Download Judiciary

John G. Roberts - Chief Justice of the United States
Appointed by: President George W. Bush
Appointed in: 2005
Age When Appointed: 50
John Paul Stevens
Appointed by: President Ford
Appointed in: 1975
Age When Appointed: 55
Samuel A. Alito, Jr.
Appointed by: President George W. Bush
Appointed in: 2006
Age When Appointed: 55
Antonin Scalia
Appointed by: President Reagan
Appointed in: 1986
Age When Appointed: 50
Anthony Kennedy
Appointed by: President Reagan
Appointed in: 1988
Age When Appointed: 52
Clarence Thomas
Appointed by: President George H. W. Bush
Appointed in: 1991
Age When Appointed: 43
Ruth Bader Ginsburg
Appointed by: President Clinton
Appointed in: 1993
Age When Appointed: 60
Stephen Breyer
Appointed by: President Clinton
Appointed in: 1994
Age When Appointed: 56
Sonia Sotomayor
Appointed by: President Obama
Appointed in: 2009
Age When Appointed: 55
Judiciary Assignment
Instructions: Use Graphic Organizers, Diagrams, and/or Outlines to show mastery.
Part I.
1. What if… Supreme Court Justices Had Term Limits?
2. The Common Law Tradition
3. Sources of American Law
4. The Federal Court System
5. Which cases reach the Supreme Court?
6. The Selection of Federal Judges
7. Policymaking and the Courts
8. What Checks our Courts?
Part II. Profile: The Roberts Court
-Background (education, family, occupations)
-Appointment
-Position on the Political Spectrum
-Publications
-History’s View & Legacy
Part III. Characterize the following:
Marshall Court
Warren Court
Burger Court
Rehnquist Court
Judiciary Assignment
Instructions: Use Graphic Organizers, Diagrams, and/or Outlines to show mastery.
Part I.
1. What if… Supreme Court Justices Had Term Limits?
2. The Common Law Tradition
3. Sources of American Law
4. The Federal Court System
5. Which cases reach the Supreme Court?
6. The Selection of Federal Judges
7. Policymaking and the Courts
8. What Checks our Courts?
Part II. Profile: The Roberts Court
-Background (education, family, occupations)
-Appointment
-Position on the Political Spectrum
-Publications
-History’s View & Legacy
Part III. Characterize the following:
Marshall Court
Warren Court
Burger Court
Rehnquist Court
Key Supreme Court Cases
www.prenhall.com/burns
www.cspan.org
www.ask.com
www.faculty.uml.edu
www.supreme.lp.findlaw.com
www.law.cornell.edu
www.tourolaw.com
www.google.com
www.oyer.org
www.landmark.com
INSTRUCTIONS: Construct a chart/diagram giving a synopsis of the following
court cases.
Brown v. Board of Education of Topeka, 1954
*Buckley v. Valeo, 1976
Dred Scott v. Sanford, 1857
Engel v. Vitale, 1962
Escobedo v. Illinois, 1964
Gibbons v. Ogden, 1824
Gideon v. Wainwright, 1963
Gitlow v. New York, 1925
Griswold v. Connecticut, 1965
Mapp v. Ohip, 1961
Marbury v. Madison, 1803
McCullough v. Maryland, 1819
Miranda v. Arizona, 1966
Olmstead v. United States, 1928
Plessy v. Ferguson, 1896
Powell v. Alabama
Regents of the University of California v. Bakke, 1978
Roe v. Wade, 1973
Schenk v. United States, 1919
*Swann v. Charlotte Mecklenburg Schools, 1972
Nixon v. United States, 1974
Weeks v. United States, 1914
Texas v. Johnson, 1989
U.S. v. Lopez, 1995
Printz v. United States, 1997
Clinton v. New York , 1998
LEARNING OBJECTIVES
After students have read and studied this chapter, they should be able to:
 Explain such major concepts of the American legal system as the common law tradition,
precedent, jurisdiction, and stare decisis.
 Outline the federal court system and explain the major function of each court:
o District Court
o U.S. Court of Appeals
o U.S. Supreme Court
 Identify and explain the different types of opinions that are delivered by justices of the
Supreme Court.
o Unanimous opinion.
o Majority opinion.
o Concurring opinion.
o Dissenting opinion.
 Summarize the presidential appointment process for all levels of federal courts including
nominating candidates, their common qualifications, the role of senatorial courtesy, and how
ideology has played an important role in the politics of appointments.
 Define activist and restraintist philosophies, and strict versus broad construction.
 Describe the Roberts Court, including its ideology and the types of cases it chooses to hear.
 Explain the policymaking function of the courts.
TOPICS FOR DISCUSSION
Why do laws exist? What happens if someone violates the law? What if the law is not fair or just?
Who makes the law?
Once the Supreme Court interprets the Constitution on a specific point, the interpretation remains
until the Constitution is amended or until the Court overturns a previous decision. What is the
likelihood of either of those actions? Should the courts have the power to make major policy
decisions that are very difficult to change? If the courts did not have such power, who would
decide what policies or laws were constitutional or unconstitutional? What would be the
result of allowing Congress the power to determine what was constitutional? One advantage
of judicial review is stability, that is, knowing what is the meaning of the law or the
Constitution over a long period of time. One disadvantage is that it is very difficult to make
changes, if one thinks a decision is unfair or unjust. Should the courts have the power to
interpret the Constitution on a topic like abortion or physician-assisted suicide?
Should judges be selected based partially on their party affiliation? Former President Reagan
accused the U.S. Senate of “politicizing the judiciary” when it failed to confirm Robert Bork.
Was this a valid complaint? How many judges selected by former President Reagan were
Democrats? How many Democrats did President Bush nominate to the Supreme Court? How
many Republicans did President Clinton nominate for the Supreme Court? Should the Senate
always confirm the nominees of the president? Would it be possible or practical to eliminate
party considerations?
Should judges be making policy? Since they are not elected, is it dangerous for those who do not
face public scrutiny in any meaningful way to directly make policy? What checks do the
executive and the legislature have on the judiciary? Does the bureaucracy have any checks?
Does the public?
When George W. Bush had the opportunity to appoint a chief justice, he chose to bring in John
Roberts rather than elevating one of the current members of the Court. When Ronald Reagan
had this opportunity in 1986, he chose to elevate William Rehnquist, who had served for
fifteen years on the Court, to the position of chief justice. My students are always fascinated
by this dilemma faced by a president who is called upon to appoint a chief justice. Ask your
students what they would do in the same situation.
BEYOND THE BOOK
James Madison in Federalist #51 made the argument for the selection of all federal judges by the
president, with the consent of the Senate. Madison indicated the selection of judicial officers
presents some difficulties, “first, because peculiar qualifications being essential in the
members, the primary consideration ought to be to select that mode of choice which best
secures these qualifications; second, because the permanent tenure by which the
appointments are held in that department must soon destroy all sense of dependence on the
authority conferring them.” The two main arguments for this method are: (1) judges, unlike
members of the other branches, must be knowledgeable practitioners of the law; and (2) once
nominated to the bench, judges are not dependent on others for maintaining their office.
A president is elected to serve a four-year term and can only serve for two terms. The president’s
influence can, however, last much longer depending on the judicial appointments he makes to
the federal courts. For example, John Kennedy selected Byron White as a justice to the
Supreme Court. White served on the Court during eight subsequent presidents. While Justice
White’s tenure is longer than most federal judges, his appointment does demonstrate the
impact a president can have on the judicial system.
The importance of political party can be seen from one striking statistic: Only 13 percent of the
justices nominated have been of a different party than the president. The political fortunes of
a party can have long-lasting effects on the Supreme Court. From 1933 to 1953, the
Democrats controlled the White House and therefore controlled the nominating process.
From 1969 to 1992, Republican presidents were responsible for every nomination to the
Supreme Court (President Carter, a Democrat, did not have the opportunity to nominate a
justice to the Supreme Court because there were no vacancies during his four-year term of
office).
A federal court can declare the action of a state to be unconstitutional. The federal courts have
made over 1,000 such decisions since 1789. Since Marbury v. Madison in 1803, the Supreme
Court has ruled against Congress over 150 times.
Who is president can make a difference in when a federal judge will decide to leave the bench. In
March of 1993, for example, Justice White announced he would retire after the end of the
1992-1993 term, in part because he was nominated by a Democrat (John Kennedy) and he
wanted a Democratic president to have the opportunity to replace him. Justice Thurgood
Marshall used to joke about not stepping down while Ronald Reagan was the president who
would appoint his successor. Justice Sandra Day O’Connor stepped down while President
George W. Bush was in office, ensuring that a Republican president would select her
successor.
CHAPTER OUTLINE
I.
The Common Law Tradition
Law in the United States is based primarily on the English legal system because of our
colonial heritage. Once the colonies became independent from England, they did not
establish a new legal system. With few modifications, the old English legal system was
kept intact and states began to operate their courts based on these traditions. Unlike many
other countries, English law is based on common law. Common law is judge-made law
based initially on the prevailing custom and eventually on legal precedent. Common law is
based on stare decisis, which means to stand on decided cases. If a legal situation occurs
that has previously been decided, the decision in the initial case is binding on the current
situation. The major advantages to this type of system are efficiency and stability.
II. Sources of American Law
A. Constitutions. The U.S. Constitution is the supreme law of the land. It outlines the basic
structure of our government, and also sets forth the powers of the branches of
government. The Constitution also lists some of the important rights held by
individuals and limitations on the government. State constitutions are another important
source of American law. They provide the structure of state governments and are the
guiding documents within the specific states.
B. Statutes and Administrative Regulations. Statutes are an important source of law.
Statutes are laws made by legislatures, including the Congress, state legislatures, and
also county legislatures and local councils. These laws often delineate the rights (or
responsibilities) of individuals. Administrative regulations are another source of law in
the United States. Administrative regulations are rules issued by administrative
agencies. Courts often are called upon to interpret administrative regulations.
C. Case Law. How statutes and constitutions are interpreted by the courts is essential. The
rules and principles announced in court decisions constitute a source of American law.
In American case law, the doctrine of stare decisis is important. This means that U.S.
case law is based on precedent.
III. The Federal Court System
The United States has a dual court system, comprised of both federal and state courts.
A. Basic Judicial Requirements.
1. Jurisdiction. This is the authority to hear and decide cases. The Constitution says
that the federal courts have jurisdiction in cases that meet one of the following
criteria:
 The case involves a federal question. A federal question is a legal question that
is based, in whole or in part, on the U.S. Constitution, a treaty, or federal law.
An example of a case asking a federal question would be one in which a
plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights (to
free speech, or the free exercise of religion, for example).
 The case involves diversity of citizenship. Diversity of citizenship means that the
parties to a lawsuit are from different states, or that one of the parties is a
citizen or government of another country. These cases require a minimum of
$75,000 in controversy.
2. Standing to Sue. Another important criteria is that the party bringing a lawsuit
must have “standing to sue.” That is, the party must have suffered harm, or be in
danger of suffering harm, and there must be a justiciable a (real, not hypothetical)
controversy.
B. Types of Federal Courts. The federal court system is a three-tiered model.
1. U.S. District Courts. These are trial courts with general jurisdiction. Each state has
at least one federal district court, and there are now a total of 94 districts.
2. U.S. Courts of Appeals. These are appellate courts that hear appeals of decisions of
the U.S. District Courts located within their circuits. The Thirteenth Circuit (the
Federal Circuit) has national appellate jurisdiction for cases involving the U.S.
government. In appellate cases, the cases are not re-tried. Rather, a panel of judges
reviews the actions and decisions of the lower court and decides whether a mistake
was made. The decisions of the appellate panels are nearly always final, the rare
exception being when the U.S. Supreme Court opts to hear an appeal.
3. The United States Supreme Court. This is the highest court in the country. It has
jurisdiction to hear both original and appellate cases, although nearly all of its
cases are appellate cases..
C. Specialized Federal Courts and the War on Terrorism.
1. The FISA Court. This is a secret court created under the Foreign Intelligence
Surveillance Act (FISA) of 1978. It was established to issue warrants in espionage
cases. After 9/11, the Bush administration extended the powers of this court to
cover some criminal cases. Using FISA warrants, law enforcement can conduct
secret searches.
2. Alien “Removal Courts.” The Anti-Terrorism and Effective Death Penalty Act of
1996 created an alien “removal court” to hear evidence against suspected “alien
terrorists.” The court is closed to the public. Judges rule on whether there is
probable cause for deportation. The defendant cannot see the evidence that the
prosecution used to secure the hearing.
D. Parties to Lawsuits. Key terms: Plaintiff, the person or organization that initiates a
lawsuit. Defendant, the person or organization against whom the lawsuit is brought.
Litigate, to engage in a legal proceeding or seek relief in a court of law; to carry on a
lawsuit. Amicus curiae brief, a brief (a document containing a legal argument
supporting a desired outcome in a particular case) filed by a third party, or amicus
curiae (Latin for “friend of the court”), who is not directly involved in the litigation but
who has an interest in the outcome of the case. An example is a class-action suit, a
lawsuit seeking damages for “all persons similarly situated.”
E. Procedural Rules. The parties must comply with procedural rules and orders given by
the judge. When a party does not follow a court’s order, the court can cite him or her
for contempt. Civil contempt is failing to comply with a court’s order for the benefit of
another party. Criminal contempt is obstructing the administration of justice or
bringing the court into disrespect.
IV. The Supreme Court at Work
The Supreme Court begins the first Monday in October and usually adjourns in late June.
The nine justices must decide which cases to accept during the term, schedule oral
arguments, read the legal briefs from all parties in the case, meet in conference to discuss
the issues involved in each case, draft opinions of the Court for each case, and finally write
the final opinions for each case. The cases that the Supreme Court has decided have
impacted our lives considerably. Their decisions have also had important policy outcomes.
In the past several years, the Supreme Court has heard cases regarding states’ rights, capital
punishment, abortion, privacy rights, civil rights for minorities, and free speech issues.
A. Which Cases Reach the Supreme Court? Former Chief Justice William Rehnquist has
observed that the selection of Supreme Court cases is somewhat subjective.
1. Factors that Bear on the Decision. There are conditions that increase a case’s
chance of being heard by the Supreme Court. These include:
 When two lower courts are in disagreement.
 When a lower court’s ruling conflicts with an existing Supreme Court ruling.
 When a case has broad significance (as in desegregation or abortion decisions).
 When a state court has decided a substantial federal question.
 When the highest state court holds a federal law invalid, or upholds a state law
that has been challenged as violating a federal law.
 When a federal court holds an act of Congress unconstitutional.
 When the solicitor general is pressuring the Court to hear a case. The solicitor
general represents the executive branch of the government before the Court.
2. Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a
writ, a minimum of four justices must agree that the case should be heard by the
Supreme Court (the “rule of four”). This does not mean that all four justices are in
agreement as to the outcome of the case in question. Rather they are in agreement
that this is an important case worthy of the attention of the Supreme Court.
B. Deciding Cases. Once the Court has decided to accept a case, both parties in the case
will submit legal briefs and engage in oral arguments.
C. Decisions and Opinions. If the Court is unanimous in the ruling, one justice will be
assigned to write the opinion of the Court. If the justices are divided on the reasoning
of the outcome, there will be a majority opinion and dissenting opinions. Dissenting
opinions are important because they typically form the basis for reversal arguments.
On occasion there will be a concurring opinion by a justice. This opinion states a
differing point of view on a legal issue, but supports a ruling in agreement with the
majority of the Court.
V. The Selection of Federal Judges
A. Judicial Appointments. After the president has nominated a candidate for any federal
judicial position, the United States Senate must consider the candidate. If a majority of
the Senate approves the candidate, the president will then appoint the judge to serve for
life. Senatorial courtesy is a constraint on the president’s freedom to appoint federal
district judges. Senatorial courtesy allows a senator to veto a judicial appointment in
his or her state.
1. Federal District Court Judgeship Nominations. Until President Jimmy Carter
(1977–1981), the nomination of federal district court judges actually originated
with a senator or senators of the president’s party from the state in which there was
a vacancy. In effect, judicial appointments were a form of political patronage.
Since Ronald Reagan (1981–1989), the president has established complete control
of nominations. Beginning in 2002, the Republicans have revoked the extension of
senatorial courtesy to the opposition party.
2. Federal Courts of Appeals Appointments. At the Court of Appeals level,
candidates are reviewed in more detail. It is not unusual for those positions to be a
stepping-stone to the Supreme Court. In fact, every member of the current
Supreme Court served on a federal circuit court of appeals.
3. Supreme Court Appointments. Nominations to the Supreme Court are carefully
considered by the president. Only two members of the Court have been African
American and only two have been female.
4. The Special Role of the Chief Justice. The chief justice not only heads the
Supreme Court, but also serves as the chief executive officer of the large
bureaucracy within the federal judicial system.
B. Partisanship and Judicial Appointments. In selecting a candidate the president may take
into account many factors but two factors in particular stand out: the party affiliation of
the candidate and the political philosophy of the individual. Certainly this was the case
with George W. Bush’s selection of John Roberts and Samuel Alito to become
members of the Court. However, it must be noted that as members sit on the Court
they have a tendency to modify their ideological positions and some have been bitter
disappointments to the presidents who nominated them.
C. The Senate’s Role. If the president nominates a candidate that is considered to be
significantly to the left or right of the political spectrum, the candidate may face
opposition in the Senate. The impact of ideology also can be witnessed in the
confirmation process. Since the presidency of Andrew Jackson, the Senate has often
failed to confirm presidential judicial appointments. During the Reagan administration,
there was acrimonious debate over the nomination of Robert Bork, whom the Senate
rejected. During the George H. W. Bush administration, the nomination of Clarence
Thomas was also contentious, though Thomas was confirmed. President Clinton
succeeded in getting both of his Supreme Court nominees, Ruth Bader Ginsburg and
Stephen Breyer confirmed. George W. Bush was forced to withdraw his nomination of
Harriet Miers when Republicans in the Senate questioned her qualifications.
VI. Policymaking and the Courts
A reason for the vigor of the debates concerning judicial appointments is that the courts
play a large role in determining policy throughout the country. One of the important ways
for the judiciary to influence policy is through judicial review.
A. Judicial Review. The power of the courts to determine whether a law or action by the
other branches of government is constitutional is known as the power of judicial
review. Supreme Court decisions in this regard are important because of the Court’s
national jurisdiction. When a state law is ruled unconstitutional by the Supreme Court,
it is then likely that other states’ laws will be held invalid as well. Although most
people have come to accept the concept of judicial review, bear in mind that this power
is not specifically articulated in the Constitution. Rather, Article III speaks in terms of
the “judicial power” being given to the Supreme Court, although some commentators
argue that the Framers understood judicial review to be encompassed by the concept of
judicial power. The idea of judicial review was formally claimed by the Supreme
Court in the landmark case of Marbury v. Madison (1803) in a decision written by
Chief Justice John Marshall.
B. Judicial Activism and Judicial Restraint. To some extent the ability of the courts to act
as policymakers depends on the activism or the restraint of the courts. If the Court
assumes an activist role, it will take a broad view of the Constitution and use its
powers to check the activities of governmental bodies when those bodies can be said to
exceed their authority. If the Court assumes the role of judicial restraint, the Court will
use the power of judicial review sparingly and limit judicial action in the political
process. Since the end of Word War II the Court has been much more activist than
before, especially on social issues such as civil rights. Activism is sometimes
associated with political liberalism and restraint with conservatism, but the reverse is
also possible.
C. Strict versus Broad Construction. Key concepts: Strict construction, a judicial
philosophy that looks to the “letter of the law” when interpreting the Constitution or a
particular statute. Broad construction, a judicial philosophy that looks to the context
and purpose of a law when making an interpretation. As with activism and restraint,
broad construction may be associated with liberalism and narrow construction with
conservatism. Again, though, these associations can be reversed.
D. Ideology and the Rehnquist Court. The ideology of the justices determines the kinds of
policy that the courts will make. Under the leadership of Chief Justice Rehnquist, the
Court had been considered conservative, reflecting the philosophical views of the
Republican presidents who selected most of the justices on the Court. With the
retirement of Sandra Day O’Connor and the death of William Rehnquist, the Court
stands ideologically divided. Today, two of the justices, Antonin Scalia and Clarence
Thomas are notably conservative. The two new Bush appointees, Chief Justice John
Roberts and Samuel Alito, are expected to join Scalia and Thomas to form a four-judge
conservative wing. Four members of the Court, John Paul Stevens, David Souter, Ruth
Bader Ginsburg, and Stephen Breyer, line up on the liberal wing of the Court. Justice
Anthony Kennedy stands in the center and his decisions control, to a great extent, the
direction of the Court.
1. Federalism. The Rehnquist Court attempted, to a limited degree, to restore states’
rights. Notably, the Court has limited the rights of citizens to sue their own states
in federal courts. Also the Rehnquist Court ruled that California’s medicinal
marijuana program must yield to the power of Congress to regulate interstate
commerce.
2. Civil Rights. The Rehnquist Court was relatively cautious on civil rights issues, for
example ruling that affirmative action is acceptable but within strict limits. One
striking ruling in support of the civil rights of gay men and lesbians, however, was
the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas.
VII. What Checks Our Courts?
Although the founding fathers considered the judiciary the branch with the least power, the
actual power the federal courts can exert on society is quite great. What protection do the
people have from the federal judiciary?
A. Executive Checks. The president has several important methods of checking the
judiciary. The president has the power to enforce judicial decisions through the use of
the bureaucracy. In rare cases a president may refuse to implement a decision. More
frequently, presidents use their power of appointment to check the judiciary. When
vacancies occur within the judiciary the president can select judges who are more
inclined to view the laws and Constitution from the perspective of the president. As
indicated earlier. this power can assist the president in accomplishing goals long after
he has left office.
B. Legislative Checks.
1. Congress can propose a constitutional amendment if it opposes the Supreme
Court’s interpretation of the Constitution.
2. When the courts make a ruling on a particular law, the legislature can revise the
law if the interpretation by a federal court is not what the legislature intended.
C. Public Opinion. Although the public does not have a direct influence on the selection
of members of the judiciary, it does have an indirect influence through the selection of
the president. Also, the Court does not operate in a vacuum and is reluctant to make
rulings that might be very unpopular.
D. Judicial Traditions and Doctrines. To a certain extent, the courts also check
themselves.
1. Hypothetical and Political Questions. The tradition of refusing to adjudicate
hypothetical questions serves as one check. The doctrine that many issues (political
questions) ought to be resolved by the elected branches of government is also a
restraint.
2. The Impact of the Lower Courts. If lower courts dislike a Supreme Court ruling,
they cannot overturn it but can seek to apply it in as limited a fashion as possible.
VIII. Features
A. What If . . . Supreme Court Justices Had Term Limits?
Such a move would have the effect of reducing the partisan rancor that has come to
accompany the confirmation process, since a lifetime appointment would no longer
hang in the balance. In addition this would require a consistent infusion of new blood
onto the Court. No longer would justices be able to make a partisan decision about
when they would step down.
B. Beyond Our Borders: The Legal System Based on Sharia.
Sharia law is based in large part on the Koran and the manner in which Muhammad
lived his life. While it is used with different levels of stringency and severity in
different countries, in some contexts it is used to justify punishments that are at the
very least unduly harsh.
C. Which Side Are You On? Is the Process of Confirming Judicial Nominees Too
Political?
Political disputes over judicial confirmations have become more common since the
rejection of Republican Robert Bork’s nomination to the Supreme Court in 1987.
Democrat Bill Clinton had great difficulty in getting his nominations confirmed and
Republican George W. Bush has had problems as well.
Burns:
LECTURE OUTLINE
1. What If . . . Supreme Court Justices Had to Campaign?
A. The argument for the selection of all federal judges by the president, with the
consent of the Senate, was made by James Madison in Federalist #51.
Madison indicated the selection of judicial officers presents some difficulties,
“... first, because peculiar qualifications being essential in the members, the
primary consideration ought to be to select that mode of choice which best
secures these qualifications; second, because the permanent tenure by which the
appointments are held in that department must soon destroy all sense of
dependence on the authority conferring them.” The two main arguments for
this method are: (1) judges, unlike members of the other branches, must be
knowledgeable practitioners of the law; and (2) once nominated to the bench,
judges are not dependent on others for maintaining their office.
B. If the Constitution had provided for the election of Supreme Court justices, our
judiciary system would be much different. Some assert that if Supreme Court
justices were elected, they would be more responsive to public opinion. This
may be perceived as a good thing.
C. But there are problems associated with electing Supreme Court justices. Should
it be the Supreme Court’s job to decide in favor of the popular position, or
should it be to uphold the constitution and make decision based on the laws of
the country? In addition the power of interest groups certainly would increase,
with judges perhaps making decisions based on who contributed to their
campaign. Elected judges may feel they have less latitude to protect unpopular,
yet constitutionally protected, positions.
D. Another problem associated with electing Supreme Court justices could be the
tendency for swift ideological shifts. Currently there is little turnover in
Supreme Court justices, but if all bench seats were elected regularly, there
could be significant turnover. This could transform the ideology of the Supreme
Court in a relatively short period of time.
2. The Common Law Tradition
Law in the United States is based primarily on the English legal system because of
our colonial heritage. Once the colonies became independent from England, they
did not establish a new legal system. With few modifications the old English legal
system was kept intact and states began to operate their courts based on the
traditions of the previous form of government. Unlike many other countries,
English law is based on common law. Common law is judge-made law based
initially on the prevailing custom and eventually on legal precedent. This concept
is also referred to as stare decisis, which means to stand on decided cases. If a
legal situation occurs that has previously been decided, the decision in the initial
case is legally binding on the current situation. The major advantages to this type
of system are efficiency and stability.
3. Sources of American Law
A. The U.S. Constitution outlines the basic structure of our government, and also
set forth the powers of the branches of government. This U.S. Constitution also
list some of the important rights held by individuals and limitations on the
government.
B. State constitutions are another important source of American law. They
provide the structure of state governments and are the guiding documents within
their specific state.
C. Statutes are an important source of law. Statutes are laws made by
legislatures, including the Congress, state legislatures, and also county
legislatures and local councils. These laws often delineate the rights (or
responsibilities) of individuals.
D. Administrative regulations are another source of law in the United States.
Administrative regulations are rules issued by administrative agencies. Courts
often are called upon to interpret administrative regulations.
E.
Case law, or the rules and principles announced in court decisions
constitute the final source of American law. In American case law, the doctrine
of stare decisis, is important. This means that U.S. case law often is based on
precedent.
4. The Federal Court System
A. The United States has a dual court system, comprised of both federal and state
courts..
B. The United States federal courts derive their power from Article III, Section 1
of the Constitution. This section describes the jurisdiction, or the authority to
hear and decide cases, of the federal courts. The Constitution says that the
federal courts have jurisdiction in cases that meet at one of the following
criteria.
1. The case involves a federal question. A federal question is a legal question
that is based, in whole or in part on the U.S. Constitution, a treaty or federal
law. An example of a case asking a federal question would be one in which
a plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights
(to free speech, or the free exercise of religion, for example).
2. The case involves diversity of citizenship. Diversity of citizenship means
that the parties to a lawsuit are from different states, or that a U.S. citizen is
suing a citizen or government of another country. These cases require a
minimum of $75,000 in contest.
C. Another important criteria is that the party bringing a law suit must have
“standing to sue.” That is, the party must be justified in bringing the suit, and
there must be a justiciable a (real, not hypothetical) controversy.
D. The federal court system is a three-tiered model.
1. U.S. District Courts are trial courts with general jurisdiction. Each state has
at least one federal district court, and there are now a total of 94 districts.
2. U.S. Courts of Appeals are appellate courts that hear appeals of decisions of
the U.S. District Courts located within their circuit. The Thirteenth Circuit
(the Federal Circuit) has national appellate jurisdiction for cases involving
the U.S. government. In appellate cases, the cases are not re-tried. Rather, a
panel of judges reviews the transcript of the trial and the decision, and they
decide if a mistake was made. The decisions of the appellate panels are
nearly always final, the rare exception being when the U.S. Supreme Court
opts to hear an appeal.
3. The United States Supreme Court is the highest court in the country. It has
jurisdiction to hear both original and appellate cases. Nearly all of its cases
are appellate cases, with the original jurisdiction being either the U.S.
District Courts or the highest state courts (it will exercise this prerogative
only if the case has federal jurisdiction, as defined in B 1 or 2).
5. The Supreme Court at Work
A. The Supreme Court begins the first Monday in October and usually adjourns in
late June. The nine justices must decide which cases to accept during the term,
schedule oral arguments, read the legal briefs from all parties in the case, meet
in conference to discuss the issues involved in each case, draft opinions of the
Court for each case, and finally write the final opinions for each case. The cases
that the Supreme Court has heard and their subsequent decisions have impacted
our lives considerably. Their decisions have also had important policy
outcomes. In the past several years, the Supreme Court has heard cases
regarding states’ rights, capital punishment, abortion, privacy rights, civil rights
for minority and free speech issues.
B. Chief Justice William Rehnquist called the selection of Supreme Court cases
subjective. Yet there are conditions that increase a case’s chance of being heard
by the Supreme Court. These include:
1. When two lower courts are in disagreement.
2. When a lower court’s ruling conflicts with an existing Supreme Court
ruling.
3. When a case has broad significance (as in desegregation or abortion
decisions).
4. When a state court has decided a substantial federal question.
5. When the highest state court holds a federal law invalid, or upholds a state
law that has been challenged as violating a federal law.
6. When a federal court holds an act of Congress unconstitutional.
7. When the solicitor general is pressuring the Court to hear a case.
The solicitor general in the executive branch, represents the national
government. In order to issue the writ of certiorari, a minimum of four
justices must agree that the case should be heard by the Supreme Court (the
“rule of four”). This does not mean that all four justices are in agreement as
to the outcome of the case in question. Rather they are in agreement this is
an important case worthy of the attention of the Supreme Court.
C. Once the Court has decided to accept a case both parties in the case will submit legal reasoning as to
how the case should be decided by the Court. Oral arguments are also included on occasion, but cases
are decided on points of law rather than facts of the case. After all arguments have been made the
Court will decide the outcome of the case. If the Court is unanimous in the ruling, one justice will be
assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome,
there will be a majority opinion and dissenting opinions. Dissenting opinions are important because
they typically form the basis for reversal arguments. On occasion there will be a concurring opinion by
a justice. This opinion states a differing point of view on a legal issue, but the outcome is in agreement
with the majority of the Court.
6. The Selection of Federal Judges
A. A president is elected to serve a four-year term and can only serve for two
terms. His influence can, however, last much longer depending on the judicial
appointments he makes to the federal courts. John Kennedy selected Byron
White as a justice to the Supreme Court. White served on the Court during
eight different presidents. While Justice White’s tenure is longer than most
B.
C.
D.
E.
federal judges, his appointment does demonstrate the impact a president can
have on the judicial system.
After the president has nominated a candidate for any federal judicial position,
the United States Senate must consider the candidate. If a majority of the
Senate approves the candidate, the president will then appoint the judge to serve
for as long as the judge wants to serve. It is unusual for the Senate to reject a
candidate for the positions at either the District Court or the Court of Appeals.
At the District Court level, a senator from the district who belongs to the same
party as the president submits a list of candidates to the president and the
president then nominates the person the senator wanted to fill the position. At
the Court of Appeals level candidates are reviewed in more detail, especially in
light of candidates that were approved at this level under both President Reagan
and President Bush and then these candidates were later nominated to the
Supreme Court. Senators who voted for candidates like Robert Bork and
Clarence Thomas when they were nominated for a Court of Appeals seat, but
then voted against these candidates for a seat on the Supreme Court, had a
difficult time explaining how they could support the candidate at one level but
not at the other level. Although there is no requirement that a candidate for
justice of the Supreme Court have experience at either the District Court or the
Court of Appeals, it is not unusual for those positions to be a stepping stone to
the Supreme Court.
Nominations to the Supreme Court are carefully considered by the president. In
selecting a candidate the president may take into account many factors but two
factors in particular stand out: the party affiliation of the candidate and the
political philosophy of the individual. The importance of political party can be
seen from one striking statistic, only 13 percent of the justices nominated have
been of a different party than the president. The political fortunes of a party can
have long, lasting effects on the Supreme Court. From 1933 to 1953 the
Democrats controlled the White House and therefore controlled the nominating
process. From 1969 to 1992, Republican presidents were responsible for every
nomination to the Supreme Court (President Carter, a Democrat, did not have
the opportunity to nominate a justice to the Supreme Court because there were
no vacancies during his four-year term of office). If the president nominates a
candidate that is considered to be significantly to the left or right of the political
spectrum, the candidate will be sure to face considerable opposition in the
Senate.
Other than political party affiliation and political philosophy of the candidate,
the president will also consider other factors including: the legal background,
education, age, gender, race, and religious affiliation. Until the latter half of the
twentieth century the composition of the members of the Supreme Court was
older white Protestant males. Only two members of the Court have been
African American and only two have been female (See Acetate CT-4).
The impact of partisanship can be seen in the federal courts, where President
Bill Clinton has had the opportunity to appoint about 200 federal judges, thus
markedly changing the ideology of the courts for years to come.
F. The impact of ideology also can be witnessed in the confirmation process.
Since the presidency of Andrew Jackson, the Senate has failed to confirm
presidential judicial appointments. During the Reagan administration, there was
acrimonious debate over the nomination of Robert Bork, whom the Senate
rejected. During the George H. W. Bush administration, the nomination of
Clarence Thomas was also contentious, though Thomas was confirmed.
President Clinton succeeded in getting both of his Supreme Court nominees,
Ruth Bader Ginsburg and Stephen Breyer confirmed.
7. Policymaking and the Courts
A. The reason for the vigor of the debates concerning judicial appointments is that
it is widely recognized that the courts plays a large role in determining policy
throughout the country. One of the important ways for the judiciary to influence
policy is through judicial review. The concept of judicial review, as applied to
state laws, is provided for in Article VI of the Constitution. If a case challenges
a decision of a state court concerning the status of a state action in relationship
to the United States Constitution or laws of the federal government, a federal
court can declare the action of the state as unconstitutional. The federal courts
have made over 1,000 such decisions since 1789. In 1803 the concept of
judicial review was broadened to include the possibility of declaring acts of
Congress unconstitutional. Since the case of Marbury v. Madison, where the
Supreme Court declared part of an act of Congress unconstitutional, the federal
courts have ruled against Congress over 150 times. Supreme Court decisions in
this regard are important because of the Court national jurisdiction. When a
state law is ruled unconstitutional by the courts, it is then likely that other
states’ law will be held invalid as well. This has been the situation with cases
concerning term limits, assisted suicide and gun control.
B. To some extent the ability of the courts to act as policymakers depends on the
activism or the restraint of the courts. If the Court assumes the role of judicial
activism, the Court will use power to direct policy toward a desired goal. An
activist Court takes a broad view of the Constitution and involves itself in
legislative and executive matters. If the Court assumes the role of judicial
restraint, the Court rarely uses the power of judicial review and limits judicial
action in the political process. Since the end of Word War II the Court has been
much more likely to assume the role of judicial activism.
C. The ideology of the court determines the kinds of policy that the courts will
make. With the Supreme Court, some of the Court’s ideology is determined by
the ideology of the Chief Justice. The Chief Justice has only one vote on the
Supreme Court, but his influence exceeds a single vote. During his tenure as
Chief Justice the Court is often referred to by the last name of the Chief Justice.
Under the leadership of the Chief Justice, the Court may take on a particular
philosophical tilt. The Rehnquist Court has been considered very conservative,
in part reflecting the philosophical views of the Republican presidents who
selected most of the justices on the Court (Nixon, Ford, Reagan, and George H.
W. Bush). President Clinton had a significant impact on the composition of the
Rehnquist Court with his two appointments (Bader Ginsburg and Breyer). The
ideology of the Supreme Court serves as a legacy to the presidents who
nominated the justices.
8. What Checks Our Courts?
A. Although the founding fathers considered the judiciary the branch with the least
power, the actual power the federal courts can exert on society is quite great.
What protection do the people have from the federal judiciary?
B. Executive checks - The president has several important methods of checking
the judiciary.
1. Judicial Implementation -- the president has the power to enforce judicial
decisions through the use of the bureaucracy. Rarely presidents refuse to
implement a decision, but their commitment to the policy may belie the
aggressiveness with which the decision is implemented.
2. More frequently, presidents use their power of appointment to check the
judiciary. When vacancies occur within the judiciary the president can
select judges who are more inclined to view the laws and Constitution from
the perspective of the president. As indicated earlier this power can assist
the president in accomplishing goals long after he is no longer in office.
C. Legislative checks - When the courts make a ruling on a particular law the
legislature can revise the law if the interpretation by a federal court is not what
the legislature intended. Congress also can propose a Constitutional amendment
if it opposes the Supreme Court’s interpretation of the Constitution.
D. Although the public does not have a direct influence on the selection of
members of the judiciary, it does have an indirect influence in the selection of
the president. Voters elect the president (who makes judicial appointments)
and who is president can also make a difference as to when a federal judge will
decide to leave the bench. In March of 1993 Justice White announced he would
retire after the end of the 1992-1993 term, in part because he was nominated by
a Democrat (John Kennedy) and he wanted a Democratic president to have the
opportunity to replace him. It is possible that Justice O’Connor and Chief
Justice Rehnquist will step down during President George W. Bush’s
administration, thus allowing the Republican president to select their
successors.
E. To a certain extent, the courts also check themselves. Their unwillingness to
adjudicate political questions, and to leave such questions for resolution by
elected bodies demonstrates that courts sometimes see their role as limited.
This chapter discusses the federal judiciary and the work of its judges and
justices. The chapter describes the role and composition of the American judicial
system, particularly the Supreme Court, while examining the politics of federal
court appointments. This chapter also focuses on judicial policymaking and
describes how legal and political factors come together to influence the Court’s
decisions. In addition, the chapter examines the controversy that surrounds the
judiciary’s policy role. The main points of the chapter are:
The federal judiciary includes the Supreme Court of the United
States, which functions mainly as an appellate court; courts of
appeals, which hear appeals; and district courts, which hold trials.
Each state has a court system of its own, which for the most part is
independent of supervision by the federal courts.
Judicial decisions are constrained by applicable constitutional law,
statutory law, and precedent. Nevertheless, political factors have a
major influence on judicial appointments and decisions; judges are
political officials as well as legal ones.
The judiciary has become an increasingly powerful policymaking
body in recent decades, which has raised the question of the
judiciary’s proper role in a democracy. The philosophies of judicial
restraint and judicial activism provide different answers to the
question.
At the lowest level of the federal judicial system are the district courts, where
most federal cases begin (and end). Above them are the federal courts of
appeals, which review cases appealed from the lower courts. The U.S. Supreme
Court is the nation’s highest court. Each state has its own court system,
consisting of trial courts at the bottom and one or two appellate levels at the top.
Cases originating in state court ordinarily cannot be appealed to the federal
courts unless a federal issue is involved, and then the federal courts can choose
to rule only on the federal aspects of the case.
The Supreme Court is unquestionably the most important court in the country.
The legal principles it establishes are binding on lower courts, and its capacity to
define the law is enhanced by the control it exercises over the cases it hears.
(See OLC simulation, "Judiciary Court Case," at www.mhhe.com/patterson5.)
The most important part of the Court’s majority opinion in a case is the legal
reasoning underlying the decision; this reasoning guides lower courts in their
handling of similar cases. However, it is inaccurate to assume that lower courts
are inconsequential (the upper-court myth). Lower courts have considerable
discretion in their evaluation of the facts and applicable laws of the cases before
them, and the great majority of their decisions are not reviewed by a higher court.
It is also inaccurate to assume that federal courts are far more significant than
state courts (the federal-court myth). The vast majority of legal cases that arise
each year in the United States are decided in state courts.
Federal judges at all levels are appointed by the president and confirmed by the
Senate. Once on the federal bench, they serve until they die, retire, or are
removed by impeachment and conviction. Partisan politics plays a significant role
in judicial appointments. Presidents are particularly alert to political philosophy in
their selection of Supreme Court justices. The nation’s top court makes broad
policy decisions, and presidents have tried to ensure that appointees share their
partisan goals.
The courts have less discretionary authority than elected institutions. The
judiciary’s positions are constrained by the facts of a case and by what is stated
in the Constitution, statutes and governmental regulations, and legal precedent.
Yet existing legal guidelines are seldom so precise that judges have no choice in
their decisions. The state of the law narrows a judge’s options in a particular
case, but within these confines there is room for considerable discretion.
As a result, political influences have a strong impact on the judiciary. It responds
to national conditions, public opinion, interest groups, and elected officials,
particularly the president and members of Congress. Another political influence
on the judiciary is the political beliefs of judges, who have personal preferences
that are evident in the way they decide on issues that come before the courts.
Federal judges are important policymaking officials because of gaps in the law
that require interpretation and because of their role in constitutional
interpretation. Issues of federalism, separation of powers, majority power, and
individual rights are often resolved through the courts, particularly the Supreme
Court. In recent decades the Court has issued broad rulings on individual rights,
some of which have required government to take positive action on behalf of
minority interests. As the Court has crossed into areas traditionally left to
lawmaking majorities, the legitimacy of its policies has been questioned.
Advocates of judicial restraint claim that the justices’ personal values are
inadequate justification for exceeding the proper judicial role. They argue that the
Constitution entrusts broad issues of the public good to elective institutions and
that judicial activism ultimately undermines public respect for the judiciary.
Judicial activists counter that the courts were established as an independent
branch and should not hesitate to promote new principles when they see a need,
even if this action puts them into conflict with elected officials. While one can
argue that all judges, be they liberal or conservative, are to some degree activist,
the difference between judicial activism and restraint lies in the extent to which a
judge is willing to depart from the wording of the law and contest the will of the
other branches of government
The Judiciary
Judges and Justices of the federal court system were not elected but rather appointed by
the president and confirmed by the Senate.
This doesn’t mean that the federal judiciary is apolitical. In the opinion of many experts,
our courts play a larger role in public policy than in any country in the world today.
Alexis de Tocqueville, 19th century French commentator on American society, noted,
“scarcely any political question arises in the United States that is not resolved, sooner or
later, into a judicial question.”
The instant judges interpret the law, they become actors in the political arena—
policymakers working within a political institution.
Precedent the practice of deciding new cases with reference to former decisions.
Stare (ster-ay dih-si-ses) a Latin phrase meaning “to stand on decided cases.” This
doctrine obligates judges to follow the precedents set previously only by their own courts
or by higher courts that have authority over them.
For example, a lower state court in California would be obligated to follow a precedent
set by the California Supreme Court. That lower court, however, would not be obligated
to follow a precedent set by the supreme court in another state, because each state court
system is independent. Of course, when the United States Supreme Court decides an
issue, all of the nation’s other cases are obligated to abide by the Court’s decision—
because the Supreme Court is the highest court in the land.
The Constitution is the supreme law of the land. A law in violation of the Constitution,
no matter what its source, may be declared unconstitutional and thereafter cannot be
enforced. State constitutions are supreme within their respective borders (unless they
conflict with the U.S. Constitution or federal laws and treaties made in accordance with
it.)
The Federal Court System
The U.S. has a dual court system consisting of state courts and federal courts. Article III,
section outlines the power of the federal court system. That section limits the
jurisdiction (the authority to hear and decide cases) of the federal courts to cases that
involve either a federal question of diversity of citizenship. A federal question arises
when a case is based, at least in part, on the U.S. Constitution, a treaty, or a federal law.
A person who claims that his or her rights under the Constitution, such as the right to free
speech, have been violated could bring a case in a federal court.
District Courts
Trial Courts—trials are held and testimony is taken. These courts are of general
jurisdiction, meaning that they can hear cases involving a broad array of issues. There
is at least one federal district court in every state. The number of judicial districts can
vary over time, primarily owing to population changes and corresponding caseloads.
Currently, there are 94 federal judicial districts. A party who is dissatisfied with the
decision of a district court judge can appeal the case to the appropriate U.S. court of
appeals, or federal appellate court.
U.S. Courts of Appeals
There are thirteen U.S. courts of appeals. Twelve of these courts hear appeals from the
Federal district courts located within their respective judicial circuits. The Court of
Appeals for the Thirteenth Circuit, called the Federal Circuit, has national appellate
jurisdiction over certain types of cases, such as cases involving patent law and those in
which the U.S. government is a defendant. When an appellate court reviews a case
decided in a district court, the appellate court does not conduct another trial. Rather, a
panel of three or more judges reviews the record of the case on appeal, which includes a
transcript of the trial proceedings, and determines whether the trial court committed an
error. Usually, appellate courts do not look at questions of fact (such as whether a party
did, in fact, commit a certain action, such as burning a flag) but at questions of law (such
as whether the act of flag burning is a form of speech protected by the First Amendment
to the Constitution). An appellate court will challenge a trial court’s finding of fact only
when the finding is clearly contrary to the evidence presented at trial or when there is no
evidence presented at trial or when there is no evidence to support the finding.
Which Cases Reach the Supreme Court?
The Court’s appellate jurisdiction is almost entirely discretionary—the Court can choose
which cases it will decide. The justices never explain their reasons for hearing certain
cases and not others, so it is difficult to predict which case or type of case the Court
might select. Chief Justice William Rehnquist, in his description of process in one of his
books, the decision of whether or not to accept a case is rather subjective, part intuition,
and part legal judgement.
Solicitor general – a high ranking presidential appointee within the Justice Department,
represents the national government in the Supreme Court and promotes presidential
policies in the federal courts. Sometimes refer to as the “Tenth justice.”
Writ of certiorari (sur-shee—uh—rah—ree) The writ orders a lower court to send the
Supreme Court a record of the case for review. More than 90 percent of the petitions for
writs of certiorari are denied. The court will not issue a writ unless at least four justices
approve of it. This is called the rule of four.
Opinion the statement by a judge or a court of the decision reached in a case tried or
argued before it.
Remand to send a case back to the court that originally heard it.
Unanimous opinion a court opinion or determination on which all judges agree.
Majority opinion a court opinion reflecting the views of the majority of the judges.
Concurring opinion a separate opinion, prepared by a judge who supports the decision
of the majority of the court but who wants to make or clarify a particular point or to voice
disapproval of the grounds on which the decision was made.
Dissenting opinion a separate opinion in which a judge dissents from (disagree with)
the conclusion reached by the majority on the court and expounds his or her own views
about the case.
Senatorial courtesy In regard to federal district court judgeship nominations, a Senate
tradition allowing a senator of the president’s political party to veto a judicial
appointment in his or her state simply by indicating that the appointment is personally not
acceptable. At that point, the Senate may reject the nomination, or the president may
withdraw consideration of the nominee.
Judicial Review-- the power of the courts to detemine whether a law or action by the
other branches of government is constitutional is known as the power of judicial review.
This power of the judiciary enables the judicial branch to act as a check on the other two
branches of government, in line with the checks and balances system established by the
U.S. Constitution. The power of judicial review is not mentioned in the Constitution,
rather it was established by the United States Supreme Court’s decision in Marbury v.
Madison.
adjudicate
Interesting Facts:
Each justice has four law clerks, who are typically culled from the best and the brightest
graduates from U.S. law schools.
Justice Clarence Thomas is often called the “silent justice” because he asks so few
questions during oral arguments.
Only FOUR American presidents—William Henry Harrison, Zachary Taylor, Andrew
Johnson, and Jimmy Carter—appointed no Supreme Court Justices.
One former president—William Taft—served on the Supreme Court.
Chief Justice William Rehnquist Sixteenth chief justice, appointed in 1986 after 15
years as a strong anchor of the Court’s conservative wing.
The Rehnquist Court
Liberal/Moderate loose interpretation
John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer
Swing Votes
Sandra Day O’Connor, Anthony Kennedy
Conservative—strict interpretation of the Constitution
William Rehnquist, Antonin Scalia, Clarence Thomas
U.S. Supreme Court
http://www.supremecourtus.gov/about/about.html
The United States Supreme Court consists of the Chief
Justice of the United States and eight associate
justices. At its discretion, and within certain guidelines
established by Congress, the Supreme Court each year
hears a limited number of the cases it is asked to
decide. Those cases may begin in the federal or state
courts, and they usually involve important questions
about the Constitution or federal law. For more
information about the Supreme Court, visit
http://www.supremecourtus.gov
The automated docket system is the Court's case tracking system. It contains information
about cases, both pending and decided. The docket provided on this page contains
information regarding the status of cases for both the current Term and the prior Term.
The Court's Term begins on the first Monday in October and ends on the preceding day
the next year. The October Term 2002 begins on October 7, 2002. Information on the
docket is updated on the day after an entry is made on the docket.
http://www.supremecourthistory.org/myweb/fp/courtlist2.htm
List of Presidential Nominees
www.cspan.org
America and the Courts and other important links
www.law.cornell.edu
Historic Supreme Court Cases
POLITICAL SPECTRUM
(political positions)
Liberal
Moderate
Conservative
Liberals are most commonly understood to embrace
national government solutions to public problems, to
believe that the national government should intervene
in economy to ensure its health, to support social
welfare programs to assist the disadvantaged, and to be
tolerant of social change. Often identified with policies
supporting women’s rights and civil rights, and
opposing increased defense spending.
Moderate More individuals are likely to consider
themselves moderates than as liberals and
conservatives. Middle of the Road—Claim to deal with
politics issue-by-issue.
Conservatives usually feel that the national government
has grown too large, that the private sector needs less
interference from the government, that social-welfare
programs should be limited, that state and local
governments should be able to make their own
decisions, and that the nation’s defense should be
strengthened. Some conservatives express grave
concerns about the decline of family life and traditional
values in this country; they would not be tolerant of gay
rights laws, for example.
Judiciary Assignment
1.
How did Alexis de Tocqueville characterized the judicial branch?
2.
When a court of law is viewed as a neutral arena in which two parties argue their
differences and present their points of view before an impartial arbiter, it is said to
be a(n)_______ ___________.
3.
As a member of a college or university, if you become involved in litigation as a
result of that affiliation, you may become a participant in a(an) ______ _______
_____. It’s when a small number of persons are allowed to represent all other
persons similarly situation.
4.
Cases which require knowledge of a nonlegal character or the use of techniques not
suitable for the court, or are explicitly assigned by the Constitution to Congress or
the President are _______ ________.
5.
Litigants must have sustained or be in immediate danger of sustaining a direct and
substantial injury to have
6. Discuss the major decisions of the Warren and Burger Courts.
7.
"Stare decisis" is a judicial term that refers to what?
8.
Which court applies military law, separate from the body of law that governs the
rest of the federal court system?
9.
Which courts regularly employ grand juries?
10.
Who is responsible for the appointment of bailiffs, probation officers, U.S.
magistrates, and court reporters?
11.
What is the job of a "petit jury"?
12.
Describe Magistrates:
13.
What are the two major forms of jurisdiction? Define.
14.
Where are the duties and requirements for federal judges addressed in the
Constitution?
15.
In relation to the Supreme Court what is likely to happen to the decisions of the
Court of Appeals?
16.
Where are Civil Rights suits are generally heard?
17.
What is that part of civil law which covers the liability of those whose conduct
injures others and the compensation they must pay?
18.
Except for the few cases that may be taken directly to the Supreme Court, a final
decision of a district court may be reviewable by a court of appeals. There are
________ judicial circuits, or courts of appeal.
19.
The authority to try all cases that are not within the judicial power granted to the
United States Supreme Court is given to what courts?
20. What is the power to release persons from custody if the judge is not satisfied that
the person is being constitutional detained?
21.
Who handles the job of prosecution?
22.
Define "Senatorial courtesy." Discuss the idea of senatorial courtesy and appointing
U.S. attorneys.
23.
Why are Supreme Court justices appointed for life?
24.
The original jurisdiction of the Supreme Court includes all cases affecting whom or
what?
25. What is the primary responsibility of prosecutors?
26.
Who has the job of appearing for, and representing the United States government
before the Supreme Court? What are the fundamental responsibilities of this
position? This is also the principle legal guardian in the executive branch of the
constitutional prerogatives and powers of the presidency.
27. With what case was the Supreme Court's power of judicial review established?
28.
Who represents poor defendants in criminal trials?
29.
What corporation supports legal assistance to the poor in civil suits?
30.
Who are the key people or organizations in the selection of judges?
31. In McCulloch v. Maryland (1819), the Supreme Court established what principle?
c. States cannot interfere with or tax the legitimate activities of the federal government.
32.
How many presidential nominees to the Supreme Court who have been rejected by
the Senate?
33.
The authors contend that the major factor in determining how an individual justice
will vote on the cases that come before the court is based on what?
34.
Who the first president to appoint a woman to the Supreme Court? Who was the
woman?
35.
Which Presidents were able to appoint a majority of the federal bench during their
tenure of office?
36.
Discuss judicial restraint and liberals.
37.
The contemporary debate over the Supreme Court's role is really about a proper
balance between involves what?
38.
Chief Justice Warren Burger's retirement gave President Ronald Reagan the chance
to appoint a what type of justice?
39.
In 1937, what was President Frank Roosevelt's underlying motive in wanting to
change the size of the Supreme court?
40.
What is the number of Supreme Court justices that must participate in each
decision?
41.
How many associate justices sit on the Supreme Court?
42.
What is Justice Clarence Thomas’ known for regarding his position on the political
spectrum?
43.
How many justices are necessary to decide a case?
44.
What is the appropriate name for the lead justice?
45.
What is the "rule of four"?
46.
Define Amicus Curiae: Why would organizations file "amicus curiae" briefs
before the Supreme Court has issued a writ of certiorari for a specific case?
47.
Name and give the assumed position on the spectrum of all of the sitting justices.
48.
In McCulloch v. Maryland (1819), the Supreme Court established what principles?
49.
Who is the individual presiding over Supreme Court conferences?
50.
What is the most important feature of the Supreme Court opinions?
51.
When are concurring opinions are written?
52.
When are dissenting opinions are written?
The O'Connor Factor
Justice Plays Pivotal Role on High Court
By Charles Lane
Washington Post Staff Writer
Monday, February 18, 2002; Page A01
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When word got out that Supreme Court
Justice Sandra Day O'Connor would be giving a public lecture last fall
in Lincoln, Neb., 500 people snapped up every available seat, leaving
100 others to be turned away. The University of Nebraska gave her a
medal. Female law students presented a corsage.
"If it hadn't been for you paving the road, we wouldn't be here today,"
Lisa Rasmussen told O'Connor, according to the Daily Nebraskan.
More than two decades after President Ronald Reagan made her the
first woman on the Supreme Court, O'Connor, 71, may be a bigger
celebrity -- and a more powerful influence on American law and society
-- than ever before.
She has weathered what she has called the "difficult" 2000 election
case in which she was one of five Republican-appointed justices to join
a much-criticized ruling that sealed President Bush's victory. She has
added her voice to those expressing concern that innocent people may
be sentenced to death. Favorable reviews are coming in for her muchpublicized new memoir, co-written with her brother, H. Alan Day,
about growing up on a remote desert ranch during the 1930s and '40s.
And on the most contentious social issues facing American society, she
continues to cast what is frequently the deciding vote on a ninemember court often split between liberals and conservatives.
On Wednesday, the court hears oral arguments on two such issues -state-funded vouchers for private and parochial school tuition, and a
possible ban on the death penalty for mentally retarded capital
offenders. And once again, attorneys for both sides will be pitching
much of their argument to the tall, silver-haired woman sitting just to
Chief Justice William H. Rehnquist's left.
So pivotal -- and familiar -- is O'Connor's role that it has become
difficult to imagine the court without her, despite rumors, denied by
the justice, that she may retire soon. Lately speculation has run in the
opposite direction -- that O'Connor could ascend to chief justice if
Rehnquist, 77, steps down -- a scenario she also dismisses.
O'Connor's power has been accumulated not by asserting an ironclad
doctrine for others to follow, but by remaining as noncommittal as
possible: Time and again, she has signed on to narrow rulings crafted
according to the facts of a particular case, leaving open the option of
another incremental holding later on.
"The rule of law must also be flexible enough to adapt to different
circumstances," she told her Nebraska audience, expressing a precept
she had articulated many times in her opinions.
"Hers is the power of the median voter," said University of California at
Los Angeles law professor Eugene Volokh, a former O'Connor law
clerk. "Lawyers target her for the same reason both sides in a political
campaign target the center."
The question hovering over O'Connor's 21-year career on the court,
though, is whether her approach is too much like the political art of
compromise she once practiced as majority leader of the Arizona state
Senate.
By providing only sketchy constitutional guidance to legislatures and
lower courts, some lawyers, legal academics and judges say, her
restrained jurisprudence lays the basis for legal instability that
ultimately must be sorted out by the Supreme Court -- and, in many
cases, by O'Connor herself.
O'Connor's fellow justice, Antonin Scalia, has published opinions
blasting her mode of reasoning, including a 1988 gibe at her
"Solomonic" answer to a death penalty case: "Solomon," Scalia wrote,
"was not subject to the constitutional constraints of the judicial
department of a national government in a federal, democratic system."
O'Connor's admirers describe her method as "judicial minimalism."
"Clear rules are better; they make the court's own judgments more
transparent," Volokh said. "But if a justice is not persuaded the
Constitution demands a clear rule, it's her duty to vote for a more factsensitive one."
O'Connor, a lifelong Republican, votes more than 80 percent of the
time with Rehnquist, a Nixon appointee. She has joined him, Scalia
and other conservatives in the court's recent effort to bolster states'
rights.
But on social issues, she has muted the court's rightward tendencies.
Most famously, she voted to uphold the right to abortion enshrined in
Roe v. Wade, co-writing the 1992 opinion that barred state laws that
impose an "undue burden" on the right to choose. In 2000, she
provided the fifth vote for a ruling that struck down Nebraska's ban on
what opponents call "partial birth" abortions.
Abortion, she recently told NBC's Katie Couric, "is an issue about which
people feel passionately, and I'm very much aware of that when we
have a case in that area."
Certainly, there is little evidence of ideological fervor in O'Connor's
personal story. Her childhood was spent among some of the last real
cowboys in the West, on the 300-square-mile Lazy B Ranch. Straddling
Arizona and New Mexico, the Lazy B had no electricity or running
water; as depicted in her memoir, it was a place where individual
adaptability and common sense were at a premium, and the social
changes linked to the New Deal and World War II made little direct
impact.
Graduating third in her class (Rehnquist was first) from Stanford Law
School in 1952, O'Connor was stunned by law firms' refusal to hire
her, but made a career in local government and the Arizona
Republican Party. She was appointed to the state Senate in 1969,
became majority leader in 1972 and later ran successfully for state
trial judge before being elevated to the state appeals court by a
Democrat, then-Gov. Bruce Babbitt in 1979.
When Reagan offered her the Supreme Court job in 1981, antiabortion
groups tried to derail her nomination, citing her opposition as a state
senator to certain laws restricting abortion. O'Connor herself has
admitted she felt uncertain about her own modest judicial experience.
But she was fortified by lessons learned on the Lazy B. It gave her,
she recently told C-SPAN interviewer Brain Lamb, "a certain amount of
self-confidence in your ability to work things out and not be afraid to
tackle something."
Today she regularly recruits law clerks who have served both liberal
and conservative lower-court judges, relying on them for detailed
briefings, oral and written, on each case -- and occasionally treating
them to her homemade Tex-Mex cuisine.
Both cases before the court on Wednesday show how O'Connor's past
rulings set the stage for future cases in which she again plays the
potentially deciding role.
In the school voucher case, opponents of the program will try to
persuade the court that, as practiced in Cleveland, the voucher subsidy
gives families no real choice but to spend government money at
religious schools, an issue framed in O'Connor's past opinions on the
church-state balance.
In the death penalty case, Daryl Atkins, convicted of murder in
Virginia, asserts that he has an IQ of 65, which qualifies him as
moderately retarded under current psychiatric guidelines.
His attorneys argue that a national consensus has formed against the
death penalty for persons with very limited intellectual abilities, so
Atkins's execution would be "cruel and unusual punishment" prohibited
by the Eighth Amendment.
In 1989, a Texas death-row inmate, Johnny Paul Penry, sought and
was denied such a ruling from the Supreme Court. O'Connor's role was
decisive.
Wrestling with Penry's claim that mentally retarded persons are less
able to reason and hence less culpable for their crimes than others,
O'Connor wrote that states must give juries a genuine chance to
consider mental retardation as a factor weighing against the death
penalty. It was an argument repeated by Atkins.
This section of O'Connor's opinion, which ordered a new trial for Penry,
was joined by liberals such as the late Justices William J. Brennan Jr.,
Thurgood Marshall and Harry A. Blackmun and John Paul Stevens, who
is still on the court.
O'Connor, however, concluded that it was not yet clear that all
mentally retarded people lacked the reasoning ability ever to warrant
capital punishment. And there was insufficient evidence of a national
consensus against executing them, she wrote. Only two states with the
death penalty had outlawed it.
This portion of her opinion was joined by conservatives Rehnquist,
Scalia, Anthony M. Kennedy and Byron R. White, who has since
retired.
Still, O'Connor left the door open. A national consensus, she wrote,
"may ultimately find expression in legislation, which is an objective
indicator of contemporary values upon which we can rely."
"That day has arrived," Atkins's attorneys argue in their brief for the
case to be argued Wednesday. They noted that 18 of the 38 states
that permit capital punishment now have laws outlawing death
sentences for the mentally retarded. When you add the 12 states that
do not allow capital punishment at all, they argue, 30 states -- 60
percent of the total -- plus the federal government, forbid the death
penalty for retarded offenders.
Is 60 percent enough to make for a national consensus? O'Connor's
past opinions are suggestive but, characteristically, not definitive on
how she might rule.
In 1988, when the court voted to strike down the death penalty for
15-year-old murderers, O'Connor supplied the fifth vote -- but did so
for reasons that were all her own.
In a separate opinion, she noted that 32 of 50 states -- 64 percent -either had no death penalty or had limited it to perpetrators 16 or
older. This, she said, created a strong presumption that a national
consensus against executing those younger than 16 existed. But more
state legislation would be needed to know for sure, because a large
minority of states that set no minimum age for the death penalty
appeared to permit executing 15-year-olds.
O'Connor explained her vote as limited only to situations in which
states had specified no minimum age for death penalty.
Just a year later, she joined four conservatives in holding that
executions for 16- and 17-year-old perpetrators were constitutional.
There, she assented to a national-consensus calculus that focused only
on the rules in the 37 states that had the death penalty at the time,
noting that "a majority of states authorizing capital punishment permit
it for defendants 16 and above." And today, a majority of death
penalty states still allow sentencing retarded offenders to death.
Five of the death penalty states that have banned capital punishment
for the retarded passed their laws in the last year, after the Supreme
Court's surprising announcement in March 2001 that it would revisit
the 1989 Penry ruling in the case of North Carolina death row inmate
Ernest McCarver.
Legal analysts say that the mere fact that the court agreed to
reconsider the subject suggests that change is afoot at the court.
O'Connor herself has made two public statements -- to a Minnesota
women's lawyers' group in July and again on her October visit to
Nebraska -- that seemed to capture national anxiety about
administration of the death penalty.
"More often than we want to recognize," she said in Nebraska, "some
innocent defendants have been convicted and sentenced to death."
FDR and the Court-Packing Plan
FDR proved to be far more adept at winning electoral victories
than achieving his goals in Congress and with the Supreme Court.
During his first term, the Court had ruled several New Deal
programs unconstitutional, most notably the NRA and the AAA.
Only three of the nine justices were sympathetic to the need for
emergency measures in the midst of the Depression. Two others
were unpredictable, sometimes approving New Deal measures and
sometimes opposing them. Four justices were bent on using the
Constitution to block Roosevelt’s proposals. All were elderly men
and one actually planned to retire in 1932 but remained on the
Court because he disliked Roosevelt and feared who the president
would appoint.
When Congress convened in 1937, the president offered a startling
proposal to overcome the Court’s threat to the New Deal. Instead
of seeking a constitutional amendment either to limit the Court’s
power or to clarify the constitutional issues, FDR chose a clever
attack. Declaring the Court was falling behind schedule because of
the age of its members, he asked Congress to appoint a new justice
for each member of the Court over the age of 70, up to a maximum
of six. The plan upset conservatives and liberals alike because
they feared that it set a dangerous precedent for the future.
During the struggle, several critical events took place. First, the
Court approved several controversial New Deal measures. Second,
one of the older justices resigned giving FDR the opportunity to
make his first appointment to the Court. Finally, the court-packing
plan died in the Senate. During the next few years, four more
vacancies occurred giving FDR opportunities to appoint
distinguished jurists as Hugo Black, William O. Douglas, and Felix
Frankfurter to the Supreme Court.
President Arthur's Nominees
Clifford
12/19/1881
Confirmation
or Other
Action
12/20/1881
NY 10/30/1829
Hunt
2/24/1882
3/2/1882 D
--
--
NY
Hunt
3/13/1882
3/27/1882
7/7/1893
11
State
Date of
Birth
Horace Gray
MA
3/24/1828
Roscoe Conkling
Samuel Blatchford
Name
Boldface-Chief Justice
3/9/1820
To
Date of
Replace Appointment
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
Date
Service
Ended
9/15/1902
Years
of
Service
20
W-Withdrawn
President Cleveland's Nominees
State
Date of
Birth
Lucius Q.C. Lamar
MS
9/17/1825
Woods
Melville W. Fuller
IL
2/11/1833
Waite
Name
Boldface-Chief Justice
Confirmation
or Other
Action
Date
Service
Ended
Years
of
Service
12/6/1887
1/16/1888
1/23/1893
5
4/30/1888
7/20/1888
7/4/1910
22
To
Date of
Replace Appointment
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Harrison's Nominees
Name
David J. Brewer
Henry B. Brown
George Shiras, Jr.
Howell E. Jackson
Date of
State
Birth
KS
MI
PA
TN
6/20/1837
3/2/1836
1/26/1832
4/8/1832
To
Date of
Replace Appointment
Matthews
Miller
Bradley
Lamar
12/4/1889
12/23/1890
7/19/1892
2/2/1893
Confirmation
or Other
Action
12/18/1889
12/29/1890
7/26/1892
2/18/1893
Date
Service
Ended
3/28/1910
5/28/1906
2/23/1903
8/8/1895
Years
of
Service
20
15
10
2
Confirmation
or Other
Action
Date
Service
Ended
Years
of
Service
President Cleveland's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
William B. Hornblower
NY
5/13/1851
Blatchford
9/19/1893
1/15/1894 R
--
--
Wheeler H. Peckham
NY
1/1/1833
Blatchford
1/22/1894
2/16/1894 R
--
--
Edward D. White
LA
11/3/1845
Blatchford
2/19/1894
2/19/1894
12/18/1910
17
Rufus W. Peckham
NY
Boldface-Chief Justice
11/8/1838
Jackson
12/3/1895
12/9/1895
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
10/24/1909
13
W-Withdrawn
President McKinley's Nominees
Name
State
Date of
Birth
CA
8/10/1843
Joseph McKenna
To
Date of
Replace Appointment
Field
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
12/16/1897
1/21/1898
1/5/1925
26
President T. Roosevelt's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
Oliver W. Holmes Jr.
MA
3/8/1841
Gray
12/2/1902
12/4/1902
1/12/1932
29
William R. Day
OH
4/17/1849
Shiras
2/19/1903
2/23/1903
11/13/1922
19
William H. Moody
MA 12/23/1853
Brown
12/3/1906
12/12/1906
11/20/1910
3
President Taft's Nominees
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
State
Date of
Birth
To
Date of
Replace Appointment
Horace H. Lurton
TN
2/26/1844
Peckham
12/13/1909
12/20/1909
7/12/1914
4
Charles E. Hughes
NY
4/11/1862
Brewer
4/25/1910
5/2/1910
6/10/1916
6
Edward D. White°
--
--
Fuller
12/12/1910
12/12/1910
5/19/1921
10°
Willis Van Devanter
WY
4/17/1859
White
12/12/1910
12/15/1910
6/2/1937
26
Joseph R. Lamar
GA 10/14/1857
Moody
12/12/1910
12/15/1910
1/2/1916
5
Mahlon Pitney
NJ
Harlan
2/19/1912
3/13/1912
12/31/1922
10
Name
Boldface-Chief Justice
2/5/1858
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Wilson's Nominees
Name
Date of
State
Birth
James C. McReynolds
TN
Louis D. Brandeis
John H. Clarke
2/3/1862
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
Lurton
8/19/1914
8/29/1914
1/31/1941
26
MA 11/13/1856
Lamar
1/28/1916
6/1/1916
2/13/1939
22
OH
Hughes
7/14/1916
7/24/1916
9/18/1922
6
9/18/1857
President Harding's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
6/30/1921
2/3/1930
8
William H. Taft
CT
9/15/1857
White
6/30/1921
George Sutherland
UT
3/25/1862
Clarke
9/5/1922
9/5/1922
1/17/1938
15
Pierce Butler
MN
3/17/1866
Day
11/23/1922
12/21/1922
11/16/1939
17
Edward T. Sanford
TN
7/23/1865
Pitney
1/24/1923
1/29/1923
3/8/1930
7
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Coolidge's Nominees
Name
Date of
State
Birth
Harlan F. Stone
To
Date of
Replace Appointment
NY 10/11/1872 McKenna
1/5/1925
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
2/5/1925
7/2/1941
16
President Hoover's Nominees
Name
State
Date of
Birth
--
--
Charles E. Hughes°
To
Date of
Replace Appointment
Taft
2/3/1930
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
2/13/1930
5/30/1941
11°
John J. Parker
NC 11/20/1885
Sanford
3/21/1930
5/7/1930 R
--
--
Owen J. Roberts
PA
5/2/1875
Sanford
5/9/1930
5/20/1930
7/31/1945
15
Benjamin N. Cardozo
NY
5/24/1870
Holmes
2/15/1932
2/24/1932
7/9/1938
6
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Roosevelt's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
Stanley F. Reed
Van
Devanter
KY 12/31/1884 Sutherland
Felix Frankfurter
MA 11/15/1882
Cardozo
1/5/1939
1/17/1939
8/28/1962
23
William O. Douglas
CT
10/16/1898
Brandeis
3/20/1939
4/4/1939
11/12/1975
36
Frank Murphy
MI
4/13/1890
Butler
1/4/1940
1/15/1940
7/19/1949
9
Harlan F. Stone°
--
--
Hughes
6/12/1941
6/27/1941
4/22/1946
5°
James F. Byrnes
SC
5/2/1879 McReynolds
6/12/1941
6/12/1941
10/3/1942
1
Robert H. Jackson
NY
2/13/1892
6/12/1941
7/7/1941
10/9/1954
13
Hugo L. Black
AL
2/27/1886
Stone
8/12/1937
8/17/1937
9/17/1971
34
1/15/1938
1/25/1938
2/25/1957
19
Wiley B. Rutledge
IA
Boldface-Chief Justice
7/20/1894
Byrnes
1/11/1943
2/8/1943
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
9/10/1949
6
W-Withdrawn
President Truman's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
9/19/1945
10/13/1958
13
Harold H. Burton
OH
6/22/1888
Roberts
9/19/1945
Fred M. Vinson
KY
1/22/1890
Stone
6/6/1946
6/20/1946
9/8/1953
7
Tom C. Clark
TX
9/23/1899
Murphy
8/2/1949
8/18/1949
6/12/1967
18
Sherman Minton
IN
10/20/1890
Rutledge
9/15/1949
10/4/1949
10/15/1956
7
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Eisenhower's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
3/1/1954
6/23/1969
15
Earl Warren
CA
3/19/1891
Vinson
9/30/1953
John M. Harlan
NY
5/20/1899
Jackson
1/10/1955
3/16/1955
9/23/1971
16
William J. Brennan Jr.
NJ
4/25/1906
Minton
1/14/1957
3/19/1957
7/20/1990
34
Charles E. Whittaker
MO
2/22/1901
Reed
3/2/1957
3/19/1957
3/31/1962
5
Potter Stewart
OH
1/23/1915
Burton
1/17/1959
5/5/1959
7/3/1981
22
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Kennedy's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Byron R. White
CO
6/8/1917
Whittaker
3/30/1962
Arthur J. Goldberg
IL
8/8/1908
Frankfurter
8/29/1962
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
4/11/1962
3/19/1993
30
9/25/1962
7/25/1965
3
President Johnson's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
8/11/1965
5/14/1969
4
Abe Fortas
TN
6/19/1910
Goldberg
7/28/1965
Thurgood Marshall
NY
6/2/1908
Clark
6/13/1967
8/30/1967
6/27/1991
24
Abe Fortas
TN
6/19/1910
Warren
6/26/1968
10/4/1968 W
--
--
Homer Thornberry
TX
Boldface-Chief Justice
1/9/1909
Fortas
6/26/1968
No action
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
--
--
W-Withdrawn
President Nixon's Nominees
Date of
Birth
Warren E. Burger
VA
9/17/1907
Warren
5/21/1969
Clement Haynesworth
Jr.
SC
10/30/1912
Fortas
8/18/1969
11/21/1969 R
--
--
G. Harold Carswell
FL
12/22/1919
Fortas
1/19/1970
4/8/1970 R
--
--
Harry A. Blackmun
MN 11/12/1908
Fortas
4/14/1970
5/12/1970
7/29/1994
24
Lewis F. Powell, Jr.
VA
9/19/1907
Black
10/21/1971
12/6/1971
6/26/1987
16
William H. Rehnquist
AZ
10/1/1924
Harlan
10/21/1971
12/10/1971
Sitting
--
Boldface-Chief Justice
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
6/9/1969
9/26/1986
17
State
Name
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
President Ford's Nominees
Name
Date of
State
Birth
John Paul Stevens
IL
4/20/1920
To
Date of
Replace Appointment
Douglas
Confirmation
or Other
Action
Date
Service
Ended
Years
of
Service
12/17/1975
Sitting
--
Confirmation
or Other
Action
Date
Service
Ended
Years
of
Service
11/28/1975
President Reagan's Nominees
Name
Date of
State
Birth
Sandra Day O'Connor
To
Date of
Replace Appointment
AZ
3/26/1930
Stewart
8/19/1981
9/21/1981
Sitting
--
William H.
Rehnquist °
--
--
Burger
6/20/1986
9/17/1986
Sitting
--
Antonin Scalia
VA
3/11/1936
Rehnquist
6/24/1986
9/17/1986
Sitting
--
Robert H. Bork
DC
3/1/1927
Powell
7/1/1987
10/23/1987 R
--
--
Douglas Ginsburg
IL
5/25/46
Powell
10/27/87
11/7/87 W
--
--
Anthony M. Kennedy
CA
7/23/1936
Powell
11/30/1987
2/3/1988
Sitting
--
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
President Bush's Nominees
D-Declined
W-Withdrawn
Name
Date of
State
Birth
To
Date of
Replace Appointment
David H. Souter
NH
9/17/1939
Clarence Thomas
VA
6/23/1948 Marshall, T.
Brennan
7/23/1990
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
10/2/1990
Sitting
--
7/1/1991
10/15/1991
Sitting
--
President Clinton's Nominees
Name
Date of
State
Birth
To
Date of
Replace Appointment
Confirmation
Years
Date Service
or Other
of
Ended
Action
Service
Ruth Bader Ginsburg
NY
3/15/1933
White, B.
6/14/1993
8/3/1993
Sitting
--
Stephen G. Breyer
MA
8/15/1938
Blackmun
5/13/1994
7/29/1994
Sitting
--
Boldface-Chief Justice
Italics-Did not serve °Earlier Court service
P-Postponed
R-Rejected
D-Declined
W-Withdrawn
Introduction
The curriculum unit presented will examine and analyze some of the
major the decisions of the Warren Court, which dominated American
politics to varying degrees from 1953-1969. Teachers will find this unit
helpful when examining the Constitution as part of a civics course or
chronologically, when studying United States History II.
In the past some of the Courts exerted relatively little influence over
constitutional history. As a matter of fact, their decisions had little
precedential value. However, that was not the case with the Warren
Court. Many people have at least heard of the phrase the Warren
Court, but how many people have heard of the Vinson Court or even
the Rehnquist Court? The Warren Court decided a number of important
constitutional issues during its time and those decisions continue to
influence our daily lives. (Urofsky 253)
It is not unusual for the Supreme Court to take on the personality and
views of its Chief Justice, and such was the case with Earl Warren.
Warren was appointed Chief Justice in 1953 by President Eisenhower.
It has been suggested that during his 16-year tenure, he was one of
the most influential advocates for social progress in the United States.
During his term he dealt with controversial cases on civil rights and
civil liberties and the very nature of the political system. According to
Lucas Powe in The Warren Court and American Politics, the Warren
Court “created the image of the Supreme Court as a revolutionary
body, a powerful force for social change.” Teachers should point out to
students that the Supreme Court has been viewed in the same way at
other times in history. Students might be assigned the task of
researching other Supreme Courts that have been categorized as
activist courts. In 1953 few Americans would have realized that the
Warren Court would be classified as the greatest liberal Court in the
twentieth century.
Powe breaks down the years of the Warren Court into three categories.
From 1953-1956 much of the time of the Court was spent on school
desegregation cases. The years 1957-1961 were characterized as a
stalemate when few controversial cases were heard. The years 19621968 are often referred to as the “heyday of the Warren Court” when
it moved in an aggressively liberal direction on numerous
constitutional issues ranging from racial to civil rights, to legislative
apportionment, to church state relations, to freedom of speech, to
criminal justice. It should be pointed out that liberals did not hold a
majority on the Supreme Court until 1962. At this time Justice Felix
Frankfurter retired and was replaced by Arthur Goldberg, a Kennedy
appointment. According to Peter Irons in A People’s History of the
Supreme Court, this was the Court that “liberals cheered and
conservatives booed.” Remind students that the Supreme Court does
not really work in a vacuum; its decisions on important constitutional
questions can only be fully understood when viewed against the
background of history and politics. Precedents are usually broken when
society demands that they should be broken and sometimes society
can be divided on a variety of issues. I think the present day is a great
example of a society that is polarized on a variety of topics. Teachers
might assign students to research a present day issue on which people
strongly agree or disagree. Topics like late term abortion and
affirmative action are a couple of possibilities. Ask students to write a
persuasive essay using a minimum of three sources that support their
own point of view on the topic. As Professor Irons states, “the justices
are not simply black robed repositories of objective wisdom, but rather
are influenced by politics, by society, each bringing to the Court their
individual legal philosophies and moral attitudes that come out of his
or her background.” Ask students what they think Irons meant by this
statement? Do they think that the present Supreme Court is influenced
by public opinion? Ask students to consider the recent cases in front of
the U.S. Supreme Court. Teachers might assign interested students
the task of researching the case Elk Grove Unified District v. Newdow
which deals with whether or not the words” under God” should be kept
in the Pledge of Allegiance.
As one can imagine, from 1954 on, many members of Congress
criticized the Supreme Court for its controversial decisions. Students
should be able to adequately explain the system of separation of
powers as well as the system of checks and balances. Teachers might
consider this an appropriate time to review with students the reasons
the Founding Fathers were concerned with balancing the three
branches of government. Teachers might want to assign students the
task of researching any present day conflict between Congress and the
courts. Students might be interested in the present day conflicts over
legalizing gay marriage, especially in light of the court decision in
Massachusetts. Ask students if they believe the court often deals with
problems that the legislature seems to conveniently avoid.
Does the Supreme Court really stand outside of American politics or is
it in fact a part of it? Does judicial independence actually exist or is it
just a myth? These are questions that teachers should be addressing
in the classroom that I believe will create engaging discussions. Are we
creatures of nature or nurture? Aren’t we all influenced by our
background and experiences that help to shape our personalities? So
why should the “nine men and women in black” be any different? Ask
students to consider their own qualities. Why do they think they are
the way they are? Are they similar in nature and outlook to other
members of their family and if so why do they think this is the case?
Three objectives will be addressed in this unit. First, the background of
Chief Justice Earl Warren will be examined. Students will understand
how your background and life experiences can often times reflect on
behavior and attitudes in later life. What experiences in the life of Earl
Warren might have influenced his decisions on the Supreme Court?
What in his background might account for his viewpoints about life and
the law? These are questions that will be discussed in this objective
and can also provide for some very stimulating classroom discussions.
The second objective to be considered is to have students trace and
understand the development of the Brown I case and Brown II case.
Students should be reminded that Brown v. the Board of Education did
not just appear out of nowhere. According to Morton Horwitz in The
Warren Court and the Pursuit of Justice “…the stage was already set
for Brown by earlier struggles over racial segregation.” These earlier
struggles will be examined in this unit so that students can understand
that this was not an overnight journey, but a long road. Teachers
might wish to discuss some of the earlier cases that began to set the
stage for the Brown case. Such cases dealt with the idea of an unequal
education. These include cases such as Sweatt v. Painter 1950, and
McLaurin v. Oklahoma Board of Regents 1950.
The third objective of this unit is to have students analyze and
understand those cases that affected criminal procedure. Most of the
cases to be examined occurred between the years 1961 and 1968. The
Warren Court is well known for its active defense of the rights of
people accused of crimes and teachers will be able to engage students
in spirited discussions on topics that involve our individual rights.
Cases to be studied for this objective will include Gideon v.
Wainwiright 1963, Escobedo v. Illinois 1964, Miranda v. Arizona 1966,
and In Re Gault, 1967. Teachers not only will be provided with the
background of these cases, but also with the decision of each case.
Students usually show great interest in the topic of individual rights.
Teachers should point out that these were bold decisions for the times,
especially the decision in the Miranda case. According to Ed Cray in A
Biography of Earl Warren,” the Miranda decision imposed limits on
police interrogation that no state had even mentioned.” As with all
decisions that seemed extreme, the outcry from the public and the
police was very vocal. Calls for Warren’s impeachment were heard
around the country, mostly from the John Birch society. Teachers
might assign students to investigate the John Birch Society. What type
of organization was it? What were its goals? Why was this organization
calling for the impeachment of Warren? Teachers should be able to
easily engage students on the topic of police procedure. When
discussing the Miranda case and the Escobedo case ask students if
they feel the Court was justified in these decisions. Do they believe
that accused people have too many protections as a result of theses
two cases? What do they think should happen if they know someone is
guilty or even confessed to a crime, yet the proper police procedure
was not followed? For many students this creates a dilemma and
allows the teacher to direct the class in a very engaging discussion.
It has been thirty-eight years since the Miranda decision was handed
down and it remains in the view of many as the Supreme Court’s most
contentious criminal procedure ruling. The Court has revisited this
ruling nearly fifty times, expanding and clarifying the right and
establishing exceptions that allow police to use some confessions even
if a proper warning was not given. Teachers might wish to assign
students the task of researching some of the Supreme Court cases
that have modified some of the earlier decisions on police procedure.
Cases that students might consider for further examination include
Harris v. New York, 1971, Michigan v. Tucker, 1974, Edwards v.
Arizona, 1981, New York v. Quarles, 1984, Oregon v. Elstad, 1985,
Minnick v. Mississippi 1990, and Dickerson v. United States, 2000.
Students should be able to explain the facts of these cases as well as
the decisions. Ask students if they feel modifications were made
because of changing societal values. Consider then if the Supreme
Court adjusts its views to match those of society or is it truly an
independent body?
A separate category for juvenile procedure will be considered by
examining the case of In Re Gault 1967. According to Edward Cray,
Warren had a genuine respect for young people and their concerns and
felt the need to extend the Bill of Rights even to the youngest
Americans. Students usually find the facts of this case especially
appealing. Teachers should compare and contrast the criminal
procedures in an adult and a juvenile court system. Ask students if
they feel any special preference should be given to a juvenile. What do
students believe should be the main goal of each system? Ask
students what rights Gerald Gault would have had in 1966 if he were
treated like an adult offender. Justice Fortas was especially concerned
about the rights or non-rights of juveniles. According to Laura Kalman
in Abe Fortas, he referred to some juvenile procedure as the” never
never land” of juvenile justice. (Kalman 251) Ask students what they
think he meant by this statement.
Objectives and Strategies
The first objective is to examine the background of Chief Justice Earl
Warren who sat on the Supreme Court from 1953-1969.He was born
on March 19, 1891 in Los Angeles, California; however, he grew up in
Bakersfield. His parents were Scandinavians who had emigrated to the
U.S. as young children. His mother Christine Hernlund came from
Sweden, his father Methias Varan from Norway. Earl’s uncle changed
the family name to Warren after they settled in the United States.
Teachers might ask students why his uncle might have changed the
family Suggest to students that sometimes immigrants changed their
surnames to be more American. According to Christine Compton in
Earl Warren, Justice for All, Earl’s parents were eager to take
advantage of the opportunities in America. His father worked as a car
repairman for the Southern Pacific Railroad, but lost his job in 1894
after joining the famous Pullman strike. As a young boy Earl worked
for the Southern Pacific Railroad as a callboy for the train and engine
crew. As he explains in his memoirs, the money he made was his to
keep and to save for his future. According to Warren he was often
embarrassed when people tried to suggest that he worked his way
through school and supported the family. While it was true that he
held many odd jobs, Warren emphatically states that the money he
made did not support his family. (Warren 23) According to Morton J.
Horwitz in The Warren Court and the Pursuit of Justice, Warren
experienced firsthand while working on the railroad the inequality of
power between large corporations and vulnerable and unorganized
workers. (Horwitz 6) Teachers might engage students in a discussion
on how early experiences might shape a person’s belief in later life.
Ask students if they have any memories of significant events in their
early lives that they believe might have helped to shape their
personality today. Students might also be encouraged to ask their
parents and relatives about their early childhood experiences. Have
these experiences had any impact on their lives?
The Warrens were very private people and were reluctant to show
their feelings. According to Christine Compton in Earl Warren, Justice
For All, Earl maintained this reserve throughout his entire life as a
public servant. Warren attended the University of California at
Berkeley and its law school, Boalt Hall. He served briefly in the army
during World War I and then joined the district attorney’s office in
Alameda County for what he thought would be a short term. He ended
up staying for 18 years, 13 of them as district attorney where
ironically he had probably slighted the rights of the accused. Although
his intellect was never really praised he was notable for being warm,
sincere, outgoing, honest and hardworking. (Powe 24) He proved to be
an effective as well as a tough prosecutor, but showed his philosophy
of fairness by fighting for a public defender’s office for indigents. A
1932 survey listed Warren as the best district attorney in the United
States, a fact often ignored by those who accused him later in life as
being “soft on crime”. (Urofsky 32) Teachers should ask students if
they understand the expression “soft on crime.” Have they heard any
one in recent times accused of being “soft on crime”? Such a phrase is
popularly used especially during election years. Teachers should ask
students to watch for examples of elected officials who have been
labeled as such. They might want to research the 1988 presidential
campaign in which the name of Willie Horton became a household
phrase when considering a candidate who might be labeled “soft on
crime”
In 1938 Warren ran successfully for attorney general of California.
Warren is remembered most for his role in demanding the relocation
and evacuation of the Japanese from the west coast during World War
II. Though his actions seemed inconsistent with his future decisions
while on the Supreme Court, Warren maintained that at the time it
seemed like the right thing to do. He later acknowledged in his
memoirs that he deeply regretted his action in favor of internment.
(Warren 147) Students should be reminded that during World War II
Japanese Americans were locked up in U.S. internment camps. For
them, the war was a daily struggle to maintain their dignity in the face
of an injustice. Many young men escaped the camps by volunteering
for military service. Teachers might engage students in a lively
discussion by asking them to take a point of view concerning the
internment. Divide students into groups and have them debate the two
different points of view. First, the Japanese internment was necessary
for the national defense of America during World War II or second, the
Japanese American internment was an unnecessary and a racist act.
Warren also served three terms as governor of California. The popular
candidate easily won the election for the first time in 1942, being
considered a nonpartisan Republican. Teachers should ask students if
they understand the term non-partisan. Do they think politics today is
non-partisan? Students should be encouraged to bring in examples of
programs or laws that have been recently passed that have had the
support of both the Democratic and Republican parties in Congress.
In 1952 Warren played a key role in the election of Dwight Eisenhower
to the presidency of the United States. Warren agreed to end his own
political ambitions to be president and throw his support behind
Dwight D. Eisenhower. In return Eisenhower promised to appoint
Warren to the United States Supreme Court. Warren had campaigned
for Eisenhower bringing both Republican and Democratic support from
the state of California. Warren had been such a popular govenor that
he had previously won the support in both the Democratic and
Republican primaries. It is believed that as a result of his support for
the candidate Eisenhower, Warren was promised the first vacancy on
the Supreme Court. Ask students if they feel this is part of a spoils
system. Remind students that this system was one in which faithful
political supporters were rewarded government jobs. Do the students
believe this is a fair practice? What if a person is truly qualified for the
appointment? Should that person be penalized because they also
happen to support the winning candidate? Warren had actually been
willing to serve as U.S. Solicitor General until he felt better prepared to
sit in the Supreme Court. Howwitz suggests that Warren knew he was
not yet ready to sit on the Supreme Court because the atmosphere of
the court was”intellectually high powered.” (Horwitz 7) As a result of
the unexpected death of the present Chief Justice Fred Vinson, Warren
was appointed before he could become Solicitor General. It has been
suggested that Eisenhower tried to go back on his promise of a Court
seat for Warren especially since the first vacant seat was that of Chief
Justice. (Howitz 8) Teachers should ask students why they think
Eisenhower was trying to back out of his promise. What was there
about Warren that might have troubled Eisenhower? Was it that he
was not considered an intellectual heavy weight? What qualities do
they think are necessary to be a judge? Is legal brilliance really
necessary and what role do the law clerks play in helping a justice
research a case? Ask students also to consider what was it about
Warren that have many legal historians considering him to be rated as
one of the greatest Chief Justices in the Court’s history. According to
Bernard Schwartz in A History of the Supreme Court “there have been
scholars and there have been great justices on the Supreme Court.
But the scholars have not always been great justices and the great
justices have not always been scholars.” (Schwartz 265) Ask students
what Schwartz meant by this statement. Do they believe that
scholarship is necessary for excellent leadership? Warren clearly was
not the most scholarly justice on the Court; however, his leadership
abilities and skill as a statesman enabled him to be an extremely
effective Chief Justice. Students interested in the other Chief Justices
of the Supreme Court might want to research others who were not
considered to be the most scholarly member of the Court, but clearly
excelled at leading the Court in the direction they wanted to go in. The
Chief Justice occupies the center seat on the Court, and while his or
her vote is no greater than any other, the Chief presides over the oral
arguments as well as the conferences at which the justices decide
cases. The Chief Justice also has the power to assign the writing of
opinions. A strong Chief Justice can have a major impact on the work
of the Court while a weak Chief Justice can find himself overpowered
by his strong colleagues and end up presiding over a judicial
battlefield.
The second objective to be considered is to have students trace and
understand the development of the Brown I case and Brown II case.
On May 17, 1954 Earl Warren had been sitting on the Court as Chief
Justice for only a year when the Brown v the Board of Education
decision was handed down. The nine justices of the Supreme Court
agreed that “in the field of public education the doctrine of separate
but equal has no place” Writing for the Court Chief Justice Warren
concluded that “in the field of public education the doctrine of separate
but equal has no place.” According to Lucas Powe, Warren had done
what Chief Justices have done since John Marshall. When a
controversial case is being decided where the prestige of the Court is
on the line, the Court speaks through the Chief Justice. (Powe 27) The
Court had just struck down more than a half century of constitutional
law stemming from the decision put forth by Plessy v. Ferguson, 1896
where “separate but equal” was legal. By putting his name on the
opinion, the Chief Justice put the prestige of the Court on the line. The
character of the Court was beginning to take shape, as Warren was
able to maneuver a unanimous decision.
Where had it all begun? Before examining the Brown case teachers will
need to explain the origin of the phrase “separate but equal”.
Encourage interested students to research the arguments and
decisions presented in the case Plessy v. Ferguson, 1896. Students
should be assigned the task of writing a brief or creating a
dramatization in which small groups of students present each side of
the argument to their classmates. Explain to students that this case
arose out of a carefully planned strategy to test the legality of a
Louisiana state law. This law gave constitutional sanction to virtually
all forms of segregation in the United States until after World War II.
In September 1891, “elite persons of color” in New Orleans formed the
Citizens Committee to test the constitutionality of the separate railroad
car law for blacks and whites. The committee raised three thousand
dollars for the cost of a test case. The attorney who agreed to take this
case was a white man by the name of Albion Tourgee. He was
considered to be one of the nation’s leading advisors for African
American rights. Tell students that Tourgee agreed to work on this
case without pay. Students might be interested in researching any
present day civil rights cases where the attorneys have agreed to work
for no fee. Ask students to consider the effect that “free” publicity
might have on a present day case as compared to the year 1892. Ask
students to consider the various types of media that exist today that
did not exist in the time of Tourgee.
The case of Plessy v. Ferguson, 1896
It all began in June, 1882, when Homer Plessy, a black man purchased
a first class ticket on the East Louisiana Railroad and sat down in a car
reserved for whites. When he was asked to move to the car where
blacks were restricted, he refused. Subsequently, he was arrested and
arraigned before Judge John Ferguson. Plessy then sued to prevent
Ferguson from conducting any further proceedings against him.
Eventually his challenge reached the United States Supreme Court.
Before the Court, Tourgee argued that segregation violated the
Thirteenth Amendment’s prohibition of involuntary servitude and
denied blacks equal protection of the laws, which was guaranteed by
the Fourteenth Amendment. These amendments along with the
Declaration of Independence, gave Americans affirmative rights
against discrimination. The lawyers for the Louisiana railroad
disagreed. They argued that the separate facilities for black
passengers were just as good as the facilities for the white
passengers.
The Supreme Court sided with the railroad and ruled that the
separation of the races in pubic accommodations was legal and did not
violate the Fourteenth Amendment. The decision established the
doctrine of “separate but equal” which allowed the states to maintain
separate facilities for blacks and whites so long as they provided equal
service. In other words,” if the cars for blacks were of equal quality to
those enjoyed by white passengers,” the Court said, then the demands
of the Constitution had been satisfied and the rights of black people
had not been violated. The vote in this case was 8 to 1 with Justice
Henry Brown writing the majority decision and Justice John Marshall
Harlan writing the dissenting opinion. In his decision Justice Brown
wrote “…if one race is considered to be inferior to the other socially,
the Constitution of the United States cannot put them on the same
plane…” Ask students to interpret the words of Justice Brown. This
case left the door wide open for the many Jim Crow laws that were
passed that segregated the races in just about every public facility.
Students should be encouraged to research the origin of Jim Crow and
report back to the class. Only one Justice dissented in this case.
Justice John Marshall Harlan wrote “…The thin disguise of equal
accommodations for passengers in railroad coaches will not mislead
anyone or atone for the wrong this day done…” Harlan added,”what
can more certainly arouse hate, what can more certainly create and
perpetuate a feeling of distrust between these races than state
enactment which in fact proceed on the grounds that colored citizens
are so inferior and degraded that they cannot be allowed to sit in
public coaches occupied by white citizens…” Ask students to interpret
the words of Harlan. Do they agree with him? Tell students that more
than five decades would pass before the Supreme Court would reverse
this decision and the South would build a legal system rooted in social
segregation. Plessy left racial attitudes to the states; something that
the southern states embraced as an old fashioned state’s rights issue.
Social equality became unattainable as Plessy denied that law could
change attitudes. Tell students that by 1899 blacks and whites were
separated in schools, restaurants, in restrooms, at drinking fountains,
hospitals, and even cemeteries, as Jim Crow began to show its ugly
head. The rights of the Thirteenth, Fourteenth, and Fifteenth
Amendments, as well as the Civil Rights Act of 1876 were ignored
when it came to African-American citizens. Teachers might want to
assign students the task of researching the content of the stated
Amendments and Act and have the students report back to the class.
Teachers should tell students to imagine being unable to attend the
school of their choice because of their race or being forced to attend a
school with inferior facilities. How do they think they would feel or
react? This was the situation that African Americans, especially in the
South were faced with every day of their lives.
Background to Brown v. the Board of Education, 1954
The road to Brown v. the Board of Education began with decisions that
chipped away at the segregationist’s tenets of Plessy v. Ferguson. The
NAACP had been fighting the battle of racial segregation since 1909.
One influential figure in this campaign was a brilliant Howard
University professor named Charles Hamilton Houston. Houston served
as chief counsel for the NAACP from 1934-1938. In deciding the legal
strategy he considered the blatant inequality between the separate
schools that many states provided for the two races. It was not
uncommon for states to spend ten times as much money educating a
white child as it did educating a black child. It was to this injustice that
Howard chose to focus his energy and the limited resources of the
organization. For help, Howard recruited some of his most able law
students to prepare a battery of cases to take before the Supreme
Court. In 1938 he placed his team under the direction of a young
lawyer named Thurgood Marshall. Over the next 23 years Marshall and
his NAACP lawyers would win many cases involving segregation.
Interested students should be assigned to research the life of
Thurgood Marshall. Have them find obituaries in national news
magazines such as Time, Newsweek, etc. Then ask them to summarize
the obituaries for the rest of the class.
Several of the cases that Marshall and his team won became legal
milestones towards the Brown decision. One of the first challenges
came in 1938 when the Court ordered that a black student, Lloyd
Gaines be admitted to an all-white law school at the University of
Missouri. Missouri had no law school for African Americans. The state’s
offer to pay for the tuition of Gaines to attend an out of state law
school was unacceptable because Gaines was a citizen of Missouri and
planned to open a law practice in that state. (Goode 35) A similar
challenge arose in 1950 in the case Sweatt v. Painter. Mr. Sweatt had
been denied admission to the University of Texas law school solely on
the basis of race. The law school had denied him admission because
the educational facilities had been made available to blacks at a
recently established law school in Texas. The Supreme Court agreed
unanimously that the Texas law school for whites was far superior. In
his written decision Chief Justice Vinson stated “Texas law schools for
whites offered a far greater degree of those qualities which are
incapable of objective measurement, but which make for greatness in
a law school. These qualities were reputation of the faculty, experience
of the administration, position and influence of the alumni, standing in
the community, traditions, and prestige.” The Texas law school had
none of these qualities and the Court ordered the white law school to
admit Mr. Sweatt. The decision in this case upheld the plaintiff’s
complaint that the Texas Law School for blacks could not be held to
the same high standards as the white Texas Law School. This decision
did not override” separate but equal”, but it challenged it. Interested
students should be assigned the task of investigating in more detail
the facts of this case and offer then to the rest of the class. Why do
they think Marshall started his challenges with graduate schools rather
than high schools or elementary schools?
By July 28, 1947 Houston and Marshall were ready to bring the
challenge of racial segregation from the graduate school level to the
public school level. Between the years 1947 and 1954 there were five
cases that challenged racial segregation in public schools. These cases
came from four different states and the District of Columbia. A good
overview of this situation may be presented by having students view
the film Separate but Equal starring Sydney Poitier. This film is an
extremely factual account of Thurgood Marshall’s campaign against
segregated schools in the South. It shows how he had to convince the
NAACP lawyers to support the lawsuits of these parents suing their
respective states and the District of Columbia for fair and equal
treatment. It was not easy to convince parents to be plaintiffs in
lawsuits challenging the segregation laws. Ask students what do they
think would be some of the fears of these African-American parents.
Why would they be reluctant to put their name on a lawsuit? The Court
lumped the cases together in a single ruling named for the case
concerning nine-year-old Linda Brown. Her father, Oliver Brown, had
charged the Board of Education in Topeka Kansas with violating Linda’s
rights by denying her admission to an all white elementary school four
blocks from her home. The state had directed that Linda attend the all
black elementary school, which was much farther away. As a matter of
fact, Linda would have to cross a railroad yard and then take a bus to
the school located 21 blocks from her home. Parents in the other three
states were also outraged. Harry Briggs of Clarendon, South Carolina
was incensed that his five children had to attend schools that operated
on one fourth the amount of money given to white schools. (Irons
383) Ethel Belton took her complaints to the Delaware Board of
Education when her children were forced to ride a bus for nearly two
hours each day instead of walking to the school nearest their home. In
Farmville, Virginia 16-year-old Barbara Johns led her fellow students
on a strike for a better school. All over the country, black students and
parents were angered over the conditions of their schools. NAACP
lawyers studied their grievances and decided it was not enough to
keep fighting for equal facilities, but rather they wanted all schools
integrated. It seemed as if the time was now right for the Supreme
Court to finally revisit the “separate but equal ruling” that had been
the law for over fifty years.
The case of Brown v. the Board of Education, Topeka Kansas, 1954
The Brown case first came before the Supreme Court during the 1952
term when Fred Vinson was the Chief Justice. This case was actually a
collection of five cases from four states and the District of Columbia.
Court scheduling put the Brown case before Briggs on the Supreme
Court docket when the five cases were combined for argument and
decision The five cases included Gebhart v. Belton, (Delaware) Brown
v. Board of Education, (Kansas) Briggs v. Elliott, (South Carolina)
Davis v. County School Board of Prince Edward County (Virginia) and
Bolling v. Sharpe (District of Columbia) The Court heard them all
together under the name of Brown because they all dealt with the
same issue of racially segregated schools. Teachers might want to
divide the class into four groups. Assign each group one of the above
cases. Have the students research the facts of each case and report
their findings back to the entire class
There were probably five justices leaning toward overruling Plessy
after the first argument, but the remaining four justices Vinson, Reed,
Jackson, and Clark seemed far away from agreeing. Justice Frankfurter
succeeded in postponing the case until the next term by requesting
reargument “specifically directed to the question of the historical scope
of the Fourteenth Amendment.” The reasoning was that maybe a delay
would help and it did. (Horwitz 12) On September 8, 1953, Vinson died
of a heart attack. This was, Frankfurter commented privately to his law
clerks, “the first indication that I have ever had that there is a
God.”(Powe 24)
With the death of Chief Justice Vinson, a vacancy now had to be filled
on the Supreme Court. Although he scarcely knew him President
Eisenhower, prior to being elected President had promised the first
opening on the Supreme Court to Earl Warren. Warren had been
responsible for delivering the support of the Republican delegates to
Eisenhower at the National Convention. What role would the new Chief
play in the Brown decision? As it soon became apparent, Warren was
able to use his skills of governing to steer the decision of the Court to
overturn the Plessy decision. No one praised Warren for his strong
intellect, but almost everyone acknowledged his warmth and sincerity,
his principles and strong work ethic. He was admired for his moral
leadership. As governor he learned the philosophy of governing. (Powe
190) Warren, as well as Frankfurter was concerned over the necessity
of having a unanimous decision in such an important case. Frankfurter
was anxious over the prestige of the Court. According to Powe the oral
arguments in the Brown case should debunk any notion that it was an
easy decision to gain unanimity. Frankfurter was noted as saying…”you
do not argue for ten hours a question that is self-evident…” Once
Warren took over he requested that the justices take no vote and
avoid a hard-line decision, until discussion had taken place in
Conference.” The Court was thoroughly conscious of the importance of
the decision to be arrived at and the impact it would have on the
nation and we realized the necessity for secrecy and for achieving
unanimity… (Warren 282).
It was clear from the outset that Brown case had the five necessary
votes to overturn Plessy, but that is not the route that Warren wanted
to travel. There are many stories about how Chief Justice Warren
patiently brought Justices Reed, Jackson, and Clark aboard. I am sure
his personality played a role in convincing some of these justices. He
has been described as having warmth, sincerity, strong principles and
the ability to provide moral leadership. In a manner that was to
become his judicial trademark, Warren immediately framed the
question before the Court as a moral issue. (Horwitz 24) The decision
itself was short, only eleven pages. Warren wanted it this way. As a
former politician he knew the importance of getting his message
across and a short decision could be printed in the newspaper in its
entirety. (Powe 29) Students should be encouraged to research
Warren’s role in securing a unanimous decision. Students should
present their findings to the class. Students should also be encouraged
to research the arguments presented to the Court by Attorney
Thurgood Marshall. Marshall’s argument rested on the psychological
effects of segregation. He produced expert testimony demonstrating
that segregation lowers the esteem of African American children, thus
segregation violated the equal protection clause of the Fourteenth
Amendment. The decision was read in Court by the Chief Justice which
said in part, “…to separate those children from others of similar age
and qualification solely because of their race generates a feeling of
inferiority as to their status in the community that may affect the
hearts and minds in a way unlikely ever to be undone…Separate
educational facilities are inherently unequal…Any language in Plessy v.
Ferguson contrary to these findings is rejected.” Warren was careful in
his decision not to place blame on any group for the years of
discrimination. Ask students if they feel that the Warren Court should
have gone further in its decision and remarked about the inequity of
the schools or the years that African-American children were made to
feel inferior to white children. Do they believe it is up to the Supreme
Court to lay blame or should citizens as a whole step up to the plate
and take responsibility for their own actions. Students might be
interested in researching the headlines in southern and northern
newspapers of the time. Do they see any difference in the attitudes of
the southerners or the northerners in their reactions to the decision of
the Supreme Court and if so, why do they think that was the case?
One of the dominant southern themes concerning this decision was
that instead of applying the law, the Court had imposed its will. Some
critics especially southern Senators even accused the Warren Court of
being a lawless Court. Ask students if they believe the Court has the
right to impose morality on the people. Remind them that the
Supreme Court has no direct responsibility to the people of the United
States and that they are not accountable to any electorate. Shouldn’t
Congress be the branch to pass a law dealing with segregated schools?
Remind students that southern Democrats who were virtually
responsible to an all white electorate dominated Congress in 1950.
There was no way they were about to pass a law dealing with
segregated schools. Tell students that Justice Jackson addressed this
question in his unpublished opinion. “The Constitution must be
interpreted in light of current conditions to accommodate current
needs.” Jackson went on to say”…I suppose that the reason this case
is here is that action couldn’t be obtained from Congress”
The Brown II case
In May 1955 the Supreme Court handed down the implementation
decision that came to be known as Brown II. Again it was unanimous.
The crucial phrase in the “all deliberate speed” belonged to Justice
Frankfurter who had borrowed the phrase from an opinion of Justice
Oliver Wendell Holmes. (Simon 224) This phrase was a signal from the
Court that they understood the South’s dilemma in implementing such
a decision and they would be given time. But how much time? Maybe
the Supreme Court was being too optimistic and assumed that the
Brown decision would lead to prompt desegregation of schools. Remind
students that states considered to be in the upper south, Maryland,
West Virginia, Kentucky, Missouri, and Oklahoma took steps to comply
with the “new law of the land” So did the western states that had
permitted segregation. But Virginia and the Deep South held back.
Exactly what does the phrase “with all deliberate speed” mean?
Students often engage in a lively discussion of this topic. If I say to my
students that they have an important research project to hand in that
will make up a large percentage of their grade, they would naturally be
quite anxious over when it is exactly due. If I said to them that they
were to work on this with “all deliberate speed” they would probably
react with the question- exactly what do you mean by “with all
deliberate speed”? Does that mean we can hand it in whenever were
are finished or is there an exact date this paper is due? Is it to be on
my time schedule or your time schedule? What do you mean? And
herein lays the problem with Brown II. It was left up to the states to
decide when they would begin to enforce the Court’s ruling.
Some of the southern states were resisting because they felt they had
the right to impose their own social order. Even President Eisenhower
was reluctant to take sides in the desegregation battle. He believed
that voluntary action by southern states, rather than federal force
would lead to the quickest progress with the fewest problems. (Powe
36) As time went on problems erupted. Calls for massive resistance
were heard from Mississippians to resist integration and preserve all
white schools. Violence broke out and membership in the Ku Klux Klan
increased. Lynching of African-Americans was on the rise, the murder
of a young teenage boy in Mississippi, Emmett Till occurred and rioting
took place at the University of Mississippi when an African-American
student, Autherine Lucy was admitted. In 1956, one hundred southern
members of Congress signed the Southern Manifesto denouncing the
decision of the Supreme Court as a clear use of judicial power and
urged the states to use all lawful means to defy it. Citing the state
rights interpretation of the Constitution, Mississippi, Alabama, Georgia,
and Florida declared the Brown decision null and void. Now what!
Teachers should engage students in discussion on what should have
been done next. Ask students if they believe the Supreme Court
overstepped its authority? Do they have the right to make laws when
the federal law conflicts with state laws or must the states always bow
to the decisions of the federal courts? How do they think the struggle
for school desegregation between 1954 and 1957 might have been
different if the federal government had acted more forcefully? Many of
the students at Wilbur Cross High School have relatives who are from
the South. Teachers should assign students the task of interviewing
their grandparents, great aunts and great uncles to find out what it
was like for them living in a southern state during this time. Tell them
they will be conducting an oral history. Encourage them to video or
tape their conversations and bring them in to share with the class.
Students often tell me that their grandparents never shared this
information with them until they actually sat down with them and
showed their interest by asking questions. This activity brings this time
period in history closer to home for many of our students and makes
history come alive.
Many people feel that the Brown II “all deliberate speed” formula
failed. They point to what happened at Central High School in Little
Rock, Arkansas as an example. In the summer of 1957 two years after
the Brown II decision the city of Little Rock made plans to desegregate
its public schools. Its school board had voted unanimously for a plan
starting the desegregation of the high school to be followed in 1958 by
the middle and elementary schools. But the smooth transition to the
school’s integration was not to be. The Ernest Green Story is a
dramatic recreation of this event. It examines the desegregation of
Central High School and at the same time shows racism at its ugliest
and determination at its most magnificent. This is the story in the lives
of nine teenage students and their year at Central High School. The
Governor of the state, Orval Faubus tries to block the federal court
order by calling out the Arkansas National Guard. He says it’s to keep
the peace, but everyone realizes it is to keep the black students out of
the school. After two and a half weeks President Eisenhower called out
the 101st airborne division to go to Little Rock and enforce the court
order. I have shown this film every year to my students and they love
it. It leads to lively discussions, not only about the Civil Rights
movement and racism, but also the concept of states rights v. federal
rights. Earl Warren was incensed that any state governor should try to
tell the Court what was legal or illegal about school desegregation,
which Faubus sought to do. (Warren 290) Students usually react very
strongly to viewing the film The Ernest Green Story that accurately
documents the desegregation of Central High School in 1957 in Little
Rock Arkansas. So where are we now? It has been 50 years since the
Brown decision. Some believe it was the most important case of the
20th century. Many believe that the Brown decision was the catalyst
that opened up freedom and official recognition of equality. Others
believe inequality still exists in the schools today. Teachers should
open up discussion on the issue of whether or not the Brown decision
has failed in its basic mission: to provide an equal and integrated
education for minority students. How is integration possible in a city
that has a majority of minority students? Today, children in New
Haven attend a school system that is 89% minority. One of the
realities of today is that urban areas are often non-white. So maybe
the question then should be how do we guarantee to all students an
equal and high quality education? Do the schools have to be integrated
in order to do this and if not how do you go about trying to balance
then racially?
The third objective of this unit is to have students analyze and
understand those cases that affected criminal procedure. Teachers
might want to begin studying this objective by having students
examine the case Gideon v Wainwright 1963.This case mandating that
the court provide an attorney for indigents was probably the Warren
Court’s only popular criminal procedure decision. (Powe 379) Earl
Warren felt a commitment to establish rules governing criminal
procedure-intended to extend the rights contained in the Fifth Sixth,
and Eighth Amendments to all individuals accused of criminal acts. The
rulings in the cases will demonstrate the principles of equal justice
under the law. Teachers should remind students that Warren had a
background as a prosecutor in the state of California for more than a
dozen years. He was well acquainted with how law enforcement
operates and was committed to correcting the inequalities caused by
social and economic differences. His goal in these cases was to
establish clear guidelines for putting into effect the rights guaranteed
in the Constitution that all Americans, not just the wealthy would be
protected from unfair practices. (Urofsky 170) Considered one of the
most famous cases, Gideon v. Wainwright, 1963 held that the right to
counsel is “…fundamental and essential to trial and for that reason
must be honored in state as well as in federal courts...” This decision
overturned the 1942 case of Betts v. Brady. Students should be
assigned the task of researching the facts and the decision in the Betts
case. Teachers should point out that Warren had instructed his law
clerks to look for a case that would allow the court to revisit the
decision set by Betts v. Brady. They found such a case in the petition
of Clarence Earl Gideon.
The case of Gideon v. Wainwright, 1963
Clarence Earl Gideon was arrested in Florida for breaking and entering
into a poolroom and stealing coin from the vending machines there.
Brought to trial, he asked the judge to appoint a lawyer for him. He
had no money to pay for an attorney. The judge informed Mr. Gideon
that the state of Florida only had to provide a court appointed attorney
in capital crimes. Gideon then tried to act as his own attorney and put
on a defense for himself. Unfortunately, he did an extremely poor job.
Although the trial judge tried to assist him, he did not know what
questions to ask or the procedure to follow. The jury found him guilty
and he was sentenced to jail time in the Florida State prison. While in
prison he petitioned the Supreme Court requesting that the justices
review his case on the grounds that the Sixth amendment, made
applicable to the states by the Fourteenth amendment, guarantees the
right to counsel. Gideon was mistaken on this point for the states were
not required by the Constitution to provide a free attorney. This only
applied in federal courts.
Once the Supreme Court accepted the appeal from Gideon, Chief
Justice Warren appointed a brilliant attorney Abe Fortas to defend
Gideon’s argument in front of the Supreme Court. In the end the
justices ruled unanimously to overturn the 1942 ruling in Betts v.
Brady case. Defendants in state court accused of a felony now must be
provided with a free court appointed attorney.
Teachers might want to have the students view the film Gideon’s
Trumpet starring Henry Fonda as Clarence Earl Gideon. Anthony Lewis
bases this film on the book Gideon’s Trumpet. It offers a remarkable
recreation of the entire judicial process from the arrest of Gideon to
the final vote by the Supreme Court. The film usually engages
students in lively discussions about whether or not a person can have
a fair trial without a lawyer. Ask students what is a lawyer able to do
for his client that a person defending himself cannot do. Do they
believe the Florida law unfairly discriminated against people who were
poor? Ask students what they think of Justice Black’s 1956 remark
made in the case Griffin v. Illinois “…There can be no justice where the
kind of trial a man gets depends on the amount of money he has.” Is
there any truth to the idea that the absence of counsel means the
absence of justice? Do students believe that today a poor man
receives the same justice as a rich man? I remind students that
although they are entitled to a court appointed attorney for felonies
and some misdemeanors, the attorneys are still being paid by the
state. Often they are overworked and underpaid and cannot devote
the same attention to your case that a high priced lawyer probably will
be able to do. Is this fair? Maybe all cases should be defended by
public defenders? Would that guarantee equal justice for all or just bad
justice for all? Students really enjoy discussing this topic in class.
The case of Escobedo v. Illinois, 1964
The second case to be examined is Escobedo v Illinois, 1964. The
decision in this case expanded the meaning of the right of counsel
guaranteed by the Sixth amendment to include not only one’s defense
at a criminal trial, but also during a police interrogation. The Court
ruled by a slim vote of five to four “… that when the investigation is no
longer a general inquiry… but has begun to focus on a particular
suspect…and where the suspect has been taken into custody…and the
suspect has requested a lawyer…and the police have not informed him
of his rights to remain silent, the accused has been denied…counsel in
violation of the sixth Amendment.”
The Supreme Court ruled in this case that the confession of Daniel
Escobedo must be thrown out and held that the accused must be
allowed to consult with a lawyer once he becomes a prime suspect in a
case. This case dates back to the one night in January 1960 when
Escobedo and an accomplice were arrested for the murder of
Escobedo’s brother-in-law. The police questioned the two men
separately. While being interrogated Escobedo asked several times
that his lawyer be present, but the police told him that his lawyer did
not want to see him. In fact, his lawyer came to the police station, but
the police would not let him see his client. Escobedo’s lawyer, a man
named Walter Wolfson got to the police station shortly after Escobedo
arrived. He remained at the police station waiting to have a chance to
talk to Escobedo. Once Wolfson even saw Escobedo briefly through a
doorway, but was not allowed to get close enough to talk to him. One
of the police officers at the Chicago station knew Escobedo and his
family. He spoke to Daniel for about 15 minutes alone and in private.
Escobedo told the officer that Benedict DeGerlando had murdered his
brother-in-law. This was the first time that Daniel had admitted to any
knowledge of the crime. Shortly after the District Attorney took a
statement from him. After this formal confession Daniel’s lawyer was
finally allowed to see him. At his trial Escobedo said that the police told
him that he and his sister could go home if he admitted that his friend
DeGerlando had committed the crime. The officer stated that this was
not true and no deal was ever made with Daniel. Escobedo was found
guilty of murder and sentenced to 20 years in the state prison. The
Illinois Supreme Court upheld his conviction. The case was then
appealed to the U.S. Supreme Court. The Court reversed the decision
in a very close vote. Justice Arthur Goldberg wrote the Court’s decision
and Chief Justice Warren, and Justices Black, Brennan, and Douglas
joined him.
Teachers should present the facts of this case to the class without
telling them the decision of the Court. Ask the students at what time
should a person be told that they are a suspect in a crime. At what
time should a person be told that they have the right to an attorney? If
Escobedo had been provided with an attorney during questioning, do
they think he would have confessed? Remind students that some
people become very “anxious” when they feel threatened in any way.
Ask them how they would feel if they were suddenly sent down to the
principle’s office, accused of a wrongdoing and not allowed to call their
parents. Would they feel scared in any way? Would they feel isolated?
Might they just say anything to get out of that office? Sometimes
being around people who are perceived to have some authority makes
other people very nervous. Teachers should also open up discussion to
students concerning the reaction of the public in 1964 when this
decision was handed down. Many people felt the Court was now
coddling criminals. They started to question whether the Court was
going too far in handing out right to the accused. They felt that the
justices were becoming “soft on crime” and giving the advantage to
the defendant. Some even felt the Court was preventing the police
from during their job. Others however, felt this would make the police
act in a more professional manner. Some people even believed that
the decision in this case affected the presidential election of 1968.
Republicans made an issue out of the belief that that the Court was
soft on criminals and that the police were demoralized and were not
able to adequately do their job. Bumper stickers once again appeared
calling for the impeachment of Earl Warren.
The case of Miranda v. Arizona, 1966
The third case to be examined concerning criminal procedure came to
the Court in the summer of 1965. Earl Warren instructed his clerks to
look for cases that would lay out the groundwork for police procedure.
Four cases were chosen including Miranda v. Arizona. This case
became one of the most controversial cases in criminal procedure
during the entire Warren era. Teachers should first relate the facts of
the case to students. Ernesto Miranda was arrested for the kidnapping
and rape of a woman in Arizona. He was taken to the police station
where after two hours of police questioning he signed a confession
statement. He was never told of his right to remain silent or his right
to see a lawyer. At his trial his signed confession was used against him
and he was found guilty of the crimes. While in prison he appealed his
case to the Supreme Court arguing that his confession should not have
been used at his trial because the police had not told him of his rights
and he answered questions because he did not know he could remain
silent. His lawyer said that he was frightened while in custody and the
police atmosphere was intimidating. Tell students that the issue here
was whether the confession should have been used as evidence at the
trial. Did the police follow the proper procedures when they got the
confession from Miranda? Were Miranda’s constitutional rights
protected?
Warren announced the Miranda decision on June 23, 1966. Justices
Black, Brennan, Douglas, and Fortes made up the majority along with
Warren. Miranda begins with the statement of the four things the
police must state before they question suspects. They have the right
to remain silent; anything they say can be used against them; they
have the right to counsel, and if they cannot pay for counsel, lawyers
will be provided for them. Students are usually quite familiar with the
Miranda rights having heard them on television or film. Critics of this
decision became very vocal. Warren was accused of overstepping the
bounds of the judicial role and stepping into legislative role. (Powe
395) Ask students if the feel the Court should have the ability to make
changes when they feel an injustice is being done or is this role one
that should be undertaken by the legislative branch. Warren felt he
was turning constitutional principles into practical policies. Those who
supported him believed he was exercising fairness, equality and
justice. They agreed with Warren in that these rights would help to
protect those who were less fortunate; the weak, the illiterate, or the
poor defendant against the possibility of Fifth Amendment violations.
He believed that people should have the same rights as the rich, the
organized criminal and the knowledgeable who will always insist on
their right to counsel. (Warren, 201) Ask students how they think the
police reacted to this decision at the time. Tell them in fact many of
the police were aghast. One high-ranking police official is quoted as
saying “I guess now we will have to supply all squad cars with
lawyers.” Ask students what they think he meant by this statement.
By 1966 it was becoming apparent that crime was a major domestic
issue and public opinion was showing that some people felt the Warren
Court was too soft on crime.
The final case to be examined can be found in the classroom activities
section of this unit. In Re Gault, 1967 considered the rights of
juveniles.
Classroom Activities
Lesson Plan One-The Rights of Juveniles A study of In Re Gault,
1967Objective
Students will understand the significance of the Gault case, which
changed the way the courts must treat juveniles.
Procedure
Teachers will need to present to students the summary of the case
that is offered in this lesson and then split the class into groups for
discussion. Once the questions are addressed, the group should select
a leader who will present the group’s findings back to the class.
Summary of the Case
In June of 1964, in Gila County, Arizona a complaint was filed by a
Mrs. Cook to the local sheriff stating that she had received an obscene
phone call. Although the call was traced to the Gault home there was
no proof as to exactly who had made the call or spoken the obscene
words. The local sheriff went to the Gault house and arrested Gerald
Gault, age 15 and his friend Ronald Lewis, also age 15. Both boys
were brought to the juvenile detention home in Globe to await a
hearing from a juvenile officer. Gerald had been in trouble before and
was already on probation in the state of Arizona. When the sheriff took
Gerald into custody his parents were not at home In fact, his father
worked several hundred miles away and his mother was at work. Not
even a note was left by the sheriff to inform the Gault’s of their son’s
whereabouts. When Marjorie Gault returned home from work she
found out that her son was being held at the juvenile detention center.
That night she went to the center to speak to her son and also the
center’s superintendent, Charles Flagg. Mr. Flagg told Mrs.Gault that
Gerald would have a hearing the next day. That night a probation
officer questioned Gerald about the phone call. He also questioned
Ronnie Lewis to see if boy’s stories matched. Though he had no proof
that Gerald had made the call, Mr. Flagg filed a petition with the
juvenile court describing Gerald as a delinquent minor and asked the
court for a hearing as well as an order regarding his care and custody.
Since no record of the hearing was kept, no one knows exactly what
was said. According to later testimony, the judge asked some
questions about the phone call.
A few days later Gerald was released from the detention center.
Mrs.Gault received a note saying that a second hearing would be held
in six days. At the second hearing Mr. and Mrs.Gault admitted that
their son had dialed the woman’s number, however, they believed that
Ronald Lewis had done the talking. They asked that the woman who
had made the complaint to come in and identify which boy’s voice she
had heard on the phone. Their request was denied. In fact, the judge
never talked to Mrs. Cook to check the details of the case. On the
basis of these two hearings the judge found Gerald to be delinquent.
According to an Arizona state law “people were not allowed to use
vulgar, abusive or obscene language in the hearing of a woman or a
child.” Supposedly, Gerald confessed at his hearing, but he had no
legal representation. He was sentenced to six years of confinement at
the Fort Grant Industrial School. If he were in an adult court he would
probably receive two months in jail and a fifty-dollar fine. When Gerald
was at the Industrial School his parents appealed his conviction to the
Arizona Supreme Court. They said the state had taken away their
son’s right to due process and violated the limits of the Fourteenth
Amendment amendment. Furthermore, they said that Gerald should
be entitled to the same rights at his hearing that an adult had at a trial
The Arizona State Supreme Court upheld the juvenile court judge’s
ruling. The Gault’s then appealed their case to the U.S. Supreme
Court.
The Court decided that juveniles accused of wrongdoing should have
many of the same protections that are required in an adult trial under
the Bill of Rights. The Court believed that neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone. Furthermore, “the
condition of being a boy does not justify a kangaroo court.” Justice Abe
Fortas wrote the detailed and strongly worded opinion for the Court.
Chief Justice Warren complimented Fortas on his opinion by calling it
the Magna Carta for Juveniles. Joining Justice Fortas in the opinion
were Chief Justice Warren and Justices Brennan, Clark and Douglas.
Justices Black and White concurred with the majority decision. Justice
Harlan wrote a separate opinion concurring in part and dissenting in
part. Justice Black stated, “he agreed with the majority, but felt that
the ruling “strikes a fatal blow to much of what is unique about the
juvenile court system…” Justice Stewart dissented from the majority.
In his dissent he acknowledged that “…the justice system has not been
perfect, but he said, juvenile proceedings are not criminal trials. He
felt the Court was taking a step backwards into the nineteenth century
when children were tried as adults...” (Billitteri 88)
As a result of the Gault case the following elements of due process
must be guaranteed to juveniles The Court decided that juveniles
should have the same rights as adults at the time of the trial. Gerald
and his parents should have been notified of the hearing before it
occurred so that they could have prepared a defense. Gerald should
have been told that he had the right to a lawyer and should have been
provided with free counsel if necessary. Gerald should have been told
that he had the right to remain silent and not testify against himself.
Gerald should have the right to confront the witness against him and
to cross-examine the witness. Finally, the Supreme Court said that the
state of Arizona did not give Gerald these rights and he should be
given a new hearing.
At this time teachers might want to present a recent case in which the
Court refused to require special treatment for young people under
questioning by the police. In a very close vote (5 to 4) the Supreme
Court clashed over whether the police must take special care when
questioning young people about crimes. The case Yarborough v.
Alvarado, 2004 involved statements made by 17 year old Michael
Alvaredo while he was being questioned by the police, but not under
arrest. In this case no warnings were given to the youth when his
parents brought him to a California police station for questioning. His
parents were told to wait outside the interrogation room while the
police questioned him. He was later convicted of second-degree
murder and incriminating statements obtained during that
interrogation were used at the trial. Alvarado did not receive Miranda
warnings prior to the interrogation in question. The California trial
court rejected the defense motion to suppress his incriminating
statements. It concluded that he was not in custody during the
interrogation and therefore, was not entitled to warnings. Teachers
might assign students to research the various decisions in this very
close vote. Students report back on the majority decision written by
Justice Kennedy. as well as the concurring opinion written by Justice
O’Connor and the dissenting opinion written by Justice Stephen
Breyer.
Questions for Discussion
Once students have had the time to read and discuss the facts and the
decision they should be divided into groups of four. Ask them to
address the following questions in their group. They should select a
group leader who will present their answers back to the entire class.
1. Should juveniles and adults have the same rights as guaranteed by the United States
Constitution?2. What rights would Gerald have had if his case were being heard in an
adult court?
3. What do you think is the goal of a juvenile court? What is the goal of an adult court?
4. Do you think juvenile courts are too soft on the youth of today?
5. What consequences do you think Gerald Gault should have faced for his actions?
6. Discuss the discrepancy between the juvenile punishment and the adult punishment for
the same crime.
7. What do you think Warren meant when he stated that the written opinion of Justice
Fortas would be known as the Magna Carta for juveniles?
8. What arguments do you think were presented by the lawyers representing the state of
Arizona at the U.S. Supreme Court hearing?
9. What do you think Justice Fortas meant when he referred to the “never, never land of
juvenile justice?” Where did this phrase originate?
10. For more than a century the juvenile court system has operated separately from the
adult criminal courts. Juvenile courts were designed to provide flexibility to young
people in trouble. The philosophy behind juvenile justice has always been to rehabilitate
young offenders rather than punish them. But the trade-off means that juveniles have
fewer due process rights than adults. Do you think this is fair?
Lesson Plan Two TimeLine of Significant Events, People & Laws
Objective
Students will be able to identify the events, people in chronological
order and understand the impact they might have had on the time.
Procedure
Teachers will need to label 5x7 index cards with the items listed below.
Divide the class into groups and distribute one index card with a
person or event written on the card to each student in the group. Time
will be allotted for research in the library. Students will research their
topic and be able to discuss the topic itself and the impact it had, not
only with their group, but also with the rest of the class. Finally, each
member of the group will place their event on a time line that will then
be placed around the room. Teachers may have the students use a
long roll of white paper or individual poster size boards that can be
tacked up next to one another on a large bulletin board.
Chronology
1953
September Chief Justice Fred Vinson dies of a heart attack
October President Eisenhower nominates Earl Warren as Chief Justice
1954
May
Brown v. Board of Education
1955
May Brown v. Board of Education II
December Montgomery Bus Boycott
1956
February Authorine Lucy turned away from the University of
AlabamaMarch Southern Manifesto against desegregation
1957
September Civil Rights Act passed; first since Reconstruction
September Arkansas National Guard blocks the entrance to Central
High School in Little Rock, Arkansas
1958
June NAACP v. Alabama
September Cooper v. Aaron
1959
September Price Edward County, Virginia closes Schools
1960
February Sit-in, Greensboro, North Carolina
November John Kennedy elected President of the U.S.
1961
May Freedom Rides begin
June Mapp v. Ohio
1962
March Baker v. Carr
June Engel v. Vitale
1963
March Gideon v. Wainwright
March Douglas v. California
June Medgar Evers assassinated in Mississippi
June Abingdon School District v. Schempp
August March on Washington
September Church bombing kills four girls in Birmingham, Alabama
November President Kennedy assassinated, Lyndon Johnson becomes
president
March New York Times v. Sullivan
1964
June Freedom Summer begins
June Reynolds v. Sims
June Escobedo v. Illinois
June 1964 Civil Rights law
November Lyndon Johnson elected president
1965
January Cox v. Louisiana
February Malcolm X assassinated
March Griswold v. Connecticut
August Voting Rights Act
1966
June Miranda v. Arizona
1967
May “Long Hot Summer” of urban rioting begins
June Loving v. Virginia
July Rioting in Newark and Detroit
1968
April Martin Luther King assassinated
April Ginsburg v. New York
June Terry v. Ohio
June Earl Warren announces retirement
November Richard Nixon elected president
1969
February Tinker v Des Moines
June Powell v. McCormack
June Chimmel v. California
June Warren Burger replaces Chief Justice Warren
Materials used
3x5 index cards, construction paper
Lesson Plan Three Glossary of Terms
Objective
Students must know and understand the meanings of those terms
associated with legal situations and the Warren Court.
Procedure
Instruct the students to divide their paper in quarters and then cut
them evenly. On the front side of the paper they will be writing the
terms the teacher has written on the board. On the backside they are
to write the correct definition or description of the term as provided by
the teacher. They now have created a flash card. Students should
study these terms at home and the next day the teacher should
reinforce the meanings and concepts of these terms by playing
jeopardy with the class. The teacher will provide the meaning and the
students will provide the correct term in the form of a question.
Teachers might divide the class into five or six teams. The winning
team might be rewarded with extra credit points on the test for this
unit.
Terms to know
1. affirm An appellate court ruling that upholds the judgment of a lower court, in effect
stating the decision of the lower court is correct.
2. appeal A process by which a final judgment of a lower court is revised by a higher
court.
3. appellate jurisdiction Authority of a superior court to review decisions of inferior
courts.
4. brief A document containing arguments on a matter under consideration by a court
5.certiorari Latin word meaning to be informed of, to be made certain in regard to. A writ
or order to a court whose decision is being challenged on appeal to send the records of
the case to enable a higher court to review the case.
6. Civil Rights Acts of government designed to further the achievement of political or
social equality as well as protect persons against arbitrary and discriminatory treaty from
the government.
7. concurring opinion An opinion by a judge that agrees with the decision of the majority,
but disagrees with the majority’s rationale. A judge who presents a concurring opinion
has arrived at the same conclusion but for different reasons.
8. conference The regular meeting in which the Supreme Court justices conduct all
business associated with deciding cases, including determining which cases will be
reviewed, discussing the merits of cases after oral arguments and voting on which party
in a case will prevail. Conferences are closed to all but the justices.
9. dissenting opinion The opinion of a judge who disagrees with the result reached by the
majority.
10. due process The concept that the Constitution’s due process clauses require the
government to follow fair procedures when interfering with a person’s life, liberty, or
property.
11. judgment of the court The final conclusion reached by a court
12. judicial activism An interventionist approach or role orientation for appellate
decision-making. Judicial activism is seen by critics as legislating by justices to achieve
outcome in line with their own social priorities.
13. judicial review The power of the court to examine the actions of the legislative and
executive branches with the possibility that these actions could be declared
unconstitutional.
14. judicial self-restraint A role view that minimizes the extent to which judges apply
their personal views to the legal judgments they render. Courts should defer to the policy
judgments made by the elected branches of government.
15. living Constitution The belief that the Constitution was intended to endure for the
ages and thus can be adapted by courts to changing social and economic conditions.
16. opinion of the court The statement of the court that expresses the reasoning upon
which a decision is based. The opinion summarizes the principles that apply in a given
case and represents the opinion of the majority of court members.
17. oral arguments The arguments presented by counsel before the Court, usually limited
to thirty minutes a side before the Supreme Court.
18. plurality An opinion announcing a court’s judgment and supporting reasoning in a
case, but is not supported by a majority of the justices hearing the case. Such an opinion
arises when a majority of justices support the court’s ruling in a case, but do not support
the majority’s reasoning behind it.
19. precedent The theory that decisions reached in earlier cases with similar fact patterns
should determine the judgment in subsequent case.
20. reversal An action by an appellate court setting aside or changing a decision of a
lower court
Earl Warren’s successor, Warren Burger, a native of Minnesota, had been a judge of the
Court of Appeals for the District of Columbia Circuit for more than a decade. He became
Chief Justice in 1969.
One of the most famous of the Court’s rulings involving the conflict between religious
freedom and state public schools came under Chief Justice Burger in 1972. It resulted in a
victory for three Amish families in rural Wisconsin who were testing the guarantee of
religious freedom. They had refused to send their children to public school beyond the eighth
grade, asserting that modern secondary education was contrary to the Amish religion and a
threat to their children’s salvation. "The Amish . . . have convincingly demonstrated the
sincerity of their religious beliefs," said the Court, and the children were free, after
completing elementary school, to follow the centuries-old tradition of learning at home.
The Supreme Court ruled in 1972 that
Amish families could be allowed to
home school their children after
elementary school because the Amish
believed that a public school
education posed a threat to their
religion ~
The Court has had to balance freedom of speech
guarantees with separation of church and state
principles in determining whether to allow public
displays of religioni, such as crèches on
government property and prayer in public schools
~
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Library of Congress
When the Internal Revenue Service declared in 1970 that private schools discriminating
against blacks could no longer claim tax-exempt status, the action went largely unnoticed by
the public. In 1983, it became prime-time news when two religious schools having admission
policies based on race sought to regain tax-favored status and the case reached the Supreme
Court.
Counsel for Bob Jones University and Goldsboro Christian School argued that their policies
were based on sincerely held religious beliefs. But the Court ruled that the First Amendment
did not prevent denial of tax-favored status. Eliminating racial discrimination in education
substantially outweighed any burden placed on the free exercise of religion, according to the
eight-to-one majority.
The Court also held in 1983 that reading a prayer at the opening day session of the Nebraska
legislature did not violate the First Amendment’s establishment-of-religion clause. In another
highly publicized case, a year later, it ruled that a Nativity scene displayed at Christmastime
by the city of Pawtucket, Rhode Island, did not violate the Constitution. This extended the
degree which government may use religious symbols to acknowledge the Nation’s heritage.
The long-standing controversy over religion in public schools took yet another form in 1985.
The Court struck down an Alabama law that permitted a moment of silence in schools for
prayer or mediation. Justice John Paul Stevens, speaking for the Court, said that the law had
no secular purpose, but rather was designed to encourage students to pray.
Are religious groups free, under the First Amendment, to distribute literature other than in
designated locations in state fairgrounds in disregard of rules applied to all exhibitors? The
Court said no in 1981. Are privately owned shopping malls subject to free speech
requirements as old-fashioned Main Streets are? In one case the answer was a qualified yes;
in another, a qualified no.
Most Americans take freedom of speech and of the press as the most evident and absolute of
rights, guaranteed by the First Amendment. Yet in the last three decades, the Supreme Court
has been called upon to decide more cases concerning freedom of the press than in the
previous 175 years. Controversies involving the press and the broadcast media are
extensively reported by them, fairly in their own eyes and in those of some observers, not
always so fairly in the eyes of others.
In the 1970s, the press was "subjected to a judicial battering that has been more serious and
more fundamental, than the assaults that were mounted in more parlous days," an attorney
representing press interests asserted in a 1979 weekly magazine article.
Free to reply to such criticism when he retired from the Court in 1981, Associate Justice
Potter Stewart said that the notion that "traditional protections are being ignored or
disregarded or destroyed is a completely fallacious thought."
Controversy over the Vietnam was at a peak when, on June 13, 1971, the New York
Times began publishing installments of a secret, illegally obtained document concerning the
United States’ conduct of the war. The government saw grave dangers to U.S. security in the
publication of what became known as the Pentagon Papers, and sought injunctions to prevent
both the Times and the Washington Post from further dissemination of the stolen information.
Within two weeks the case reached the Supreme Court, which heard arguments on June 26
and announced its decision on June 30.
Once again, as it has through the years, the Court refused to countenance restraint prior to
publication. In a brief decision, the Court observed that any system of prior restraint bears "a
heavy presumption against its constitutional validity." Each Justice filed a separate opinion;
there were three dissents. Among the majority, Justice William J. Brennan denounced prior
restraint in nearly absolute terms, but he conceded that in wartime there might be a "single,
extremely narrow" class of exceptions. The three dissenters emphasized the "almost
irresponsibly feverish" speed with which the case was disposed of; according to Justice John
M. Harlan, it should have been conducted under full ground rules.
The Pentagon Papers were published and were a journalistic sensation at home and abroad;
but the war in Vietnam went on.
Do news reporters have a right to confidentiality of their sources under the First
Amendment? They argue that unless they can protect the identity of people who give them
information under promises of secrecy, the sources will dry up.
Not so, said the Court in 1972, speaking through Justice Byron White; when a grand jury is
seeking evidence concerning a crime, a reporter’s sources are not necessarily protected. If the
reporter believes the testimony is not essential to the case, he or she may ask the court to
issue a protective order; but the Court will decide.
Another controversial issue involving First Amendment protection came to the Supreme
Court: the explicit treatment of sex in books, magazines, and motion pictures. In 1957 and
again in 1966 under Chief Justice Earl Warren, the Court held that the First Amendment
protects material challenged as pornography—even if the material might appeal to prurient
interests and affront community standards— unless it is shown to be "utterly without
redeeming social value." This test proved difficult to apply in practice, and in 1973 the Court
substituted a modified standard: There is First Amendment protection unless "the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value" At the same time, the
Court held that pornography cases should be decided by trial courts on the basis of individual
community standards, not national ones.
But in 1982 the Court unanimously upheld a New York criminal statute prohibiting the
distribution of material depicting sexual activity by children under the age of 16.
"On the evening of October 18, 1975, local police found the six members of the Henry Kellie
family murdered in their home in Sutherland, Neb., a town of about 850 people." This stark
recital began the decision that resolved two potentially conflicting guarantees in the Bill of
Rights in favor of the First Amendment.
The day after the grisly discovery, Erwin Charles Simants was arrested and soon charged
with committing the murders in the course of a sexual assault. The media gave the crime
sensational coverage.
The right to a fair trial in all criminal prosecutions is explicitly guaranteed by the Sixth
Amendment. The Nebraska Supreme Court sustained a lower court order restricting media
coverage on the grounds that prejudicial news stories would make a fair trial for Simants
difficult, if not impossible, anywhere in the state.
Unanimously, the Nation’s highest court decided otherwise, again refusing to sanction prior
restraint. The majority opinion affirmed the "explicit command" of the Constitution that
"freedom to speak and publish shall not be abridged," echoing the trenchant phases of Chief
Justice Charles Evans Hughes half a century earlier in Near v. Minnesota.
Again and again, the Court has struck down state law and lower court decisions that
attempted to limit publication. In 1974 it ruled unanimously that the state of Florida could not
require a newspaper to grant a "right of reply" to a candidate for public office whom the
paper had criticized in print. In effect, such a law would give the state some control over the
newspaper’s content, a form of government compulsion the Court held unconstitutional.
In 1978 the Court determined that the Commonwealth of Virginia could not prohibit the
accurate reporting of closed-door proceedings of a state commission inquiring into the
conduct of a judge, a matter of "utmost public concern." In 1979, however, it held that the
press did not have an absolute right to be present at pretrial proceedings. It sustained the
lower court’s exclusion of a reporter, saying that publication of the accused’s confession
would prevent a fair trial. The decision brought a barrage of criticism.
Criminal trials themselves are another matter, the Court said in regard to a Virginia murder
case a year later in 1979, when it held that the right of the public and the press to attend them
is guaranteed by the First and Fourteenth Amendments. The right to be present was
specifically extended, in a unanimous decision in 1984, to the jury selection process for
criminal trials.
The right of defendants charged with felonies to be represented by counsel, regardless of
whether they could afford it, was extended to all state courts in the highly publicized Gideon
decision of 1963 under Chief Justice Earl Warren. Less widely known is the decision
concerning Jon Richard Argersinger, who had been sentenced by a Florida court to 90 days
in prison for carrying a concealed weapon. In responding to his appeal in 1972, the Court
expanded the right to counsel well beyond Gideon. Under this holding, an accused person
may not be sent to prison, even on a misdemeanor charge, unless represented by an attorney;
and the state must provide one for indigent defendants.
The exclusionary rule highlights the controversy between advocates of the rights of persons
accused of crime and champions of the right of a society to protect itself. This rule,
established and refined by a series of Court interpretations over the years, is little understood
by the public. Among judges, attorneys, scholars, and legislators, it is a keenly debated and
divisive issue, and it is significant, often decisive, in the outcome of serious criminal cases.
The rule prescribes that evidence obtained by illegal means—including confessions obtained
in violation of the Miranda warning requirement, conversations overheard through
unauthorized electronic "bugging," or tangible evidence such as drugs or weapons
improperly seized—may not be used in trials.
But in recent years, while repeatedly upholding the Amendment against unreasonable search
and seizure and the Miranda rule, the Court has modified their application in some respects.
In 1984, in New York v. Quarles, it created a "public safety" exception to Miranda in
circumstances where the public is in immediate danger, allowing police officers to ask
questions to remove a threat without first informing an arrested person of his rights.
During the same term it adopted a "good faith" exception to the exclusionary rule. This
allowed evidence to be used if police conducting the search reasonably relied upon a search
warrant later determined to be technically defective.
A constitutional crises seemed imminent on May 31, 1974, as the Watergate episode neared
its climax. On that date, the Court granted a petition to hear a case whose outcome could lead
to the impeachment of the President, and set July 8 for argument. The very name of the case
spoke history and high drama: United States, Petition v. Richard M. Nixon, President of the
United States.
The House of Representatives was already considering impeachment proceedings against
President Nixon based on his part in a cover-up. Seven former members of his staff had been
indicted on felony charges. They were accused of conspiring to obstruct justice by concealing
White House involvement in the 1972 break-in at Democratic Party offices in Washington’s
Watergate complex. The U.S. District Court ordered President Nixon to produce as evidence
tape recordings and notes on 64 conversations that took place in the White House. The
President refused to comply.
By 10:00 a.m. on July 8 it was evident that the 192 seats in the Court Chamber could not
begin to accommodate the throngs who sought to witness this unique and critical passage in
the life of the Republic. But more than 1,500 people attended at least part of the three hours
of probing, measured, often quietly eloquent debate.
They heard the President’s advocate, James D. St. Clair, pressed by insistent questions from
the Justices, defend the claim of absolute Presidential privilege and immunity from court
orders. Even in a criminal conspiracy? Yes, said the President’s lawyer, "even if it’s
criminal."
They heard the Texas accents of Special Prosecutor Leon Jaworski as he invoked the
constitutional power of the government to obtain evidence of a crime and also the structure
of checks and balances. "Boiled down," he declared, "this case really presents one
fundamental issue: Who is to be the arbiter of what the Constitution says?"
Two weeks later, on a gray and muggy July 24, a tense crowd again filled the Court
Chamber. As the hands of the clock marked 11, the traditional cry of "Oyez!" rang out. With
somber dignity Chief Justice Warren Burger took note of the recent death of former Chief
Justice Earl Warren, "our beloved colleague." Then he went on to read in measured tones his
opinion for a unanimous Court. For 17 minutes the audience strained to capture every word
of the unequivocal finding: The President must surrender the tapes.
"Narrow," some commentators called the decision. It was, in strongly reaffirming the
separation of powers an the constitutional roots of executive privilege, but ruling that here
the President’s privilege must yield to the demands of a fair trial, equally guaranteed by the
Constitution.
"Broad," others called it. It was, in reaffirming what Chief Justice John Marshall had said in
Marbury v. Madison 171 years earlier—that it is "emphatically the province and duty" of this
Court "to say what the law is."
On August 9 President Nixon became the first chief executive in the Nation’s history to
resign. Publication of three conversations of the disputed 64 had brought his Presidency to an
end. At noon that day, Chief Justice Warren Burger administered the oath of office to Gerald
R. Ford, the new President.
Woman’s rights have become such a dominant thread in the fabric of our political, social,
and judicial life that it is hard to realize how recently this pattern was established. Not until
1971 did the Supreme Court first hold a government classification by gender
unconstitutional; in the following years cases involving charges of sex discrimination have
become a more commonplace item on the Court’s docket.
Decision by decision, the Supreme Court struck down laws that arbitrarily favored males
over females. Starting with Reed v. Reed in 1971, the Court said that the choice of
administrator for an estate "may not lawfully be mandated solely on the basis of sex." In
1973, the Court invalidated a federal law that provided broader housing and medical benefits
for males in the military than it did for females. In 1974 an equal-pay-for-equal-work statute
was upheld.
In 1975, the Court was faced with another aspect of discrimination and decreed that
widowers with small children are entitled to Social Security survivors’ benefits equal to those
of widows in similar situations. Finally, in 1976, the Court held that discrimination against
men was just as much a violation of the Constitution as discrimination against women. This
decision involved an Oklahoma statute permitting women to buy beer at the age of 18 but
denying men the same right until they reached the age of 21.
Not all decisions of the Court have satisfied feminists. In 1979 it upheld a Massachusetts law
giving preference to veterans in state employment. Even though more men than women could
take advantage of the provision, there was no intent to discriminate by sex, said the Court;
women veterans were fully included. Justice Thurgood Marshall, joined by Justice William
Brennan, dissented, saying "this degree of preference is not constitutionally permissible."
Then, on June 25, 1981, the Court upheld an all-male military draft registration law. The
president of the National Organization for Women said the decision perpetuated "the myth of
this country that all men are better than all women."
Rapid social change has greatly affected the law in the area of sex discrimination. Again and
again, the Supreme Court has made clear that the Constitution and laws do not permit
discrimination on the basis of sex. In 1982, the Court held that a state university nursing
school, which had historically admitted only women, could not exclude a male applicant
simply on the basis of gender. In 1984, a unanimous Court held that a federal law banning
discrimination based on sex and race was applicable to law-firm hiring and promotion
decisions.
Affirmative action programs designed to redress discrimination based on race, religion, sex,
or national origin have been repeatedly upheld by the Supreme Court, with some
qualifications, since school segregation was outlawed in 1954 and a new Civil Rights Law
was adopted by Congress in 1964.
The thorny issues involved have reached the Court in a stream of varied cases. One of the
first to draw great national attention was that of "reverse discrimination" charged by Allan
Bakke, which reached the high tribunal in 1977. Bakke, white, contested the denial of his
admission to the medical school of the University of California at Davis, which reserved 16
of 100 places annually for minority candidates. Under this quota system, said Bakke, he had
not been admitted, despite the fact that minority candidates with lower scores were accepted.
He argued that this was a clear case of discrimination.
Bakke’s counsel told the Court that his client’s exclusion violated both the equal-protection
clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The latter prohibits
the exclusion of anyone on the basis of race or color from any program receiving financial
assistance from the federal government.
The implications for minorities, for all student admissions policies, and for the future of civil
rights legislation were portentous. News coverage and speculation reached an intensity
unknown since the Nixon tapes case; some people saw the whole process of desegregation
threatened if Bakke’s position were upheld.
On June 28, 1978, the Court spoke—to a crowded room and to an international audience
beyond. That the Justices held strong individual views was clear; there were six separate
opinions. By a vote of five to four, the Court determined that Allan Bakke should be admitted
to the medical school at Davis. The Court also repudiated the school’s quota system as such,
but permitted some consideration of minority status to achieve diversity in graduate and
professional school education. Supporters of more categorical positions on both sides
criticized the holdings; but, in the judgment of a distinguished legal scholar, they
"accomplished the task of defusing tension in a country which had become taut with
anticipation."
A year later, by a five-to-two vote, the Court upheld affirmative action programs established
by private employers and unions to end discrimination. In 1980 the Court narrowly sustained
an act of Congress which set aside ten percent of local public works programs for a defined
category of minority businesses. Toward the goal of equality of economic opportunity, the
opinion said, Congress has the "necessary latitude to try new techniques such as the limited
use of racial and ethnic criteria."
But in two other decisions of 1984 and 1986, The Court ruled that white employees under a
seniority system may not be laid off to protect the jobs of black workers hired under an
affirmative action plan.
Abortion is one of the most emotional and divisive issues in contemporary America. The
controversy reached the Supreme Court as a constitutional question in 1972; and on January
22, 1973, in what has been called a sweeping decision, the Court set limits on state power to
prohibit or to regulate abortion. In deciding Roe v. Wade and Doe v. Bolton, it held
prohibitory statutes in Texas and Georgia invalid, and with them the abortion laws of many
other states.
Based upon its determination of when a fetus becomes viable, the Court ruled that for the
first three months of pregnancy a state must leave the decision on abortion to the woman and
her physician. For the stage beginning with the fourth month, the state may set regulations
reasonably related to maternal health. Finally, for the stage after viability—around the
seventh month—the state may prohibit abortion unless the mother’s health is endangered.
Two dissenters called this decision an "extravagant exercise of raw judicial power." In the
majority opinion, citing rights protected by the Ninth and Fourteenth Amendments, Justice
Harry A. Blackmun acknowledged the Court’s full awareness "of the deep and seemingly
absolute convictions that the subject inspires."
As demonstrators made their views known with marches and banners near the Supreme
Court and on the avenues of the city, the Court reaffirmed its landmark ruling 13 years later
by a five-to-four majority. It struck down a Pennsylvania statute that admittedly was intended
to discourage women from choosing abortions.
In 1973 the Court invalidated state laws prohibiting
Library of Congress
abortion ~
Library of Congress
Illegitimate children are entitled to equal protection under the Constitution, the Court held in
1974, and struck down a section of the Social Security Act that denied benefits to some of
them. From 1900 to 1969, the Court heard only six cases on the status of illegitimate
children; since then it has heard more than twenty.
Most state and federal statutes governing legal relations between men and women and their
offspring have long been based on conventional forms of marriage and divorce. But as the
1980's began, hundreds of thousands of couples were choosing to live together outside of
marriage, sometimes raising families and staying together over long periods of time.
Adopted children, now grown, are challenging state laws that have sealed their birth records,
thus preventing them from learning the identity of their natural parents. Husbands are
demanding alimony from wives, and in 1979 the Supreme Court struck down a state law that
denied support payments from wife to husband.
In 1980 the Court was called upon to decide whether a new form of life, created from a
combination of inanimate components could be patented. Eight years earlier a
microbiologist, Ananda M. Chakrabarty of Schenectady, New York, had developed a
bacterium capable of breaking down several components of crude oil. Naturally occurring
bacteria were able to degrade only one product of genetic engineering, capable of mass
production, and promised among its benefits more efficient and rapid control of destructive
oil spills.
By a five-to-four vote, the Court held that Chakrabarty’s discovery represented a new and
man-made form of life; that it constituted a "manufacture" or "composition of matter" as
defined by the parent laws originally drafted by Thomas Jefferson; and that Chakrabarty’s
rights as an inventor were entitled to protection. Warnings of hazards from genetic research
were brushed aside by the opinion; these considerations, said the Court, should be presented
to Congress.
"The most significant constitutional ruling since United States v. Nixon nine years earlier,"
said a constitutional historian of an otherwise obscure immigration case decided in June
1983. This time the powers of Congress were at issue, going to the heart of the Constitution’s
separation of powers among the executive, legislative, and judicial branches.
The case lacked the drama and popular interest of Watergate but was, said some observers,
far broader in its effect. At stake was the constitutionality of the "Legislative veto," a device
used by Congress since 1932 in some 350 legislative acts. In nearly 200 laws still in effect,
Congress had delegated powers to the executive branch while retaining the authority to veto
the way in which the powers were exercised by departments, agencies, and commissions.
Jagdish Chadha, an Indian born in Kenya and holding a British passport, had been ordered to
leave the United States after obtaining a university degree in Ohio. He appealed to the
Immigration and Naturalization Service and eventually obtained permission to remain as a
hardship case. But the House subcommittee reviewing a list of aliens seeking permanent
residence disagreed and removed his name. Chadha fought back with the help of a law firm
that appealed his case through the courts. Nine years later it reached the supreme tribunal.
The decision of Congress to deport Chadha was a legislative act, Chief Justice Burger held in
his opinion for the Court, and the subcommittee’s "one-house veto" was unlawful. It violated
"the Framers’ decision that the legislative power of the Federal Government be exercised in
accord with a single, finely wrought and exhaustively considered, procedure."
All legislation must be passed by both the House and the Senate and be presented to the
President checks" on each branch and to maintain the separation of powers; "the carefully
defined limits on the power of each Branch must not be eroded," the Court said.
Justice Byron White, who was joined by Justice William H. Rehnquist in dissent, reading his
opinion aloud from the bench to give it added emphasis, described the veto as "a central
means by which Congress secures the accountability of executive and independent agencies."
The legislative veto, he said, is a useful invention for "the modern administrative state,"
enabling Congress to delegate authority while retaining responsibility.
"Not since the New Deal collisions of the 1930s," said one national publication, "had
Congress felt so keenly the power of the Court to curtail its actions," thus altering the
"delicate balance" of power between the legislative and executive branches.
But the Court’s last words on the matter were definitive: "with all the obvious flaws of delay,
untidiness, and potential for abuse, we have not yet found a better way to preserve freedom
than by making the exercise of power subject to the carefully crafted restraints spelled out in
the Constitution."
Life itself is weighed on the scales of justice when a crime is punishable by death. On one
side of the scales are the rights of the accused, protected in the body of the Constitution and
in no fewer than five Amendments. On the other side is society’s need, loudly and frequently
voiced in an era of mounting crime and violence, to deter and punish criminals.
On the constitutionality of capital punishment, the Court has spoken firmly in landmark
cases. In Furman v. Georgia, announced on June 29, 1972, it found that the death penalty as
applied in that case would be "cruel and unusual punishment," forbidden by the Eighth
Amendment. For 631 men and two women waiting on death row in 32 states, the decision
brought hope for new sentences or new trials.
More than half the states moved to rewrite their statutes to conform with the decision. The
rewritten laws also came up for scrutiny; and in 1976 the Court cleared the air and flatly
rejected the claim that the death sentence is in itself always cruel and unusual punishment.
The Court upheld three of the new laws and invalidated two others. It held that the Eighth
Amendment requires the sentencing judge or jury to consider not only the crime but also the
individual character of the offender, as well as any mitigating circumstances in the case.
The Court went a step further in 1977. In a case involving the rape of an adult woman, it
found the death sentence "grossly disproportionate and excessive" and thus unconstitutional.
Two Justices dissented strongly, characterizing rape as among the crimes constitutionally
within the power of legislatures to make punishable by execution.
Since then a divided Court has refused to overturn the death penalty as such in a number of
cases, with Justices Brennan and Marshall consistently dissenting from any imposition of
capital punishment. However, in 1986 the Court held that the Eighth Amendment prevents
states from executing insane convicts.
Partly because of cases pending in the Supreme Court, there were no executions in the United
States from 1968 through 1976. In the eleven years following, under state laws revised to
accord with Supreme Court rulings, more than 90 persons convicted of violent rimes were
put to death.
When Warren Burger stepped down in 1986, he had served longer than any Chief Justice
appointed in the 20th century. President Ronald Reagan, as several of his predecessors had
done, turned to the Court itself for the new Chief Justice: He named William H. Rehnquist,
an Associate Justice since 1972.
In 1976 the Court
determined that the death
penalty does not always
constitute "cruel and
unusual punishment" ~
Library of Congress
Legal questions often display remarkable resistance to permanent resolution, and new facts
constantly invite reexamination of old law. So it is not surprising that the Rehnquist Court
has encountered many of the same issues faced by its predecessors. If often occupied more
with refining the law than with establishing broad new principles, the current Court continues
to decide issues relating to, for example, the death penalty, abortion, school desegregation,
freedom of religion, and civil rights. Yet fundamental changes in American society have
frequently required the Rehnquist Court to venture into relatively uncharted legal terrain as
well. For instance, the Court is regularly called upon to decide whether, and to what extent,
the nation’s civil rights laws protect not just groups defined by race, ethnicity, or religion, but
by gender, sexual orientation and physical ability as well. At the same time, new and rapidly
evolving technologies have forced the Court to consider when medical care must give way to
a patient’s right to die, whether speech on the internet should be as “free” as it is in more
traditional media, and when law enforcement’s use of new investigative technologies
becomes an “unreasonable” invasion of constitutional rights.
Considering more familiar legal terrain first, the Rehnquist Court has issued a number of
important First Amendment decisions involving both speech and religion. For instance, in the
1989 flag-burning case, Texas v. Johnson, the Court confirmed that the First Amendment
protects even the most unpopular forms of speech, including speech viscerally distasteful to
many of the Justices themselves. Arguably, however, the Rehnquist Court’s most important
free-speech cases have involved commercial rather than political or other non-commercial
speech. Although long considered of little social value, the Court’s recent decisions reflect a
growing respect for the importance of commercial speech. As a result, the Court now
evaluates restrictions on commercial speech by increasingly exacting standards. Accordingly,
the Court has struck down a city ordinance used to ban the placement of certain newsracks on
public property where there were less burdensome alternatives for achieving the city’s
aesthetic and safety goals, and where the city discriminated between newsracks distributing
advertising circulars on the one hand, and regular newspapers on the other. In another case,
the Court rejected a state law prohibiting liquor sellers from advertising the price of alcoholic
beverages as an unconstitutional restriction on truthful, nonmisleading advertising.
Separately, the Court struck down a federal law prohibiting brewers from displaying alcohol
content on beer labels.
Other First Amendment cases have illustrated the potential tension between its protection of
free speech on the one hand, and freedom of religion on the other. In one case, for instance,
fear of unconstitutionally endorsing religion caused the University of Virginia to deny
funding to student-run religious publications on equal terms with other student publications.
When the students sued, the Court held that the University had violated their right to free
speech.
At the same time, the Court itself has faced the difficult task of maintaining the often elusive
balance between government not endorsing religion on the one hand, but not penalizing it on
the other. Thus, the Court has held that a State may not create a school district for the
particular benefit of a specific religious sect’s disabled children. Neither may a state deny
certain generally available public benefits to students merely because they attend a private,
religious school rather than a public or other secular school. Ultimately, however, the
Rehnquist Court’s religious-freedom jurisprudence might best be viewed as an ongoing effort
to establish usable criteria for determining when government action crosses the constitutional
line in one direction or the other. For example, in County of Allegheny v. ACLU (1989) a
fractured Court held that a crèche standing alone inside a county courthouse impermissibly
endorses religion, but a menorah displayed next to a Christmas tree on the lawn outside does
not.
A similar effort is discernable in the Court’s recent attempts to define when government
regulations that affect the use of private property become a constitutional “taking” of that
property. As with so many issues, the primary difficulty in establishing fixed and usable
criteria lies in the need to establish the appropriate balance between important but competing
interests — here the property owner’s interest in unrestricted use of private property, and the
government’s interest in controlling how such use affects the greater, common good.
In 1987, the Court made it clear that property owners are entitled to compensation even if a
regulation “takes” their property only temporarily. But subsequent decisions have yet to
clarify exactly when a “regulatory taking” occurs, although some guiding principles have
emerged. Thus, a compensible taking occurs when regulations impose burdens on private
property that are unrelated to the public interest those regulations are intended to serve. For
instance, conditioning a building permit for beachfront property on an easement allowing
people already on the beach to cross from one side of the property to the other would not
substantially further the State’s claimed interest in providing adequate public access to reach
the beach in the first place. Moreover, the burdens of regulatory restrictions on private
property must be not only related to, but also reasonably proportionate to, the public interests
they are purported to serve. Finally, regardless of relationship and proportion, a regulatory
burden is a taking if it deprives owners of all economically beneficial use of their property
(unless the regulation merely prohibits activities traditionally considered to be a public
nuisance or noxious use). That will not occur, however, if part of the property can be
developed despite the regulation, even if the remainder cannot.
In 1996 the Court ruled that the Virginia Military Institute
must open its doors to women ~
Courtesy of Virginia Military Institute
On First Amendment grounds
the Court overturned the
conviction of Gregory Johnson
(above) for flag burning in
1989 ~
Bill Pearce
More definite rules have emerged from recent decisions regarding the Constitution’s equalprotection guarantees. It has long been clear, of course, that any government law or action
that discriminates against certain classes of people (e.g., racial minorities) is subject to the
strictest judicial scrutiny. In judicial shorthand, such discrimination is valid only if it is very
narrowly tailored to fulfill a compelling government interest. But a series of decisions by the
Rehnquist Court are important for applying the same exacting standards to the flip side of the
discrimination coin. Thus, the Court has frequently invalidated even so-called affirmative
discrimination — laws and other actions intended to benefit the victims of past
discrimination — where the government has not been able to show both narrow tailoring and
a compelling interest. In 1989, for example, the Court struck down a Richmond ordinance
that set aside a fixed percentage of all city-contract work for minority businesses, because the
city had not shown that the set-aside remedied specifically identifiable effects of past
discrimination on a specifically identifiable class of minorities. The Court has applied the
same rule at the federal level: in Adarand Constructors, Inc. v. Pena (1995) it rejected the
presumption in a federal contracting program that all minority-owned businesses are socially
and/or economically disadvantaged as a result of past discrimination. A series of important
voting-rights decisions have similarly rejected attempts to remedy past discrimination by
drawing the boundaries of congressional districts in an unnatural way to ensure that members
of racial minorities will be elected to Congress.
In addition to policing the relationship between government and the people, the Rehnquist
Court has issued a number of important decisions helping to define, and perhaps even
redefine, the relationship between the federal government and the States. The Court's
decisions in this important area of national life essentially break down into two important
categories. One line of decisions has substantially narrowed Congress’ authority to legislate
in the name of regulating interstate commerce. From the late 1930s until relatively recently,
the Court’s formerly narrow view of Congressional authority under Article 1, Section 8’s
Commerce Clause expanded until that authority appeared virtually unlimited. Particularly
since 1995, however, more recent decisions have marked a sharp reversal in that trend.
Accordingly, it is not enough that the activity being regulated somehow affects interstate
commerce, no matter how minor the effect or how remote the connection. At a minimum, the
object or activity being regulated must have a “substantial” and demonstrable effect on
interstate commerce, and there is some indication that even the activity itself may have to be
fundamentally “economic” in nature.
For example, the fact that violence against women may substantially deter women from
engaging in activities affecting interstate commerce was not enough to save a 1994 law
making all violent acts against women federal crimes. Despite its good intentions, the Court
concluded, the law impermissibly invaded an area of regulation constitutionally left to the
States. An earlier law banning the possession of firearms in or around schools, where it had
not been shown that such possession had any meaningful effect on interstate commerce, met
a similar fate. Importantly, other cases make clear that even when Congress’ power to
regulate is unquestioned, it has no power to compel unwilling state agencies and officials to
enforce federal regulatory regimes. For example, while Congress may have the power to
enact federal laws regulating the sale of handguns, it cannot compel State law-enforcement
personnel to implement or administer the programs necessary to do so.
Another line of recent decisions has begun to establish important limits on the power of
Congress to abrogate the State’s sovereign immunity under the Eleventh Amendment. In
most instances, private citizens have no right to sue a State for money damages unless the
State consents to be sued. Although Section 5 of the Fourteenth Amendment gives Congress
the power to pass laws subjecting the States to private suits, it may only do so as a means of
enforcing rights guaranteed by the Fourteenth Amendment itself. Thus, while Congress
might make a State monetarily liable to a person against whom it has discriminated on the
basis of race in violation of the Fourteenth Amendment, it has no similar power where a State
discriminates on the basis of age without triggering the Fourteenth Amendment’s
prohibitions. Moreover, the power to regulate activity within a State does not automatically
carry the power to abrogate the State’s immunity from private suit. For example, while the
Commerce Clause may give Congress the power to regulate Indian gaming within the States,
that does not mean that Congress can authorize Indian tribes to sue a State that fails to
negotiate a gaming permit in good faith.
If such decisions revolve around facts and circumstances similar to those that have faced the
Court since the founding of the Republic, other cases decided by the Rehnquist Court have
been prompted by technological innovations that its predecessors may never have imagined.
In the 1990 case Cruzan v. Director, Missouri Department of Health, for instance, the
continuing march of medical progress forced the Court to establish a difficult balance
between a patient’s right to die and State's interest in protecting human life. Often discussed
in terms of its economic implications, the internet’s social ramifications became of topic of
Supreme Court consideration in Reno v. ACLU (1997) when it rejected Congress’ first
attempt to regulate speech in cyberspace. And in 2001, the Court had to decide whether
police use of a thermal imager positioned outside a private home, to detect heat lamps being
used to grow marijuana inside, violated the homeowner’s reasonable expectation of privacy.
The Court held that it did in Kyllo v. United States.
Political developments, too, have required the Court to decide some particularly novel legal
issues in recent years. In Clinton v. Jones (1997), for example, the Court had to determine
whether, and to what extent, a sitting President is immune from private lawsuits seeking
damages arising out of unofficial acts that occurred before he took office. Three years later,
in Bush v. Gore, the Court played a pivotal — and unprecedented — role in determining the
outcome of the 2000 presidential election. The ultimate significance of these decisions, both
to the Court and to the country, remains to be seen.
In 1990, the Court held that Oregon could
deny unemployment compensation to two
Native Americans who were dismissed from
their jobs for smoking peyote as part of
tribal religious rituals under the state’s
narcotics laws ~
Library of Congress
"My gift of John Marshall to the people of the United States was the proudest act of my life"
John Adams ~ President
Marshall skillfully asserted the Court’s mightiest power and dignity in its first great crisis. In
Congress, the lame-duck Federalists had passed a law to reduce the Court’s membership to
five (one less Justice for a Republican President to name). Abolishing circuit duties for the
Justices and providing other reforms, this law set up new circuit courts with 16 judges.
Before leaving office, Adams had quickly named his judicial appointees - the famous
"midnight judges." Enraged, one Republican from Kentucky called Adams’s tactics "the last
effort of the most wicked, insidious and turbulent faction that ever disgraced our political
annals."
Jefferson took the oath of office on March 4, 1801. Without precedents and with passions
running high, the Presidency and the Congress passed for the first time from one party to
another. And some citizens were afraid that the judiciary was in mortal danger.
Soon after his Inauguration, Jefferson wrote that the Federalists had "retreated into the
judiciary as a stronghold, the tenure of which renders it difficult to dislodge them."
But the Republicans repealed the lame-duck Judiciary Act, while horrified Federalists
lamented, "the Constitution has received a wound it cannot long survive," and "the angels of
destruction - are making haste."
Meanwhile William Marbury of Washington went straight to the Supreme Court, looking for
a commission as justice of the peace for the District of Columbia. Adams had appointed 42
such officials, the Senate frantically confirmed them, and Adams sat at his desk until late on
his last night in office to sign their commissions. Then a messenger rushed the papers to the
State Department for Marshall, still acting as Secretary, to affix the great seal of the United
States. In the confusion some of the commissions went undelivered, Marbury’s among them.
William Marbury ~
The Maryland Historical Society
The Justices are seated on the dais on the far side of the
chamber in this evening session of the House of
Representatives, c. 1822 ~
The Corcoran Gallery of Art
In December 1801, Marbury applied to the Court for a writ of mandamus ordering James
Madison, the new Secretary of State, to give him his commission. The Court agreed to hear
the case - a bold action, for rumor was saying the Justices "must fall" by impeachment. Then
the Republican Congress repealed the Judiciary Act of 1801, which mandated sessions in
December and June, and eliminated the August Term of the Court. As a result, the Justices
did not sit from April 1802 to February 1803, when they heard argument in Marbury’s case.
If the Court ordered Madison to produce that commission, he could simply ignore the order;
President Jefferson would defend him. If the Court denied Marbury’s right to his
commission, Jefferson could claim a party victory. Either way the Court’s prestige - and
perhaps its members - must fall.
Marshall found an escape from his dilemma. He announced the decision on February 24, and
proclaimed the most distinctive power of the Supreme Court, the power to declare an Act of
Congress unconstitutional. Point by point he analyzed the case. Did Marbury have a legal
right to his commission? Yes. Would a writ of mandamus enforce his right? Yes. Could the
Court issue the writ? No.
Congress had said it could, in the Judiciary Act of 1789. It had given the Court an original
jurisdiction in such cases - power to try them for the first time. But, said Marshall
triumphantly, the Constitution defined the Court’s original jurisdiction and Congress could
not change it by law. Therefore that section of the law was void. Marshall declared for all
time the supremacy of the Constitution over any conflicting law. Other judges had said as
much, but Marshall added: "It is, emphatically, the province and duty of the judicial
department, to say what the law is."
In renouncing a minor jurisdiction he asserted a great one, perhaps the greatest in the long
annals of the law. The Supreme Court’s power as interpreter of the Constitution rests on this
precedent to this day.
A few days after the decision in Marbury v. Madison, the Court again amazed the
Jeffersonians. They had passed a Judiciary Act in Congress, restoring the Court’s old
membership and circuit duties. The Justices ruled that it was constitutional and for a while
talk of impeachment died down.
"Oyez! Oyez! Oyez! . . . the grand inquest of the nation is exhibiting to the Senate . . . articles
of impeachment against Samuel Chase, Associate Justice. . . ." The Supreme Court was on
trial; if Chase fell, Marshall might be next.
Feared as a "ringleader of mobs, a foul mouthed and inflaming son of discord" when he led
the Sons of Liberty in 1765, Chase was "forever getting into some . . . unnecessary squabble"
as a Judge 40 years later. He campaigned openly for Adams. On circuit he tried Republicans
without mercy. In 1803 he told a Baltimore grand jury that "modern doctrines" of "equal
liberty and equal rights" were sinking the Constitution "into a mobocracy, the worst of all
popular governments."
His enemies saw their chance. The House of Representatives voted to bring him before the
Senate for trial, charging that his partisan behavior--in and out of court--amounted to "High
Crimes and Misdemeanors" under the Constitution.
Vice President Aaron Burr had arranged a special gallery for ladies when the "grand inquest"
opened on February 4, 1805. Burr had killed Alexander Hamilton in a duel and New Jersey
wanted him for murder, but he presided sternly, rebuking Senators who were eating cake and
apples. "We are indeed fallen on evil times," said one. "The high office of President is filled
by an infidel; that of Vice-President by a murderer."
Representative John Randolph of Roanoke, the brilliant, erratic Virginian, fought to prove
Chase unfit for the Court. Luther Martin of Maryland, who could hold more law and more
brandy than any other attorney of his time, led Chase’s defense. Marshall and 51 other
witnesses testified.
Amid "a vast concourse of people . . . and great solemnity," the Senators acquitted Chase on
March 1. Jefferson called impeachment of Justices "a farce which will not be tried again,"
and he was right.
For all his differences with the Republicans, John Marshall was no son of discord. Born in a
log cabin near Germantown, Virginia, in 1755, he grew up near the frontier, with some
tutoring for an education. He fought as an officer in the Revolution, almost freezing at Valley
Forge.
After the war he practiced law, and became the leading Federalist of his state. As a young
attorney and an aging Chief Justice, he was sloppily dressed and wonderfully informal out of
court, fond of spending hours with friends in taverns, law offices, and drawing rooms. Even
in his sixties, Marshall was still one of the best quoits players in Virginia.
When the Court met in Washington, the Justices stayed in a boardinghouse - the trip was too
long, the session too short for their wives to accompany them - and Marshall’s geniality
brightened their off-duty hours.
Justice Joseph Story handed down a tale still told at the Court. On rainy days the Judges
would enliven their conferences with wine; on other days Marshall might say, "Brother
Story, step to the window and see if it doesn’t look like rain." If the sun was shining,
Marshall would order wine anyway, since "our jurisdiction is so vast that it might be raining
somewhere."
Congress expanded that domain in 1807, creating a new circuit for Kentucky, Tennessee, and
Ohio, and adding a seat to the Court. Jefferson appointed Thomas Todd, who had helped
create the State of Kentucky out of his native Virginia.
Life in Washington went on peacefully for months during the War of 1812. "Mrs. Madison
and a train of ladies" visited the Supreme Court one day in early 1814, just as William
Pinkney of Maryland, one of the country’s most celebrated lawyers, was ending an argument;
"he recommenced, went over the same ground, using fewer arguments, but scattering more
flowers."
Rudely interrupting such diversions, the British arrived in August and burned the Capitol.
Congress found shelter in the makeshift "Brick Capitol" where the Supreme Court building
stands today.
The Court, forced to shift for itself, met for a while in a house on Pennsylvania Avenue. Then
it got temporary space in the Capitol. In 1819 it returned to its own semicircular room below
the Senate Chamber.
"A stranger might traverse the dark avenues of the Capitol for a week," reported a visitor
from New York, "without finding the remote corner in which Justice is administered to the
American Republic. . . ."
Strangers traversing the Republic had other troubles. "I passed away my 20-dollar note of the
rotten bank of Harmony, Pennsylvania, for five dollars only," a disgusted traveler
complained at Vincennes, Indiana. State-chartered banks, private banks, towns, sawmills,
counterfeiters - all issued notes freely. "Engravings," a Scotsman called them; no law
required anyone to accept them at face value at legal tender. Everyone suffered from this
chaos.
Congress had chartered the second Bank of the United States in 1816 to establish a sound
national currency, to issue notes it would redeem in gold or silver. By law, the government
owned a fifth of the Bank’s stock and named a fifth of its directors; private investors had the
rest. Unscrupulous characters got control of the Bank and mismanaged its affairs.
In the South and West, where "engravings" flourished, the Bank’s branches made bad loans
until the home office at Philadelphia issued new orders in August 1818; Call in those loans,
don’t accept any payments but gold and silver or our own notes. Panic spread. Local banks
demanded payment on their own loans, and refused to extend credit; people scrambled for
money they couldn’t find; land went for a song at sheriffs’ auctions; shops closed; men who
lost their last five dollars said bitterly, "the Bank’s saved and the people are ruined."
State legislators decided to drive the Bank’s branches out of their domain. Maryland passed a
tax law giving the Baltimore branch its choice: pay up handsomely or give up and leave. The
branch ignored it. Maryland sued the cashier, James McCulloch, and won in its own courts.
McCulloch took his case - that is, the Bank’s - to the Supreme Court where argument began
on February 22, 1819.
Splendid in his blue coat with big brass buttons, Daniel Webster spoke for the Bank Congress has power to charter it; Maryland has no power to tax it, for the power to tax
involves a power to destroy; and never under the Constitution, may the states tax the Union
into destruction.
Luther Martin, Maryland’s Attorney General, argued for his state. Where does the
Constitution say Congress has power to create a national bank? He asked. Nowhere! He
thundered. It lists specific powers, and making banks is not one of them. Mr. Webster says it
implies such a power. Nonsense!
For the Court, Marshall defined the controversy: "a sovereign state denies the obligation, of a
law . . . of the Union." An "awful" question, but "it must be decided peacefully." Because the
Union is "emphatically, and truly, a government of the people," it must prevail over the
states. To specific powers of Congress, the Constitution adds powers to make all laws
"necessary and proper" for carrying them into effect.
Marshall invoked "letter and spirit" to give that clause its meaning: "Let the end be
legitimate, let it be within the scope of the Constitution," and Congress may use "all means
which are appropriate . . . which are not prohibited." So the Bank was constitutional; no state
might tax it. Maryland’s law was "unconstitutional and void."
A disheveled Chief Justice Marshall
(in torn breeches, at left) was elegant
in speech as he chatted in taverns
while riding circuit ~
The Supreme Court affirmed the legitimacy of the
Bank of the United States (depicted here as a
large woman vomiting coins to state banks) when
Maryland mounted a challenge in 1819 ~
Library of Congress
Library of Congress
The Court’s ruling settled the conflict of law but not the political fight over the Bank’s power
and states’ rights. Virginia’s legislature made a "most solemn protest" against the decision in
McCulloch v. Maryland; Ohio officials took money by force from one Bank branch. Not until
President Andrew Jackson vetoed the Bank’s recharter did that controversy die down.
States’ rights against the powers of the Union - the issue became more explosive than ever
when the country faced its first great quarrel over slavery, in 1819. Southerners in Congress
threatened secession and civil war; a Georgian foresaw "our houses wrapt in flames." When
the House was discussing a bill to make Missouri Territory a state, a New York
Representative had suggested that Congress forbid slavery there. Southerners warned, "the
Union will be dissolved." The reply flashed, "let it be so!"
For months the furious debate went on. Then, in February 1820, Senator Jesse B. Thomas of
Illinois offered a compromise: Maine to be a free state; Missouri a slave state, and the rest of
the Louisiana Purchase north of 36' 30' free soil forever. Henry Clay supported the plan;
early in March, President James Monroe signed the laws to carry it out. Apparently the crisis
was over.
But trouble flared again as Congress debated Missouri’s proposed constitution and states’
rights in general, and what had been a trivial criminal case quickly became a rallying point
for states’ rights advocates and proponents of secession. In Norfolk, Virginia, P. J. and M. J.
Cohen were charged with violating a state law by selling six tickets in a lottery established by
Congress to pay for improvements in the District of Columbia. The law forbade all lotteries
except the state’s own. A Norfolk court convicted the Cohens; they turned to the Supreme
Court, pointing out that their lottery tickets were authorized by federal law.
Virginia rose in wrath. Her General Assembly declared that the Court had no jurisdiction.
Her lawyers fought the Cohens’ request for a hearing. They warned the Supreme Court
against "exciting the hostility of the state governments," which would decide how long the
Union should endure.
Then, in March 1821, a second compromise was reached, bringing Missouri into the Union
five months later as a slave state, but with guarantees designed to protect the rights of free
Negroes and mulattoes. The issues of slavery and secession subsided, eventually to be
resolved in blood.
Undeterred by the impassioned controversy, Marshall gave an uncompromising ruling on
Cohens v. Virginia. The Court would hear the case; it existed to resolve such "clashings" of
state and Union power, to keep the national government from becoming "a mere shadow."
Insisting on the power of his Court, the Chief Justice boldly met the threat of secession and
the claims of state sovereignty; he upheld the Union as the supreme government of the whole
American people.
Then the Court heard argument on the merits of the case, and affirmed the sentence of the
Norfolk court. The Cohens lost $100 - their fine - and costs.
Southerners fumed at Marshall’s stand in the Cohens’ case. But in 1824, for once, a Marshall
ruling met popular acclaim. Huzzas from the wharves greeted the steamboat United States as
she chuffed triumphantly into New York harbor, her crew firing a salute, her passengers
"exulting in the decision of the United States Supreme Court" That case was Gibbons v.
Ogden.
Robert Fulton successfully demonstrated a steam-powered vessel on the Seine at Paris in
1803. With his partner, Robert R. Livingston, he held an exclusive right from New York’s
legislature to run steamboats on state waters, including New York harbor and the Hudson
River. In 1807 steamer splashed up the Hudson to Albany; soon money flowed into their
pockets. Anyone else who wanted to run steamboats on those waters had to pay them for the
privilege; some Albany men attacked the monopoly in state courts, and lost.
In 1811 the territorial legislature in New Orleans gave the partners a monopoly on the
Mississippi. Now they controlled the two greatest ports in the country.
New Jersey passed a law allowing its citizens to seize steamboats owned by New Yorkers;
other states enacted monopolies and countermeasures until the innocent side-wheeler was
turning into a battleship.
Meanwhile three men of property went into business; then into rages, then into court. Robert
Livingston’s brother John bought rights in New York bay; then he sublet his waters to former
Governor Aaron Ogden of New Jersey, a quarrelsome lawyer. Ogden took a partner, Thomas
Gibbons, equally stubborn and hot tempered.
Under an old Act of Congress, Gibbons had licensed two steamboats for the national coasting
trade, and now he invoked this federal law to get a suit against Ogden before the Supreme
Court.
The once obscure Supreme Court was now a focus of public interest. Ladies crowded
lawyers to hear the case. Daniel Webster spoke for Gibbons on February 4, 1824; Ogden’s
attorneys quoted established law and precedents for two days. But Marshall avoided shoals of
precedents and veering winds of state laws to set his course by the Constitution - the clause
giving Congress power to regulate commerce among the states. For the first time the Court
defined these words; in them Marshall found vast new currents of national strength.
More than buying and selling, he proclaimed, commerce is intercourse among nations and
states; it includes navigation. For all this rich activity Congress may make rules; if it rules
collide with state restrictions the latter must sink. New York’s law went down before an Act
of Congress.
State monopolies could not scuttle ships "propelled by the agency of fire." Steamboats would
be as free as vessels "wafted on their voyage by the winds."
With monopolies swept away, steamboat trade spread fast and freely. Soon, by that
precedent, steam cars on rails spread across state lines, across the continent.
Marshall watched, as changes came and went. "We must never forget," he said, "that it is a
constitution we are expounding . . . a constitution, intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs." His actions made his
words unforgettable.
When Marshall gave the Presidential oath to his cousin Thomas Jefferson in 1801, the
Supreme Court was a fortress under attack. It had become a shrine when he gave the oath to
Andrew Jackson in 1829.
New crises arose during Jackson’s Administration. Marshall carried on his work, concerned
for the country’s future but not for his failing health. Jay had resigned after five years,
Ellsworth after four; Marshall served from 1801 until his death in 1835. When he took the
judicial oath the public hardly noticed, when he died the Nation mourned him. "There was
something irresistibly winning about him," said the Richmond Enquirer. And Niles’ Register,
which had long denounced his decisions, said, "Next to Washington, only, did he possess the
reverence and homage of the heart of the American people."
Cohens v. Virginia: Chief
Justice Marshall
strengthened the power of
the Union when he ruled in
1821 that Virginia's law
forbidding all lotteries but
its own - including a
national one established
by Congress - was
unconstitutional ~
Library of Congress
Gitlow v. New York
7-2 vote, June 8, 1925
Benjamin Gitlow had been a prominent member of the Socialist party
during the 1920s. He was arrested and convicted for violating the New
York Criminal Anarchy Law of 1902, which made it a crime to attempt
to foster the violent overthrow of government. Gitlow's publication and
circulation of sixteen thousand copies of the Left-Wing Manifesto
violated this Criminal Anarchy Act. The pamphlet went on to advocate
the creation of a socialist system through the use of massive strikes
and "class action...in any form." Gitlow was tried and convicted. He
appealed the decision, arguing that his First Amendment right to
freedoms of speech and press was violated. Although the New York
courts held that the Communists must be held accountable for the
results of their propaganda, the Supreme Court ruled in favor of
Gitlow. It stated in its decision that "for present purposes, we may
assume that freedom of speech and of press...are among the
fundamental personal rights and liberties protected by the due process
clause of the Fourteenth Amendment from impairment by the State."
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.
Case Notes
Brown v. Board of Education of Topeka, 1954
Brown v. Board of Education of Topeka, 1954 5. The Court ruled that in the field of
public education the doctrine of separate but equal has no place.
*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.
Decisions
Decision: 7 votes for Buckley, 1 vote(s) against
Legal provision: Article 2, Section 2, Paragraph 2: Appointments Clause
Sort by Ideology
Burger
Brennan
Stewart
White
Marshall
Blackmun
Powell
Rehnquist
Per Curiam with Argument
Dred Scott v. Sanford, 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.
Dred Scott v. Sandford, 1857 3. This decision upheld property rights over human
rights.
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.
Decisions
Decision: 6 votes for Engel, 1 vote(s) against
Legal provision: Establishment of Religion
Sort by Ideology
Stevens
Warren
Black
Frankfurter
Douglas
Clark
Harlan
Brennan
Escobedo v. Illinois, 1964
Facts of the Case:
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.
Decisions
Decision: 5 votes for Escobedo, 4 vote(s) against
Legal provision: Right to Counsel
Sort by Ideology
Warren
Black
Douglas
Full Opinion by Justice Arthur J. Goldberg
Gibbons v. Ogden, 1824
Facts of the Case:
Clark
Harlan
Brennan
Stewart
White
Goldberg
S
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.
Gideon v. Wainwright, 1963
Facts of the Case:
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.
Question:
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."
Decisions
Decision: 9 votes for Gideon, 0 vote(s) against
Legal provision: Right to Counsel
Sort by Ideology
Warren
Black
Douglas
Clark
Harlan
Brennan
Stewart
White
Goldberg
Full Opinion by Justice Hugo L. Black
Griswold v. Connecticut, 1965
Facts of the Case:
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 counselling, 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.
Decisions
Decision: 7 votes for Griswold, 2 vote(s) against
Legal provision: Due Process
Sort by Ideology
Warren
Black
Douglas
Full Opinion by Justice William O. Douglas
Clark
Harlan
Brennan
Stewart
White
Goldberg
Mapp v. Ohip, 1961
Facts of the Case:
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.
Decisions
Decision: 6 votes for Ohio, 3 vote(s) against
Legal provision: Amendment 4: Fourth Amendment
Sort by Ideology
Warren
Black
Frankfurter
Douglas
Clark
Harlan
Brennan
Whittaker
Full Opinion by Justice Tom C. Clark
Marbury v. Madison, 1803
Facts of the Case:
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?)
Stewart
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.
Decisions
Decision: 6 votes for Ohio, 3 vote(s) against
Legal provision: Amendment 4: Fourth Amendment
Sort by Ideology
Warren
Black
Frankfurter
Douglas
Clark
Harlan
Brennan
Whittaker
Full Opinion by Justice Tom C. Clark
McCullough v. Maryland, 1819
Facts of the Case:
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."
Miranda v. Arizona, 1966
Facts of the Case:
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
Stewart
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.
Decisions
Decision: 5 votes for Miranda, 4 vote(s) against
Legal provision: Self-Incrimination
Sort by Ideology
Warren
Black
Douglas
Clark
Harlan
Brennan
Stewart
White
Full Opinion by Justice Earl Warren
Olmstead v. United States, 1928
Facts of the Case:
Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in
the basement of Olmstead's building (where he maintained an office) and in the streets near his home.
Olmstead was convicted with evidence obtained from the wiretaps. This case was decided along with Green
v. United States, in which Green and several other defendants were similarly convicted, based on illegally
obtained wire-tapped conversations, for conspiracy to violate the National Prohibition Act by importing,
possessing, and selling illegal liquors. This case was also decided with McInnis v. United States.
Question:
Did the use of evidence disclosed in wiretapped private telephone conversations, violate the recorded
party's Fourth and Fifth Amendments?
Conclusion:
No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded parties were violated.
The use of wiretapped conversations as incriminating evidence did not violate their Fifth Amendment
Fortas
protection against self incrimination because they was not forcibly or illegally made to conduct those
conversations. Instead, the conversations were voluntarily made between the parties and their associates.
Moreover, the parties' Fourth Amendment rights were not infringed because mere wiretapping does not
constitute a search and seizure under the meaning of the Fourth Amendment. These terms refer to an actual
physical examination of one's person, papers, tangible material effects, or home - not their conversations.
Finally, the Court added that while wiretapping may be unethical no court may exclude evidence solely for
moral reasons. When criticized for his opinion, Justice Taft mocked his foes as he wrote to a friend: "If they
think we are going to be frightened in our effort to stand by the law and give the public a chance to punish
criminals, they are mistaken, even though we are condemned for lack of high ideals." This case was
reversed by Katz v. U.S. (1967).
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 seven-eighths 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 separatebut-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.
Regents of the University of California v. Bakke, 1978
Facts of the Case:
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?
Conclusion:
No and yes. There was no single majority opinion. Four of the justices contended that any racial quota
system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed,
casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell
argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of
the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in
admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well,
contending that the use of race was permissible as one of several admission criteria. So, the Court managed
to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial
minorities through affirmative action.
Decisions
Decision: 5 votes for Bakke, 4 vote(s) against
Legal provision: Equal Protection
Sort by Ideology
Brennan
Stewart
Burger
Marshall
Blackmun
Powell
Rehnquist
Stevens
White
Judgment of the Court by Justice Lewis F. Powell, Jr.
Split Vote
Sort by Ideology
Burger
Brennan
Stewart
White
Marshall
Blackmun
Powell
Rehnquist
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?
Stevens
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.
Decisions
Decision: 7 votes for Roe, 2 vote(s) against
Legal provision: Due Process
Sort by Ideology
Burger
Douglas
Brennan
Stewart
White
Marshall
Blackmun
Powell
Full Opinion by Justice Harry A. Blackmun
Schenk 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.
*Swann v. Charlotte Mecklenburg Schools, 1972
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.
Rehnquist
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) non-contiguous 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.
Decisions
Decision: 9 votes for Charlotte-Mecklenburg Bd. of Ed., 0 vote(s) against
Legal provision:
Sort by Ideology
Burger
Black
Douglas
Harlan
Brennan
Stewart
White
Marshall
Full Opinion by Justice Warren E. Burger
United States v. Nixon, 1974
Facts of the Case:
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.
Blackmun
Weeks v. United States, 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."
U.S. 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.
Decisions
Decision: 5 votes for Lopez, 4 vote(s) against
Legal provision: 18 U.S.C. 922
Sort by Ideology
Rehnquist
Stevens
O'Connor
Scalia
Kennedy
Souter
Thomas
Ginsburg
Breyer
Full Opinion by Justice William H. Rehnquist
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.
Decisions
Decision: 5 votes for Printz, 4 vote(s) against
Legal provision: 18 U.S.C. 922
Sort by Ideology
Rehnquist
Stevens
O'Connor
Full Opinion by Justice Antonin Scalia
Scalia
Kennedy
Souter
Thomas
Ginsburg
Breyer
Clinton v. New York , 1998
Facts of the Case:
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.
Decisions
Decision: 6 votes for City of New York, 3 vote(s) against
Legal provision: Article 1, Section 7, Paragraph 2: Separation of Powers
Sort by Ideology
Rehnquist
Stevens
O'Connor
Full Opinion by Justice John Paul Stevens
Scalia
Kennedy
Souter
Thomas
Ginsburg
Breyer
Judiciary Quiz
1. The Court strengthened the power of the United States to regulate any interstate
business relationship. Federal regulation of television, pipelines, and banking are all
based on this case.
2. The Court ruled that requiring school prayer was unconstitutional.
3. This decision upheld property rights over human rights.
4. The Court extended the exclusionary rule to illegal confessions. Suspects are
guaranteed counsel upon request while under interrogation.
5. The Court ruled that in the field of public education the doctrine of separate but equal
has no place.
6. All poor persons facing felony charges are guaranteed counsel.
7. The Court ruled in favor of the protection of citizens in courts against unreasonable
searches.
8. Suspects must be warned of prior to any questioning the he/she has the right to remain
silent, that anything he/she says can be used against him in a court of law.
9. The Court held that segregation was permitted if facilities were equal.
10. This ruling declared the Court's power to find act of Congress unconstitutional
(judicial review).
11. This case involved wiretapping a suspect's communications and contains the first
usage of the concept of "reasonable expectation of privacy" that would mark later 4th
Amendment decisions. It was later reversed by subsequent decisions.
12. The Court ruled narrowly the discrimination questions be taken on a case by case
basis.
13. The case involved the counseling of married persons on birth control. The Court
ruled that "various guarantees create zones of privacy" in favor of the Director of Planned
Parenthood.
14. This case involved a state's right to tax a national bank. The Court ruled in favor of
the federal government claiming the states could not tax the federal government.
15. Evidence gained by illegal or unreasonable means cannot be used at the court trial of
the person from whom it was seized.
16. The government will not deprive any person of life, liberty, or property by any unfair,
arbitrary, or unreasonable action.
17. The Court upheld a woman's right to choose in cases of terminating pregnancies.
The right to privacy was critical to the decision.
18. This case in significant because for the first time the exclusionary rule for illegally
gained evidence was applied. It involved a postal inspector's attempt to prosecute an
individual based on seized letters and private documents.
19. The Court limited free speech in time of war because it presented a "clear and
present danger." The case created a precedent that 1st Amendment guarantees were not
absolute.
20. The Court ruled that carrying a gun within one thousand feet of a school could not be
consider a federal crime.
21. A president was ordered to surrender evidence, limiting executive privilege.
22. The Court refused to allow Congress to require local law enforcement officers to do
background checks on those attempting to by guns.
23. Power of the government to take private property for a public use.
24. Power shared by federal and state courts to hear certain cases.
25. Order issued by a higher court directing a lower court to send up the record of a case
for its review.
Concepts
www.landmarkcases.org
Federalism
The Federalist Papers
Separation of Powers & Checks and Balances
Equal Protection of the Laws
National Supremacy
Judicial Review
Due Process (generally)
Due Process and Police Interrogations
Commerce Clause
Necessary and Proper Clause
Cases
Marbury v. Madison (1803)
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
Dred Scott v. Sandford (1857)
Plessy v. Ferguson (1896)
Korematsu v. United States (1944)
Brown v. Board of Education (1954)
Mapp v. Ohio (1961)
Gideon v. Wainwright (1963)
Miranda v. Arizona (1966)
Tinker v. Des Moines (1969)
Roe v. Wade (1973)
U.S. v. Nixon (1974)
Regents of CA v. Bakke (1978)
New Jersey v. T.L.O. (1985)
Hazelwood v. Kuhlmeier (1983)
Texas v. Johnson (1989)
Milestone Cases in Supreme Court History
1803
Marbury v. Madison was the first instance in which a law passed by Congress was declared
unconstitutional. The decision greatly expanded the power of the Court by establishing its right to
overturn acts of Congress, a power not explicitly granted by the Constitution. Initially the case
involved Secretary of State James Madison, who refused to seat four judicial appointees although
they had been confirmed by the Senate.
1819
McCulloch v. Maryland upheld the right of Congress to create a Bank of the United States, ruling
that it was a power implied but not enumerated by the Constitution. The case is significant because
it advanced the doctrine of implied powers, or a loose construction of the Constitution. The Court,
Chief Justice John Marshall wrote, would sanction laws reflecting “the letter and spirit” of the
Constitution.
1824
Gibbons v. Ogden defined broadly Congress's right to regulate commerce. Aaron Ogden had filed
suit in New York against Thomas Gibbons for operating a rival steamboat service between New
York and New Jersey ports. Ogden had exclusive rights to operate steamboats in New York under
a state law, while Gibbons held a federal license. Gibbons lost the case and appealed to the U.S.
Supreme Court, which reversed the decision. The Court held that the New York law was
unconstitutional, since the power to regulate interstate commerce, which extended to the regulation
of navigation, belonged exclusively to Congress. In the 20th century, Chief Justice John Marshall's
broad definition of commerce was used to uphold civil rights.
1857
Dred Scott v. Sandford was a highly controversial case that intensified the national debate over
slavery. The case involved Dred Scott, a slave, who was taken from a slave state to a free territory.
Scott filed a lawsuit claiming that because he had lived on free soil he was entitled to his freedom.
Chief Justice Roger B. Taney disagreed, ruling that blacks were not citizens and therefore could
not sue in federal court. Taney further inflamed antislavery forces by declaring that Congress had
no right to ban slavery from U.S. territories.
1896
Plessy v. Ferguson was the infamous case that asserted that “equal but separate
accommodations” for blacks on railroad cars did not violate the “equal protection under the laws”
clause of the 14th Amendment. By defending the constitutionality of racial segregation, the Court
paved the way for the repressive Jim Crow laws of the South. The lone dissenter on the Court,
Justice John Marshall Harlan, protested, “The thin disguise of ‘equal’ accommodations…will not
mislead anyone.”
1954
Brown v. Board of Education of Topeka invalidated racial segregation in schools and led to the
unraveling of de jure segregation in all areas of public life. In the unanimous decision spearheaded
by Chief Justice Earl Warren, the Court invalidated the Plessy ruling, declaring “in the field of public
education, the doctrine of ‘separate but equal’ has no place” and contending that “separate
educational facilities are inherently unequal.” Future Supreme Court justice Thurgood Marshall was
one of the NAACP lawyers who successfully argued the case.
1963
Gideon v. Wainwright guaranteed a defendant's right to legal counsel. The Supreme Court
overturned the Florida felony conviction of Clarence Earl Gideon, who had defended himself after
having been denied a request for free counsel. The Court held that the state's failure to provide
counsel for a defendant charged with a felony violated the Fourteenth Amendment's due process
clause. Gideon was given another trial, and with a court-appointed lawyer defending him, he was
acquitted.
1964
New York Times v. Sullivan extended the protection offered the press by the First Amendment.
L.B. Sullivan, a police commissioner in Montgomery, Ala., had filed a libel suit against the New
York Times for publishing inaccurate information about certain actions taken by the Montgomery
police department. In overturning a lower court's decision, the Supreme Court held that debate on
public issues would be inhibited if public officials could sue for inaccuracies that were made by
mistake. The ruling made it more difficult for public officials to bring libel charges against the press,
since the official had to prove that a harmful untruth was told maliciously and with reckless
disregard for truth.
1966
Miranda v. Arizona was another case that helped define the due process clause of the 14th
Amendment. At the center of the case was Ernesto Miranda, who had confessed to a crime during
police questioning without knowing he had a right to have an attorney present. Based on his
confession, Miranda was convicted. The Supreme Court overturned the conviction, ruling that
criminal suspects must be warned of their rights before they are questioned by police. These rights
are: the right to remain silent, to have an attorney present, and, if the suspect cannot afford an
attorney, to have one appointed by the state. The police must also warn suspects that any
statements they make can be used against them in court. Miranda was retried without the
confession and convicted.
1973
Roe v. Wade legalized abortion and is at the center of the current controversy between “pro-life”
and “pro-choice” advocates. The Court ruled that a woman has the right to an abortion without
interference from the government in the first trimester of pregnancy, contending that it is part of her
“right to privacy.” The Court maintained that right to privacy is not absolute, however, and granted
states the right to intervene in the second and third trimesters of pregnancy.
1978
Regents of the University of California v. Bakke imposed limitations on affirmative action to
ensure that providing greater opportunities for minorities did not come at the expense of the rights
of the majority. In other words, affirmative action was unfair if it lead to reverse discrimination. The
case involved the University of Calif., Davis, Medical School and Allan Bakke, a white applicant
who was rejected twice even though there were minority applicants admitted with significantly lower
scores than his. A closely divided Court ruled that while race was a legitimate factor in school
admissions, the use of rigid quotas was not permissible.
2003
Grutter v. Bollinger upheld the University of Michigan Law School's consideration of race and
ethnicity in admissions. In her majority opinion, Justice O'Connor said that the law school used a
“highly individualized, holistic review of each applicant's file.” Race, she said, was not used in a
“mechanical way.” Therefore, the university's program was consistent with the requirement of
“individualized consideration” set in 1978's Bakke case. “In order to cultivate a set of leaders with
legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to
talented and qualified individuals of every race and ethnicity,” O'Connor said. However, the court
ruled that the University of Michigan's undergraduate admissions system, which awarded 20 points
to black, Hispanic, and American-Indian applicants, was “nonindividualized, mechanical,” and thus
unconstitutional.
Rehnquist ; After 30 years, chief sees a court more like him
USA TODAY; McLean, Va.; Jun 28, 2002; Joan Biskupic;
DC_ABS
Several justices, breaking with [William Rehnquist], have shown concern about the fairness of
state procedures and who is subject to the ultimate penalty. The court ruled this term that the
mentally retarded should be exempt from execution and that juries, not judges, should decide
whether the aggravating factors of a crime warrant the death penalty. Rehnquist was the only
justice to disagree with both rulings. The number of death-row inmates who take advantage of the
recent rulings will depend on how courts interpret a 1989 decision backed by Rehnquist that limits
prisoners' ability to appeal, based on new high court rulings.
There are areas in which Rehnquist has remained in the minority, notably on privacy and
personal liberties. In 1973, he was one of two justices who dissented in Roe vs. Wade, which
established a constitutional right to abortion. Rehnquist has continued to protest that decision and
others that have struck down state's abortion restrictions. In recent years, he has been joined
consistently by [Antonin Scalia] and [Clarence Thomas].
As nominees were vetted and political complications arose with some, Rehnquist himself came
under consideration. Former [Nixon] aides have recounted how the president initially was wary of
the blunt Midwesterner who wore Hush Puppies and bushy sideburns. Nixon mistakenly called
him "Renchburg." But Nixon was impressed by his credentials -- Rehnquist had graduated first in
his class from Stanford's law school in 1952 and had clerked for Justice Robert Jackson -- and
his law-and-order reputation.
1. John Jay --Served as Chief Justice 1789-1795. Appointed by President Washington.
2. John Rutledge--Served as Chief Justice from August 1, 1795 to December 15, 1795. Appointed by
President Washington.
3. Oliver Ellsworth--Served as Chief Justice 1796-1800. Appointed by President Washington.
4. John Marshall-- Served as Chief Justice 1801-1835. Appointed by President John Adams.
5. Roger Brooke Taney-- Served as Chief Justice 1836-1864. Appointed by President Jackson.
6. Salmon Portland Chase-- Served as Chief Justice 1864-1873. Appointed by President Lincoln.
7. Morrison Remick Waite-- Served as Chief Justice 1874-1888. Appointed by President Grant.
8. Melville Weston Fuller--Served as Chief Justice 1888-1910. Appointed by President Cleveland.
9. Edward Douglass White--Served as Chief Justice 1910-1921. Appointed by President Taft.
10. William Howard Taft--Served as Chief Justice 1921-1930. Appointed by President Harding.
11. Charles Evans Hughes--Served as Chief Justice 1930-1941. Appointed by President Hoover.
12. Harlan Fiske Stone--Served as Chief Justice 1941-1946. Appointed by President Franklin Roosevelt.
13. Fred Moore Vinson--Served as Chief Justice 1946-1953. Appointed by President Truman
14. Earl Warren--Served as Chief Justice 1953-1969. Appointed by President Eisenhower.
15. Warren Burger--Served as Chief Justice 1969-1986. Appointed by President Nixon.
16. William Rehnquist--Served as Chief Justice 1986-2005. Appointed by President Reagan.
17 . John Roberts, Jr.--Nominated by President George W. Bush September 5, 2005, confirmed by the
Senate on September 29, 2005. Roberts took the oath of office on the day of his confirmation.