Watkins v. US (1957).

Watkins refused to name names during an HUAC trial and

challenged the authority of Congress to ask these questions. Warren wrote for the
majority that unless the committee had a specific reason for asking, there was no
authority to expose for the sake of exposure. The question must be geared towards a
specific legislative purpose, and that he could not imagine a less specific authorization.
Warren held his conviction was “invalid under the Due Process Clause of the Fifth
Amendment”. “We cannot simply assume, however, that every congressional
investigation is justified by a public need that overbalances any private rights affected”
(467).
Yates v. US (1957). Harlan wrote majority, overturning convictions of Communist
leaders with 5 retrials. Determined on narrow grounds and distinguished between
advocacy in the abstract and advocacy in action. Did not overturn the Smith Act or
Dennis. Like Frankfurter, Harlan despised McCarthyism so was looking for a sensible
way to stop or slow McCarthy. Widely experienced as the end of the Smith Act. Anti-
Vinson in distinguishing advocacy and action. Vinson would fear that if plans of any
kind had been made, then there was a credible threat.
Sweezy v. New Hampshire (1957). Sweezy was brought under the New Hapmshire
UAC. The supreme court overturned his conviction saying that academic freedom had
special privileges. Held that the loyalty oath “violated the requirements of the Due
Process Clause because… A State cannot…exclude persons solely on the basis of
organizational membership” (475).
Barrenblatt v. US (1959). Affirms contempt conviction against defendants by 5-4 Vote.
Harlan writes for the majority with Black, Douglas, Warren and Brennan Dissenting.
Majority writes that the resolution involved a balancing by the courts of “ the competing
private and publics interests in the particular circumstances shown” (544). Black dissents
against the use of a balancing test, and adds that the interests being balanced are not
accurate via a category error. Should shift the focus of 1st Amendment from personal to
representative violation.
Gibson v. Fla. Investigation Committee (1963). Ruled in favor of Gibson (5-4),
although before Frankfurters retirement had been voted the other way. Goldberg
concedes that being a member of the Communist party is different, thus affirming the 2
track belief. Dissenters hold that there should be a “governmental interest in
investigating Communist infiltration into admittedly nonsubversive organizations” (550).
This is an anti-balancing ruling.
Baggel v. Bullit (1964). Concerned loyalty oaths given by employees of the University
of Washington. White decided in favor of defendants and uses Brennan’s framework to
say the oath was too vague. Ruling also mentions the chilling effect and that it may
discourage people from certain legal behavior. Clark dissents claiming (correctly) that
the court had used similar language in 1951 and had held loyalty oaths constitutional.
Shows a change in court opinion.
Aptheker v. Secretary of State (1964). A Communist applied for a renewal of a passport
and was denied under Section6 of the Subversive Activities Control Act of 1950 that
prevented any registered person of a subversive group to obtain a passport. Goldberg
ruled in favor of Aptheker because the law was overbroad. Gives no proof or reasoning
that being a registered member necessarily means someone is trying to overturn the
government. Also stated that law inappropriate because the means may be more
narrowly achieved. Black concurs stating that the entire Act is unconstitutional because (
and for other reasons) it denies appellants “the freedom of speech, press, and association
which the First Amendment guarantees” (571). Ruling cites NAACP v Button. After
Button court begins to focus on all people who’s rights are affected not just the
individual.
US v. Robel (1967). The case concerned a Communist working in the defense industry.
The McCarin Act denied Communists to work in the defense industry. The court ruled
for Robel because the law could be applied unconstitutionally to other people: in effect
there was no distinction between active and non-active members. In this case, court
probably would have ruled against Robel individually, but in following the Button
doctrine, they applied the law to everyone with Robel as a representative. Brennan
concurred believing the problem with the law was in the vagueness of allowing the
defense department to decide what a defense facility is. Harlan and Clark dissent citing a
judicial restrain argument that the Congress has the authority to give the defense industry
this power, and that the Congress has the power to assess the threat.
US v. O’Brien (1968). Warren’s ruling stated that when speech and non-speech are
combined Congress can regulate incidental speech via regulating the act. Black dissents
saying no regulation of speech is appropriate. More or less suggests a balancing between
government interest and people’s actions, and if free speech is restrained via the actions it
is not technically connected to the government interest.
Tinker v. Des Moines School District (1969). Fordice ruled that symbolic speech was
akin to speech in application of First Amendment rights. In this case ruled in favor of
Tinker protecting his right to wear the arm band. Black dissents saying this is not true to
hold his justification for literal interpretation by distinguishing between speech and
action. This trend begins with Bell v. Maryland and imagining Nazi marches. Blacks
fear of disorder developed during his later career.
Brandenburg v. Ohio (1969). Ruling concerned the speech of a KKK member in
advocating methods of terrorism through speech. Court ruled in favor of the free speech
of the KKK member saying that “neither the indictment nor the trial judge’s instructions
refined the statue’s definition of the crime in terms of mere advocacy not distinguished
from incitement to imminent lawless action” (597). In other words held that unless there
was an imminent lawless action the speech of mere advocacy is protected. However,
since this distinctions was not made clear the jury could not rule one way or the other.
Finally restored Holmes/Brandeis version of Clear and Present Danger, stating the threat
must be serious and imminent. (unanimous decision).
Trop v. Dulles (1958). Warren ruled that it was unlawful for the government to revoke
citizenship as a punishment. The ruling concerned a law that revoked citizenship of a
deserter during war. Ruled against because it gave the military authority discretion as to
who will loose citizenship and because desertion does not necessarily “signify allegiance
to a foreign state” (609). Inherently ruled that the 8th amendment must be interpreted as
an evolving amendment as to determine the standards of Cruel and Unusual Punishment.
Dennis v. United States (1951). Vinson writes for a majority of 4. Affirmed the
conviction of petitioners for violation of the conspiracy provisions of the Smith Act, thus
upholding the Smith Act. Petitioners were convicted for expressing ideas on conspiring
to overthrow the government. Guts the “clear and present danger” test, which originally
mandated eminent danger. Uses Judge Leonerd Hand about must see evil discounted by
likely to occur. Famous Vinson quote, “cannot wait until the plans have been laid and
signal is awaited” to stop action. Frankfurter concurs saying that we should use
balancing interests between civil liberties and National Security. Ruling of Dennis is
when civil liberties Court is at it’s lowest, only two liberal justices remain (Warren and
Douglas) – and Black but not really part of liberal block.
Whitney v. California (1927). Holmes and Brandeis. Elaborated the Clear and Present
Danger standard to include a serious and eminent threat. Only in last year of warren
court did they revert to this interpretation of the C+PD standard.
Olmstead v. United States (1928) Taft (Brandeis dissenting).
Discusses the right to privacy in from wiretapping of residential telephone lines. Taft
affirmed the conviction of the defendant (who was later charged with conspiracy to
violate the Prohibition Act) because there was no searching, seizure and no entry of the
houses or offices of the defendants. Justice Holmes and Brandeis dissent citing the
penumbra of the fourth and fifth guarantee the defendants protection. Discusses that
Constitutional amendments must be applied to situation beyond what the framers could
have envisioned (such as will often be necessary in the case of technology). Branedeis
writes “a principle to be vital must be capable of wider application than the mischief
which gave it birth” (473). Also cites the “right to be left alone” as one of the most
valued by civilized men.
Kyllo v. United States (2001). A case that gives us an opportunity to view an instance in
when even Scalia cannot maintain his originalism. Holds that there was an illegal search
in the use of thermal-imaging device aimed at a private residence. The government
argued that they only read the heat, not the actual image or contents and thus was not a
search. However, this is akin to saying that wiretapping only picks up sound, not a
conversation.
Griswold v. Connecticut (1965). Famous birth control case where the right to marital
privacy in the use of birth control was deemed protected by the Constitution. The manner
in which the right was derived was highly debated and not agreed upon. Essentially
became foundation for the Roe v. Wade ruling. Douglas – uses penumbra as in “right of
Association”
• Does not want to Lochnerize
• 3rd facet of privacy
• 4th secure in our houses
• 5th zone of privacy (self-incrimination)
• 9th other rights not mentioned may be protected (like Goldberg)
• 4th and 5th from Boyd.
• 4th form Mapp v. Ohio.
• 1st NAACP v. AL and Barnette – were trying to specify speciality of the 1st
Amendment.
Goldberg (largely ignored).
• Uses 9th Amendment that says the first 8 Amendments are not exculsive.
• 14th incorporates many of these
• right to privacy comes from the entire fabric of the constitution and “traditions
and collective consciousness”
• Fundamental to ordered liberty – more of a fundamental personal right as as
opposed to a relationship within a protected zone.
 • Similar to Frankfurter’s idea of ordered liberty fro Adamson – about tradition, not
only explicit text of the Bill of Rights.
Harlan – uses DP of the 14th Amendment
• Says privacy is one basic values “implicit in the concept of ordered liberty.”
• Essentially is Lochnerizing
• Most people cite Harlan in the future.
• Written similar to his dissent in Poe v. Ulman.
• Substantive view of Die Process which means more than specific properties in the
Bill of Rights are included.
• In this case is very specific – marital privacy for married people only.
Black – Dissents
• Argues that the right to privacy is never explicitly listed, thus is not protected.
Does not support any substantive component of Due Process.
Katz v. United States (1967). Justice Stewart delivered the opinion of the court ruling
that the activities of the FBI were unconstitutional. They attached a listening device on
the outside of a public telephone booth to convict the defendant of “transmitting
wagering information by telephone across state lines” (671). The Court said this activity
constituted a search and seizure because the 4th amendment protects people not places
and thus by using the telephone the defendant had a reasonable expectation of privacy.
Thus, in this case the Court did not follow the technical interpretation given in Olmstead.
Roth v. United States (1957). Dealth with a book seller, Roth, convicted of mailing
obscene materials. Brennan wrote for the majority saying that obscenity is not protected
by the 1st Amendment. The question of how to define obscenity arose for the first time in
Court, which took so long because the 1st Amendment was not incorporated for the states
until Gitlow in 1925. Writes that obscenity is any material that “to the average person,
applying contemporary community standards, the dominant theme of the material taken
as a whole appeals to prurient interest.” However the Roth standard was difficult to
apply in order to reach a consensus on what was obscenity, so not useful in a practical
sense. The importance of Roth is that it demonstrated more than just political speech was
important. Recognized the protection of cultural speech, because only something with no
redeeming social value was considered obscene.
Chambers v. Florida (1940). Ruled that a confession obtained by torture or oppressive
circumstances is not viable in a court of law. Black wrote for the majority. This ruling
essentially told the South that they did not have his support, and shows where Black’s
conception of a “color-blind” Constitution. Said the Florida legislature “failed to afford
the safeguard of that due process of law guaranteed by the Fourteenth Amendment”
(767).
Mapp v. Ohio (1961). Concerned the prosecution of a woman of having obscene
material through the obtainment of these materials during an illegal search. One of
Frankfurter’s major defeats. About the exclusionary rule, that evidence obtained illegally
is not permissible in court. However, this case was not initially, or necessarily a case
about search and seizure, but rather incorporation. This is a blow to Frankfurter’s belief
that the Due Process did not apply to the states in as great of a degree as the federal
government. The final take away was the incorporation of the Exclusionary rule to the
states via the 14th Amendment.
Gideon v. Wainwright (1963). A unanimous ruling that having council in non-capital
cases is essential (as in capital cases). Ruled that having council in a criminal trial is a
“fundamental right essential to a fair trial,” and that Betts v. Brady is overruled. Provided
this right through the 6th Amendment of the Constitution, which guaranteed this right in a
federal trial. Gideon extends this right to the state case. Able to make this extension
partly based on the belief that the Constitution makes no real distinction between capital
and non-capital cases, and since lawyers are required in the former circumstance they
should be allowed in the later as well. This result is in accordance with Brennan’s idea of
selective incorporation with out watered down application to the states.
Pointer v. Texas (1965). Essentially held that the Confrontation Clause of the 6th
Amendment (the right to confront/ cross examine a witness) is incorporated and applies
to the states. Black writes the majority and because he wants to maintain this majority
concedes his usual complete incorporation and uses Brennan’s selective incorporation.
Harlan concurs with the result put says there can be a lesser state standard whereas Black
argues that Due Process requires the same application of rights to the Federal and State
systems. Black writes that the right to confrontation is “implicit to ordered liberty.”
Miranda v. Arizona (1966). This was the first time that the Court held that the 5th
Amendment Self-Incrimination clause applies to the States. This overruled the decision
in Adamson v. California. Prior to Miranda the immiscibility of a confession was
determined to be voluntary on a cases by case basis. Practically meant that if in totality
(the average of the circumstance) was not too bad then the resulting confession was
deemed voluntary. The vagueness of how to determine if a confession was voluntary led
to a search for a more practical approach – eventually leading to Miranda. Ernesto
Miranda was ID’d for rape/kidnap and after 2 hours had a written confession. Police
admitted that he had never been advised of his right to council. Note that the race issue
was not brought up in this case. One weakness is that it allowed people to waive their
rights, which they may not have always done “willfully”. This was one of the most
controversial of the Warren Court decisions because it hindered the police in an era of
rising crime rates. Technical point – Warren never states the Miranda was the only way
to prevent cohersive interrogation, but at the time this was the solution. If Miranda had
been 10 yrs later it is possible taped confessions would have been required.
Terry v. Ohio (1968). The frisking case. During this era the Court was under attack for
protecting rights of criminals. Nixon blamed the rise in the crime rate on the Supreme
Court. Thus the Court didn’t want to be seen as tying the hands of the police. Initially all
9 justices voted to affirm the conviction. Warren initially expressed concerns for the
safety of the police officers. Brennan, however, feared that this case could condone the
use of brutal police tactics. Brought up the issue of probable cause and reasonable
suspicion. Needed more than probable cause to arrest, thus what was necessary to frisk?
Note: What were the eventual effects of all these measures to protect criminals and did
the police even heed these laws? The success or failure should probably be measured in
long run analysis of how the culture of the Police Department has evolved.
Baker v. Carr (1962). Ruled that the issues of the debasement of votes “present(s) a
justiciable constitutional cause of action upon which appellants are entitled to a trial and a
decision” (833). Brennan writes for the majority. Frankfurter and Harlan Dissent say
that this ruling allows the courts the decide the proper composition of the legislatures of
the country and that they should not in fact have this power. This case was decided in
reference to a Tennessee district in where less than 40% of the population could gain a
majority vote. This meant that cities never got enough of the tax revenue and had greater
needs than the more rural areas. This disparity was probably not initially addressed
because it served to dilute the power of urban black voters.
Reynolds v. Sims (1964). It was generally agreed that it was good Constitutional law that
that the lower house of state legislatures were based on population but it was
revolutionary to say that this standard also applies to upper house. Here cannot use the
argument that this is how it is in the Federal system, since in the Federal system the
Senate is not based on population. Warren denied that there are differences in values of
the upper and lower chambers. Said “people represent people and nothing else.”
Therefore rejected comparison to federal system and ignored the basis of the English
House of Lords. Warren could not in any way claim that the framers wanted one person
one vote in the upper house for the state system. Therefore, we must conclude that there
is a living Constitution. Ruled that there should be equal representation in the voting
process – thus 1 person 1 vote.
Lucas v. Colorado (1964). Decision was delivered on the last day of the 1963/64 Term.
Colorado passed a law maintaining unequal districts and was widely approved within the
state. The Federal Circuit Court held that this law did not violate Equal Protection
because ruling against the majority was not acceptable. The Supreme Court ruled 6-3
that the law violated the Constitution. Warren delivered the opinion of the Court.
Warren claimed that personal rights are to be protected (in this case an equal weighted
vote) by the Constitution. Continuing he says that the majority does not outweigh
individual’s rights. This ruling did not address gerrymandering, which would become a
larger problem with the advent of computers and could still exist if people have an
equally weighted vote based on population.
Harper v. Virginia Board of Education (1966). The court ruled, “a State’s conditioning
of the right to vote on the payment of a fee or tax violated the Equal Protection Clause of
the 14th Amendment” (865). Douglas delivered the opinion of the Court. While the right
to vote in a state election is not mentioned in the Constitution, if it is permitted, suffrage
“is subject to the imposition of state standards which are not discriminatory and which do
not contravene any restriction that Congress has imposed.” Claims the 14th Amendment
restrains the States from any kind of “invidious discrimination.” The importance of this
ruling is that it is treating economic status as something that cannot be discriminated
against, like race or color etc. Black Dissents in a sense because of this. He states “The
mere fact that a law results in treating some groups differently from others does not, of
course, automatically amount to a violation of the Equal Protection Clause” (868). Any
law that requires any kind of fee is technically discriminatory against the poor; as a
practical matter it would be impossible to dismiss of any fees in all transactions. Harlan
and Stewart also dissent.
Everson v. Board of Education (1947). The first time the Court touches the issue of
religion except barring polygamy. Case dealing with the issue of state funds to use for
the free transportation of children to both parochial and public schools. Black delivered
the opinion of the Court. Goes through a lengthy discussion of why the state should not
breach the wall of separation of church and state, and says that New Jersey has not done
that here. Says the state may transport all children free of cost. He says that this system
undoubtedly helps Catholic school children, however says the Constitution “requires the
state to be a neutral in its relations with groups of religious believers and non-believers”
(956). Uses the fireman analogy to support his point that public funds are often used to
indirectly support religious activities. Jackson dissents saying that this case is not like the
fireman case and most certainly supports Catholic schools with private funds.
Sherbert v. Vernor (1963). The case of the SDA who was unable to find work because
of not working on Saturday due to religious beliefs. The Court ruled that South Carolina
violated her right to the free exercise of her religion under the 1st Amendment by denying
her benefits. Ruled a) the clause violated her free exercise, b) there is no compelling state
interest, and c) this ruling does not unfairly foster any one religion. Brennan delivered
the opinion of the Court. The structure of this case is “vintage Brennan” in saying state
may have the power, but fundamental freedom of religion should prevail unless there is a
government interest. Cites Button in application of a Government burden. Does note
that the right to free exercise is not absolute and the government may intervene, as in the
case of polygamy, but in this case, there is no reason to.
Employment Division v. Smith (1990). Peyote case. Court (Scalia for the majority)
ruled that “The Free Exercise Clause permits the State to prohibit sacramental peyote and
thus to deny unemployment benefits to persons discharged for such use” (987). Said that
the case could not be evaluated under the “compelling government interest” balancing
test because the test is “inapplicable to an across-the-board criminal prohibition on a
particular form of conduct.” (987). Says determining what beliefs are central to a religion
cannot be done because then the government would be making a judgment on religion.
Scalia disagrees with Sherbert and says if a state passed a law against a religious practice
specifically is the only way the Free Exercise Clause would permit the action to continue.
Says a facially neutral law that happens to affect a religious group should be left to stand.
O’Connor concurs in decision because of the “war on drugs” but disagrees with Scalia’s
reasoning. Would say that in other circumstances a particular religious action could be
granted exception from general laws. Problem w/ Scalia’s formulation is that religious
groups that have enough political power can get laws passed to be in accordance with the
religious views, thus it is generally outlier sects that are forced to make a decision against
their religion or obeying the law. Thus general laws generally only discriminate against
minorities and not the larger religions. An example is Jewish being able to slaughter
kosher.
Engel v. Vitale (1962). Black delivered an impressive but unpopular decision regarding
the saying of a non-denominational prayer at school. Ruled this was a violation of any
law “respecting an establishment of religion.” Said that there must be an absolute wall
between church and state, and thus schools could not promote religion more than non-
religion. His ruling was basically a discussion of the importance of this separation and
used the history of religious persecution to support his case. Note decision is 1 yr after
Mapp. Says “the State of New York has adopted a practice wholly inconsistent with the
Establishment Clause” (1015).
Epperson v. Arkansas (1968). Case concerning a law that prohibited the teaching of
evolution in public schools. Fordice writes opinion stating law is illegal because it was
passed to be against a particular religious group and prevented teaching b/c was
contradictory to the “religious truth.” Essentially ruling that this was not a general rule
and was targeting a religious group. Says “law must be stricken because of its conflict
with the constitutional prohibition of state laws respecting an establishment of religion or
prohibiting the free exercise thereof” (1033). Black concurred but brought up various
questions regarding that it was directed at a specific group and that whether the changing
of this law now infringes on the freedom of those who consider evolution an anti-
religious doctrine.
Griffin v. Illinois (1956). This was a case regarding the fee charged for a transcript of
the trial, a required document if a defendant wished to appeal. These were only provided
free of charge to those who were being sentenced to death. Defendants claimed the fee
was a “denial of due process and equal protection.” Black (w/ Warren, Douglas and
Clark joining) wrote for the majority. Ruling held that the defendants’ constitutional
rights were violated. Said that their rights were violated because the current law would in
a sense imply that only those with money could buy justice. The Supreme Court
remanded the case and said another system needed to be used. However “we do not
hold… that Illinois must purchase a stenographer’s transcript in every case where a
defendant cannot buy it” (1040). They are essentially saying the current system is not
acceptable but are not suggesting a remedy. Frankfurter concurred with the ruling but
believed it should only be applied to future cases. The dissenters essentially say this case
has gone too far, and that the government is not required to give this much assistance.
Douglas v. California (1963). Justice Douglas wrote the majority saying “We agree with
Justice Traynor of the California Supreme Court, who said that the denial of counsel on
appeal to an indigent would seem to be a discrimination at least as invidious as that
condemned in Griffin”(1043). Douglas makes sure to note that here we are only referring
to the right of council in the first appeal during a criminal conviction. Harlan and Stewart
dissent saying this is required by neither Equal Protection nor Due Process.
Shapiro v. Thompson (1969). This is a case regarding state laws that require a 1yr
residence before giving welfare benefits. Brennan wrote the opinion of the Court saying
that the requirement “clearly violates the Equal Protection Clause” (1046). Brennan says
the state’s concerns over spending too much money, fraudulent claims are not a valid
compelling government interest and that the requirement constitutes an invidious
discrimination. Briefly he also states that this statute inhibits interstate travel, which is a
given right. Warren and Black dissent saying that this does not directly or significantly
inhibit interstate travel, and that in fact the appellants never made this claim. Harlan
dissents saying he does not consider wealth a “suspect” statutory criterion that would
require the “compelling interest” doctrine.
Goldberg v. Kelley (1970). Welfare recipients challenged the manner in which New York
State terminated benefits. Brennan for the majority wrote that “the Due Process Clause
requires an evidentiary hearing before the termination of benefits” (1074). The important
idea in this case is that the Court is leaning towards treating welfare benefits as positive
rights, thus as a kind of “New Property” requiring just cause before they are taken away.
Grootoom v. South Africa (2000). Concerning the need of housing of the poor who are
still living in unacceptable conditions. The Court affirms that the state has an obligation
to provide housing for the defendants and that in the meanwhile they should still provide
the defendants with the basic necessities of life (and those stipulations given in the S.
African Constitution). The important part of this case was the progressiveness and
positive nature of the rights given in the S. African Constitution and how that differs
greatly from the American Constitution, although the Warren Court was pushing America
in the direction of more positive rights.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Not a Warren
Court case! Upheld Roe v. Wade. The legal establishment was surprised by this ruling,
thought that the majority was going to overrule Roe. There were 3 justices clearly in
favor of overruling (Renquist, Scalia and Thomas) and three who clearly in favor of Roe
v. Wade, and # (O’Connor, Kennedy and Suiter) who had middle ground. Said they are
not prepared to overrule now, but would have earlier. Said that Lochner and Plessy were
based on false facts. Because the facts of Pleassy (that separate is equal) was repudiated
in Brown, and for this reason Lochner is not the same as Plessy. These justices are trying
to distinguish themselves from the originalist doctrine. Their opinion assumes meaning
changes over time but is limited to facts as opposed to values. Does not say that a change
in values can be a reason to overturn a case, but a change of facts can. Thus Plessy could
be overturned because the fact that separate is not equal came to light. However, Horwitz
suggested skepticism in asking if Brown (in overturning Plessy) was really a change in
facts and not in values?