invoked his Fifth Amendment rights, until either counsel is made available or the inmate initiates further conversation with police. Therefore, under
the circumstances, Mr. Shatzer's confession was inadmissible.
Question: Does Edwards v. Arizona prohibit the re-interrogation of a suspect, who has invoked his Fifth Amendment rights to counsel and to remain silent, after a
substantial amount of time has elapsed between the invocation of rights and the subsequent interrogation?
Conclusion: No. The Supreme Court reversed the Court of Appeals of Maryland, holding that because Mr. Shatzer experienced a break in Miranda custody lasting
more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements. Justice Antonin G.
Scalia writing for the majority reasoned that when a suspect has been released from custody and returned to normal life before the police later attempt interrogation,
there is little reason to believe that the suspect's change of heart was coerced. The Court then stated that the appropriate period of time for a person to be reacclimated to normal life was 14 days. Here, even though Mr. Shatzer was released back into the general prison population, he entered back into his normal life and
was free of the pressures of investigative custody; thus, the Edwards presumption was no longer warranted.
Berghuis v. Thompkins (2010)
Facts of the Case: A Michigan state court convicted Van Chester Thompkins of first-degree murder, assault with intent to commit murder, and several firearms
related charges. After exhausting his remedies in Michigan state court, Thompkins petitioned for habeas corpus relief in a Michigan federal district court. The district
court denied the petition. On appeal, Thompkins argued that his confession was obtained in violation of the Fifth Amendment and that he was denied effective
counsel at trial. The Sixth Circuit held that the Michigan Supreme Court's finding that Thompkins waived his Fifth Amendment right was unreasonable because
Thompkins refused to sign an acknowledgement that he had been informed of his Miranda rights and rarely made eye contact with the officer throughout the three
hour interview. The Sixth Circuit also held that the Michigan Supreme Court improperly determined that Thompkins was not prejudiced by his counsel's failure to
request a limiting instruction related to his separately tried co-defendant's testimony.
Question: 1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant's Fifth Amendment rights were violated?
2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with respect to defendant's ineffective counsel argument when there
was substantial evidence of the defendant's guilt?
Conclusion: Yes. Yes. The Supreme Court reversed the Sixth Circuit, holding that the state court's decision to reject Mr. Thompkins' Miranda claim was correct. With
Justice Anthony M. Kennedy writing for the majority, the Court reasoned that Mr. Thompkins failed to invoke his Miranda rights to remain silent and to counsel
because he failed to do so "unambiguously." Moreover, the Court reasoned that Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and
voluntarily" made a statement to the police. The Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was prejudiced by
counsel's deficient performance – a prerequisite to establishing that his Sixth Amendment right was violated.
Justice Sonia Sotamayor, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, dissented. She reprimanded the majority for
retreating from the broad protections afforded by Miranda, stating that now a criminal suspect waives his rights simply by uttering a "few one-word responses."
Rights of Criminal Defendants
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Sixth Amendment
Powell v. Alabama (1932)
Facts of the Case: Nine black youths -- young, ignorant, and illiterate -- were accused of raping two white women. Alabama officials sprinted through the legal
proceedings: a total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but the
attorneys did not consult with their clients and had done little more than appear to represent them at the trial. This cases was decided together with Patterson v.
Alabama and Weems v. Alabama.
Question: Did the trials violate the Due Process Clause of the Fourteenth Amendment?
Conclusion: Yes. The Court held that the trials denied due process because the defendants were not given reasonable time and opportunity to secure counsel in their
defense. Though Justice George Sutherland did not rest the Court holding on the right-to-counsel guarantee of the Sixth Amendment, he repeatedly implicated that
guarantee. This case was an early example of national constitutional protection in the field of criminal justice.
Johnson v. Zerbst (1938)
1. A person charged with crime in a federal court is entitled by the Sixth Amendment to the assistance of counsel for his defense.
2. This right may be waived, but the waiver must be an intelligent one, and whether there was such must depend upon the particular facts and
circumstances, including background, experience, and conduct of accused.
3. It is a duty of a federal court in the trial of a criminal case to protect the right of the accused to counsel, and, if he has no counsel, to determine
whether he has intelligently and competently waived the right. It would be fitting that such determination be made a matter of record.
4. If the accused is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment
stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.
Betts v. Brady (1942)
Facts of the Case: Betts was indicted for robbery in Maryland. An indigent, he was unable to afford counsel and requested one be appointed for him. The judge in the
case denied the request, and Betts subsequently pled not guilty while maintaining he had a right to counsel and arguing his own defense.
Question: Does denying a request for counsel for an indigent defendant violate the due process clause of the Fourteenth Amendment which embraces the
defendant's right to counsel guaranteed by the Sixth Amendment?
Conclusion: No. The Court ruled that the previously discovered right to counsel provided by the fourteenth amendment does not compel states to provide counsel to
any defendant. Justice Owen Roberts' opinion asserted that the right to counsel merely prevented the state from interfering in a defendant’s request for
representation rather than requiring a state to offer counsel.
Gideon v. Wainwright (1963)
Facts: Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense.
When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital
cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison.
Questions: Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth
Amendments?
Conclusion: In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942
decision of Betts v. Brady. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which
should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a
poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that
"lawyers in criminal courts are necessities, not luxuries."
Escobedo v. Illinois (1964)
Facts: Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer.
Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder.
Question: Was Escobedo denied the right to counsel as guaranteed by the Sixth Amendment?
Conclusion: Yes. Justice Goldberg, in his majority opinion, spoke for the first time of "an absolute right to remain silent." Escobedo had not been adequately informed
of his consitutitonal right to remain silent rather than to be forced to incriminate himself. The case has lost authority as precedent as the arguments in police
interrogation and confession cases have shifted from the Sixth Amendment to the Fifth Amendment, emphasizing whether the appropriate warnings have been given
and given correctly, and whether the right to remain silent has been waived.
Argersinger v. Hamlin (1972)
Facts of the Case: Jon Argersinger was an indigent charged with carrying a concealed weapon, a misdemeanor in the State of Florida. The charge carried with it a
maximum penalty of six months in jail and a $1,000 fine. During the bench trial in which he was convicted and sentenced to serve ninety days in jail, Argersinger was
not represented by an attorney.
Question: Do the Sixth and Fourteenth Amendments guarantee a right to counsel to defendants who are accused of committing misdemeanors?
Conclusion: In Gideon v. Wainwright (1963) the Court found that the Sixth and Fourteenth Amendments required states to provide an attorney to indigent defendants
in cases involving serious crimes. In this case, a unanimous Court extended that right to cover defendants charged with misdemeanors who faced the possibility of a
jail sentence. Justice Douglas's plurality opinion described the intricacies involved in misdemeanor charges and the danger that unrepresented defendants may fall
victim to "assembly-line justice." Thus, in order to guarantee fairness in trials involving potential jail time, no matter how petty the charge, the Court found that the
state was obligated to provide the accused with counsel.
United States v. Booker (2005)
Facts of the Case: In Blakely v. Washington (2004) the U.S. Supreme Court ruled the Sixth Amendment right to trial by jury required judges to use only facts proved
to a jury to increase a sentence beyond the standard range.
Following U.S. Sentencing Guidelines, a federal district court judge enhanced Freddie Booker's sentence based on facts the judge determined. Booker appealed and
the Seventh Circuit Court of Appeals ruled the guidelines violated the Sixth Amendment where they required sentences to be based on facts found by a judge.
In another case, U.S. Sentencing Guidelines allowed a judge to sentence Ducan Fanfan to 188-235 months in prison based on facts the judge determined. The judge
decided Blakely v. Washington prevented him from enhancing the sentence and sentenced Fanfan to 78 months. The federal government appealed directly to the
U.S. Supreme Court. The Court consolidated the Booker and Fanfan cases.
Question: 1.) Does an enhanced sentence under U.S. Sentencing Guidelines based on the judge's determination of a fact violate the Sixth Amendment? 2.) If so, are
the Sentencing Guidelines altogether unconstitutional?
Conclusion: Yes and no. In a 5-4 opinion delivered by Justice John Paul Stevens, the Court held that the Sentencing Guidelines, where they allow judges to enhance
sentences using facts not reviewed by juries, violated the Sixth Amendment right to trial by jury. The sentences of Booker and Fanfan, based partly on facts
determined only by judges, were therefore unconstitutional. In a separate 5-4 opinion delivered by Justice Stephen Breyer, the Court said the guidelines would now
be advisory and invalidated the provisions that made them mandatory.
Melendez-Diaz v. Massachusetts (2009)
Facts of the Case: Luis Melendez-Diaz was arrested while making a cocaine sale in a parking lot in Massachusetts. At trial, bags of the cocaine alleged to have been
distributed by Melendez-Diaz were introduced into evidence along with drug analysis certificates prepared by the lab technician who analyzed the drugs and
identified them as cocaine. A jury convicted Melendez-Diaz of distributing and trafficking cocaine in violation of Massachusetts law. Melendez-Diaz appealed, arguing
that the State's introduction of the drug analysis certificates violated his Sixth Amendment right to confront witnesses against him under the Court's ruling in Crawford
v. Washington. Crawford had held that so-called "testimonial" evidence cannot be introduced at trial unless the defendant has a chance to cross-examine the witness
providing the evidence. Melendez-Diaz characterized the lab analysis as testimonial and argued that Crawford required the lab technician to testify on the results.
The State argued that Massachusetts had previously held, in Commonwealth v. Verde, that lab reports were not testimonial.
The Massachusetts Court of Appeals rejected Melendez-Diaz's claims in an unpublished opinion, referring to them in a short footnote as "without merit." The
Massachusetts Supreme Court also denied his appeal.
Question: Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth
Amendment's Confrontation Clause as set forth in Crawford v. Washington?
Conclusion: Yes. The Supreme Court held that a state forensic analyst's lab report that is prepared for use in a criminal prosecution is subject to the demands of the
Sixth Amendment's Confrontation Clause. With Justice Antonin G. Scalia writing for the majority and joined by Justices John Paul Stevens, David H. Souter,
Clarence Thomas, and Ruth Bader Ginsburg, the Court reasoned that the lab reports constitute affidavits which fall within the "core class of testimonial statements"
covered by the Confrontation Clause. Therefore, when Mr. Melendez-Diaz was not allowed to confront the persons who created the lab reports used in testimony at
his trial, his Sixth Amendment right was violated.
Justice Thomas wrote a separate concurring opinion, emphasizing that he thought the Confrontation Clause was only implicated by statements made outside the
courtroom when they are part of "formalized testimonial materials." Justice Anthony M. Kennedy dissented and was joined by Chief Justice John G. Roberts, and
Justices Stephen G. Breyer and Samuel A. Alito. He criticized the majority for so cavalierly dispensing with the long held rule that scientific analysis could be
introduced into evidence without testimony from the analyst who produced it.
Rights of Criminal Defendants
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Eighth Amendment
Furman v. Georgia (1972)
Facts of the Case: Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun
that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death (Two other death penalty cases were decided
along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death sentence for rape and murder convictions,
respectively).
Question: Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments?
Conclusion: Yes. The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and
violated the Constitution. In over two hundred pages of concurrence and dissents, the justices articulated their views on this controversial subject. Only Justices
Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death
sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their
statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.
Gregg v. Georgia (1976)
Facts: A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence
except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and
unusual" punishment that violated the Eighth and Fourteenth Amendments. This case is one of the five "Death Penalty Cases" along with Jurek v. Texas, Roberts v.
Louisiana, Proffitt v. Florida, and Woodson v. North Carolina.
Question: Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?
Conclusion: No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In
extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be
appropriate if carefully employed. Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding
where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of
each capital sentence's circumstances with other similar cases. Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital
punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.
Atkins v. Virginia (2002)
Facts: Daryl Renard Atkins was convicted of abduction, armed robbery, and capital murder. In the penalty phase of Atkins' trial, the defense relied on one witness, a
forensic psychologist, who testified that Atkins was mildly mentally retarded. The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second
sentencing hearing because the trial court had used a misleading verdict form. During resentencing the same forensic psychologist testified, but this time the State
rebutted Atkins' intelligence. The jury again sentenced Atkins to death. In affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, in rejecting Atkins'
contention that he could not be sentenced to death because he is mentally retarded.
Question: Is the execution of mentally retarded persons "cruel and unusual punishment" prohibited by the Eighth Amendment?
Conclusion: Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that executions of mentally retarded criminals are "cruel and unusual
punishments" prohibited by the Eighth Amendment. Since it last confronted the issue, the Court reasoned that a significant number of States have concluded that
death is not a suitable punishment for a mentally retarded criminal. Moreover, the Court concluded that there was serious concern whether either justification
underpinning the death penalty - retribution and deterrence of capital crimes - applies to mentally retarded offenders, due to their lessened culpability. "Construing
and applying the Eighth Amendment in the light of our 'evolving standards of decency,' we therefore conclude that such punishment is excessive and that the
Constitution 'places a substantive restriction on the State's power to take the life' of a mentally retarded offender," wrote Justice Stevens. Chief Justice William H.
Rehnquist and Justice Antonin Scalia filed dissenting opinions. Justice Clarence Thomas joined both. "This newest invention promises to be more effective than any
of the others in turning the process of capital trial into a game," argued Justice Scalia.
Roper v. Simmons (2005)
Facts: Christopher Simmons was sentenced to death in 1993, when he was only 17. A series of appeals to state and federal courts lasted until 2002, but each
appeal was rejected. Then, in 2002, the Missouri Supreme Court stayed Simmon's execution while the U.S. Supreme Court decided Atkins v. Virginia, a case that
dealt with the execution of the mentally ill. After the U.S. Supreme Court ruled that executing the mentally ill violated the Eighth and 14th Amendment prohibitions on
cruel and unusual punishment because a majority of Americans found it cruel and unusual, the Missouri Supreme Court decided to reconsider Simmons' case. Using
the reasoning from the Atkins case, the Missouri court decided, 6-to-3, that the U.S. Supreme Court's 1989 decision in Stanford v. Kentucky, which held that
executing minors was not unconstitutional, was no longer valid. The opinion in Stanford v. Kentucky had relied on a finding that a majority of Americans did not
consider the execution of minors to be cruel and unusual. The Missouri court, citing numerous laws passed since 1989 that limited the scope of the death penalty,
held that national opinion had changed. Finding that a majority of Americans were now opposed to the execution of minors, the court held that such executions were
now unconstitutional. On appeal to the U.S. Supreme Court, the government argued that allowing a state court to overturn a Supreme Court decision by looking at
"evolving standards" would be dangerous, because state courts could just as easily decide that executions prohibited by the Supreme Court (such as the execution of
the mentally ill in Atkins v. Virginia) were now permissible due to a change in the beliefs of the American people.
Question: Does the execution of minors violate the prohibition of "cruel and unusual punishment" found in the Eighth Amendment and applied to the states through
the incorporation doctrine of the 14th Amendment?
Conclusion: Yes. In a 5-4 opinion delivered by Justice Anthony Kennedy, the Court ruled that standards of decency have evolved so that executing minors is "cruel
and unusual punishment" prohibited by the Eighth Amendment. The majority cited a consensus against the juvenile death penalty among state legislatures, and its
own determination that the death penalty is a disproportionate punishment for minors. Finally the Court pointed to "overwhelming" international opinion against the
juvenile death penalty. Chief Justice William Rhenquist and Justices Antonin Scalia, Sandra Day O'Connor, and Clarence Thomas all dissented.
Kennedy v. Louisiana (2008)
Facts of the Case: A Louisiana court found Patrick Kennedy guilty of raping his eight-year-old stepdaughter. Louisiana law allows the district attorney to seek the
death penalty for defendants found guilty of raping children under the age of twelve. The prosecutor sought, and the jury awarded, such a sentence; Kennedy
appealed.
The Louisiana Supreme Court affirmed the imposition of the death sentence, noting that although the U.S. Supreme Court had struck down capital punishment for
rape of an adult woman in Coker v. Georgia, that ruling did not apply when the victim was a child. Rather the Louisiana high court applied a balancing test set out by
the Court in Atkins v. Virginia and Roper v. Simmons, first examining whether there is a national consensus on the punishment and then considering whether the
court would find the punishment excessive. In this case, the Louisiana Supreme Court felt that the adoption of similar laws in five other states, coupled with the
unique vulnerability of children, justified imposing the death penalty.
In seeking certiorari, Kennedy argued that five states do not constitute a "national consensus" for the purposes of Eighth Amendment analysis, that Coker v. Georgia
should apply to all rapes regardless of the age of the victim, and that the law was unfair in its application, singling out black child rapists for death at a significantly
higher rate than whites.
Question: Do states violate the Eight Amendment's ban on cruel and unusual punishment by imposing the death sentence for the crime of child rape?
Conclusion: Yes. In a 5-4 decision the Court held that the Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime did
not result, and was not intended to result, in the child's death. Applying the death penalty in such a case would be an exercise of "cruel and unusual punishment" in
violation of a national consensus on the issue. Justice Anthony Kennedy delivered the opinion of the Court. Justice Antonin Scalia, joined by Chief Justice John G.
Roberts and Justices Clarence Thomas and Samuel Alito, dissented. In his view, no national consensus existed prohibiting the death penalty in this case, and he
vehemently opposed the majority's application of a "blanket rule" barring the death penalty in child rape cases regardless of the facts of the case, including the age of
the child, the sadistic nature of the crime, and the number of times the child has been raped.
Baze and Bowling v. Rees (2008)
Facts of the Case: Two Kentucky inmates challenged the state's four-drug lethal injection protocol. The lethal injection method calls for the administration of four
drugs: Valium, which relaxes the convict, Sodium Pentathol, which knocks the convict unconscious, Pavulon, which stops his breathing, and potassium chloride,
which essentially puts the convict into cardiac arrest and ultimately causes death. The Kentucky Supreme Court held that the death penalty system did not amount to
unconstitutional cruel and unusual punishment.
Question: Is the use of a four-drug lethal injection process to carry out death sentences a violation of the Eighth Amendment ban on cruel and unusual punishment?
Conclusion: In a 7-2 decision with four concurrences and a dissent, the Court held that Kentucky's lethal injection scheme did not violate the Eighth Amendment.
Noting that the inmates had conceded the "humane nature" of the procedure when performed correctly, the divided Court inmates had failed to prove that incorrect
administration of the drugs would amount to cruel and unusual punishment. However, the Court also suggested that a state may violate the ban on cruel and unusual
punishment if it continues to use a method without sufficient justification in the face of superior alternative procedures. Chief Justice John G. Roberts, Jr. announced
the judgment and issued an opinion joined by Justices Anthony Kennedy and Samuel A. Alito. Justice John Paul Stevens wrote a separate concurring opinion
supporting the judgment but for the first time stated his opposition to the death penalty. Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote a separate
concurring opinion in support of the judgment. Justice Alito also issued a separate concurring opinion. Justice Ruth Bader Ginsburg, joined by Justice David Souter,
dissented.
Graham v. Florida (2010)
Facts of the Case: When Terrence Graham was 16 years old he was convicted of armed burglary and attempted armed robbery. He served a 12 month sentence and
was released. Six months later Mr. Graham was tried and convicted by a Florida state court of armed home robbery and sentenced to life in prison without parole. On
appeal, he argued that the imposition of a life sentence without parole on a juvenile, on its face, violated the Eighth Amendment and moreover constituted cruel and
unusual punishment, and thus violated the Eighth Amendment. The District Court of Appeal of Florida disagreed. It held that Mr. Graham's sentence neither was a
facial violation of the Eighth Amendment nor constituted cruel and unusual punishment.
Question: Does the imposition of a life sentence without parole on a juvenile convicted of a non-homicidal offense violate the Eighth Amendment's prohibition of
"cruel and unusual punishment?"
Conclusion: Yes. The Supreme Court held that the Eight Amendment's Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced
to life in prison without parole for a non-homicidal crime. Justice Anthony M. Kennedy, writing for the majority, reasoned that because this case implicates a particular
type of sentence as it applies to an entire class of offenders (juveniles), the categorical analysis under Atkins, Roper, and Kennedy governs. Under this approach, the
Court must: (1) consider objective indicia of society's standards and (2) determine whether the punishment in question violates the Constitution guided by the
standards elaborated by controlling precedents. Here, the Court concluded that both (1) and (2) indicated that the punishment in question for the class in question
was unconstitutional. The Court made a point to note that life sentences for juveniles for non-homicidal crimes has been "rejected the world over."
Chief Justice John G. Roberts wrote separately, concurring in the judgment. He disagreed with the manner in which the majority reached its conclusion. Instead, he
made his conclusion based on: (1) Supreme Court cases requiring "narrow proportionality" review of noncapital sentences and (2) the Supreme Court's conclusion in
Roper that juvenile offenders are generally less culpable than adults who commit the same crimes. Justice Clarence Thomas, joined by Justice Antonin G. Scalia,
and in part by Justice Samuel A. Alito, dissented. Justice Thomas reprimanded the majority for replacing its own moral judgment for that of American citizens who up
to this point had been charged with making the moral distinction as to whether this sentence could ever be imposed. Justice Alito also wrote a separate dissenting
opinion. He departed from Justice Thomas's dissent to note that "[n]othing in the Court's opinion affects the imposition of a sentence to a term of years without the
possibility of parole." He also would not have reached the issue as to whether Mr. Graham's sentence as-applied violated the Eighth Amendment. He would only
have reached the question of whether such sentences categorically violate the Eighth Amendment.
Juvenile Justice
In re Gault (1967)
Facts of the Case: Gerald Francis Gault, fifteen years old, was taken into custody for allegedly making an obscene phone call. Gault had previously been placed on
probation. The police did not leave notice with Gault's parents, who were at work, when the youth was arrested. After proceedings before a juvenile court judge, Gault
was committed to the State Industrial School until he reached the age of 21.
Question: Were the procedures used to commit Gault constitutionally legitimate under the Due Process Clause of the Fourteenth Amendment?
Conclusion: No. The proceedings of the Juvenile Court failed to comply with the Constitution. The Court held that the proceedings for juveniles had to comply with the
requirements of the Fourteenth Amendment. These requirements included adequate notice of charges, notification of both the parents and the child of the juvenile's
right to counsel, opportunity for confrontation and cross-examination at the hearings, and adequate safeguards against self-incrimination. The Court found that the
procedures used in Gault's case met none of these requirements.
Eminent Domain – Fifth Amendment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Kelo v. City of New London (2005)
Facts: New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land
would create jobs and increase tax revenues. Kelo Susette and others whose property was seized sued New London in state court. The property owners argued the
city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation.
Specifically the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for New
London.
Question: Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the
development will help the city's bad economy?
Conclusion: No. In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city's taking of private property to sell for private development
qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was
following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public
use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader
and more natural interpretation of public use as 'public purpose.'"
14th Amendment
Civil Liberties – Personal guarantees and freedoms that the federal government cannot abridge by law, constitution, or judicial interpretation
Equal Protection, Due Process, Right to Die
Cruzan v. Director, Missouri Department of Health (1990)
Facts of the Case: In 1983, Nancy Beth Cruzan was involved in an automobile accident which left her in a "persistent vegetative state." She was sustained for several
weeks by artificial feedings through an implanted gastronomy tube. When Cruzan's parents attempted to terminate the life-support system, state hospital officials
refused to do so without court approval. The Missouri Supreme Court ruled in favor of the state's policy over Cruzan's right to refuse treatment.
Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their vegitated daughter's behalf?
Conclusion: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent
persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of
Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of
incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.
Vacco v. Quill (1997)
Facts of the Case: Dr. Timothy E. Quill, along with other physicians and three seriously ill patients who have since died, challenged the constitutionality of the New
York State's ban on physician-assisted suicide. New York's ban, while permitting patients to refuse lifesaving treatment on their own, has historically made it a crime
for doctors to help patients commit or attempt suicide, even if patients are terminally ill or in great pain. Following a District Court ruling favoring the State of New
York, the Second Circuit reversed and the Supreme Court granted New York certiorari.
Question: Did New York's ban on physician-assisted suicide violate the Fourteenth Amendment's Equal Protection Clause by allowing competent terminally ill adults
to withdraw their own lifesaving treatment, but denying the same right to patients who could not withdraw their own treatment and could only hope that a physician
would do so for them?
Conclusion: No. Employing a rationality test to examine the guarantees of the Equal Protection Clause, the Court held that New York's ban was rationally related to
the state's legitimate interest in protecting medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them
to end their lives, and, above all, the preservation of human life. Moreover, while acknowledging the difficulty of its task, the Court distinguished between the refusal
of lifesaving treatment and assisted suicide, by noting that the latter involves the criminal elements of causation and intent. No matter how noble a physician's
motives may be, he may not deliberately cause, hasten, or aid a patient's death.
Washington v. Glucksberg (1997)
Facts of the Case: Dr. Harold Glucksberg -- along with four other physicians, three terminally ill patients who have since died, and a nonprofit organization that
counsels individuals contemplating physician assisted-suicide -- brought this suit challenging the state of Washington's ban on physician assisted-suicide. The State
of Washington has historically criminalized the promotion of suicide attempts by those who "knowingly cause or aid another person to attempt suicide." Glucksberg
alleged that Washington's ban was unconstitutional. Following a District Court ruling favoring Glucksberg and his fellow petitioners, the Ninth Circuit affirmed and the
Supreme Court granted Washington certiorari.
Question: Did Washington's ban on physician assisted-suicide violate the Fourteenth Amendment's Due Process Clause by denying competent terminally ill adults
the liberty to choose death over life?
Conclusion: No. Analyzing the guarantees of the Due Process Clause, the Court focused on two primary aspects: the protection of our nation's objective
fundamental, historically rooted, rights and liberties; and the cautious definition of what constitutes a due process liberty interest. The Court held that the right to
assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national
traditions and practices. Moreover, employing a rationality test, the Court held that Washington's ban was rationally related to the state's legitimate interest in
protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of
human life.
Gonzales v. Oregon (2006)
Facts of the Case: In 1994 Oregon enacted the Death with Dignity Act, the first state law authorizing physicians to prescribe lethal doses of controlled substances to
terminally ill patients. Attorney General John Ashcroft declared in 2001 that physician-assisted suicide violated the Controlled Substances Act of 1970 (CSA).
Ashcroft threatened to revoke the medical licenses of physicians who took part in the practice. Oregon sued Ashcroft in federal district court. That court and, later the
Ninth Circuit, held Ashcroft''s directive illegal. The courts held that the CSA did not authorize the attorney general to regulate physician-assisted suicide, which was
the sort of medical matter historically entrusted to the states.
Question: Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?
Conclusion: No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in
illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a
medical practice authorized under state law to be illegitimate.
Civil Rights – the government protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals based on
categories such as race, sex, national origin, age, religion, or sexual orientation
14th Amendment, Discrimination
Dred Scott v. Sandford (1857)
Facts of the Case: Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery
was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his
residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African
descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution.
Question: Was Dred Scott free or slave?
Conclusion: Dred Scott was a slave. Under Articles III and IV, argued Taney, no one but a citizen of the United States could be a citizen of a state, and that only
Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III
purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all.
Munn v. Illinois (1877)
Facts of the Case:Illinois regulated grain warehouse and elevator rates by establishing maximum rates for their use.
Question: Did the state-imposed rates deny the warehouse and elevator owners equal protection and due process under the 14th Amendment?
Conclusion: No on both counts. Waite, for the Court, took a broad view of the state's police power. He argued that the states may regulate the use of private property
"when such regulation becomes necessary for the public good." Waite resurrected an ancient legal doctrine to support his view: "When property is affected with a
public interest, it ceases to be juris privati only."
Plessy v. Ferguson (1896)
Facts of the Case: The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was seveneighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested.
Question: Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection
clauses of the Fourteenth Amendment?
Conclusion: No, the state law is within constitutional boundaries. The majority, in an opinion authored by Justice Henry Billings Brown, upheld state-imposed racial
segregation. The justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment
so long as they were equal. (The phrase, "separate but equal" was not part of the opinion.) Justice Brown conceded that the 14th amendment intended to establish
absolute equality for the races before the law. But Brown noted that "in the nature of things it could not have been intended to abolish distinctions based upon color,
or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either." In short, segregation does not in itself
constitute unlawful discrimination.
Smith v. Allwright (1944)
Facts of the Case: A resolution of the Democratic Party of Texas, a group that the Texas Supreme Court had deemed a "voluntary association," allowed only whites
to participate in Democratic primary elections. S.S. Allwright was a county election official; he denied Lonnie E. Smith, a black man, the right to vote in the 1940
Texas Democratic primary.
Question: Did denying blacks the right to vote in primary elections violate the Fifteenth Amendment?
Conclusion: The Court overruled its decision in Grovey v. Townsend (1935) and found the restrictions against blacks unconstitutional. Even though the Democratic
Party was a voluntary organization, the fact that Texas statutes governed the selection of county-level party leaders, the party conducted primary elections under
state statutory authority, and state courts were given exclusive original jurisdiction over contested elections, guaranteed for blacks the right to vote in primaries.
Allwright engaged in state action abridging Smith's right to vote because of his race. A state cannot "permit a private organization to practice racial discrimination" in
elections, argued Justice Reed. (The Court's decision in this matter was amended on June 12, 1944.)
Brown v. Board of Education of Topeka (1954)
Facts of the Case: Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the
races. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with
Briggs v. Elliott and Davis v. County School Board of Prince Edward County.
Question: Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by
the 14th Amendment?
Conclusion: Yes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality. Racial segregation in public education
has a detrimental effect on minority children because it is interpreted as a sign of inferiority. The long-held doctrine that separate facilities were permissible provided
they were equal was rejected. Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all
forms of state-maintained racial separation.
Brown v. Board of Education II (1955)
Facts of the Case: After its decision in Brown I which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives
which would help to implement its newly announced Constitutional principle. Given the embedded nature of racial discrimination in public schools and the diverse
circumstances under which it had been practiced, the Court requested further argument on the issue of relief.
Question: What means should be used to implement the principles announced in Brown I?
Conclusion: The Court held that the problems identified in Brown I required varied local solutions. Chief Justice Warren conferred much responsibility on local school
authorities and the courts which originally heard school segregation cases. They were to implement the principles which the Supreme Court embraced in its first
Brown decision. Warren urged localities to act on the new principles promptly and to move toward full compliance with them "with all deliberate speed."
Loving v. Virginia (1967)
Facts of the Case: In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The
Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages.
The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25
years).
Question: Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the
most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination."
The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were
not subject to a "rational purpose" test under the Fourteenth Amendment.
Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971)
Facts of the Case: After the Supreme Court's decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One
example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or
more than 99 percent black. Lower courts had experimented with a number of possible solutions when the case reached the Supreme Court.
Question: Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?
Conclusion: In a unanimous decision, the Court held that once violations of previous mandates directed at desegregating schools had occurred, the scope of district
courts' equitable powers to remedy past wrongs were broad and flexible. The Court ruled that 1) remedial plans were to be judged by their effectiveness, and the use
of mathematical ratios or quotas were legitimate "starting points" for solutions; 2) predominantly or exclusively black schools required close scrutiny by courts; 3) noncontiguous attendance zones, as interim corrective measures, were within the courts' remedial powers; and 4) no rigid guidelines could be established concerning
busing of students to particular schools.
Eisenstadt v. Baird (1972)
Facts of the Case: William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population.
Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain
contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.
Question: Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state instrusion by the Fourteenth
Amendment?
Conclusion: Burger Court - In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction
between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were
entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court
did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority,
"it is the right of the individual, married or single, to be free from unwarranted governmental intrusion tino matters so fundamentally affecting a person as the decision
to whether to bear or beget a child."
Frontiero v. Richardson (1973)
Facts of the Case: Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the
wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless
they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down.
Question: Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women
thereby violating the Fifth Amendment's Due Process Clause?
Conclusion: Yes. The Court held that the statute in question clearly commanded "dissimilar treatment for men and women who are similarly situated," violating the
Due Process Clause. Applying a strict standard of review to the sex-based classification, the Court found that the government's interest in administrative convenience
could not justify discriminatory practices. The Court held that statutes that drew lines between the sexes on those grounds alone necessarily involved "the 'very kind
of arbitrary legislative choice forbidden by the Constitution.'"
Craig v. Boren (1976)
Facts of the Case: An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis
Craig, a male then between the ages of 18 and 21, and a licensed vendor challenged the law as discriminatory.
Question: Did an Oklahoma statute violate the Fourteenth Amendment's Equal Protection Clause by establishing different drinking ages for men and women?
Conclusion: In a 7-to-2 decision, the Court held that the statute made unconstitutional gender classifications. The Court held that the statistics relied on by the state of
Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of
aggregate groups did not suffice. The Court also found that the Twenty-first Amendment did not alter the application of the Equal Protection Clause in the case.
Rostker v. Goldberg (1981)
Facts of the Case: After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with
Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number
of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court.
Question: Did the MSSA's gender distinctions violate the Due Process Clause of the Fifth Amendment?
Conclusion: In a 6-to-3 decision, the Court held that Congress's decision to exempt women from registration "was not the 'accidental by-product of a traditional way of
thinking about females'" and did not violate the Due Process Clause. The Court found that men and women, because of combat restrictions on women, were not
"similarly situated" for the purposes of draft registration. The Court also upheld Congress's judgment that the administrative and military problems that would be
created by drafting women for noncombat roles were sufficient to justify the Military Selective Service Act.
INS v. Lopez-Mendoza (1984)
Facts of the Case: Respondents Adan Lopez-Mendoza and Elias Sandoval-Sanchez, both Mexican citizens, were ordered deported by an immigration judge in
separate proceedings. The orders were issued based upon each respondent's admission to Immigration and Naturalization Service (INS) officials that he had entered
the country unlawfully. Lopez-Mendoza and Sandoval-Sanchez challenged the orders on grounds that their respective arrests by INS officials were illegal and in
violation of the Fourth Amendment. Sandoval-Sanchez further moved to have his admission suppressed as fruit of an illegal arrest. (Lopez-Mendoza did not move to
strike his admission from the record.) In each case, the presiding judge found the legality of the arrests irrelevant to the determination of the respondents' deportation
status. On administrative appeal, the Board of Immigration Appeals (BIA) affirmed the orders noting that deportation proceedings are civil actions and "[t]he mere fact
of an illegal arrest has no bearing on a subsequent deportation hearing." The BIA also found application of the exclusionary rule in a deportation proceeding
inappropriate. The Ninth Circuit Court of Appeals reversed finding the respondents' arrests were illegal and the resulting admissions fruit of unlawful arrests.
Question: Do the strictures of the Fourth Amendment and the exclusionary rule apply in deportation proceedings?
Conclusion: No. In both criminal and civil proceedings, the "body" or identity of a defendant is never suppressible as fruit of an illegal arrest. This alone was sufficient
basis to uphold Lopez-Mendoza's deportation order. Moreover, deportation proceedings are civil actions and the protections afforded defendants in the criminal
context do not apply. Specifically, Sandoval-Sanchez's appeal to the exclusionary rule in his motion to suppress his admission fails because the purpose the
exclusionary rule is designed to serve_deterring official misconduct_is not served in the context of a deportation proceeding. First, the INS is only required to show
identity and alienage to meet its burden in a deportation hearing. Since the defendant's body is not suppressible, the INS must only prove alienage, generally not a
difficult task even absent a confession. Further, INS has its own comprehensive oversight program in place to monitor Fourth Amendment compliance internally. The
exclusionary rule would do little to enhance these efforts. Finally, deportations hearings, unlike criminal trials, are designed to prevent the continued violation of the
law. The social cost of releasing a defendant whose mere presence in the country puts him in continued violation of the law is too high to bear in light of the minimal
benefits derived from application of the exclusionary rule in this context.
United States v. Virginia (1996)
Facts of the Case: The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning
institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated
the Fourteenth Amendment's equal protection clause. On appeal from a District Court ruling favoring VMI, the Fourth Circuit reversed. It found VMI's admissions
policy to be unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to create the Virginia Women's Institute for Leadership (VWIL) as a
parallel program for women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit ruled that despite the difference in prestige between the VMI
and VWIL, the two programs would offer "substantively comparable" educational benefits. The United States appealed to the Supreme Court.
Question: Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal
Protection Clause?
Conclusion: No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive
justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that
single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further
educational diversity. Furthermore, Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same
rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. Finally, the Fourth
Circuit's "substantive comparability" between VMI and VWIL was misplaced. The Court held that the Fourth Circuit's "substantive comparability" standard was a
displacement of the Court's more exacting standard, requiring that "all gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated
with such "heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same opportunities as VMI provides its men and so it failed to
meet requirements of the equal protection clause. [NOTE: Justice Ginsberg's announcement of the Court's opinion (below) may be considered an address to the
American public. It is a plain-spoken and forceful summary of the majority position.]
Ricci v. DeStefano (2009)
Facts of the Case:
White and Hispanic candidates for promotion in the New Haven, CT fire department sued various city officials in the United States District Court for the District of
Connecticut when the New Haven Civil Service Board (CSB) failed to certify two exams needed for the plaintiffs' promotion to Lieutenant and Captain. The CSB did
not certify because the results of the test would have promoted a disproportionate number of white candidates in comparison to minority candidates. The plaintiffs
argued that their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, and the 14th Amendment Equal Protection Clause were violated. The
federal district court granted the defendants' motion for summary judgment.
On appeal, the United States Court of Appeals for the Second Circuit affirmed. It reasoned that the CSB, by refusing to certify the results of the promotional exam,
was trying to fulfill its obligations under the rules utilized by the plaintiffs in their argument and therefore was protected in its actions.
Question:
1) Can a municipality reject results from an otherwise valid civil service exam when the results unintentionally prevent the promotion of minority candidates?
2) Does 42 U.S.C. Section 2000e permit federal courts to relieve municipalities from having to comply with local laws that require strict compliance with race-blind
merit selection procedures?
Conclusion: Maybe; fact dependent. Not answered. The Supreme Court held that by discarding the exams, the City of New Haven violated Title VII of the Civil Rights
Act of 1964. With Justice Anthony M. Kennedy wrote the majority joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Clarence Thomas, and
Samuel A. Alito. Before an employer can engage in intentional discrimination for the purpose of avoiding a "disparate impact" on a protected trait (race, color, religion,
national origin), the employer must have a "strong basis in evidence" that it will be subject to "disparate impact liability" if it fails to take the discriminatory action.
Here, the Court reasoned that New Haven failed to prove it had a "strong basis in evidence" that failing to discard the results of the exam would have subjected it to
liability, as the exams were job-related, consistent with business necessity, and there was no evidence that an equally-valid, less-discriminatory alternative was
available.
Justice Scalia wrote separately, concurring. He noted that the Court avoided answering whether the "disparate impact" provision of Title VII was consistent with the
Equal Protection Clause. Justice Alito also wrote a concurring opinion and was joined by Justices Scalia and Thomas. He criticized the dissent for omitting key
information in reaching its alternate conclusion.
Justice Ruth Bader Ginsburg dissented and was joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer. She argued that the City of New
Haven had good cause to believe it would be vulnerable to a Title VII lawsuit if it certified the exams. Moreover, she criticized the majority for ignoring "substantial
flaws" in the exam.
Civil Rights – the government protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals based on
categories such as race, sex, national origin, age, religion, or sexual orientation
14th Amendment, Discrimination
Affirmative Action
Sweatt v. Painter (1950)
Facts: In 1946, Herman Marion Sweatt, a black man, applied for admission to the University of Texas Law School. State law restricted access to the university to
whites, and Sweatt's application was automatically rejected because of his race. When Sweatt asked the state courts to order his admission, the university attempted
to provide separate but equal facilities for black law students.
Question: Did the Texas admissions scheme violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: In a unanimous decision, the Court held that the Equal Protection Clause required that Sweatt be admitted to the university. The Court found that the
"law school for Negroes," which was to have opened in 1947, would have been grossly unequal to the University of Texas Law School. The Court argued that the
separate school would be inferior in a number of areas, including faculty, course variety, library facilities, legal writing opportunities, and overall prestige. The Court
also found that the mere separation from the majority of law students harmed students' abilities to compete in the legal arena.
Regents of the University of California v. Bakke (1978)
Facts: Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both
times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an
effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of
the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he
was excluded from admission solely on the basis of race.
Question: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative
action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school?
Richmond v. J.A. Croson Co.(1989)
Facts: In 1983, the City Council of Richmond, Virginia adopted regulations that required companies awarded city construction contracts to subcontract 30 percent of
their business to minority business enterprises. The J.A. Croson Company, which lost its contract because of the 30 percent set-aside, brought suit against the city.
Question: Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion: In a 6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of
public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible
employment of a suspect classification. O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert
constitutional values: "The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic
of shifting preferences based on inherently unmeasurable claims of past wrongs."
Adarand Constructors v. Pena (1995)
Facts: Adarand, a contractor specializing in highway guardrail work, submitted the lowest bid as a subcontractor for part of a project funded by the United States
Department of Transportation. Under the terms of the federal contract, the prime contractor would receive additional compensation if it hired small businesses
controlled by "socially and economically disadvantaged individuals." [The clause declared that "the contractor shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...." Federal law requires
such a subcontracting clause in most federal agency contracts]. Another subcontractor, Gonzales Construction Company, was awarded the work. It was certified as a
minority business; Adarand was not. The prime contractor would have accepted Adarand's bid had it not been for the additional payment for hiring Gonzales.
Question: Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the Fifth
Amendment's Equal Protection Clause?
Conclusion: Yes. Overruling Metro Broadcasting (497 US 547), the Court held that all racial classifications, whether imposed by federal, state, or local authorities,
must pass strict scrutiny review. In other words, they "must serve a compelling government interest, and must be narrowly tailored to further that interest." The Court
added that compensation programs which are truly based on disadvantage, rather than race, would be evaluated under lower equal protection standards. However,
since race is not a sufficient condition for a presumption of disadvantage and the award of favored treatment, all race-based classifications must be judged under the
strict scrutiny standard. Moreover, even proof of past injury does not in itself establish the suffering of present or future injury. The Court remanded for a
determination of whether the Transportation Department's program satisfied strict scrutiny.
Gratz v. Bollinger (2003)
Facts: In 1995, Jennifer Gratz applied to the University of Michigan's College of Literature, Science and the Arts with an adjusted GPA of 3.8 and ACT score of 25. In
1997, Patrick Hamacher applied to the University with an adjusted GPA of 3.0, and an ACT score of 28. Both were denied admission and attended other schools.
The University admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student
body." In addition, the University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups - African
Americans, Hispanics, and Native Americans - that are considered to be "underrepresented" on the campus. Concluding that diversity was a compelling interest, the
District Court held that the admissions policies for years 1995-1998 were not narrowly tailored, but that the policies in effect in 1999 and 2000 were narrowly tailored.
After the decision in Grutter, Gratz and Hamacher petitioned the U.S. Supreme Court pursuant to Rule 11 for a writ of certiorari before judgment, which was granted.
Question: Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth
Amendment or Title VI of the Civil Rights Act of 1964?
Conclusion: Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the University of Michigan's use of racial preferences in
undergraduate admissions violates both the Equal Protection Clause and Title VI. While rejecting the argument that diversity cannot constitute a compelling state
interest, the Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented
minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in Regents of
the University of California v. Bakke, 438 U.S. 265 (1978). Chief Justice Rehnquist wrote, "because the University's use of race in its current freshman admissions
policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause."
Grutter v. Bollinger (2003)
Facts: In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8
undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions
because it serves a "compelling interest in achieving diversity among its student body." The District Court concluded that the Law School's stated interest in achieving
diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. In reversing, the Court of Appeals held that Justice
Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), constituted a binding precedent establishing diversity as a compelling
governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's
finding that the Law School's "critical mass" was the functional equivalent of a quota.
Question: Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth
Amendment or Title VI of the Civil Rights Act of 1964?
Conclusion: No. In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law 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 reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable
such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "in
the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly
harm nonminority applicants."
Parents Involved in Community Schools v. Seattle School District No. 1 (2007) – equal protection based on Michigan cases
Facts of the Case: The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when
too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The
second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any school's student body deviated by more
than a predetermined number of percentage points from those of Seattle's total student population (approximately 40% white and 60% non-white), the racial
tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance
closer to the goal.
A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the
Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. A federal District Court dismissed the suit, upholding the tiebreaker. On
appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed.
Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be
directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. Applying these precedents to K-12 education, the Circuit Court
found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an "en banc" ruling by a panel of 11 Ninth Circuit judges. The en banc
panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying
a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had
considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point.
Question:
1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students?
2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?
3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission
to her chosen school because of her race in an effort to achieve a desired racial balance?
Conclusion: No, no, and yes. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of
race is to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest
in university admissions, but it ruled that "[t]he present cases are not governed by Grutter." Unlike the cases pertaining to higher education, the District's plan
involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). The District's goal of preventing racial
imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a
compelling state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court
held that the District's tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The
District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice
Kennedy agreed that the District's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational
opportunity.
Meredith v. Jefferson County Board of Education (2007) – equal protection based on Michigan cases
Facts of the Case: Jefferson County Public Schools (JCPS) were integrated by court order until 2000. After its release from the order, JCPS implemented an
enrollment plan to maintain substantial racial integration. Students were given a choice of schools, but not all schools could accommodate all applicants. In those
cases, student enrollment was decided on the basis of several factors, including place of residence, school capacity, and random chance, as well as race. However,
no school was allowed to have an enrollment of black students less than 15% or greater than 50% of its student population.
Meredith and other parents sued the school district, arguing that the plan's racial classifications violated the students' Fourteenth Amendment right to equal protection
of the laws. Under the Supreme Court's decisions in Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling
government interest" and must be "narrowly tailored" to that interest.
The District Court ruled that the plan was constitutional because the school had a compelling interest in maintaining racial diversity. The court held that though the
plan paid "some attention to numbers," it did not constitute a rigid quota system. According to the Supreme Court's precedents, rigid racial quotas are never narrowly
tailored. The Sixth Circuit Court of Appeals upheld the District Court without issuing an opinion of its own, and Meredith appealed to the Supreme Court. (See also
Parents Involved in Community Schools v. Seattle School District #1, No. 05-908)
Question:
1) Do Grutter v. Bollinger and Gratz v. Bollinger allow a school district to use race as the sole factor to assign high school students to public schools?
2) Can a student enrollment plan that requires each school's student population to be between 15% and 50% African-American meet the Fourteenth Amendment's
requirement that racial classifications be narrowly tailored to a compelling government interest?
Conclusion: No and no. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found Jefferson County's enrollment plan unconstitutional under the Equal
Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of race is
to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in
university admissions, but it ruled that "[t]he present cases are not governed by Grutter." Unlike the cases pertaining to higher education, Jefferson County's plan
involved no individualized consideration of students, and it employed a very limited notion of diversity ("black" and "other"). Jefferson County's goal of preventing
racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to
a compelling state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The
Court held that Jefferson County's enrollment plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial
diversity. Jefferson County also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the
judgment, Justice Kennedy agreed that Jefferson County's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure
equal educational opportunity.
Civil Rights – the government protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals based on
categories such as race, sex, national origin, age, religion, or sexual orientation
Commerce Clause to Enforce Civil Rights
Katzenbach v. McClung (1964)
Facts of the Case: The owner of Ollie's Barbecue, in Birmingham Alabama, refused to serve blacks in apparent violation of the Civil Rights Act of 1964. Part of the
Act prevented restaurants serving interstate travelers, or receiving a substantial amount of their food
Question: Does a restaurant's refusal to serve blacks burden interstate commerce to an extent that Congress can legitimately prohibit such discrimination?
Conclusion: The Court found that discrimination in restaurants posed significant burdens on "the interstate flow of food and upon the movement on products
generally." Furthermore, argued Justice Clark, discrimination also posed restrictions on blacks who traveled from state to state. Congress's solution to this problem
was appropriate and within its bounds to regulate interstate commerce.
Heart of Atlanta Motel v. U.S.(1964)
Facts of the Case: Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The
Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.
Question: Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the
right to choose their own customers?
Conclusion: The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and that the Civil Right Act of 1964 passed
constitutional muster. The Court noted that the applicability of Title II was "carefully limited to enterprises having a direct and substantial relation to the interstate flow
of goods and people. . ." The Court thus concluded that places of public accommodation had no "right" to select guests as they saw fit, free from governmental
regulation.
Miscellaneous
Copyright
MGM Studios v. Grokster (2005)
Facts of the Case: Grokster and other companies distributed free software that allowed computer users to share electronic files through peer-to-peer networks. In
such networks, users can share digital files directly between their computers, without the use of a central server. Users employed the software primarily to download
copyrighted files, file-sharing which the software companies knew about and encouraged. The companies profited from advertising revenue, since they streamed ads
to the software users. A group of movie studios and other copyright holders sued and alleged that Grokster and the other companies violated the Copyright Act by
intentionally distributing software to enable users to infringe copyrighted works. The district court ruled for Grokster, reasoning that the software distribution
companies were not liable for copyright violations stemming from their software, which could have been used lawfully. The Ninth Circuit affirmed.
Question: Were companies that distributed file-sharing software, and encouraged and profited from direct copyright infringement using such software, liable for the
infringement?
Conclusion: Yes. In a unanimous opinion delivered by Justice David Souter, the Court held that companies that distributed software, and promoted that software to
infringe copyrights, were liable for the resulting acts of infringement. The Court argued that although the Copyright Act did not expressly make anyone liable for
another's infringement, secondary liability doctrines applied here. The software in this case was used so widely to infringe copyrights that it would have been
immensely difficult to deal with each individual infringer. The "only practical alternative" was to go against the software distributor for secondary liability. Here the
software companies were liable for encouraging and profiting from direct infringement.