Constitutional Law Cases

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Before leaving office, President Adams appointed 42 justices of the peace, including Marbury, but a few commissions were not delivered, including the one to Marbury. Incoming President Jefferson ordered his secretary of state Madision to withhold Marbury's commission. Marbury sued Madision in Supreme Court under the Judiciary Act of 1789, asking for a writ of mandamus. Does Marbury have a right to the commission? Held Yes, the commission is valid when signed by the president and the seal of the United States is affixed by the secretary of state. Do the laws of the United States provide a remedy to Marbury? Held Yes, as the president was not acting solely in his political authority, but in a legal capacity granted by the legislature affecting the rights of individuals. Is the appropriate remedy a mandamus from the Supreme Court? Held No. The Judiciary Act of 1789 provided original jurisdiction for cases such as these, yet the Constitution only allowed original jurisdiction in the Supreme Court "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party." The Judiciary Act if 1789 is thus unconstitutional. Does the Supreme Court have a right to declare laws unconstitutional? Held Yes. The Supreme Court derives its power from the Constitution, and the Constitution proclaims itself as the supreme law of the land. The Supreme Court must follow all of the Constitution, and not just part of it. If the Supreme Court were to uphold laws made void by the Constitution, the Constitution would be rendered useless.

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)

Martin claimed title to land in Virginia by inheriting it from Lord Fairfax, a British citizen, through two US treaties with Britain. The Virginia Court of Appeals awarded the land to Hunter, claiming that Virginia had taken the land before the treaties came into effect. Held Story: The federal treaty is controlling, and the US Supreme Court has the power to review state court decisions.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

Two brothers were convicted in Virginia for selling District of Columbia lottery tickets in violation of Virginia law. The brothers claimed they had a right to sell tickets authorized by Congress. Held Marshall: Criminal defendants may appeal cases to the Supreme Court if it is claimed that the conviction violates the US Constitution.

United States v. Emerson, 46F. Supp. 2d 598 (N.D.Texas 1999)

A restraining order was imposed on defendant Timothy Joe Emerson during a divorce proceeding, and later he was indicted for possessing a firearm while under the restraining order in violation of of 18 U.S.C. § 922(g)(8). Does that statute violate Emerson's Second Amendment right to bear arms? Held Yes. There are two camps of Second Amendment thought: the "collective rights" or "states' rights" camp, and the "individual rights" camp. Textually, the Second Amendment seems to be talking about individual rights, with the militia clause explaining the reason for the individual rights. Historically it seems the intent of the framers to grant individual rights: James II in England had stopped Protestants from owning weapons, and Parliament passed the English Bill of Rights in 1689 giving back this right; in the colonies individual bearing of arms was a crucial part in winning the Revolution; even federalist arguments from James Monroe during ratification of the Constitution saw a need for the right to bear arms as a "human right". Structurally, the amendment is placed in the Bill of [Individual] Rights, not a list of states' rights. Judicially, the Supreme Court has not specifically addressed the collective/individual right Second Amendment issue. Prudentially, a social cost argument doesn't hold sway, as Constitutional provisions should be upheld even when they have high social costs. 18 U.S.C. § 922(g)(8) is unconstitutional because it allows a judge to arbitrarily take away an individual's Second Amendment right without referring to past crimes or criminal tendencies for the future.

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

Lyons was stopped by the LAPD who, even though he offered no resistence, almost choked him to death. Lyons filed a complaint for damages, injunction, and declatory relief, citing other similar chokings by the LAPD. Held White: Lyons has no standing for an injunction, because his complaint doesn't show why it's likely that the LAPD would stop him and choke him again in the future. Dissent Marshall, Brennan, Blackmun, Stevens: No one can show that they are likely to be subjected to such a chokehold in the future, and if the court is powerless to issue an injunction under those conditions no one has standing to challenge the LAPD's policy.

United States v. Hays, 515 U.S. 737 (1995)

"Appellees Ray Hays, Edward Adams, Susan Shaw Singleton, and Gary Stokley claimed that the State of Louisiana's congressional districting plan was a "racial gerrymander," and that it violates the Fourteenth Amendment. Held Appellees do not have standing to sue because they "do not live in the district that is the primary focus of their racial gerrymandering claim." Unless there is evidence that they specifically have been subjected to racial classification, the appellees are only asserting "a generalized grievance against governmental conduct of which [they do] not approve."

Federal Election Commission v. Akins, 524 U.S. 11 (1998)

A group of voters sued to get information on donors and contributions of the American Israel Public Affairs Committee under the Federal Election Campaign Act of 1971. Held The voters have standing because the Act created the right of any citizen to get such information, allowing any citizen to sue.

Singleton v. Wulff, 428 U.S. 106 (1976)

Two physicians challenged a Missouri statute that excluded from Medicaid benefits abortions that were not "medically indicated." Do the physicians show such an "injury in fact" as is necessary for standing? Held Blackmun: Yes. If Medicaid does not pay for certain abortions, the physicians will not be paid for those abortions if they go ahead and do them. Are the physicians proper proponents of the right to Medicaid funds? Held Yes. "Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party." However, that general rule can be tempered if "enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue" ("relationship of the litigant to the person whose right he seek to assert") and there is some obstacle with the third party asserting his/her own right. In the case of the former, a physician has a close relationship with a patient. As for the latter, women may be chilled because of privacy issues to assert the right of abortion money, and "imminent mootness" may damper the incentive to bring a claim because, only a few months after pregnancy, an abortion becomes not an option.

Goldwater v. Carter, 444 U.S. 996 (1979)

President Jimmy Carter rescinded the United States treaty with Taiwan and recognized the People's Republic of China. Senator Barry Goldwater brought a constitutional challenge, saying that the Senate must agree to rescinding a treaty. Held Rehnquist: This issue is a political question and therefore not judiciable. The constitution is silent on how a treaty must be rescinded, so for the Supreme Court to decide this would mean it must analyze political standards. Concur Powell: That's the right holding, but it should be because the issue is not yet ripe, as the President and Congress have not yet reached a political impasse. Concur and Dissent Brennan: Congress hasn't yet confronted the President, so it's not the Court's place to do so. If such a confrontation did take place, though, this Court would have an obligation to make a decision. Following Baker v. Carr, 369 U.S. 186 (1962): (1) The issue invovles the text of the Constitution, which deals with treaties and does not unquestionably give the President the power to rescind them. (2) Resolving the question wouldn't require the Court to move beyond its area of expertise, as this issue only requires "normal principles of interpretation." (3) Prudential considerations do not prevent judicial intervention, because it's the Court's place "to say what the law is" if Congress and the President disagree.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

Congress recreated a Bank of the United States, and the State of Maryland imposed a tax on the bank operating in that state. John James and Maryland sued McCulloch, cashier of that branch of the Bank of the United States, to recover the Maryland taxes. Does Congress have the authority to create a Bank of the United States? Held Marshall: Yes. The United States government, created by a constitution accepted by the people, has real sovereign authority separate from the individual states. "[T]he government of the Union, though limited in its powers, is supreme within its sphere of action." The federal government has not only its express powers, but those powers necessary to implement the express powers, with "necessary" meaning "all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution." Incorporating a bank is a means to executing federal powers, and is thus allowed by the Constitution. May the State of Maryland constitutionally tax the Bank of the United States? Held No. Taxing the bank impedes and diminishes the implementation of the Bank and is thereby repugnant to the execution of Congress' power. The Maryland tax on the Bank is therefore unconstitutional.

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)

New York granted a monopoly to Robert Fulton and Robert Livingston for operating steamboats in New York waters, and they licenced Aaron Ogden to operate a ferry boat from New York City to Elizabethtown Port in New Jersey. Thomas Gibbons was licensed to operate a competing ferry under federal law as "vessels in the coasting trade." Ogden sued in New York state court and was granted an injunction against Gibbons, and Gibbons appealed, saying that the New York law was unconstitutional because it sought to override the federal license. Does the constitutional power to regulate "commerce" encompass "navigation"? Held Marshall: Yes. The constitutional powers are by enumeration, not definition. Commerce is a general term meaning more than "traffic", encompassing "intercourse", including "navigation." Everyone knew the word "commerce" included "navigation" when the Constitution was written. Does the power to regulate commerce apply to activities within the states? Held Yes. The phrase "among the several States," while not including activities solely within one state, necessarily encompasses interstate commerce that penetrates a state.

Wickard v. Filburn, 317 U.S. Ill (1942)

In order to increase the price of wheat, Congress passed the Agricultural Adjustment Act of 1938 which established national wheat acreage and yield maximums which were distributed across states, counties, and farms. In 1940 this resulted in an allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre for the appellant farmer. The farmer normally produced some wheat to sell; some to feed poultry and livestock; and some to replant. In the year in question, he sowed 23 acres and harvested an excess of 239 bushels, and was charged a penalty of 49 cents a bushel, or $117.11 in all. Can Congress regulate an individual farmer's wheat production, even though that which is sold has at most an indirect affect on interstate commerce? Held Jackson: Yes. Congress has the constitutional power to influence the national price of wheat through interstate regulations. While the farmer's sales in itself may have little influence on the price of wheat, thousands of other similar sales have a substantial influence on the price of wheat. Does Congress have the constitutional power to regulate the production of self-consumed wheat? Held Yes. The propping up of wheat prices can be done by decreasing supply or increasing demand. If this farmer produces his own wheat, he won't buy it from the market; preventing him from preventing wheat increases the demand for market wheat, which affects the national wheat price, which Congress may regulate.

United States v. Lopez, 514 U.S. 549 (1995)

Congress enacted 18 U.S.C. § 922(q), the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." A 12th grade student in San Antonio, Texas was arrested with a .38 handgun and five bullets and charged with violation of the statute. Does controlling the presence of guns on school property qualify as regulating commerce under the Commerce Clause of the constitution? Held Rehnquist: No. Based upon all the Commerce Clause cases, there are three categories under which the federal goverment may regulate commerce: (1) the regulation of the use of channels of interstate commerce; (2) the regulation and protection of the instrumentalities of interstate commerce; and (3) the regulation of activities that have a substantial relation to interstate commerce. Here, the student was not using the school as a channel of interstate commerce, nor was there an instrumentality of interstate commerce. The relation of this the activity prohibited by this criminal statute is not substantially related to interstate commerce. Does the presence of firearms in a school promote crime, which will raise insurance costs and affect the national economy? (The "cost of crime" argument.) Held No, the cost of this crime is not substantially related to international commerce. Such an argument would allow Congress to regulate any crime under the Commerce Clause. Does the presence of firearms in a school effect the national economy because it impedes education, lowering the competence of graduating students entering the workforce? (The "national productivity" argument.) Held No, guns in schools isn't substantially related to interstate economy through its effect on education. Such an argument would allow Congress to cite the Commerce Clause as an authority for it to regulate anything related to economic productivity of citizens, including family law and school curriculum. Concur Kennedy, O'Conner: This is the correct decision, as Congress is trying to apply the Commerce Clause beyond the "ordinary and usual sense of that term," but we should be careful not to draw the lines of commerce so permanent as to capture only a single view of a changing society, yet the developed precendent of the Commerce Clause is important to the stability of Commerce Clause jurisprudence as well. Concur Thomas: Even the new "substantially affects" test is too broad. If we were to read "substantially affects" into every clause of the Constitution, Congress' powers would be virtually unlimited. Besides, one can always draw a larger circle encompassing something that substantially affects commerce—gun control within 1,000 feet of a school doesn't substantially affect commerce, but maybe weapons ownership in general substantially affects commerce. We should return to the original understanding and meaning of interstate commerce in the Constitution, which was restricted to just interstate commerce. Dissent Stevens: Guns can restrict commerce, and most people get guns as the product of some commercial act. If we impede the education of our children, how can they adequately effect "Commerce with foreign Nations, and among the several States?" Dissent Souter: It is well established that, if the end is legitimate, Congress can choose any reasonable means to effect that end. The Supreme Court shouldn't second-guess Congress by trying to define what is and what is not commerce. The majority's decision seems to return to the old direct or indirectly touching test. I'll let Breyer explain this all better. Dissent Breyer, Stevens, Souter, Ginsberg: We should give Congress some leeway by making a "rational basis" test for concluding that an issue affects interstate commerce, rather than requiring "substantially affects." The Constitution requires only that something be related to interestate commerce "at one remove," and as gun crime is a problem in schools; gun crime hurts childrens' education; and under-educated children hurts the economy, we should consider that Congress had a rational basis for considering guns near schools to affect interstate commerce.

United States v. Morrison, 120 S. Ct. 1740 (2000)

Christy Brzonkala enrolled at Virginia Tech and met football players Antonio Morrison and James Crawford who, she alleges, assaulted and raped her. After the school failed to adequately punish the perpetrators, not charging one and eventually liftin the punishment of the other, Christy sued in federal court Morrison, Crawford, and Virginia Tech under the Violence Against Women Act of 1994. Section 13981 of the Act allowed damages in federal court for acts of violence motivated by gender. Did Congress have the Constitutional authority under the Commerce Clause to enact federal legislation against gender-motivated violence? Held Rehnquist: No. Following United States v. Lopez, violence against women is neither a channel of commerce, an instrumentality of commerce, nor substantially related to commerce. Still following Lopez when analyzing the last prong, (1) this is a criminal statute that has nothing to do with commerce; (2) there is no jurisdictional element that might limit the Act's reach; (3) there are Congressional findings that indicate that gender-directed violence has an impact on international productivity, medical costs, and interstate travel and therefore an effect on commerce, but just because Congress makes a finding doesn't make it true and (4) those relationships are attenuated. Concur Thomas: This holding is correct, but as was said in Lopez, the "substantial relation" test is still too broad, and that's why Congress is even trying to get away with these things under the rubric of regulating interstate commerce. Congress will continue to keep passing acts like this until we change our Commerce Clause jurisprudence. Dissent Souter, Stevens, Ginsberg, Breyer: It's well established that Congress has the power to legislate any activity that, in the aggregate, has a substantial effect on interstate commerce. If Congress decides that it has a power under the Commerce Clause, it's not the Supreme Court's place to assess the soundness of that conclusion, but simply to judge whether the decision was made rationally. Here, unlike in Lopez, there is a tremendous amount of data collected by Congress that shows the effect on the economy of gender-directed violence. The majority sees how everything is integrated into the economy, but the majority wishes to preserve an outdated notion of a "proper sphere of state autonomy…." Does the Fourteenth Amendment allow Congress to enact federal legislation against private violence against women? Held Rehnquist: No. The Fourteenth Amendment by its terms only prohibits state action. Any remedy for these private actions must be provided by the Commonwealth of Virginia, not by the United States. Dissent Breyer: I wouldn't need to address this if my views on the Commerce Clause were followed, so I won't address it, except to ask why Congress can't pass remedial legislation to make up for a deficiency in state legislation for the protection of women against gender-motivated violence?

Pierce County, Washington v. Guillen, 123 S. Ct. 720 (2003)

The federal Hazard Elimination Program of the the Highway Safety Act of 1966, § 152(a)(l) requires states to survey and identify hazardous sections of highway and implement a schedule of improvement, allowing submission for federal funding. The Department of Transportation recognized that states might be leery of reporting hazards if it would subject them to greater liablity, so in 1987 Congress passed 23 U.S.C. § 409 which provided that data collected specifically for § 152 could not be introduced as evidence in a state or federal proceeding based upon tort liability. Ignacio Guillen's wife, Clementina Guillen-Alejandre, died on July 5, 1996 at an intersection for which data had been collected under § 152 and identified as a hazard. Does Congress have authority under the Commerce Clause to prevent the collected data from being introduced as evidence? Held Thomas: Yes. Congress has the authority to regulate interstate commerce, and it realized that its ability to regulate interstate commerce would be hampered unless states submitted necessary information, which they wouldn't adequately do without passage of § 409. That statute only applies to data collected under § 152, so it is within Congress' power to regulate of interstate commerce.

Printz v. United States, 521 U.S. 898 (1997)

The Gun Control Act of 1968 established a federal scheme of governing the distribution of firearms, and the Brady Act in 1993 required the Attorney General to establish a national instant background check by the end of 1998. As an interim measure, the Brady Act required chief law enforcement officers (CLEOs) to do background checks for gun dealers. Jay Printz and Richard Mack, CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, challenged the constitutionality of this aspect of the Brady Act. Can Congress conscript state officers to enforce a federal regulatory program? Held Scalia: No. There's no early evidence that Congress was allowed to conscript state officers to execute federal programs, and later cases were specific to their facts. The Constitution was constructed to allow states residual sovereignty, and this would circumvent such "dual sovereignty." Similarly, this would also violate the division of power among the three federal government branches, as it takes away execution power from the president. In New York v. United States (1992), the Supreme Court held that, "The Federal Government may not compel the States to enact or administer a federal regulatory program." But can the federal government force the states to simply enforce policy rather than set policy? Held No, this would be an even greater detriment to dual sovereignty, as it would allow less discretion to the states. But isn't it OK that this provision is only temporary? Held No, the issue is not how much trouble it is to follow the provision, but whether the provision is Constitutional; it's not, so the amount of bother is inconsequential. Concur Thomas: That's the correct result, but it should be said that the Brady Act is already unconstitutional as to the Tenth Amendment because it doesn't fall under Congress' power to regulate interstate commerce—even if we use a "substantially affect" test, because these purchases are entirely intra-state. The Brady Act might be unconstitutional as to the Second Amendment, too, if we were to consider the right to bear arms, which we're not doing now, but I hope we do some time soon. Dissent Stevens, Souter, Ginsburg, Breyer: This is not about whether the federal government can ignore the dual sovereignty structure and directly control states. The issue is whether, once Congress has enacted legislation it has the power to enact, it can require state officials to support it; the answer is yes. One of the major advantages of the Constitution over the Articles of Confederation is that it gave the federal government power to control state actions, not just to ask states to effect some policy such as printing money. The Tenth Amendment imposes limits on the category of powers the federal government has, but says nothing to limit the extent of enforcement Congress can use in an area in which it does have power. This is no different than using state officials to collect federal taxes, or requiring state police to report the identity of missing children to the Crime Control Center of the Department of Justice.

Reno v. Condon, 120 S. Ct. 666 (2000)

The Driver's Privacy Protection Act of 1994 (DPPA) prevents state Departments of Motor Vehicles (DMVs) from selling private information such as names and addresses to individuals and businesses, and prevents third parties who have obtained this information from DMVs from redistributing the information. South Carolina allows this information to be obtained by any party upon request, so South Carolina and its Attorney General, Condon, sued alleging that the DPPA violates the Tenth and Eleventh Amendments. Is regulation of DMV usage of private personal information of individuals an allowed power under the Commerce Clause? Held Rehnquist: Yes. Identifying information is a "thing in interstate commerce" and has traditionally been used for interstate marketing, insurance, and customized solicitation, placing it within the scope of the Tenth Amendment. Is Congress, even with legislative authority of the subject matter, nevertheless restricted by principals of federalism from using state officials to implement its policy, as explained in Printz v. United States? Held No. Congress always has the power to make state officials obey legislation that is within its scope of authority. Here Congress does not ask the states to regulate their own citizens nor does it require state officials to implement federal statutes regulating private individuals, in contrast to Printz. Is the DPPA unconstitutional because it regulates the states exclusively and is not generally applicable? Held This does not need to be considered, as the DPPA is generally applicable, applying to all entities "that participate as suppliers to the market for motor vehicle information," the state being the initial such entity.

South Dakota v. Dole, 483 U.S. 203 (1987)

South Dakota had a minimum drinking age of 19. Congress enacted 23 U.S.C. § 158, which conditions the receipt of some highway funds on a state's having a minimum drinking age of at least 21. Does this statute violate the constitutional limitations on Congress' spending power? Held Rehnquist: No. The constitution allows Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." The Supreme Court has held that the exercise of the spending power (1) must be in pursuit of the "general welfare", (2) any conditions must be ambiguous, and (3) any conditions must be related "to the federal interest in particular national projects or programs." Here the funds are for everybody's use of the highway, the conditions are unambiguous, and the reason is for safe interstate travel. Does the statute violate the Tenth Amendment by limiting the range of conditions legitimately placed on federal grants? Held No. Only 5% of highway funds is at stake here, and that does not pass the point at which "pressure turns into compulsion." Dissent As O'Conner says, regulation of the drinking age is a state power, which Congress cannot regulate without impeding the rights of the states. Dissent O'Conner: The condition of a minimum drinking age is not "reasonably related" to highway construction. Congress' attempting to regulate the sale of liquor lies outside its power to regulate commerce because it falls under the Twenty-first Amendment. Linking a drinking age limit to highway construction funds is just as attenuated as linking the funds to the location of the state capital.

Katzenbach v. Morgan and Morgan, 384 U.S. 641 (1966)

Section 4(e) of the Voting Rights Act of 1965 declared that no person who has completed the sixth grade instructed in a language other than English can be denied the right to vote because that person cannot read and write English. New York law required the ability to read and write English as a prerequisite to vote. To enforce § 5 of the Fourteenth Amendment in overturning a state law must the state law be unconstitutional? Held Brennan: No, this would confine Congressional legislative power to only abrogating state laws that are unconstitutional, depreciating congressional resourcefulness and responsibility. Is § 4(e) appropriate enforcement of the Equal Protection Clause? Held Yes. The standard here is the same as the Necessary and Proper Clause, Art. I, § 8, cl. 18. which, under McCulloch v. Maryland, requires that the legislation be "plainly adapted to that end" and is not prohibited by the Constitution but is consistent with "the letter and spirit of the constitution." Here the legislation was plainly adapted to insure nondiscriminatory treatment of the Puerto Rican minority, and if Congress believes that this end warranted federal intrusion upon state interests, it is not the place of the Supreme Court to review congressional assessment of the varying considerations. "[I]t is enough that we perceive a basis upon which Congress might predicate [such] a judgment [that the act would prevent] an invidious discrimination in violation of the Equal Protection Clause." Dissent Harlan, Stewart: In Lassiter v. Northampton Election Bd. (1959) the Supreme Court already unanimously decided that a state literacy requirement was unconstitutional. If the New York law is constitutional, then, Congress cannot be merely enforcing the Equal Protection Clause in overriding the New York statute. Allowing Congress to override a state law without the judicial branch declaring the law unconstitutional sacrifices the distinction between the legislative and judicial branches; does away encroaches upon the separate of federal and state powers; and gives Congress the power to define the substantive scope of the Fourteenth Amendment.

City of Boerne v. Flores, 521 U.S. 507 (1997)

The Religious Freedom Restoration Act of 1993 (RFRA) attempted to overturn court decisions that did not allow the Free Exercise Clause to be used to challenge neutral laws of general applicability, returning to the test of compelling government purpose: before "substantially burdening exercise of religion the government must show (1) the law is in furtherance of a compelling government interest, and (2) the law is the least restrictive means of doing so. St. Peter Catholic Church wanted to enlarge its building but the city, relying on the on a Boerne City Council ordinance allowin the Historic Landmark Committee to designate historic districts, did not give the church a permit. The church sued the city saying that the ordinance violated the RFRA. Can Congress pass measures that substantially define the Enforcement Clause? Held Kennedy: No. The history, text, and precedent of the Fourteenth Amendment show that Congress is given only remedial and preventative power, the power "to enforce" by "appropriate legislation." If Congress had the power to substantively define equal protection, it would not be enforcing a constitutional right but saying what that right is by alterning the meaning of the Free Exercise Clause. Is the RFRA a propoer exercise of Congress' remedial or preventative power? Held No. Unlike the Voting Rights Act, declared unconstitutional in Katzenbach v. Morgan and Morgan, there is no evidence that generally applicable laws were passed because of religious bigotry. The RFRA cannot be read to be preventative, but meant to effect a substantive change in constitutional protection. It has sweeping coverage prohibiting actions at almost every level of government, regardless of subject matter. Even for preventative rules, "there must be a congruence between the means used and the ends to be achieved." Here the burden of showing that a particular action is the least restrictive possible means of furthering an interest is the hardest such test to meet; this burden far outweighs any pattern of unconstitutional conduct under the Free Exercise Clause. Dissent O'Conner, Breyer: The majority's holding was based upon Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), which was wrongly decided and should be reexamined so that we can "put our First Amendment jurisprudence back on course" and only then be able to properly consider the RFRA. Dissent Souter: We can't decide this case before reexamine Smith, so we should dismiss the writ of certiorari in this case.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

After a dispute with steel companies and their employess that was not resolved, United Steelworkers of America, C.I.O. gave notice that they would strike after the bargaining agreements expired. The President issued Executive Order 10340, directing the Secretary of Commerce to take possession of the steel mills and keept them running. The presidents of the seized companies, now acting as operating managers for the United States, complied with the Secretary of Commerce's orders under protest and sued him in District Court. Does the President have power to take over the steel mills under an act of Congress? Held Black: No, there are no statutes authorizing such a takeover. Congress has in the past specifically declined to pass legislation that would allow labor disputes to be resolved this way. Two statutes authorize the President to take personal property and real property under certain conditions, but those conditions were not met here. Does the Constitution grant the President such power as Commander in Chief of the Armed Forces? Held No. Even the Commander in Chief doesn't have the authority to take possession of private property in order to keep labor disputes from stopping production. That is the domain of lawmakers. Does the President have authority to take over steel mills from the executive power granted in the Constitution? Held No. In the framework of the Constitution, the President's role is to see that the laws are faithfully executed, not to be a lawmaker. The Constitution gives Congress alone lawmaking power, in good times and bad. Concur Jackson: The materials defining and explaining the powers of the President are sometimes "almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." Presidential authority is different in various situations: A) When the President acts pursuant to authorization of Congress authority is at a maximum. B) The President and Congress may have concurrent authority, and if Congress has not given authorization this is a "zone of twighlight" with in which the power "distribution is uncertain." C) When the Presidential measures are incompatible with the will of Congress, Presidential powers are at their lowest. Here the Presidential power falls in the latter category, leaving Presidential authorization most open to attack. The Constitution provides that the President is Commander in Chief of the army and navy, not Commander in Chief of the country, and "only Congress can provide him an army or navy to command." Concur Douglas: This may be an emergency, but an emergency doesn't create power, it only creates an occasion in which power can be exercised. The legislature may take longer to act than the executive branch, but the separation of powers is not about effeciency but about preclusion of arbitrary power. This was a taking of property, albeit only temporary, and only Congress is authorized to pay compensation for the seizures and therefore only Congress has the power to authorize the seizures. Concur Frankfurter: This is an area in which Congress has expressed its will. Congress has in the past temporarily seized production, transportation, and communication, and Congress purposely turned down an opportunity to give such a power power to the President in the Management Relations Act of 1947. Our government's system of checks does not allow the President to act against the will of Congress. Dissent Vinson, Reed, Minson: Congress authorized military action in Korea, and if the steel mills were shut down, as was imminent, needed ammunition would not have arrived to the soldiers on time. In temporarily taking over the steel mills the President was executing the decision of Congress for military action in Korea, and the President reported the situation to Congress the next morning. As Congress had enacted a price stabilization program, preventing the steel wage concessions by taking over the steel mills and preventing the strike was therefore another way in which the President executed a Congressional legislative program.

United States v. Richard M. Nixon, President of the United States, 418 U.S. 683 (1974)

The United States District Court for the District of Columbia, pursuant to Fed. Rule Crim. Proc. 17(c), issued a third-party subpoena duces tecum in United States v. Mitchell et al. ordering President Nixon to turn over tape recordings and document concerning the president's conversations with aids regarding the Watergate Hotel break-in. President Nixon moved to quash the sobpoena. Does the court have jurisdiction to subpoena the recordings; specifically, is there a "case" or "controversy," or is the request simply an internal dispute of the executive branch? Held Burger: The court has jurisdiction. A mere assertion of "intra-branch dispute" without more has never operated to defeat federal jurisdiction, because Article II, § 2 of the Constitution grants authority to the Attorney General to conduct criminal litigation of the US government. Here the Attorney General has delegated that power to the General Prosecutor, who is bringing a judicial proceeding in a federal court alleging a violation of federal law. Does the president have an absolute privilege against all conversations between the president and his close advisors because of the need for complete candor and objectivity in those conversations? Held No. While the need for candor and objectivity should prevent general calls for document production, calls for production in the case of a criminal prosecution will not impede these communications. Does the president have an absolute privilege against all conversations between the president and his close advisors because the executive is separated from the other branches of government? Held No. The separation of powers does not imply complete independence, and a blanket privilege against production of documents in a criminal setting would upset the constitutional balance and "gravely impair the role of the courts under Art[icle] III." Are the specific communications requested to be produced privileged? Held No. General claims of privilege cannot stand in the way of a judicial need for specific information needed in a criminal investigation. Here the president has not offered "a claim of need to protect military, diplomatic, or sensitive national security secrets," but only general claims of "public interest."

Whitman v. American Trucking Association, Inc., 531 U.S. 457 (2001)

The Clean Air Act (CAA) § 109(b)(l) authorized the Environmental Protection Agency (EPA) to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator … and allowing an adequate margin of safety, are requisite to protect the public health." After the Administrator in 1997 revised the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) and ozone, the American Trucking Association sued saying that Congress could not delegate legislative authority to an agency. Does the Clean Air Act violate Article I § 1 of the constitution, which assigns "all legislative powers" to Congress and provides no options for their delegation? Held Scalia: No. The Supreme Court has repeatedly held that Congress may confer decisionmaking authority on an agency if Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." Here the Act, requiring an "adequate margin of safety", lays down a sufficient "intelligible principle." (An act is a constitutional delegation of legislative power if it meets this rule, which "is a question for the courts"; whether the agency imposes internal restraints on its execution of the act "has no bearing upon the answer.")

Richard Nixon v. A. Ernest Fitzgerald, 457 U.S. 731 (1982)

A. Ernest Fitzgerald was dismissed from the Air Force after he reported embarrassing development problems with the C-5A transport plane. President Nixon publicly assumed direct responsibility for his firing, but the White House press office later retracted that statement. Fitzgerald sued Nixon for civil damages. Does the President have absolute immunity from civil damages liability predicated on official acts? Held Powell: Yes. The Constitution gives the President the power to execute federal law, including the power of removing his subordinates from their most important duties. Executive acts affect countless people, making the President an easily identifiable target for lawsuits. Allowing private lawsuits would divert the President's energies and distract the President from public duties, raising "unique risks to the effective functioning of government." The President is not above the law, as Congress can still impeach the President and the public can prevent the President's reelection. Dissent White, Brennan, Marshall, Blackmun: Rather than finding absolute immunity, the Court should follow Marbury v. Madison, which said that the President's immunity for official actions depended on the "nature of the act." The majority places the President above the law, leaving no remedy for violation of vested legal rights. The majority decision is a policy choice, not a legal one, and is "ambiguous in its reach and import."

William Jefferson Clinton v. Paula Corbin Jones, 520 U.S. 681 (1997)

In President Clinton's second term in office, Paula Jones filed suit claiming that, while Clinton was Governor of Arkansas and Jones worked at a hotel, Clinton persuaded Jones to come to his room and then made sexual advances at her. Jones also contends that her superiors at work treated her negatively because she declined the advances. Does the President have absolute immunity against charges brought concerning actions before he/she became president? Held Stevens: No. As the Richard Nixon v. A. Ernest Fitzgerald court stated, "the sphere of protected action must be related closely to the immunity's justifying purposes." Absolute presidential immunity was put in place to allow the President to go about his official presidential duties without fear of countless and unnecessary lawsuits. Holding a president accountable for nonofficial activities will not impede the president in official duties. Does the doctrine of separation of powers require federal courts to stay all private actions against the President until he/she leaves office? Held No. While the President's time is valuable, there is no evidence that allowing suits for nonofficial conduct before taking office will impede the President's duties. After all, in the more than 200 year history of the U.S., only three presidents have been subjected while in office to suits for their private actions.

Ex Parte Quirin, 317 U.S. 1 (1942)

Defendants were born in Germany and most were citizens of the German Reich. In two groups they took submarines from occupied France to the United States during World War II and, after arriving, buried explosives and their German uniforms and dispersed into the United States, intent on sabotaging infrastructure necessary to the US war effort. The President appointed a Military Commission and directed it to try petitioners for offences against the law of war and the Articles of War. The Commission did not include the right to a jury trial or the protection against self-incrimination, along with other features common to non-military trials. Does the President have the power to appoint a commission for military trials? Held Stone: Yes. Congress, the President, and the courts "possess no power not derived from the Constitution," but the Constitution provides Congress with the power to provide for the common defense, to declare war, and to make "necessary and proper" laws for such. Congress' Articles of War allow for military tribunals for offenses against the law of war, and the Constitution gives the President the power to execute the laws of Congress, including the Articles of War. Can the President create a Military Commission for crimes against the law of war, even if Congress has not defined what the law of war is? Held Yes. Even though the "law of war" of other nations may differ from that of the US, there are certain international norms and declarations concerning the law of war. "Universal agreement and practice the law of war" recognizes that those who rid themselves of enemy uniform and secretly enter a country for destruction of life or property, as the defendants here have done, are "unlawful combatants" who can be subject to trial and punishment by military tribunals. If it turns out that one or more of the defendants are United States citizens, would the military tribunal apply to them? Held Yes. "Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." Are defendants belligerents, even if they have yet committed no illegal acts? Held Yes. It is sufficient merely that the defendants had a status of enemy belligerents and crossed US lines "in civilian dress and with hostile purpose"—at that point, the "offense was complete." Does the Fifth and Sixth Amendments of the Constitution the defendants have a right to a jury trial and protection against self-incrimination? Held No. The Fifth and Sixth Amendments, as Article III § 2 was understood at the time the Constitution was written, only acted to retain the right of a jury trial and protection against self-incrimination in trials which at the time allowed such features. The Fifth and Sixth Amendments was not written "to enlarge the then existing right to a jury trial." At the time the Constitution was written, the right to a jury trial and protection against self-incrimination "were procedures unknown to military tribunals." The Constitution doesn't require these procedures when trying members American armed forces, so why should it require them in "the cases of alien or citizen offenders against the law of war otherwise triable by military commission …"?

Lochner v. New York, 198 U.S. 45 (1905)

Defendant Lochner violated a New York statute restricted to 10 hours a day the amount of time an employee could work in a bakery. Is the New York statute a valid labor law? Held Peckham: No. The right to purchase or sell labor is an indivividual right protected under the 14th Amendment. There is no reasonable ground for the state prescribing how many hours a baker can work; a baker is just as intelligent as anyone else. Can the state use its police power to limit the hours a baker can work? Held No. Despite the 14th Amendment, a state may still use its police powers to prevent "[c]ontracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act …." Here, however, the hours a baker works does not in the slightest degree involve the safety, morals, or welfare of the public. Similarly, this statute does not affect public health. "Clean and wholesome bread" does not depend on bakers' hours. If this statute were purported to promote a strong and healthy population, that argument would support regulating both employees' and employers' hours—as well as athletes and students—which is not a sound outcome. The act is not a health law, but an illegal interference with an individual's right to contract. Dissent Holmes: I don't know if I agree or disagree with the economic theory espoused by the statute, but that's irrelevant—many laws already interfere with the liberty to contract, such as Sunday laws and usery laws. An "rational and fair" person would not necessarily admit that the statute would infringe "fundamental principles," and therefore should be accepted as the "natural outcome of a dominant opinion" rather than a violation of liberty. Dissent Harlan, White, Day: The state has a police power that in the areas of public health and safety can trump the liberty to contract. Federal or state legislative enactments should never be heald invalid unless they, "beyond question, plainly and palpably in excess of legislative power." Here the legislature was not shown to have acted in bad faith, without due deliberation, without reason, or as a mere sham. ("Nearly all bakers are palefaced and of more delicate health than the workers of other crafts, which is chiefly due to their hard work and their irregular and unnatural mode of living ….")

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

Chambermaid Elsie Parrish sued to recover the difference between the wages paid her and the minimum wage for women and minors set by the state of Washington. Is the state's minimum wage law for women and minors repugnant to the Fourteenth Amendment? Held Hughes: No. The Constitution does not talk about freedom to contract; instead, it prohibits deprivation of liberty without due process of law. Liberty is subject to reasonable due process which protects society from "the evils which menace the health, safety, morals, and welfare of the people." If a statute has a legitimate end and is an admissible means to an end, the only judicial decision is whether the law is "arbitrary or capricious"—"[e]ven if the wisdom of the policy be regarded as debatable and its effects uncertain…." Here, the protection of the health of women from "unscrupulous and overreaching employers" is a legitimate end, and the payment of a minimum wage to ensure "the very necessities of existence" is "an admissible means to that end." Besides, exploitation of a class of workers who are in an unequal position of bargaining power places an economic economic burden on the community, as can be seen with the recent depression.

United States v. Carolene Products Co., 304 U.S. 144 (1938)

Congress in 1923 enacted the "Filled Milk Act" which prohibited the shipment in interstate commerce of skim milk compounded with any fat or oil (such as vegetable oil) other than milk fat. Appellee was indicted for shipping "Milnut," a compound of skimmed milk and coconut oil made to resemble condensed milk or cream. Does the Filled Milk Act violate the Fourteenth Amendment? Held Stone: No. The legislature has the power to protect the public from fraudulent substitutions by securing "a minimum of particular nutritive elements in a widely used article of food …", and "prohibition of the offending article was an appropriate means of preventing injury to the public." There have been studies analyzing that unwittingly consuming substitutions in the product can affect public health. Even if there were no such studies, "the existence of facts supporting the legislative judgment is to be presumed," for regulatory legislation affecting ordinary commercial transactions should not be pronounced unconstitutional unless there are known facts indicate that the legislation does not rest upon some "rational basis within the knowledge and experience of the legislators." (However, some legislation might be "subjected to more exacting judicial scrutiny" under the Fourteenth Amendment, such as the legislation specifically prohibited in the first ten amendments of the Constitution, or legislation that creates "prejudice against discrete and insular minorities ….")

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955)

An Oklahoma law prevented anyone not not a licensed optometrist or ophthalmologist to fit or replace eyeglass lenses without written prescriptive authority from an Oklahoma licensed ophthalmologist or optometrist. (An opthamologist a licensed physician specializing in the care of the eyes. An optometrist examines eyes for refractive error and recognizes but not treat eye diseases. An optician grinds lenses, fills prescriptions, and fits frames.) This law effectively meant that an optician could not replace broken lenses in an existing frame without a prescription. Does the Oklahoma law violate the Fourteenth Amendment Due Process Clause? Held Douglas: No. The law may be "a needless, wasteful requirement" in many cases, but that is for the legislature, not the courts, do determine. There need only be "an evil at hand for correction" and legislation that "might be thought … rational." (Maybe there are certain instructions needed in many cases when replacing lenses, or maybe the legislature wanted to promote eye examinations, even though these are not required for an optometrist or an opthamologist to renew prescriptions.) "[T]he law need not be in every respect logically consistent with its aims to be constitutional. … The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought."

Skinner v. Oklahoma, 316 U.S. 535 (1942)

Oklahoma passed the Oklahoma's Habitual Criminal Sterilization Act that forced sterilization upon a "habitual criminal:" one who was imprisoned for a felony of "moral turptitude" having been convicted of two or more such felonies in the past. The defendant was convicted of stealing chickens, then twice robbery with firearms, and Oklahoma directed that a vasectomy be performed. Does the Habitual Criminal Sterilization Act violate the Fourteenth Amendment? Held Douglas: Yes. The Oklahoma law is discriminatory. "Marriage and procreation are fundamental to the very existence and survival of the race" and procreation is "one of the basic civil rights of man." Forced sterilization forever deprives one of this basic liberty, and has the potential to wipe out minority traits if controlled by the wrong majority, so it is subject to heightened scrutiny. Here there is no evidence committing larceny is an inheritable trait, and the law does not apply to embezzlement even though the latter has the same punishment in terms of fines and imprisonment. "The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn." Concur This is the correct result, but if Oklahoma could allow any forced sterilizations based upon inheritable traits then equal protection probably wouldn't require that the law be applied equally across all types of such classes. This is really a due process issue: a member of a class with such traits should be allowed to show that the state need not result to such measures in his/her specific case.

Griswold v. Connecticut, 381 U.S. 479 (1965)

Connecticut criminalized contraceptives and assisting others to use devices to prevent conception. Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Buxton a licensed physician and a professor at the Yale Medical School, were arrested and fined for giving medical advice to married couples regarding contraceptives. Does criminalizing advising a married couple on the use of contraceptives violate the Due Process Clause of the Fourteenth Amendment? Held Douglas: Yes. The explicit rights mentioned in the Constitution create penumbra of rights not specifically enumerated, such as the right to association, the right to knowledge, and the right to privacy. The "intimate relation of husband and wife and their physician's role in one aspect of that relation" falls within the "zone of privacy created by several fundamental constitutional guarantees." Concur Goldberg, Chief Justice, Brennan: We shouldn't forget that the Ninth Amendment, which has been around since 1791, is just as much a part of the Constitution as any other. Even though the right of privacy in the marital relation is not named in the Constitution, it is still a fundamental and basic right "emanating 'from the totality of the constitutional scheme under which we live.'" (Allowing contraception won't necessarily increase extra-marital affairs, and besides, Connecticut already has statutes, "the constitutionality of which is beyond doubt," prohibiting adultery and fornication. Concur Harlan: The proper basis for this holding is Due Process under the Fourteenth Amendment, regardless of whether the Bill of Rights is used to aid the "relevant inquiry." Concur White: Connecticut claims that the ban on contraceptives to prevent conception is in place to deter illicit sexual relations. "It is purely fanciful to believe that the broad proscription on use" of contraceptives by married persons somehow keeps people in illicit sexual relations from using them, especially as contraceptives are not contraband and are even allowed to prevent diseases. The statute deprives married couples of a liberty without due process of law because of the statute's sweeping scope. Dissent Black, Stewart: I don't like this law any more than anyone else, but there is no general Constitutional "right of privacy." Due Process and the Ninth Amendment cannot be used by the court to update the Constitution from time to time to keep it "in tune with the times." How does Goldberg claim to know the "traditions and (collective) conscience of our people," anyway? The Court doesn't take polls, and there's no "gadget" to determine which traditions are rooted in the "(collective) conscience of our people." Dissent Stewart, Black: "I think this is an uncommonly silly law." It's unenforceable, and the use of contraceptives within marriage should be a personal and private choice. "But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."

Eisenstadt v. Baird, 405 U.S. 438 (1972)

Massachussetts laws made it a crime for married couples to obtain contraceptives to prevent pregnancy except from physicians. Unmarried people could not obtain from anyone contraceptives to prevent pregnancy. Married or unmarried people could obtain contraceptives from anyone for disease-prevention. William Baird was convicted of giving a lecture on contraception at Boston University and for giving a package of vaginal foam to a young woman after the lecture. The Massachusetts Supreme Judicial Court said that the law is "to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women." Does the prevention of fornication provide a valid purpose for the discrimination between the law's applicability to married and unmarried people? Held Brennan: No. Deterrance of premarital sex is not reasonably the purpose of the statute, for that would mean that the law prescribes pregnancy as the punishment for fornication, a misdemeanor. Can the law discriminate between married and unmarried people simply as a prohibition to contraception? Held No. Griswold v. Connecticut doesn't allow prohibiting distribution of contraceptives to married people, and rights must be the same for married and unmarried people. "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Dissent Burger: Griswold concerned a statute prohibiting the use of contraceptives. Here the statute only controls the distribution of contraceptives, and nothing in the Fourteenth Amendment says that medicinal material such as contraceptives must be available on the open market. "By relying in Griswold in the present context, the Court has passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections."

Roe v. Wade, 410 U.S. 113 (1973)

Texas outlawed all abortions except those to protect the life of the mother. Does a woman have a constitutional right to privacy regarding the decision to have an abortion? Held Blackmun: Yes. A woman's decision whether tohave an abortion can affect her life and future as to psychological health, distress, physical health, and finances. Is a fetus a "person" under the Fourteenth Amendment? Held No. The Fourteenth Amendment doesn't define "person," and abortion practices were freer in the 19th century than they are today, so "person" as used in the Fourteenth Amendment must not include the unborn. Is the woman's right to choose an abortion absolute? Held No. The state has a compelling interest to ensure women's health through safe medical procedures and to protect life. Is the Texas statute constitutional? Held No, it violates a woman's right to privacy in choosing an abortion. A state may not prevent a woman from choosing to have an abortion unless pregnancy has reached as stage—herewith defined as the end of the first trimester—at which the medical risks to the woman is higher than the medical risks of childbirth as to create a "compelling" state interest in the health of the mother. A state can also prevent abortions after the point of viability, which creates a "compelling" state interest of protecting life. The state may not prohibit an abortion necessary to preserve the life or health of the mother. Dissent Rehnquist: The act of an abortion between a physician and a woman does not entail "privacy" in the same sense as a search and seizure under the Fourteenth Amendment. If by "privacy" one means the right to be free from unwanted state regulation, the Court has upheld such rights only so far as requiring the due process of law before depriving one of such rights. The Due Process of the Fourteenth Amendment only requires that there be a rational relation to a valid state objective as in Williamson, and here the state's purpose of protecting life and the health of the mother does not warrant preventing statutory prohibitions of abortion in the first trimester. Everyone is still debating about abortion—it's certainly not "'so rooted in the traditions and conscience of our people as to be ranked as fundamental….'" There was no question of the validity of statutes such as that of Texas at the time the Fourteenth Amendment was adopted, so the authors of the Fourteenth Amendment must not have meant it to apply to anti-abortion statutes.

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, required a woman seeking an abortion to give her informed consent, to declare that she had told her husband if was married, and to get permission from her parents if she was married. Should Roe v. Wade be overturned? Held O'Conner, Kennedy, Souter: No. A woman has a Fourteenth Amendment Due Process right to control her body, and this liberty may only be overridden by the state's interest in the life of the fetus after viability. The Roe v. Wade was carefully thought out, and many people might have relied on it by deciding to have sex knowing that they could get an abortion if contraception failed. Should the trimester scheme of Roe v. Wade be retained? Held No. That scheme was overly rigid; "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life …" The trimester scheme was not an essential part of Roe v. Wade. Viability should be the criterion for determining when a state's interest outweighs that of the woman, and this line can track scientific advances. Can the state impose regulations that make it more difficult to have an abortion? Held Yes, if those regulations serve a valid purpose, do not strike at the right itself, and do not impose a "substantial obstacle" to a woman's right to choose. A state may express a preference for types of childbirth and may create structures for informing a woman and ensuring knowledge, as long as it does not place an "undue burden" on a woman's exercise of liberty. Concur, Dissent Blackmun: The majority's holding is correct, but Roe's trimester structure should be kept in place, and strict scrutiny of state action should be the rule as with all fundamental rights, rather than an "undo burden" standard. State restrictions on abortion violate women's privacy by infringing on bodily integrity with physical intrusions and risks of physical harm; and by restricting a woman's right to make her own decision regarding reproduction and family planning. The Chief Justice has a "stunted conception of individual liberty," as is evident from his dissent. Concur, Dissent Chief Justice Rehnquist, White, Scalia, Thomas: Roe should be overturned. The cout was mistaken when it declared the decision of a woman to terminate her pregnancy as a fundamental right, because abortion, unlike marriage, procreation, and contraception, involves a "purposeful termination of a potential life." The historical tradition of America is against abortion being a fundamental right—for example many states made abortion after a "quickening" an offence. Concur, Dissent Scalia, Chief Justice William Rehnquist, White, Thomas: Roe should be overturned because abortion, like bigamy, is not a liberty protected by the Constitution, but rather an issue that should be decided democratically by each state. (1) The Constitution says nothing about abortion, and (2) the "longstanding traditions of American society" have allowed it to be outlawed. Roe didn't resolve the abortion issue; instead, it inflamed the debate by "foreclosing all democratic outlet for the deep passions this issue arouses."

Stenberg v. Carhart, 120 S. Ct. 2597 (2000)

A Nebraska law outlawed "partial-birth abortion" in which "the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." Dr. Leroy Carhart brought a lawsuit seeking an injunction. Does the Nebraska law violate the Constitution? Held Yes. The law as written could apply both to the "dialation and exctraction" (D & X) procedure, in which the entire fetus is drawn into the cervix, and the "dialation and evacuation" (D & E) procedure, in which only a part of the fetus is drawn into the cervix before the abortion. (1) Roe v. Wade and Planned Parenthood v. Casey allowed abortion proscription after viability in the state's interest of protecting life, but required an exception for the health of the mother. The Nebraska law applies to a procedure, whether it is before or after viability. (The state's interest is thereby not that of preserving life, but of banning a procedure.) The statute does not provide an exception for the health of the mother. Even though other alternative methods are available, in some instances D & E or D & X might be the best way to protect the health of the mother, so without such an exception these laws are unconstitutional. (2) Casey prohibited any "undo burden" on a woman's choice to get an abortion. As the statute, as written, could conceivably be applied to D & E, the most common abortion procedure for performing previability second trimester abortions, which places a "substantial obstacle" in the way of a woman seeking an abortion. Concur O'Conner: I agree with the majority, but I want to emphasize that (1) while the statute provides an exception for when the mother's life is in danger, it provides no exception for the health of the mother either postviability or previability, for the latter of which the state has an even lesser interest in protecting life; and (2) by conceptually covering both D & E and D & X, the statute poses an undue burder on the woman by banning the most commonly used second-trimester abortion procedure, D & E. Other states have restricted their partial-birth abortion prohibitions to D & X and if such a case were presented here, along with a mother's health exception, the statute probably wouldn't be unconstitutional. Concur Ginsburg, Stevens: Note that the Nebraska statute didn't "save any fetus from destruction," it just banned a particular procedure. As Seventh Circuit Chief Judge Posner pointed out, the purpose of this law is not to ban a procedure that is less healthy or more repelling, but to chip away at Roe and Casey. Dissent Scalia: I told you in Casey that the "undo burden" test was vague and unworkable, and this is proof. The Court has struck down a law prohibiting this "horrible … killing of a human child" by lawyers voting on which limitations they think go too far—not whether the Constitution prohibits the law. Dissent Kennedy, Chief Justice Rehnquist: Roe was supposed to reserve in states the power to regulate abortion to uphold their interest in unborn life, but the majority's holding "repudiates this understanding." Outlawing D & X procedures doesn't keep a woman from getting a safe abortion and therefore doesn't present a substantial obstacle in the path of any woman. The American College of Obstetricians and Gynecologists (ACOG) says that D & X is not the only way to save a mother's life or to preserve her health. Although D & X may present a lower risk for complication for some women, "the Court is wrong to limit its inquiry to the relative physical safety of the two procedures," because the legislature has more information on which to make such a decision. Dissent Thomas, Chief Justice Rehnquist, Scalia: Roe is wrong and Casey "opinion has no historical or doctrinal pedigree." Even if we should follow Casey, attempting to ban a rarely used form of abortion that over 30 states have banned, believing it to border on infanticide, does not meet the Casey undo burden standard. The majority has disregarded several important statute construction principles, including not striking down a statute that can be narrowed, and deferring to the judgment of the legislature.

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990)

Nancy Cruzan lost control of her car and had a wreck. She was found with no detectable respiratory or cardiac functions, and her brain had been without oxygen for 12-14 minutes when her breathing and heartbeat were restored. As brain damage occurs after about six minutes without oxygen, Nancy was left in a persistive vegetative state sustained by a feeding and hydration tube. Nancy had earlier expressed thoughts to a housemate friend that she didn't want to lie in a vegetative state, so her parents requested that her feeding tube be removed. The Missouri Supreme Court held that it was not "clear and convincing" that Nancy wanted the feeding tube removed and did not allow her parents wishes. Does one have a right to refuse medical treatment? Held Rehnquist: Yes. Under the common law even touching another without legal justification was battery. An individual has a Due Process "liberty interest" in being allowed to refuse medical treatment (and we assume that this includes refusing life-sustaining food and water), except in cases where the public interest overrides, such as one's refusal to receive a smallpox vaccine. May the state impose a "clear and convincing" evidence standard before allowing a guardian to discontinue nutrition and hydration from a person in a persistent vegetative state? Held Yes. The state has an interest in the protection and preservation of human life, as is evidenced by the crime of murder, and the Due Process Clause protects and interest in life as well. The Court has allowed the higher standard of "clear and convincing" evidence where the individual interests at stake are "particularly important" and "more stubstantial than loss of money." Here the individual interest is so important that to choose incorrectly would be irreversible. Concur O'Conner: Cases concerning both the Due Process Clause and the Fourth Amendment have held that an individual has a right to refuse bodily intrusions, and artificial feeding is just as intrusive as other medical procedures. We do not address whether a state must follow the request of a surrogate decisionmaker specified by the individual aforetime. Concur Scalia: This is the right holding for the difficult question regarding an individual who no longer wishes to continue a life, but from the majority's opinion is looks like they're going to mess this up like they messed up the abortion issue. Even if there was "clear and convincing" evidence that an individual wanted to end his/her life, the state should still be able to decide, as it always has been able to do, whether the state allows suicide—the Supreme Court doesn't know any more about life and death than does the state, as the Constitution doesn't say anything about it. Dissent Brennan, Marshall, Blackmun: Nancy Cruzan is in a "twighlight zone of suspended animation." Her brain does not think, feel, or experience sensations, and her condition is irreversible. While the state has an interest in a particular person's life, the state has no interest in life in the abstract. "Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute, no state interest could outweigh the rights of an individual in Nancy Cruzan's position." Missouri has placed an "improperly biased procedural obstacle" in the way of Nancy's fundamental right to refuse unwanted artificial nutrition and hydration, which no state interest outweighs.

Washington v. Glucksberg, 521 U.S. 702 (1997)

Physicians in Washington sued over a Washington statute that outlawed assisting terminally ill, suffering patients in ending their lives. Is there a fundamental Fourteenth Amendment right to assisted suicide of terminally ill, competent adults? Held Rehnquist: No. Fundamental rights are those that are "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." Almost every state bans assisted suicide, and such laws have been around for centuries, and the law rejects almost every attempt to permit assisted suicide. Does Cruzan acknowledge a right to assisted suicide? Held No. Although the right to end one's own life may be just as "personal and profound" as the decision to commit suicide with someone's help, most people consider them distinct and the latter has never enjoyed similar legal protection. Is Washington's assisted-suicide ban rationally related to legitimate government interests? Held Yes. Washington has an "unqualified interest in the preservation of human life," and many people commit suicide from depression, which can be treated. The state has an interest in protecting the elderly, who might desire to commit suicide to alleviate their burden on their family. A state has an interest in stopping the slide down a perceived slippery slope to euthenasia. Washington's ban on assisted suicide is at least reasonably related to the promotion and protection of such interests, and is not invalid on its face. Concur O'Conner, Ginsburg, Breyer: As the majority noted, there is no general right to commit suicide. We don't need to consider the question of whether suffering patients have a "constitutionally cognizable interest" in obtaining relief from suffering when faced with imminent death, because even one who is suffering and not facing impending death can be prescribed medication that alleviates suffering "even to the point of causing unconsciousness and hastening death." Most people have terminally ill family members, so this will probably all get worked out democratically in the laboratories that are the states. Concur Stevens: The Court decided that a statute prohibiting assisted suicide is not invalid on its face, but that doesn't mean that some applications of the statute might be invalid. Washington, which has authorized the death penalty, must acknowledge that there might be some instances in which an interest in hastening death is legitimate—I think that in some caess it might even be constitutionally protected. Concur Breyer: I agree with the majority that there is no liberty protected by the Due Process Clause that gives rise to a right to assisted suicide. But there might be a right to control the manner of death without unnecessary suffering—a "right to die with dignity" of sorts. As O'Conner pointed out, pain medication allows patients to die without pain, even if it means putting them in a death-hastening coma, so we don't have to address that right here—but if a state's law were to prevent pain medication, we might have to address it.

Lawrence v. Texas, 123 S. Ct. 2472 (2003)

In response to a weapons disturbance report, police entered the apartment of John Geddes Lawrence and found him engaging in a sexual act with another man, Tyron Garner. Texas state law makes it a crime for two people of the same sex to engage in "deviate sexual intercourse," defined as contact between the genitals of one person and the mouth or anus of another, or penetration of the genitals or anus of another person with an object. Does the Texas statute violate the Fourteenth Amendment Due Process Clause? Held Kennedy: Yes. Persons have a Due Process liberty that gives them the right to engage in private sexual conduct without the intervention of the government. This case is similar to Bowers v. Hardwick, 478 U.S. 186 (1986), except that there a Georgia statute outlawed sodomy between both married and unmarried individuals. The Bowers court cast the issue as whether or not the constitution gives one the right to engage in homosexual conduct, but that depiction demeans the greater issue: whether one has the liberty to choose a most private conduct, sexual behavior, in a relationship in the most private of places, a home without being punished as criminals. When Bowers said that bans on homosexual behavior have "ancient roots," they overstated and exaggerated the case. Most laws against sodomy applied both to same-sex and different-sex partners, and homosexuals were not even considered a distinct category until the late 19th century. Many prohibitions were based on deep moral and religious convictions which, though not trivial, do not imply that the majority may use the state to enforce those views on the whole society through criminal law. The ALI's Model Penal Code is against laws such as these, and similar statutes have been struck down by the European Convention on Human Rights. In Planned Parenthood v. Casey confirmed constitutional protection for "intimate and personal choices." Romer v. Evans (1996) struck down legislation against homosexuals as a class, but here we hold this statute invalid under the Due Process Clause, not the Equal Protection Clause—it would be unconstitutional, even if directed at heterosexuals and homosexuals alike, to ban private sexual actions between consenting adults. Those who authored the Due Process Clause didn't presume to have the insight of knowing all the "components of liberty in its manifold possibilities," and therefore drafted the Clause using general language. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Dissent Scalia, Chief Justice Rehnquist, Thomas: Most of the majority's opinion has nothing to do with its central holding: that the Texas ban on sodomy furthers no rational basis. If the Court overturns a decision such as Bowers simply because its foundations have been "eroded" and it has been subject to criticism, then why didn't the Court overturn Roe v. Wade? The majority does not dispute the Bowers holding that there is no fundamental right to participate in homosexual acts. If there is no rational basis for a Texas law showing the state's moral opposition to homosexuality, then there can be no rational basis for laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Dissent Thomas: As they said in Griswold v. Connecticut, I find that the Texas law "is … uncommonly silly." Nevertheless, I can't find in the Constitution what the majority terms "iberty of the person both in its spatial and more transcendent dimensions."

Loving v. Virginia, 388 U.S. 1 (1967)

Two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. After returning to Virginia, they were charged with violating Virginia's ban on interracial marriage. The state claimed that it had legitimate purposes "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride." Does the Virginia statute violate the Due Process Clause of the Fourteenth Amendment? Held Chief Justice Warren: Yes. Marriage is one of the "basic civil rights of man," has held in Skinner v. Oklahoma, and cannot be denied based upon racial classifications, which classifications are "so directly subversive of the principle of equality at the heart of the Fourteenth Amendment." Does the Virginia statute violate the Equal Protection Clause, even though the law applies equally to both the black and white members of a mixed couple? Held No. "Virginia's miscegenation statutes rest solely upon distinctions drawn according to race." When subjected to strict scrutiny, there is no legitimate purpose to justify the classification. The statute is simply a measures to maintain White Supremacy, especially evidenced by the fact that it only regulates marriages involving white persons.

Zablocki v. Redhail, 434 U.S. 378 (1978)

Wisconson statute § 245.10 required court permission to marry for anyone having a minor child not in custody for which there is an obligation of support. The court could not allow permission to marry unless the applicant provided proof of compliance with the support obligation, and shows that the child is not and will likely not in the future become a public charge. Redhail wanted to marry Zablocki, but couldn't because of the Wisconson statute: he had fathered a child in high school out of wedlock, and had not been able to pay the $109 per month for several years, now totalling $3,700. Even if he could pay the obligations, the child had been a public charge since birth and would remain so. Does the Wisconson statute violate the Equal Protection Clause? Held Marshall: Yes. According to Loving v. Virginia and other cases, the right to marriage is of "fundamental importance," which means that there should be a "critical examination" of the statute because it "significantly interferes" with the exercise of that right: those who have not paid obligations or have a child that is a public charge are absolutely barred from marriage. ("By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. … The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.") There is no sufficiently important state interest coupled with a statute closely tailored to effectuate only that interest. Does counseling of those with obligations provide a sufficient state interest for the statute? Held No. While that may have been one of the motivations for the statute, the statute doesn't guarantee counseling and prevents marriage even if there is counseling. Does the statute as a "collection device" for support obligations serve a state interest? Held No, the statute doesn't guarantee that money gets to the applican't prior children, it just prevents the applicant from getting married. Does the statute serve an important state interest by preventing an applicant from incurring more obligations? Held No, the applicant can incur new obligations without getting married, and the statute may prevent the applicant from paying old obligations because the marriage might have provided a new source of income via the spouse. Concur Stewart: This is not a violation of the Equal Protection clause, which deals with discriminatory classifications. The statute is unconstitutional because it "exceeds the bounds of permissible state regulation of marriage" allowed by the Due Process Clause. There is no "right to marry" in the constitutional sense, and states can outlaw marrying siblings or minors, for example. There is a liberty of "freedom of personal choice in matters of marriage and family life," and this statute directly abridges that freedom because it makes not allowance for the truly indigent. Dissent Rehnquist: Marriage is not the sort of "fundamental right" that would trigger the "strictest judicial scrutiny." The statute should receive the "traditional presumption of validity" and need pass only the "rational basis test" under the Equal Protection Clause, and need show under the Due Process Clause merely that the statute bears a "rational relation to a constitutionally permissible objective." As such, the statute is permissible—even though it may be imprecise—because the state can regulate family life and assure the support of minor children.

Whalen v. Roe, 429 U.S. 589 (1977)

As an attempt to preempt drug abuse, New York created five schedules of drugs: Schedule I contained illegal drugs, often abused, with no legitimate medical use, followed by four other schedules of decreasingly abused drugs with medical uses. For all Schedule II drugs, a statute required that physicians submit patient and drug prescription information—about 10,000 every month—to be electronically stored at the Department of Health in Albany with security measures. Does the accumulation of patient names, addresses, and drug use information in a computer database violate a "zone of privacy" protected by the Fourteenth Amendment? Held Stevens: No. (There are actually two kinds of "privacy": an individual interest in avoiding disclosure of information, and an interest in independence in making important decisions.) Doctors could voluntarily reveal this information even without the statute. The statute provides for security of the data, and nothing indicates that those restrictions won't be followed. Disclosure isn't really different from that before the statute. There is a certain "threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files," but the government already does this for collecting taxes and distributing welfare. The motivation behind the New York statute is warranted, and security measures are put into place.

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)

Virginia had a poll tax of $1.50 to vote in a state election, with $1.00 going to help public schools and $0.50 for general purpose use. Does a poll tax for a state election violate the Equal Protection Clause of the Fourteenth Amendment? Held Yes. "[T]he right to vote is too precious, too fundamental to be so burdened or conditioned." The right to vote in state elections is implicit in the Constitution. While the state may set qualifications for voting, "wealth or fee paying has … no relation to voting qualifications."

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)

The Texas Minimum Foundation School Program amounted to about half of the school funding in Texas, comprised of 80% of funding from state funds coupled with 20% from each corresponding school district, coming from local property taxes. Differences in local incomes resulting in disparate funding: funds for Edgewood Independent School District, comprised of over 90% Mexican Americans and over 6% African Americans, totaled $356 per pupil; while funds for the affluent Alamo Heights Independent School District, comprised of only 18% Mexican Americans and less than 1% African Americans, totaled $594 per pupil. Is access to education, necessary for the enjoyments of fundamental rights such as speech and political participation, itself a fundamental right under the Equal Protection Clause, thereby subjecting education-related legislation to strict scrutiny? Held Powell: No, there need only be a rational basis for an education-related fiscal scheme. The Constitution doesn't mention education as a fundamental right either explicitly or implicitly. Even if education is necessary to excercise the right to speak and to vote, evidence of unequal education does not indicate that the education is inadequate to sustain such rights. It is unclear how education as a necessity could be distinguished from food and shelter, which are also necessary but not fundamental rights. The Court is not in general an expert in scrutinizing local fiscal schemes, and to get involved would alter the relationship between national and state power in our federal system. Dissent Brennan: White is right that this financing scheme violates the Equal Protection clause because it doesn't have a rational basis, but what also worries me is that the majority believes a fundamental right only exists if it is "explicitly or implicitly guaranteed by the Constitution." A right is more fundamental the closer it is linked to constitutionally guaranteed rights, and the right to education is "is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment," so it should be subjected to strict scrutiny. The scheme is invalid, as even the state doesn't think the fiscal plan would pass Constitutional muster under strict scrutiny. Dissent Marshall, Douglass: The majority is correct that determining which rights are fundamental is not easy. This does not mean that only those rights in the Constitutional are fundamental, or that fundamental rights should be arbitrarily chosen. "The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly." Procreation, for example, is not mentioned in the Constitution but it is closely linked to the right of privacy. Here education is a major contributor of ideas an individual uses when exercising First Amendment rights, and education is essential to ensuring individuals can contribute to the political process to preserve the democratic form of government. The Texas system results in unequal education that depends on the taxable wealth of the immediate area. As held in Brown v. Board of Education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." It is really no answer to say that later legislative action will probably fix things up.

Romer v. Evans, 517 U.S. 620 (1996)

Aspen, Boulder, and Denver had enacted ordinances banning discrimination against homosexuals in housing, employment, education, public accommodations, and health and welfare services. In a statewide referendum in 1992 Colorado amended its constitution. Amendment 2 repealed the homosexual discrimination statutes by prohibiting the passing of any laws that would give homosexuals protected status or allow them claims of discrimination. Does Amendment 2 violate the Equal Protection Clause of the U.S. Constitution? Held Kennedy: Yes. Even laws not affecting a fundamental right or targeting a suspect class must still bear a "rational relation to some legitimate end." Amendment 2 identifies a group of people by a single trait and denies them protection, and even the right to ask for protection, across the board. "A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." To cite the freedom of landlords or employers to hire whome they choose provides no basis for this legislation. There is no state interest in singling out a class of persons solely to make them unequal to everyone else. Dissent Scalia, Chief Justice Rehnquist, Thomas: Amendment 2 does not discriminate against homosexuals, it merely prevents them from being protected more than average persons. It makes no sense to say that to make it more difficult for a group to obtain protection—here, requiring homosexuals to amend the state constitution in order to gain protection—is to discriminate against that group. There is moreover a legitimate rational basis for Amendment 2: prohibiting special protection for homosexuals. Bowers v. Hardwick, 478 U.S. 186 (1986) allowed states to make homosexuality a crime, so why can't a state "prevent piecemeal deterioration of the sexual morality" by "merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct"?

Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)

New York City Traffic Regulations Section 124 outlawed advertising vehicles on the streets, with the exception that business vehicles could have advertisements relating to the usual business of the owner. Appellant Railway Express Agency operates a nationwide express business, and sells advertisements unrelated to its business to be placed on its trucks, of which there are abou 1,900 in New York City. As an advertisement for a business on the business owner's truck is no less distracting than the same aftertisement on an unrelated business owner's truck, does the statute violate the Equal Protection Clause for lacking a reasonable relationship to the purpose of the law? Held Douglas: No, the Court doesn't have better insight than the New York city legislature into traffic problems. "It is by … practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered." "The local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use." "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Concur Jackson: Traditionally the Supreme Court has been more apt to support Due Process claims than Equal Protection claims against laws. The emphasis should be the other way around; while Due Process violations prevents a legislature from acting altogether in a specific realm, Equal Protection analysis allows the legislature to act, while ensuring that the law in question applies equally. Here the Court should rule that the New York legislation violates the Equal Protection Clause because "it applies unequally upon classes whose differentiation is in no way relevant to the objects of the regulation." That is, an advertisement causes just as much visual pollution and traffic whether that advertisement relates to the owners' business. "The Equal Protection Clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free."

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979)

The New York City Transit Authority refused to employ persons who use methadone—a drug used to treat heroin addicts—because even though a substantial majority of patients successfully did not revert to heroin after a year of methadone treatment, a significant number were unsuccessful. Respondents recognized the need for special rules for methadone users, but argued that the restriction should be narrower, only excluding methadone users from dangerous jobs or those methadone users under treatment for less than a year, as statistically reversion dropped dramatically after this point. Does the NY TA hiring practice violate the Equal Protection because it is overly inclusive in the methadone users it excludes from hiring? Held Stevens: No. Although a narrower hiring practice might more precisely exclude the heroin addicts that provide the most risk, such a hiring practice might be unweildy and cost more to maintain. The current hiring practice is overinclusive across the board—the overinclusion does not single out "some unpopular trait or affiliation." "Under these circumstances, it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole." Dissent White, Marshall: All employees have the potential of being discovered to be undesirable. The petitioners have not shown that successful methadone users of over one year are not employable. It's easy to note which methadone users have been using the drug past the one-year mark, and similar distinctions are used, for example, when determining the employability of former alcoholics, mental patients, diabetics, and epileptics. Even if succussfully maintained methadone users of over one year were marginally less employable than the average applicant, "the blanket exclusion of only these people, when but a few are actually unemployable and when many other groups have varying numbers of unemployable members, is arbitrary and unconstitutional."

City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)

Jan Hannah purchased a building at 201 Featherston Street in Cleburne, Texas, intending to lease it to Cleburne Living Center, Inc. to be used as a group home for up to 13 mentally retarded men and women. The city required and subsequently denied a permit for the building, even though the city does not require a permit in the same R-3 zone for apartment houses; fraternity and sorority houses; hospitals; and nursing homes. Is mental retardation a quasi-suspect category under the Equal Protection Clause, requiring discriminatory government actions substantially further an important governmental purpose? Held White: No. The mentally retarded is merely a group that requires the default rule of "rationally related to a legitimate governmental purpose." Mental retardation is a broad categorization for many types of handicaps, and the legislature "guided by qualified professionals" is better equipped to deal with this issue. The legislature has already been improving the plight of the mentally retarded. Moreover, meeting the needs of the retarded may in some cases require discrimination (e.g. an "appropriate," not necessarily equal, education), and requiring that government action "substantially further" a legitimate government purpose might chill the government from acting at all. The mentally retarded aren't politically powerless, and they constitute such an amorphous group that labelling them a "quasi-suspect" group would undoubtedly result in a similar classification to many other groups. Is the discriminatory housing policy rationally related to a legitimate government purpose? Held No. The mentally retarded to not threaten the legitimate interests of the city in ways distinct from apartments, fraternities, hospitals, and the like, even though the the later categories of buildings do not require permits. The discrimination is thus invalid under the Equal Protection Clause. Mere negative feelings of the community against the mentally retarded do not threaten the city. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The city's fear is invalid that students from a junior high school across the street may harass the Featherston home residents—the school itself has about 30 mentally retarded students attending. The concern over the "five hundred year flood plain," the worry over the legal responsibility of the residents, and the question about fire safety for such large houses with many occupants all apply equally to the other types of buildings not required by the city to have permits. It appears that the real reason the city requires a permit here is that it has "an irrational prejudice against the mentally retarded …."

Korematsu v. United States, 323 U.S. 214 (1944)

During the war with Japan, the military subjected all persons of Japanese ancestry in certain West Coast military areas to a curfew, and then excluded 110,000 of them from their homes and placed them in concentration camps. Korematsu ignored Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, an did not leave San Leandro, California. Was the order, excluding Japanese from the area because of their race, in violation of the Equal Protection Clause? Held Black: No. "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect," though not necesssarily unconstitutional—they are subjected to "the most rigid scrutiny." "Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." Here the petitioner was not excluded from his home "because of hostility to him or his race," but because of "war with the Japanese Empire" and the military determined that there were an "unascertained number of disloyal members of the group." At the time a fear of problems with Japanese was justified—after all, "five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan." Excluding a large group of citizens from their homes "is inconsistent with our basic governmental institutions," but in war time everybody has to sacrifice, some more than others. Dissent Murphy: We must respect the decisions of the military, but they are still subject to judicial review to determine if they overstepped "allowable limits of military discretion." Deprivation of constitutional rights is only allowed if the military necessity is "immediate, imminent, and impending." The exclusion of "all persons of Japanese ancestry, both alien and non-alien" from the Pacific Coast "was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity," in large part "an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices …." It would have been possible to hold loyalty hearings for these 112,000 people, as we did with those of German and Italian ancestry and as the British government did with German and Austrian aliens. To infer "that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States … is to adopt one of the crudest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow." Dissent Jackson: Korematsu is an American citizen, and his crime is simply remaining near the place where he was born and has lived all his life. Neither a German alien enemy, an Italian alien enemy, nor a convict convicted of treason but on parole would have been in violation of the order. The military order made it a crime for Korematsu to remain in his home only because "he was born of different racial stock;" that result, even if the order was a military expedient, "has no place in law under the Constitution" and should not be upheld by the Supreme Court.

Palmore v. Sidoti, 466 U.S. 429 (1984)

Two parents were separated and the mother was given custody of the child. The mother started cohabiting with a black man and then married him. The father asked for custody, and the court granted it—not simply because of the other man's race, but because the relationship might subject the child to ridicule at school. Can the race of the mother's partner be a cause for taking away custody, when the mother has already been determined to be an appropriate person to have custody? Held No. The child may be subjected to pressures because of the mixed relationship, but childrenare subjected to pressures even if their parents are of the same race. The Court cannot control social prejudices, but those prejudices cannot serve as a basis for removing custody. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

Plessy v. Ferguson, 163 U.S. 537 (1896)

Louisiana passed a law in 1890 requiring separate but equal train coaches for blacks and whites. When petitioner, who was 7/8 white and 1/8 black, tried to sit in the white coach, he was forcibly ejected and put in jail. Do separate railway cars violate the Fourteenth Amendment? Held Brown: No. The Fourteenth Amendment established political equality but did not abolish distinctions based upon color or require social comingling of races. Laws requiring separation of races do not necessarily imply that one race is inferior to the other, and if anyone thinks differently it is "solely because the colored race chooses to put that construction upon it." We have separate schools for black and white children, and laws preventing racial intermarriage is within the police power of the state. If the two races meet in terms of social equality, it must be voluntary. "Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation." Dissent Harlan: Everyone knows the Louisiana law was passed, not to keep whites from black cars, but to keep blacks from white cars. Railroad owners didn't make these rules—the government did. If the government prevents a black person and a white person from occupying the same public conveyance on a public highway, it is "infringing the personal liberty of each." "Our constitution is color-blind, and neither knows nor tolerates classes among citizens." "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. … The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done."

Brown v. Board of Education, 347 U.S. 483 (1954)

Black plaintiffs from Kansas, South Carolina, Virginia, and Delaware brought suits seeking nonsegregated admission to public schools. Do segregated schools violate the Equal Protection Clause of the Fourteenth Amendment? Held Chief Justice Warren: Yes. The historical intentions of Congress in enacting the Fourteenth Amendment are at best inconclusive. However, the educational system today is different from the educational system then: in the South schools were mostly privately run, and most school attendance was only three months a year and was not mandatory. Today, however, school is publicly funded by taxes and attendance is mandatory. Education is recognized as the cornerstone of democracy, the "very foundation of good citizenship," and "a principal instrument in awakening the child to cultural values …." "[S]egregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive[s] the children of the minority group of equal educational opportunities" because it "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

Washington v. Davis, 426 U.S. 229 (1976)

To become an officer in the District of Columbia Metropolitan Police Department, in addition to other criteria one had to pass "Test 21," a test developed by the Civil Service Commission designed to test verbal ability, vocabulary, reading and comprehension. Two black police officers filed suit because a higher percentage of blacks than whites fail the test. Is a law, neutral on its face and serving ends otherwise within the power of government to pursue, invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another? Held No. The whole point of the Fourteenth Amendment is to prevent official conduct discriminating on the basis of race. Even if a law has a racially disproportionate impact, it is not unconstitutional unless it reflects a racially discriminatory purpose "inferred from the totality of relevant facts." Disproportionate impact can be introduced as evidence of discriminatory purpose, but by itself does not trigger strict scrutiny of the law. Here the government wants employees of a particular level of verbal skill, and those that do not fare well do not have a claim just because blacks or whites may have performed better as a group. Dissent Brennan, Marshall: Every other federal court except the District Court in this case has reached a conclusion opposite to the majority. Petitioners should be required to prove that the police training examinations either measure job-related skills or predict job performance—otherwise, an employer could validate an entrance exam simply by administering a subsequent verbal skills exam for those with higher verbal ability than job skills.

McClesky v. Kemp, 481 U.S. 279 (1987)

McCleskey, black man, killed a white police officer during a bank robbery. The jury, noting the aggravating circumstances of killing during a bank robbery and killing a peace officer in performance of duties, sentenced McCleskey to death in line with Georgia statutes. McCleskey filed a petition for a writ of habeas corpus, citing a statistical study by Professors David C. Baldus, Charles Pulaski, and George Woodworth which showed that, in Georgia, a person killing a white person was over four times more likely to receive the death penalty than one killing a black person, even after taking into account nonracial variables. Does the Georgia capital punishment statute violate the Equal Protection Clause of the Fourteenth Amendment because black murderers and people who murder whites are more likely to be sentenced to death? Held Powell: No. A violation of equal protection requires the basic principle that "the existence of purposeful discrimination," as well as the corollary principle that the purposeful discrimination "had a discriminatory effect" on the defendant. Here there is no proof that the state acted with a discriminatory purpose when enacting the death sentence statutes. Mere "awareness of consequences" does not imply that the discriminatory outcome was the motivation of the legislation. Likewise McClesky presents no proof that his particular case was the target of discrimination—it is not challenged that "McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty." "Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused." Dissent Brennan, Marshall, Blackmun, Stevens: Statistically, there is a "better than even chance" in Georgia that McClesky's death sentence was influenced by race. Georgia's history of a dual system of justice for blacks and whites bears out that "McCleskey's claim is not a fanciful product of mere statistical artifice." Furthermore, "[t]his Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years." Georgia still has no guidelines to juries for applying aggravating and mitigating factors—after identifying a single aggravating factor, a jury has complete discretion over whether to apply the death penalty. "[W]e ignore [McClesky] at our peril, for we remain imprisoned by the past as long as we deny its influence in the present."

Palmer v. Thompson, 403 U.S. 217 (1971)

Jackson, Mississippi in 1962 was maintaining segregated swimming pools, parks, zoos, golf courses, and other public facilities. Four swimming pools were white-only, and one was black-only. The District Court declared such segretation a violation of the Thirteenth and Fourteenth Amendments, but did not issue an injunction. Jackson desegregated the parks, zoos, golf courses, etc., but elected to shut down the swimming pools rather than desegregate them. Is closing a public facility to keep from desegretate it a violation of the Equal Protection Clause? Held Black: No; there is no group being allowed access while another group is being denied access—all are now equally denied access to swimming pools. "[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it." This is because it is difficult to know the "real" or "sole" motivation for passing a law. Even if such a motivation were evident and the law were struck down, presumably the same law would be allowed if re-enacted for a different reason. Dissent Douglas: Following the majority reasoning, a state could presumably choose to dismantle its public education system rather than desegregate, as there's nothing in the Constitution that says a state must have a public school system. As the Court of Appeals pointed out, not only does Jackson's action deny blacks access to swimming pools, it provides them a catch-22 decision: continue enjoying public facilities and accept segretation, or protest and have the facility taken away altogether. States should be allowed to close public facilities, but not for the "purpose of perpetuating or installing apartheid or because it finds life in a multiracial community difficult or unpleasant."

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)

Massachusetts statute ch. 31, § 23 gave preference for veterans when hiring for state civil service positions. As over 98% veterans in Massachusetts were male and over one quarter of the Massachusetts population were veterans, this resulted in a "devastating impact upon the employment opportunities of women." Because the legislature knew of the inevitable outcome of the legislation, does this mean there was a discriminatory legislative intent against women sufficient for finding a violation of the Equal Protection Clause? Held Stewart: No. "'Discriminatory purpose' … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Here, although the state surely knew that the legislation would discriminate against women, that is not why the legislation was put into effect—the legislature merely wanted to benefit veterans, even women veterans, and discrimination against women in general was only a side effect.

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)

In 1971 respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner Village of Arlington Heights, Ill. to rezone a 15-acre parcel of land from single-family (R-3) to multiple family (R-5), planning to build 190 townhouse units for low and moderate income tenants. The Village denied the request, so MHDC sued claiming racial discrimination under the Fourteenth Amendment and the Fair Housing Act of 1968. Besides the racially disproportionate impact of this decision, was there a racially discriminatory purpose? Held Powell: No. There should be no judicial deference to the legislature if there was a racially discriminatory purpose, but there must be proof of such purpose. Proof that an invidious discriminatory purpose was a motivating factor "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." This includes the historical background of the decision, the sequence of events leading up to the decision, and legislative or administrative history. Here the area's zoning has been single-family since Arlington started using zoning maps, and the area is surrounded with single-family homes. Arlington has an overall preference for single-family homes, and the rezoning request went through the usual procedures. There is therefore "little about the sequence of events leading up to the decision that would spark suspicion."

Brown v. Board of Education [II], 349 U.S. 294 (1955)

Held Warren: "School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles." The case is remanded to the lower courts to oversee implementation, following traditional principles of equity that call for "a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Plaintiffs should be allowed to attend school without discrimination "as soon as practicable." Defendants should "make a prompt and reasonable start toward full compliance" of our ruling, but defendants are allowed to show that they need more time. The District Courts should "enter such orders and decrees" as necessary to desegregate schools "with all deliberate speed."

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

The University of California at Davis Medical School set aside 16 seats in its admission size of 100 to be filled by "disadvantaged" minorities such as blacks, Mexican-Americans, and Native Americans, as these minorities had been severely underrepresented or not represented at all. Is the UC Davis policy discriminatory under the Fourteenth Amendment? Held Powell: Yes. The admissions policy is a classification based upon race. Here white applicants can only compete for 84 seats, while minority applicants can compete for all 100. Should the court use strict scrutiny, even though the group discriminated against, Caucasions, is not a "discrete an insular minority?" Held Yes. Discrete and insular minority is only relevant when the Court adds new types to its list of suspect categories. Racial and ethnic classifications are already on the list of suspect categorizations. Moreover, the discrimination may not be benign, it may reinforce racial stereotypes, and discrimination is prima facially inequitable, because it asks an innocent person to bear the burden of others. Strict scrutiny is appropriate, requiring that the classification purpose be constitutionally permissible and substantial, and that the classification be necessary to the purpose. Is reducing the deficit of minorities in the university a valid purpose? Held No. Ensuring a percentage of students based on race is facially invalid. Is it an appropriate reason for the classification that the government wishes to ameliorate a history of discrimination, and is this method necessary? Held No. The state should ameliorate discrimination, but not through a classification that victimizes another group in the absence of "judicial, legislative, or administrative findings of constitutional or statutory violations." Is delivering health care in underrepresented communities a legitimate purpose, and is this the necesary method? Held No. A state has an interest in delivering health care, "[b]ut there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal." Is this admissions policity legitimate and necessary to promote diversity? Held No. Attainment of a diverse student body "clearly is a constitutionally permissible goal," as this is "widely believed" to improve the atmosphere of "speculation, experiment and creation." But an admission program may not admit or deny applicants solely because of race, as this is not necessary to gain diversity. Such a policy may not even promote overall diversity, which changes with the applicants and addresses more than race. An admission program that wishes to achieve diversity may treat "each applicant as an individual," and may use race as one among many factors of diversity when evaluating the application. Concur, Dissent Brennan, White, Marshall, Blackmun: Despite the differring opinions here, we all agree that "Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area." Law that is completely color-blind is but an aspiration as long as there is inequality to remedy. Whites are not powerless and this case "does not fit neatly into our prior analytic framework for race cases," but we should nonetheless use strict scrutiny instead of "the very loose rational-basis standard" because there is the potential for abuse in any discrimination based upon race. Here, however, there are statistics showing that the percentage of blacks getting medical degrees has been holding at around 2.2%, even though blacks make up over 10% of the population and growing, and this disparity shows no sign of improving. UC Davis should therefore be allowed to set aside 16 chairs for minority students. Marshall: It's good that the majority believes that a university can take race into account when granting admissions, but the history of class-based discriminations against blacks means that for true equality governments must be allowed to take not only individual-based but class-based remedies. After the Civil War the government started several affirmative action programs, but Plessy v. Ferguson "destroyed the movement toward complete equality." Now with this holding we have "come full circle," stopping the positive programs started in the wake of Brown v. Board of Education. Concur, Dissent Stevens, Chief Justice, Stewart, Rehnquist: Title VI of the 1964 Civil Rights Act prohibits being "excluded from participation in … any program … receiving Federal financial assistance" on account of race. Here UC Davis receives federal funds, and Bakke was excluded because of race, so we should strike down the UC Davis policy on the plain language of the statute without even examining the Constitutional issue.

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)

The Richmond City Council adopted the Minority Business Utilization Plan in 1983 which required city construction contractors to award at least 30% of the contract amount to Minority Business Enterprise (MBE) subcontractors—those businesses of which at least 51% were "Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts." The Council declared the plan "remedial," as 50% of the Richmond population was black but only 0.67% of city prime construction contracts had been awarded to minorities. Should the Plan be subject to strict scrutiny under the Equal Protection Clause? Held O'Conner: Yes. "[A] state or local subdivision … has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction" or, if there is no evidence of discrimination, to use "race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races." States unlike Congress, however, do not have automatic power to enforce the Fourteenth Amendment to "redress the effects of society-wide discrimination …." Without judicial inquiry, there is no way to know which "remedial" measures are "benign" and which classifications "are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." "Classifications based on race carry a danger of stigmatic harm" and thus deserve hightened scrutiny. Is the Richmond Plan sufficiently narrowly tailored to meet the requirements of strict scrutiny? Held No, the Plan is not tailored to remedy any rigorously identified past descrimination. "While there is no doubt that the sorry history" of discrimination has generally lowered opportunities for blacks, the claim of descrimination in construction contracts is "amorphous" and doesn't deserve racial quotas. "It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination …." "The 30% quota cannot in any realistic sense be tied to any injury suffered by anyone." There is even less evidence calling for remedial action regarding the other minorities mentioned—"[i]t may well be that Richmond has never had an Aleut or Eskimo citizen." Without any specific findings of specific discriminatory circumstances to remedy, "there is a danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics." Concur Stevens: I agree with the majority's explantion of why the Richmond Plan cannot be justified as a remedy for past descrimination, but that doesn't mean that a government remedy must always look only to past mistakes—future impact should be taken into account as well. Held Scalia: The majority is right that all governmental classification based upon race must be subject to strict scrutiny, but I believe that any discrimination to compensate for past social disadvantages violates the Fourteenth Amendment as written. States may only reference race-based classifications to remove unlawful race-based classifications (or if there is imminent danger to life or limb). Of course, a state may always use race-neutral methods "'to undo the effects of past discrimination.'" Dissent Marshall, Brennan, Blackmun: It is ironic that the Court has told Richmond, the former capital of the Confederacy, that it hasn't produced enough evidence of racial discrimination. Richmond knows very well well what racism is, and has supported its contention of discrimination with statistics showing that black contractors get virtually no city contracts; this sort of evidence has sufficed in other cases. The Richmond Plan should be declared constitional, and "racial classifications drawn for the purpose of remedying the effects of discrimination that itself was race based" should not be subjected to strict scrutiny. It is "wishful thinking" to regard "racial discrimination as largely a phenomenon of the past" and to believe that "government bodies need no longer preoccupy themselves with rectifying racial injustice."

Grutter v. Bollinger, 123 S. Ct. 2325 (2003)

The University of Michigan Law School's admission program looked at several factors including LSAT scores, race, background, languages, life story, and past academic record. Race was considered a "plus" in achieving diversity, but was not dispositive in gaining acceptance, as other types of diversity were considered. Barbara Grutter is a white Michigan resident with a 3.8 GPA and a 161 LSAT score who was denied entry to the university in 1996 after being put on the waiting list. Should the admission policy be subjected to strict scrutiny? Held O'Conner: Yes, all racial classifications imposed by the government must be reviewed under strict scrutiny to ensure they have adequate justification. Is achieving a diverse student body in higher education a compelling state interest? Held Yes. The good faith of the university is assumed. A diverse student body helps education, aids understanding of other races, and prepares students for a career in a diverse world. Is the admission policy "specifically and narrowly framed" to accomplish student diversity? Held Yes. The policy does not create con-competing groups or quotas, which would be unconstitutional, but instead allows all students to compete with all others for admission. Race is only a plus among many other factors. The university seeks to gain a "critical mass" of certain ethnicities, not a particular number. (A lottery system, on the other hand, wouldn't necessarily achieve diversity, and decreasing emphasis on test scores would simply lead to an overall less competent student body.) Even narrowly tailored racial preference can be harmful, so there should be a sunset provision and/or the policy should be periodically reviewed. ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.") Concur Ginsburg, Breyer: Around three fourths of African-Americans and Hispanics attend schools in which minorities make up a majority of the student body, and schools in predominantly minority communities usually lag behind others as to educational resources. We hope that eventually we can sunset affirmative action, but that's something we can't "firmly forecast." Concur, Dissent Scalia, Thomas: The Chief Justice is right: this "mystical" "critical mass" criterion is just a "sham to cover a scheme of racially proportionate admissions." If diversity has an educational benefit, why isn't diversity on any school test? If diversity is good for the university, why not use racial criteria when hiring civil servants? Rather than either constitutionally banning racial preference or unconstitutionally allowing it, the majority's decision starts some in-between artificial system of "good faith" "critical mass" preference jurisprudence. Concur, Dissent Thomas, Scalia: Frederick Douglass asked the government to "give [an African-American] him a chance to stand on his own legs! Let him alone!" I concur that quotas are unconstitutional and that this admission policy will be illegal in 25 years, but I think it's illegal now. "The Law School's argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits." There's no effort to explain how diversity is a compelling interest—it's doubtful that even having a law school is a compelling interest, as some states don't have them. Some studies have shown that blacks learn better when they are not in diverse environments, but with other blacks. "I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that racial discrimination is necessary to remedy general societal ills," both of which were "supposedely settled" in the negative by precedent. There's no evidence that this preference benefits those who receive it, and it moreover puts a stigma of being undeserving to those minorities who would have been accepted even without the racial preference. Dissent Chief Justice Rehnquist, Scalia, Kennedy, Thomas: The majority is right that, in the limited instances in which it is permissible to draw distinctions based upon race, the means must be narrowly tailored to achieve a compelling state interest. Here, however, the "critical mass" needed to obtain "the educational benefits that flow from a diverse student body" are all vague terms. Why is the university admitting six times the number of African-Americans than Native-Americans—do the latter need a smaller percentage of attendees to gain "critical mass?" What's really going on is that this is "a naked effort to achieve racial balancing," which is unconstitutional. The policy also fails to set any limits, and we've always said that there must be limits on race-conscious programs; the majority's references to a 25-year mark offer only "the vaguest of assurances." Dissent Kennedy: Powell in Regents of the University of California v. Bakke stated that a university admission program may take account of race as long as it passes judicial strict scrutiny. I agree that race may be considered, but the majority here has ignored the second part of Powell's formulation and abandonded strict scrutiny, instead deferring to the university on how it pursues diversity. As the Chief Justice notes, this policy is really an attempt at racial balancing, making race a dominant acceptance criterion, and that is not allowed. And what is the majority trying to do with this 25-year-related pronouncement? Are they putting a time-limit on Justice Powell's test, or trying to add a self-destruct mechanism to this opinion? Abandoning strict scrutiny removes the incentive for the school to look for race-neutral ways of achieving diversity.

Gratz v. Bolling, 123 S. Ct. 2411 (2003)

Petitioners Jennifer Gratz and Patrick Hamacher are white, and both applied to the University of Michegan College of Literature, Science, and the Arts (LSA) and were denied entrance. The University at the time considered first the "SCUGA" factors: "the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A)." After the SCUGA factors were analyzed, the applicant's race would be considered, and in some cases a minority applicant would be admitted when a white applicant's admission would be postponed. The university later changed to a points system, assigning 20 points based upon membership in an underrepresented racial or ethnic minority group; this changed "only the mechanics, not the substance of how race and ethnicity were considered in admissions." Does the admission program meet judicial strict scrutiny by being narrowly tailored to meet the school's stated interest of diversity? Held Rehnquist: No. Rather than offering applicants an individualized selection process, the admissions program automatically determines admission in some instances based upon race or, in the new program, based upon a number of points, 20 of which are assigned purely because of race. This lack of individual consideration would lead to instances in which a student with "'extraordinary artistic talent' [which] rivaled that of Monet or Picasso" could still be passed over in favor of a minority who had gathered more points. The admissions policy thus violates the Equal Protection Clause of the Fourteenth Amendment, as well as Title VI and 42 U.S.C. § 1981.1. Concur O'Conner, Breyer: The admission system in question, unlike that in Grutter v. Bollinger, is "a nonindividualized, mechanical one" because it automatically gives a number of points to the race factor, and a relatively high number of points at that. The Admissions Review Committee could be a source of individualized consideration, but it's unclear how many applications this committee actually reviews. Concur Breyer: I concur with but do not join the majority, join O'Conner as far as she joins the majority, and join the first part of Ginsburg's dissent, but I don't dissent from the reversal of the District Court. I agree with Ginsburg that government decisionmakers may distinguish between policies of inclusion and those of exclusion. Dissent Ginsburg, Souter, Breyer: Because "[t]he stain of generations of racial oppression is still visible in our society," government decisionmakers should "distinguish between policies of exclusion and inclusion." They should distinguish between policies that deny rights because of race and those that seek to eliminate the effects of descrimination, much like human rights groups "distinguish between policies of oppression and measures designed to accelerate de facto equality." Those programs, like the one here, that seek to include and hold up under "close scrutiny" should be allowed.

United States v. Virginia, 518 U.S. 515 (1996)

Virginia Military Institute (VMI) was founded in 1839 and was in 1996 Virginia's only single-sex school of higher learning. VMI used an "adversative" approach to produce "citizen-soldiers" who have ended up as military generals, members of Congress, and business executives. Virginia claimed that single-sex education provided pedagogical benefits; and that VMI's adversative methods could not be made available, unmodified, to women, but that modification would destroy the program. If held unconstitutional, VMI offered to create a parallel Virginia Women's Institute for Leadership (VWIL) at Mary Baldwin College, even though that college had lower SAT entry scores and had less available programs. Does VMI's exclusion of women violate the Equal Protection Clause? Held Ginsburg: Yes. "Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action." Here, although it is not disputed that single-sex education can provide benefits, but that's not why VMI was founded—"a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." It is likewise no argument that women would not want to be educated by the current VMI adversative process—many men likewise might not want to be educated by this method. The issue is whether VMI must allow entrance to those women who do want to be educated under this method. May VMI remedy this violation by maintaining VMI as a male-only institution and creating a parallel school for women? Held No. A remedial decree must fit the constitutional violation. A proper remedy for unconstitutional exclusion is to remove the exclusionary policy. Dissent Scalia: The majority ignores the found fact that there are "gender-based developmental differences" that make VMI's adverative approach better suited for men. It revises precedent for reviewing sex-based descriminations. It counts as nothing the long history of VMI as a male-only school. While older generations were close-minded, they and the Constitution did leave issues like these open to debate by not saying one way or another, and this Court should do the same.

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)

The Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississipp was created in 1884 and became the Mississippi University for Women (MUW). In 1982 the MUW was Mississippi's only single-sex university or college. Respondent Joe Hogan is a registered nurse of many years who applied to the MUW School of Nursing's baccalaureate program and was denied because of his sex. MUW claims that its female-only admission is compensation for discrimination against women, constituting educational affirmative action. Does MUW's exclusion of males from its nursing program violate the Equal Protection Clause? Held O'Conner: Yes. "[T]he State has made no showing that the gender-based classification is substantially and directly related to its proposed compensatory objective." For a statute to be upheld that makes classification according to gender, a state must show an "exceedingly persuasive justification" for the classification, at least by showing that the classification serves "important governmental objectives" and that the means are "substantially related to the achievement of those objectives." "'[T]he mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.'" Here there is no record that women lack access to nursing programs, as 94% of those degrees in Mississippi and 98.6% nationwide go to women. "Rather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman's job." Dissent Powell, Rehnquist: More than 40,000 young women over the years have "evidenced their approval of an all-women's college" by choosing MUW over other institutions. Mr Hogan could go to another state university—there's "no constitutional right to attend a state-supported university in one's home town." The Equal Protection Clause was supposed to allow people to attend schools they want to, but the majority's "heightened equal protection standard" keeps women from attending an all-girls school as they would prefer, "frustrat[ing] the liberating spirit of the Equal Protection Clause."

Nguyen v. Immigration and Naturalization Service, 121 S. Ct. 2053 (2001)

Petitioner Tuan Ahn Nguyen was born in Saigon, Vietnam to an unwed American father and Vietnamese mother. Back in the U.S. after turning 22, Nguyen pleaded guilty to two counts of sexual assault on a child. When the INS initiated deportation proceedings, Nguyen claimed U.S. citizenship. Title 8 U.S.C. § 1409 describes how U.S. citizenship is determined for children born abroad of unmarried parents. According to § 1409, if the father is a citizen the child before turning 18 must be legitimated under law, be acknowledged in writing under oath by the father, or have paternity established by a court. If the mother is a citizen, the child automatically is a U.S. citizen. Does this disparate treatment of male and female parents violate equal protection? Held Kennedy: No. The statute "serves important governmental objectives" and the "discriminatory means employed are substantially related to the achievement of those objectives." (We therefore don't have to decide whether some lesser degree of scrutiny is needed.) First, the government has an interest in showing actual parenthood, which is proven and usually documented by the actual process of birth with the mother in a way that does not occur with the father—the father need not even be present at birth, and his presence doesn't prove his paternship. Secondly, the government has an interest in the parent and a child establishing some sort of relationship bond—a "demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States." Biologically the mother and child are required to meet at birth—the father may never meet and moreover may not even know the child exists. Wouldn't across-the-board DNA testing make paternity verification consistent for both parents? Held Well, DNA testing is expensive and troublesome, and DNA testing wouldn't address the second state interest. Dissent O'Conner, Souter, Ginsburg, Breyer: The majority just guesses about the government's purpose—the INS certainly didn't advance those purposes in its brief. The whole point of "heightened scrutiny" is that the means must be "substantially related," not just "rationally related," to an actual and important governmental interest. Here the proof-of-parentage means is not at all tailored—DNA testing would allow a consistent, gender-neutral way of determining parentage. And even if "a demonstrated opportunity" to develop some relationship with the parent, as opposed to an actual relationship, is an "important" governmental interest, being present at birth is not the best or even a good way to ensure that. Children can easily be taken away from their parents and even never be reunited. "There is no reason, other than stereotype, to say that fathers who are present at birth lack an opportunity for a relationship on similar terms."

Plyler v. Doe, 457 U.S. 202 (1982)

Texas denied free public education to school-age children who are undocumented aliens. Does "person within its jurisdiction" in the Fourteenth Amendment only apply to citizens? Held Brennan: No, the legislative history of that amendment showed that the legislature intended it to apply to everyone within the borders of the United States, including aliens. Does the Texas statute further a legitimate state interest? Held No. Although undocumented aliens cannot be treated as a suspect class because their presence within the country is in violation of federal law; and although education is not a fundamental right; nevertheless alien children are a special group that cannot choose where they live, and education is a special commodity that uniquely prepares people to become part of society. There is no evidence that preventing education of illegal aliens will cause an influx of illegal immigrants, as the state claims. And even if refusing education to illegal alien children would provide more resources to and improve education for other children, "undocumented children are 'basically indistinguishable' from legally resident alien children." Lastly, a state purpose of keeping children in state is not appropriate, as it is impossible to determine which children will or will not stay in the state after graduation. Dissent Chief Justice Burger, White, Rehnquist, O'Conner: "[I]t is senseless for an enlightened society to deprive any children—including illegal aliens—of an elementary education," but that doesn't mean the Court consists of "Platonic Guardians" who may set the nation's social policy. The majority acknowledges that undocumented children is not a suspect class and that education is not a fundamental right. In such cases, the dispositive issue is "whether the legislative classification at issue bears a rational relationship to a legitimate state purpose." The prudent allocation of finite educational resources is surely a legitimate state purpose, and depriving undocument children, who have no right to be in the United States, of education is a method that "bears a rational relationship" to that purpose. Employing a higher level of scrutiny only to children of illegal aliens only in the context of public education, as the majority explicitly admits to doing, is "an unabashedly result-oriented approach" if there ever was one.

City of Renton v. Playtime Theatres, Inc., 415 U.S. 41 (1986)

The City Council of Renton, Washington enacted Ordinance No. 3526, which prohibited adult movie theaters within a specified distance of residence zones, family dwellings, churches, parks, and schools. Does the prohibition violate the right to free speech found in the First Amendment? Held Rehnquist: No. Content-based speech restrictions have a presumption of First Amendment violation, while content-neutral speech restrictions may regulate time, place, and manner as long as they "are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." Although the Renton ordinance on its face seems to restrict speech content, its "predominate concerns" are not to restrict the content of adult motion pictures but to protect against the "secondary effects of adult theaters" on the surrounding community, so the content-neutral restriction test applies. Here it is a substantial government interest "to preserve the quality of urban life." Dissent Brennan, Marshall: That the City Council is interested in regulating the "secondary effects of adult theaters" may give the state a compelling interest, but it doesn't make the statute content-neutral. That the ordinance doesn't regulate other types of theaters and doesn't even regulate other forms of adult entertainment suggests that the ordinance is interested in controlling content rather than secondary effects. "Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable 'secondary effects,' or that these problems could not be effectively addressed by less intrusive restrictions." The ordinance is therefore unconstitutional.

Coates v. City of Cincinnati, 402 U.S. 611 (1971)

A Cincinnati ordinance outlawed three or more people standing on a sidewalk and "conduct[ing] themselves in a manner annoying to persons passing by…." Held Stewart: The statute on its face violates the Fourteenth Amendment because it is too vague. "Conduct that annoys some people does not annoy others," and effectively "no standard of conduct is specified at all," meaning that "men of common intelligence must necessarily guess at its meaning."

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)

The Borough of Mount Ephraim in Camden County, New Jersey enacted an ordinance prohibiting all live entertainment. An adult bookstore was prosecuted for operating a coin-operated booth that allowed a customer to watch a live nude dancer. Does the ordinance violate the Fourteenth Amendment because it is overly broad? Held White: Yes. The ordinance prohibits not only objectionable speech but also speech "that has long been held to be within the protections of the First and Fourteenth Amendments," such as political and ideological speech.

Rust v. Sullivan, 500 U.S. 173 (1991)

The Department of Health and Human Services made regulations in the Title X of the Public Health Service Act, passed by Congress to fund family planning services, which prohibited a project receiving Title X funds from providing counseling on abortion as a means of family planning and promoting abortion as a means of family planning. The regulations also required that Title X projects be "physically and financially separate" from prohibited abortion activities. Do the regulations violate the First Amendment by prohibiting "all discussion about abortion as a lawful option" while compelling dissemination of information encouraging pregnancy to term? Held Rehnquist: No. The government can selectively fund programs without needing to fund alternate programs that seek to address the same issue in another way. "A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." Are the regulations unconstitutional because they condition Title X funds on relinquishment of a constitutional right? Held No. A recipient of Title X funds isn't prohibited from speaking about abortion—it just isn't allowed to do so using Title X funds. Dissent Blackmun, Marshall, Stevens: The majority is upholding "viewpoint-based suppression of speech" simply because the party is dependent on government funds. "While suppressing speech favorable to abortion with one hand, the [regulation] compels antiabortion speech with the other." Surely the majority wouldn't allow denial of funds based upon the recipient's race—isn't "ideological viewpoint" a "similarly repugnant ground upon which to base funding decisions?"

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Ohio's Criminal Syndicalism Act prohibited the advocation of violence to effect political reform, as well as voluntarily assembling "to teach or advocate the doctrines of criminal syndicalism." The appellant was a member of the Ku Klux Klan who has invited a Cincinnati television reporter to a KKK meeting, at which he was filmed with others burning a cross, brandishing firearms, and saying derogatory things against blacks and Jews. Is the Ohio statute unconstitutional because it restricts free speech? Held Yes. "The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Here the statute does not distinguish speech of "advocacy" from speech that is an "incitement to imminent lawless action," and therefore violates the First and Fourteenth Amendments.

R.A.V v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)

The St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990) made a misdemeanor of using a symbol, such as a burning cross or Nazi swastika, when one knows that it "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender…." Several teenagers taped together broken chair legs in the form of a cross and set it afire in the fenced yard of the black family across the street. By limiting the statute to speech that "arouses anger…," does the St. Paul pass constitutional scrutiny because it only restricts so-called fighting words unprotected by the First Amendment? Held No, the statute "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." It is not "literally true" that some "categories of expression" are "not within the area of constitutionally protected speech…." Those categories which do not receive First Amendment protection are not "entirely invisible to the Constitution" in that they may not be used as "vehicles for content discrimination unrelated to their distinctively proscribable content." A statute may altogether outlaw any or all of the excepted categories, such as "fighting words" or obscenity, but a statute may not outlaw a subclass of those categories based upon speech content, such as only racially motivated "fighting words" or only obscenity that criticizes the government. (A statute may however prohibit a subclass of the exclusionary basis for the speech, such as outlawing only really obscene material, and may also prohibit a subclass of secondary effects of the speech, such as outlawing only obscenity involving minors. A statute might even use some arbitrary subclass, such as outlawing only obscenity involving "blue-eyed actresses".) Concur White, Blackmun, O'Conner, Stevens: Why not just say the statute is overbroad? By modifying precedence and declaring that the categorical exceptions to First Amendment protection aren't "literally true," the majority creates an "all-or-nothing" approach that forces statutes to outlaw an entire category, or none at all. The majority similarly breaks with precedence in ignoring that, if this statute weren't overbroad, it would pass strict scrutiny review because it is narrowly tailored to address a compelling state interest: "help[ing] to ensure the basic human rights of members of groups that have historically been subjected to discrimination…." Concur Blackmun: Does the majority do away with the precedent of the categorical approach to speech regulation? This would "inevitably … relax the level of scrutiny applicable to content-based laws" and "weaken[] the traditional protections of speech," because if all speech gets the same protection, "that protection will be scant." Does the majority rather merely veer from precedent in an "aberration" in which it "manipulate[s]" the "doctrine to strike down an ordinance whose premise it oppose[s?]" "Either result is disheartening," but I concur because, as White said, "this particular ordinance reaches beyond fighting words to speech protected by the First Amendment."

Feiner v. New York, 340 U.S. 315 (1951)

Irving Feiner was addressing an open-air meeting in Syracuse, standing on a wooden box in front of 75 or 80 people both black and white, talking through a speaker attached to an automobile. Feiner spoke for over a half an hour about how blacks should rise up against whites for equal rights. "The crowd was restless and there was some pushing, shoving and milling around." At least one person threatened violence if the police did not act. A police officer asked Feiner three times over the space of four or five minutes to get down off the box. Finally the police officer placed Feiner under arrest. Does the interference of the police violate Feiner's First Amendment right to free speech? Held Vincent: No. "[W]hen as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot" police may "exercise … exercise their power and duty to preserve peace and order." Dissent Black: "It is neither unusual nor unexpected that some people at public street meetings mutter, mill about, push, shove, or disagree, even violently, with the speaker." Here it "seems farfetched to suggest that the 'facts' show any imminent threat of riot or uncontrollable disorder" and the majority really just sentences Feiner to jail for expressing unpopular views of public interest. Even if the audience was about to riot, the police should have attempted to protect Feiner's right to speak rather than stopping him from speaking. The majority's holding creates a new technique for a city to censor speech, "mak[ing] a mockery of the free speech guarantees of the First and Fourteenth Amendments."

Virginia v. Black, 123 S. Ct. 1536 (2003)

Virginia had a statute that made it a felony to burn a cross with the intent to intimidate a person or group of persons, and made burning a cross prima facie evidence of an intent to commit. Barry Black and others were arrested for holding a Klu Klux Klan rally in an open field at which they, while speaking against blacks, burned a cross. Richard Elliott and Jonathan O'Mara burned a cross on the lawn of James Jubilee, a black neighbor, in order to get back at Jubilee for complaining to Richard's mother about Richard shooting a gun in the back yard. Does the First Amendment permit the Virginia statute to ban all cross-burning used as intimidation? Held O'Conner: Yes. A burning cross has been used as a symbol for various ideas through the centuries, and was first used "in the 14th century as a means for Scottish tribes to signal each other." From a symbol of impending danger and a call to arms, it became associated in the United States with the Klu Klux Klan, who used a burning cross both as intimidation and as a symbol of identity. Several categories of speech may be banned under the First Amendment, including those inciting immediate breach of the peace, "fighting words," and "true threats"—"those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." We held in R.A.V v. City of St. Paul, Minnesota that while one of these categories cannot be used to restrict a speech ban to speech regarding one group of people, the category can be restricted to a subset of the most dangerous examples of that category. Here Virginia has restricted its ban on intimidation speech to that speech which is "a particularly virulent form of intimidation," based upon the history of a burning cross. Is the Virginia statute constitutional on its face if it includes a presumption of intent to intimidate when a cross is burned? Held No. This provision would "create an unacceptable risk of the suppression of ideas." There are legitimate uses for burning a cross that do not constitute an intent to intimidate: the KKK has a constitutional right to use a burning cross as "a symbol of group solidarity;" "occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation;" and a burning cross might be used in a movie or a play. A person has a constitutional right not to put on a defense at trial, and this aspect of the statute would convict such persons even if they had not actually intended to intimidate by burning a cross. The statute is therefore invalid on its face because it "makes no effort to distinguish among these different types of cross burnings." Concur, Dissent Scalia, Thomas: I agree that these convictions should be thrown out because the juries were instructed that cross-burning could by itself imply intent. I also agree that if someone who burns a cross without intending to intimidate decides not to present a defense at trial, this statute would unconstitutionally create a conviction. But how many people would do that—how many people would the intimidation presumption affect? "The potential improper convictions of which the plurality complains are more appropriately classified as the sort of 'marginal applications' of a statute in light of which 'facial invalidation' is inappropriate." We should not therefore throw out the whole statute, but instead wait to see how the Virginia courts construct the intimidation presumption provision "on a case-by-case basis." Concur, Dissent Souter, Kennedy, Ginsburg: The entire Virginia statute should be unconstitutional. Cross-burning can be used not only to intimidate but to carry an "ideological message of white Protestant supremacy." It doesn't therefore seem to fit under the R.A.V exception of limiting a proscribable category "entirely" on the "basis" of "the very reason" that "the entire class of speech at issue is proscribable," because that exception is for prohibitions for which "no significant danger of idea or viewpoint discrimination exists." Dissent Thomas: The KKK is a bad, terrorist organization with a long history of burning crosses as a successful method of intimidation. Virginia is not trying to "squelch" any message—"the statute prohibits only conduct, not expression." Even if the First Amendment were implicated, presumption of intent to intimidate may not come into play "prior to the instructions stage of an actual trial," and in any case "the inference is rebuttable…." The whole statute should be declared constitutional.

Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)

Paris Adult Theatre I and Paris Adult Theatre II had signs promoting "Atlanta's Finest Mature Feature Films," and their doors had the announcement, "Adult Theatre—You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter." Inside the theatres showed the hard core films "Magic Mirror" and "It All Comes Out in the End." Civil complaints were filed against the theatres for violating Georgia obscenity laws. Is obscene material protected from state prohibition by the First Amendment through the Fourteenth Amendment? Held Burger: No. Upholding Roth v. United States, "obscene material has no protection under the First Amendment," "even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby." If good books are is essential to education, can't we assume that bad books "have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?" Dissent Brennan, Stewart, Marshall: Just because in Roth v. United States we said that there is something called "obscenity" that is unprotected by the First Amendment, in the 16 years following we have been unable to come up with a definition. This is not just because the Supreme Court justices have bickered over a definition. "Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms." In order to protect First and Fourteenth Amendment rights, then, we're going to have to give up trying to carve out a category of "obscenity" which can be proscribed. Dissent Douglass: I'm glad Brennan finally came around to see that the First Amendment doesn't allow outlawing so-called obscene materials. Obscenity is a matter of taste, and the First Amendment says that individuals, not the government, should be allowed to determine one's own "tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world."

Miller v. California, 413 U.S. 15 (1973)

Appellant sent out a mass mailing campaign advertising adult books, and was convicted of a California misdemeanor of knowingly distributing obscene matter. What standards must a state use when identifying and regulating obscene material? Held Burger: In order to regulate the sale or exposure of obscenity, a state must have a specific state law, either written or construed, against such materials, and the law may only prohibit materials that "depict or describe patently offensive "hard core" sexual conduct. "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Part (b) includes: "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; (b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." "At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection."

New York v. Ferber, 458 U.S. 747 (1982)

A New York statute prohibited distribution of materials that depict sexual performances by children under the age of 16. Does the First Amendment allow banning of child pornography that is not legally obscene? Held White: Yes. (1) The state has a compelling interest in safeguarding the physical and psychological well-being of a minor, and using children as subjects of pornography "is harmful to the physiological, emotional, and mental health of the child." (2) Distribution of child pornography is related to sexual abuse of children because (a) the material is a permanent record of the abuse, and (b) distribution must be stifled if production is to be stopped. (3) Advertising and selling child pornogoraphy is the economic motive for its production, which is already illegal—if the laws against production worked, we wouldn't need the laws against distribution and the First Amendment wouldn't even be implicated. (4) There isn't much value in child pornography, anyway—"if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized." (5) This isn't incompatible with our other decisions. In short, child pornography may be banned even if it doesn't appeal to the prurient interest of an average person, is not patently offensive, or is not considered as a whole—the state simply need to adequately define the prohibition in law, define the age limit, and describe the proscribed conduct. Concur Brennan, Marshall: I agree that the state has a special interest in protecting the well-being of children, but as this Court has decided earlier, works not protected by the First Amendment are of exceedingly "slight social value" and the state has a compelling interest in their regulation; this wouldn't seem to include "depictions of children that are in themselves serious contributions to art, literature, or science…." "In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed 'material outside the protection of the First Amendment.'"

Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002)

Congress passed the Child Pornography Prevention Act of 1996 (CPPA), which prohibits sexually explicit images that "appear[] to be" of children produced without using any actual children, such as with computer graphics; as well as well as sexually explicit images "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." Is the CPPA constitutional under the First Amendment? Held Kennedy: No. The statute is unconstitutional on its face because it is overly broad, prohibiting "a substantial amount of lawful speech." A first offender under the CPPA can be imprisoned for up to 15 years. Because of such a potential of chilling legitimate speech, "this case provides a textbook example of why we permit facial challenges to statutes that burden expression." The CPPA covers speech that is not obscene under Miller and that is not child pornography under Ferber. The reason Ferber allowed suppression of non-obscene materials is that the state has an interest in "stamping out" child abuse. "The production of the work, not its content, was the target of the statute." By contract, "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children, as were the materials in Ferber." Is the CPPA necessary to prevent pedophiles from using virtual child pornography to seduce children? Held No. Pedophiles can seduce children with candy, but that doesn't mean we should ban candy. "The Government cannot ban speech fit for adults simply because it may fall into the hands of children." May virtual child pornography be banned because it "whets the appetites of pedophiles?" Held No. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it." Besides, the government has shown only a "remote connection" between this sort of speech and any resulting child abuse. Can the government ban virtual child pornography as part of its effort to clean up the market of real child pornography, as the former promotes the latter? Held No. If the two were indistinguishable, no one would create real child pornography. May virtual child pornography be banned because it's hard to tell the difference between it and real child pornography, which will make it hard to prosecute the latter? Held No. "The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech." Concur Thomas: The government's best argument in my opinion is that a child pornographer may get off the hook because he/she raised doubt as to whether the materials were real or computer generated. However, the government has not brought evidence that anyone has actually done this successfully. In the future, computer technology may be so good that we will have to ban both real child pornography and computer generated versions because it will be indistinguishable, making it impossible to prosecute the former. Concur, Dissent O'Conner, Chief Justice Rehnquist, Scalia: The CPPA's ban on youthful-adult pornography violates the First Amendment, but the ban on virtual-child pornography does not. The provision passes strict scrutiny, because there is a compelling government interest in protecting children, and virtual-child pornography whets the appetite of child molesters and may make prosecution of real child pornography difficult by raising doubts at trial. The provision is not vague, because the courts could interpret "appears to be … of" as "virtually indistinguishable from." Even if the provision covers some protected speech, respondents have not met the "heavy burden of demonstrating that the regulation forbids a substantial amount of valuable or harmless speech," thus not showing a need for the "strong medicine" of invalidation due to overbreadth. Dissent Rehnquist, Scalia: Congress has a compelling interest in enforcing prohibitions on actual child pornography, so we should defer to Congress when it says it needs to outlaw virtual child pornography. The CPPA doesn't necessarily apply to award-winning films such as "Traffic" or "American Beauty" which, after all, were created after the CPPA was put into place and apparently weren't chillled by it. We normally don't strike down a statute on First Amendment grounds when a limiting instruction would do. Why don't we just limit the "convey the impression" provision to apply only to pandering and not to "the video shop owner or film distributor?"

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)

Los Angeles in 1977 created a study based upon Los Angeles Police Department data showing that between 1965 and 1975 crime grew faster in Hollywood, which also had a higher concentration of adult establishments. Los Angeles therefore in § 12.70(C) banned adult establishments from being within 1,000 feet of one another, and then, to fill a loophole, amended the statute to ban more than one adult entertainment business in the same building. Both Alameda Books, Inc., and Highland Books, Inc. own adult video stores which have, in the same establishment with a single door, a business for viewing those videos for a fee. Respondents ask for summary judgment against the statute. Is it unconstitutional under the First Amendment to ban multiple adult entertainment businesses from appearing in the same building? Held O'Conner, Chief Justice Rehnquist, Scalia, Thomas: No. In Renton v. Playtime Theatres, Inc. we held that banning adult stores because of community effects is not a content-based prohibition of speech, subjecting it only to intermediate scrutiny. Here Los Angeles made a reasonable inferrence, though not the only reasonable interpretation available, that the 1977 study shows a causal relationship between concentrations of adult establishments, including multiple adult establishments in a single building, and crime. This evidence is "reasonably believed to be relevant," and at trial the bookstores are allowed to show that Los Angeles is using "shoddy data or reasoning," or that its evidence does not "fairly support the municipality's rationale for its ordinance," thus shifting burden of proof to the municipality. Concur Kennedy: We should really face up to the fact that this is a content-based restriction. This statute is in the context of zoning in order to diminish negative secondary effects, however, much like zoning law seeks to lower economic externalities such as pollution of factories, so it comes with its own "built-in legitimate rationale," allowing us to apply intermediate scrutiny rather than strict scrutiny—especially since this is just a summary judgment motion, anyway. However, we should also take care to ensure that speech is reduced in a very small proportion to the negative secondary effects that are eliminated by this restriction. Dissent Souter, Stevens, Ginsburg, Breyer: Our precedence of "content-neutral" zoning regulations to curb secondary effects almost needs a label of its own—perhaps content-correlated—because it does pose a risk of content regulation. This risk, while calling for intermediate scrutiny, should still require that actual data be presented to back of a claim of causal effect between speech and secondary effects—after all, factual data supporting such a relationship is straightforward to acquire. Here, however, Los Angeles offers no data indicating that breaking up a bookstore that allows video preview will have any effect on secondary effects, and in fact the 1977 study considered such establishments as one enterprise. Lacking hard data to indicate there is a problem, forcing traditionally unitary adult stores to split into two, which will incur two business overheads in place of one, "sounds like a good strategy for driving out expressive adult businesses. It sounds, in other words, like a policy of content-based regulation," and which is not allowed under the First Amendment.

Cohen v. California, 403 U.S. 15 (1971)

Paul Robert Cohen entered the Los Angeles Municipal Court wearing a jacket with the words, "Fuck the Draft," expressing his displeasure with the Vietnam War. He was arrested and sentenced to 30 days in jail under the California Penal Code prohibiting "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct…." May a state ban one or more words as "offensive conduct" from public discourse? Held Harlan: No, this ban violates the First and Fourteenth Amendments. These words are not obscene, as in context they were certainly not erotic. They were not fighting words, and they didn't provoke a crowd to violence. The Constitution allows free expression, including the words here, "[to] produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests." How could the state distinguish between offensive and non-offensive words, anyway? It would be similarly difficult for the state to forbid particular words without "suppressing ideas in the process." Dissent Blackmun, Chief Justice Burger, Black: "Cohen's absurd and immature antic … was mainly conduct and little speech. … [T]his Court's agonizing over First Amendment values seem misplaced and unnecessary."

Federal Communication Commission v. Pacifica Foundation, 438 U.S. 726 (1978)

George Carlin, a satire humorist, delivered a 12-minute monologue entitled "Filthy Words," in which he repeated "a variety of colloquialisms" in order to satire society's reaction to particular words, to a live audience in a California theatre. Pacifica Foundation foundation later broadcast the speech on the radio at around 2:00pm after advising that the recording included "sensitive language which might be regarded as offensive to some." A single man complainted to the FCC about hearing the show with his son, so the FCC granted the complaint and associated it with the Pacifica's file under the authority of 18 U.S.C. § 1464, prohibiting "any obscene, indecent, or profane language by means of radio communications," and 47 U.S.C. § 303 (g), requiring the FCC to "encourage the larger and more effective use of radio in the public interest." Is the statute unconstitutional because it is overly broad? Held Stevens, Chief Justice, Rehnquist: No. This case addresses a "particular broadcast" "in a specific factual context." Even if this particular wording would lead stations to censor themselves, the lost speech pertaining to "excretory and sexual organs and activities" "lie at the periphery of First Amendment concern." May the government ban a particular indecent set of words at a particular time of day in a particular context in a public broadcast? Held Yes. "The content of Pacifica's broadcast was 'vulgar,' 'offensive,' and 'shocking.'" Broadcast media gets the least protection of the media because it intrudes into private homes, in which people may tune in during a broadcast and miss the initial warning, and in which the broadcast may "enlarge[] a child's vocabulary in an instant." We don't decide whether "an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution," or whether prohibition would be allowed at a different time of day, or in a different program.

Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980)

The New York Public Service Commission in 1977 ordered electric utilities to cease advertising because of an energy shortage. After the fuel shortage had eased, the Commission asked for public comments and then extended the prohibition in 1977. Does the Commision's prohibition of electricity advertising violate the First Amendment? Held Powell: Yes. The Constitution gives less protection to commercial speech than other types of speech, and then only if the advertising has an informational function, and this must be balanced against a state interest. In other words: (1) the commercial speech must concern lawful activity and not be misleading; (2) there must be a substantial government interest; (3) the regulation must directly advance the government interest, and (4) the regulation must be "narrowly tailored," not more extensive than is necessary. Here the commercial speech is lawful and not misleading, and there is a government interest to save energy. But the prohibition on all promotional advertising, even those which would not cause an increase in energy use, is too broad to simply save energy. The government has also failed to show "that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests."

United States v. O'Brien, 391 U.S. 367 (1968)

In 1966 defendant David Paul O'Brien and three others burned their Selective Service registration certificates on the steps of the South Boston Courthouse to protest the Vietnam War. They were convicted under Title 50, App., United States Code, § 462(b)(3) which, as amended by Congress in 1965, makes a criminal anyone "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate…." Is § 462(b)(3) unconstitional in its application to O'Brien because it abridges his right to free speech? Held Chief Justice Warrent: No. When conduct contains both "speech" and "nonspeech" elements, the government can impose incidental imitations on speech "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Here Congress has the power to conscript people for military service, and registration cards futhers that interest by providing proof of registration, by recording important information, and preventing fraud. The legislation "condemns only the independent noncommunicative impact of conduct within its reach…." Is the 1965 Amendment unconstitutional as enacted because the "purpose" of Congress was "to suppress freedom of speech?" Held No. The Court can't overturn an otherwise valid piece of legislation just because of what one Congressperson says in a speech claiming a purpose for the legislation—such legislation could alwasy "be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it."

Texas v. Johnson, 491 U.S. 397 (1989)

During a Republican National Convention in Dallas in 1984, Gregory Lee Johnson took part in a political demonstration that included marching, chanting, "die-ins" at corporations, and ultimately Johnson's burning at Dallas City Hall of an American flag handed to him by one of the protestors after it had been taken from a flagpole outside one of the targeted buildings. Johnson was charged the desecration of a venerated object in violation of Tex. Penal Code Ann. § 42.09(a)(3), sentenced to one year in prison, and fined $2,000. Does Texas have an interest in preventing a breach of the peace, unrelated to the regulation of expression as required for applying the O'Brien? Held Brennan: No. No disturbance of the peace actually occurred or was threatened here. Does Texas have an interest in preserving the flag as a symbol of nationhood and unity, unrelated to the regulation of expression as required for applying the O'Brien test? Held No. This concern is only relevant when the treatment of the flag communicates some message, which means the O'Brien test does not apply. Does Texas' interest in preserving the flag as a symbol of nationhood and unity justify Johnson's conviction for desecration of the flag? Held No. The Texas statute was directed not just towards flag-burning in general, but towards that offensive to others. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." May Texas forbid flag-desecration as a single method of communicating an idea? Held No. Forbidding flag-burning only in one role is to "prescribe what shall be orthodox" communication. "We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents." "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." What better way to illustrate the flag's representation of freedom than to give people the freedom to burn the flag? Dissent Chief Justice Rehnquist, White, O'Conner: For over 200 years the flag has been a unique symbol of the nation. "The flag is not simply another 'idea' or 'point of view' competing for recognition in the marketplace of ideas," and is held by many "with an almost mystical reverence…." Here's Johnson's action "was no essential part of any exposition of ideas" and "had a tendency to incite a breach of the peace." The Texas statute wasn't depriving Johnson of his message—it was only depriving him of "one rather inarticulate symbolic form of protest…," which moreover "was profoundly offensive to many." There were other ways he could have made his point. Dissent Stevens: The flag is such a special symbol that our normal rules don't apply. It's more than a symbol of "nationhood and national unity"—it is valuable as a symbol of freedom. Perhaps "that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded." We don't allow graffiti so that the marketplace of ideas can be enlarged. If the ideas behind the flag are worth fighting for, the flag is worthy of protection from "unnecessary desecration."

Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)

A Jersey City ordinance allowed the Director of Safety to deny a permit to use the park or streets based upon the Director's opinion that the refusal would prevent "riots, disturbances or disorderly assemblage." Petitioners prevented respondents union members from distributing flyers. Is the ordinance unconstitutional? Held Roberts: Yes. Streets and parks are held in trust for the use of the public and "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." U.S. citizens have a privilege to use streets and parks for communication on views of national question, "exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."

Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983)

The Metropolitan School District of Perry Township, Indiana allowed the Perry Education Association, a teachers' union, to access the interschool mail system and teacher mailboxes, but not the Perry Local Educators' Association, a rival teachers' union. Does the school violate the First and Fourteenth Amendments by preventing the PLEA from accessing public property? Held White: No. Government property falls within three groups. For "quintessential public forums" such a streets and parks, all content-based exclusion must be narrowly drawn to achieve a compelling state interest, and there can be content-neutral regulation of time, place, and manner narrowly-tailored to achieve a significant government interest if it leaves open "ample alternative channels of communication." Public property opened for public expressive activity is "bound by the same standards as apply in a traditional public forum" as long as the property is kept open. On all other property the government may regulate the speech "as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." The school mailboxes are in the latter category, so the School District has no "constitutional obligation per se to let any organization use the school mail boxes."

Ward v. Rock against Racism, 491 U.S. 781 (1989)

New York required performers in the Naumberg Acoustic Bandshell, an ampitheater in Central Park, to use city aplification equipment and a city sound technician so that the city could ensure sound levels would not disturb those relaxing in the the Sheep Meadow or living in Central Park West. Is this requirement a valid regulation of speech? Held Yes. "[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but … it need not be the least restrictive or least intrusive means of doing so." "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals," and may not be "substantially broader than necessary to achieve the government's interest…." Here the city has an interest in keeping the park quiet for those in the Sheep Meadow and Central Park West, and the interest is content-neutral. Using a city technician is a narrowly-tailored way to achieve that interest. Held Marshall, Brennan, Stevens: It's OK to regulate loud music, but putting a government official controlling the soundboard is not narrow tailoring.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

Respondent School District suspended petitioner 15-year-old John F. Tinker and three others for wearing black armbands to school in protest of U.S. involvement in Vietnam. The school claimed the restriction was based upon a "fear of a disturbance." Did the school violate the students' First Amendment right to free speech? Held Fortas: Yes. "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Students are entitled to freedom of expression unless there is a constitutionally valid reason for regulating their speech. A prohibition of speech must be show that the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school…." "[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Dissent Black: Students are in school "to learn, not teach." The record shows that the armbands "took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war." School officials should run the schools—not students, even with help from the Supreme Court.

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

Hazelwood East High School in St. Louis County, Missouri, published a school newspaper, "Spectrum," as part of its Journalism II class. The high school principal, Reynolds, reviewed the May 13, 1983 issue and deleted two articles: an article on teen pregnancy, because he was concerned about the sufficient anonymity of the subjects and worried about its appropriateness for younger students; and an article on divorce, because it criticized a parent without giving the parent a chance to rebut the criticism. expression. Do educators violate students' First Amendment rights by exercising editorial control over the style and content of student speech in school-sponsored expressive activities? Held White: Not if the actions are "reasonably related to legitimate pedagogical concerns." A public school is not a traditional public forum such as a street or a park, and students' First Amendment rights "are not automatically coextensive with the rights of adults in other settings…." Unlike the setting situation in Tinker, a school newspaper for a journalism class "may fairly be characterized as part of the school curriculum," the purpose of which is to help teach a subject rather than to "promote particular student speech." Here the school took into consideration "the emotional maturity of the intended audience" and worked to protect anonymity; as well as ensured that the school would not appear to be sponsoring with an article critical of a parent without giving the parent a chance to respond. Dissent Brennan, Marshall, Blackmun: Hazelwood East High School had promised that "School sponsored student publications will not restrict free expression or diverse viewpoints within the rules of responsible journalism." Not only did the principal break that promise, he violated the Constitution because the censored expression did not disrupt classwork or invade the right of others, and his censorship wasn't narrowly taylored to serve the school's purpose. There was no pedagogical reason for the censorship, and even if the principal could have constitutionally removed the two articles, he did so in a "brutal manner" by removing six entire articles instead of consulting the students or seeing if the layout could be reflowed.

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)

After the NEA gave grants to several art projects Congress didn't like, including homoerotic photography by Robert Mapplethorpe and Andres Serrano's picture of a crucifix immersed in urine entitle, "Piss Christ," Congress adopted a § 954(d)(1) directing the National Council of the Arts to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public" when making its recommendation to the NEA. A negative recommendation of the Council is an effective veto. Respondents Karen Finley, John Fleck, Holly Hughes, and Tim Miller are performance artists who applied for and were denied NEA grants. Does the selection guide violate the First Amendment on its face? Held O'Conner: No. Facial invalidation is "strong medicine" and impose on respondents a "heavy burden." Here the law is not aimed at precluding speech and does preclude "indecent" or "disrepectful" works, but rather adds "consideration" to the decision-making process. The NEA selection process is by its nature content-based, anyway, but does not "ai[m] at the suppression of dangerous ideas" or have a "coercive effect," which would be unconstitutional. As we've noted before, the government can choose to "fund one activity to the exclusion of another," which is not discrimination based upon viewpoint. Dissent Souter: This statute "is the very model of viewpoint discrimination," and the majority has failed to explain why a statute that on its face takes into consideration "general standards of decency" should be exempt from our usual First Amendment analysis that that does not allow a law to "prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," as we held in Texas v. Johnson.

National Association for the Advancement of Colored People v. State of Alabama, ex rel. Patterson, 357 U.S. 449 (1958)

A judgment of civil contempt was entered against the NAACP because it refused to release its membership list. Can Alabama compel the NAACP to reveal its membership list under the Due Process Clause of the Fourteenth Amendment? Held No. Making public association can have the same effect as preventing association by "chilling" association. "[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." Here compelled disclosure of NAACP Alabama membership would "affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate" by causing members to withdraw or preventing others from joining for fear of "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." The state, on the other hand, has not met its burden of showing sufficient justification for the deterrent effect such disclosure would have—revealing rank-and-file membership, after all, is not the same as revealing the names of officers in order to protect the public in their dealings with the organization.

Board of Regents of the University of Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000)

All students attending the University of Wisconsin must pay an equal activity fee, part of which activities of various registered student organizations (RSOs). Students may gain access to the fees through the Student Government Activity Fund (SGAF), by applying to the the General Student Services Fund (GSSF), or through student referendum. Plaintiffs protest that, similar to forced union fees funding union viewpoints, these charges unconstitutionally force them to support ideological speech with which they disagree. Does charging students of a state university a mandatory fee to support extracurricular student speech violate a student's First Amendment rights? Held Kennedy: Not if the school is viewpoint-neutral in allocating funds. "Students enroll in public universities to seek fulfillment of their personal aspirations and of their own potential[,]" so requiring them "to support objectionable, extracurricular expression by other students would "infringe[] on the speech and beliefs of the individual…." However, open expression of ideas by student organizations are analogous to public forums, in which there will inevitably be some speech present that is objectionable to some. "The University may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall[,]" and may promote these dicussions through a mandatory fee as long as the funds are allocated in a viewpoint-neutral fashion. The third allocation method—a student referendum—would probably not be viewpoint-neutral because it would allow majority views to determine fund allocation, so the case is remanded to clarify the specifics of the student referendum fund disbursement method.

Roberts v. United States Jaycees, 468 U.S. 609 (1984)

The United States Jaycees is a non-profit organization formed to "promote and foster the growth and development of young men's civic organizations" and to provide young men "with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation…." Only men ages 18-25 can have regular membership; women and older men can secure a lower-cost associate membership but not vote or hold office. The national organization threatened sanctions on the Minneapolis and St. Paul chapters because they allowed women to have regular membership. Those chapters sued under the Minnesota Human Rights Act (Act), which prohibits discrimination on account of sex in organizations offering services to the public. May the Jaycees discriminate on the basis of sex because of a constitutionally protected freedom of association, in the sense that persons have a right to certain intimate relationships protected against undue intrusion by the state? Held Brennan: No. The Jaycees isn't an organization typifying personal affiliations such families because it is too large and is not selective besides its gender requirement. May the Jaycees discriminate on the basis of sex because of a constitutionally protected freedom of association, in the sense that persons have a right to associate in order to express ideas? Held No. Although the Jaycees do have a fundamental right of association for expression and any infringement is thus subjected to strict scrutiny, here Minnesota has a "compelling interest in eradicating discrimination against its female citizens…. The Minnesota Act does not on its face seek to inhibit speech, and Minnesota has used "the least restrictive means of achieving its ends" of eliminating discrimination. The Jaycees have not shown that allowing women in its organization will affect its expression. "In the absence of a showing far more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that underlies appellee's contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization's speech. In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees' protected speech, that effect is no greater than is necessary to accomplish the State's legitimate purposes."

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Copyright © 2004 Garret Wilson