Unit: Interaction Among Branches of Government Lesson # in unit: 15 Topic: Judicial Philosophies & Policymaking

Content Objectives:
22. What philosophies and principles do Supreme Court justices use when interpreting the Constitution, and
how do those philosophies relate to popular political ideologies today?
23. What role do the courts play in interpreting the Constitution and implementing public policy?
24. How can the judicial branch’s power be checked?

Assessment:

Unit 2 exam

Standards:
CON-5: The design of the judicial branch protects the Supreme Court’s independence as a branch of government,
and the emergence and use of judicial review remains a powerful judicial practice.

CON-5.A: Explain the principle of judicial review and how it checks the power of other institutions and state
governments.

CON-5.A.1: The foundation for powers of the judicial branch and how its independence checks the power of
other institutions and state governments are set forth in:
 Article III of the Constitution
 Federalist No. 78
 Marbury v. Madison (1803)

CON-5.B: Explain how the exercise of judicial review in conjunction with life tenure can lead to debate about the
legitimacy of the Supreme Court’s power.

CON-5.B.1: Precedents and stare decisis play an important role in judicial decision making.

CON-5.B.2: Ideological changes in the composition of the Supreme Court due to presidential appointments have
led to the Court’s establishing new or rejecting existing precedents.

CON-5.B.3: Controversial or unpopular Supreme Court decisions can lead to challenges of the Court’s legitimacy
and power which Congress and the president can address only through future appointments, legislation
changing the Court’s jurisdiction, or refusing to implement decisions.

CON-5.B.4: Political discussion about the Supreme Court’s power is illustrated by the ongoing debate over
judicial activism versus judicial restraint.

CON-5.C: Explain how other branches in the government can limit the Supreme Court’s power.

CON-5.C.1: Restrictions on the Supreme Court are represented by:

 Congressional legislation to modify the impact of prior Supreme Court decisions
 Constitutional amendments
 Judicial appointments and confirmations
 The president and states evading or ignoring Supreme Court decisions
 Legislation impacting court jurisdiction

Lesson Agenda: (84 minute block period)

5 min Bell work
 Judicial philosophies
15 min
 Notes/lecture

Federalist No. 78
 Assign students to read excerpts from Federalist No. 78 and discuss:
8 min
o What justifications does the author provide for giving justices life tenure?
o Why does the author believe the judicial branch to be the weakest branch?
 Direct students to discuss their answers with a partner, based on what they read.
 Ask students to share out answers and go over correct information, pointing to specific parts
17 min
of the text.
 Direct students to record this information in their notes.

10 min Brain Boost

The Most Dangerous Branch assignment

 Students read the facts, constitutional issues, and excerpted opinions from a case regarding
(1) presidential overreach of power or (2) the court’s role in policymaking and answer
~40 min
questions about the case
 Students should work with their tables or a partner for this assignment and submit their
answers before they leave class to the dropbox on Canvas
If all groups finish, hold a Three Corners class discussion in which students answer the following
*** question:
 Which branch of government is the most powerful? Why?
Materials: Canvas:

 PowerPoint  Most Dangerous Branch assignment

 Links to case summaries with opinions excerpts

 
The Most Dangerous Branch?
Federal judges are appointed by the president and serve for life unless they are impeached for a serious
offense. More and more often, the Supreme Court today makes important decisions about policy across the
country and the limits (or lack thereof) on the power of the president with only five of nine individuals agreeing
on the opinion they issue. Your table will study one of the cases below in order to answer the question: Is the
judicial branch effective in checking the other two branches, and being checked by them in return?

"If you have five votes here, you can do anything.”

  – former Supreme Court Justice William J. Brennan, Jr. (served 1956-1990)

With your table, choose one of the following Supreme Court cases. You will read excerpts from the majority,
concurring (if applicable) and dissenting opinions issued by the justices of the Court when they decided the
case:
 Balzac v. Porto Rico (1922) – Do Puerto Ricans have the same rights as other U.S. citizens?
 Buck v. Bell (1927) – Can the government sterilize individuals they deem a “menace” to themselves
and to society?
 Korematsu v. United States  (1944) - Did the President and Congress go beyond their war powers by
implementing exclusion and restricting the rights of Americans of Japanese descent?
 Youngstown Sheet & Tube Company v. Sawyer (1952) - Did the President have the constitutional
authority to seize and operate most of the nation’s steel mills?
 New York Times Company v. United States (1971) - Did the Nixon administration's efforts to prevent
the publication of the Pentagon Papers violate the First Amendment?
 Roe v. Wade (1973) - Does the Constitution recognize a woman's right to terminate her pregnancy by
abortion?
 Bush v. Gore (2001) – Can the Supreme Court determine the outcome of an election?
 Obergefell v. Hodges (2015) - Does the Constitution require state governments to license a marriage
between two people of the same sex, or recognize a marriage between two people of the same sex that
was legally licensed and performed in another state
 Trump v. Hawaii (2018) - Did President Donald Trump have the power to issue a Proclamation
restricting travel to the United States by citizens from eight countries?
 Nielsen v. Preap (2019) - Can the federal government require that certain people are detained for the
duration of their deportation proceedings — without a hearing — because they have past criminal
records?

Then, answer the questions below about the power of the Supreme Court in your case.
1. What are the facts of your case?
2. What constitutional issue (clause or amendment) is being disputed in this case?
3. How did the previous courts rule on the case before it reached the “court of last resort”?
4. Does this case involve the Supreme Court checking the power of another branch /level of government,
or a potential overreach of the Court's own power?
5. How did the Court rule in your case? How was the decision split (5-4, 6-3, etc.)?
6. What was the reasoning for the majority opinion? What judicial philosophy is being used? How do you
know?
7. (If applicable) Why did the dissenting justices disagree with the majority opinion? What kind of judicial
philosophy is being used? How do you know?
8. Based on your answer to #4, answer one of the following:
o Do you think the Supreme Court adequately checked the relevant power with their decision in
this case? Why or why not?
o Do you think the Supreme Court reached beyond their power and responsibilities with their
decision in this case? Why or why not? 
9. Describe two checks another branch could take to prevent/limit the impact of this decision.
10. Has the decision in this case ever been overturned? If so, what case overturned it? (You will need to do
some outside research to answer this question.)
Balzac v. Porto Rico (1922)
Facts:
Jesús Maria Balzac y Balzac edited the newspaper El Baluarte. Balzac wrote an article
referring indirectly to the colonial governor at the time, Arthur Yager; the article was
considered libelous by the authorities. Because the Jones Act of 1917 granted Puerto
Ricans American citizenship among other guarantees, Balzac sought jury trial under
the Sixth Amendment. The Supreme Court of Puerto Rico denied his request.

Question: Are the civil liberties in the Bill of Rights guaranteed to the U.S. citizens of
Puerto Rico?

Conclusion:
No. The unanimous decision of the court was delivered by Chief Justice Taft. He
argued that although the Jones Act had granted citizenship to Puerto Ricans, it had not
incorporated Puerto Rico into the Union. Although Puerto Rico had been under the
control of the United States since the end of the Spanish–American War in 1898, the
territory had not been designated for ultimate statehood, and Congress could
determine which parts of the Constitution would apply. Taft distinguished Puerto Rico
from the territory in the Alaska purchase, acquired from Russia in 1867, which had
been held to be incorporated in Rasmussen v. United States. Thus, particular
constitutional provisions were applied based on location, rather than on citizenship.

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

“We have now to inquire whether that part of the Sixth Amendment to the Constitution
which requires that, in all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district wherein the crime
shall have been committed, which district shall have been previously ascertained by
law, applies to Porto Rico. Another provision on the subject is in Article III of the
Constitution, providing that the trial of all crimes, except in cases of impeachment, shall
be by jury, and such trial shall be held in the state where the said crimes shall have
been committed, but when not committed within any state, the trial shall be at such
place or places as the Congress may by law have directed. The Seventh Amendment
of the Constitution provides that, in suits at common law, when the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved. It is well settled
that these provisions for jury trial in criminal and civil cases apply to the Territories of
the United States…But it is just as clearly settled that they do not apply to territory
belonging to the United States which has not been incorporated into the Union…

The jury system needs citizens trained to the exercise of the responsibilities of jurors.
In common law countries, centuries of tradition have prepared a conception of the
impartial attitude jurors must assume. The jury system postulates a conscious duty of
participation in the machinery of justice which it is hard for people not brought up in
fundamentally popular government at once to acquire. One of its greatest benefits is in
the security it gives the people that they, as jurors, actual or possible, being part of the
judicial system of the country, can prevent its arbitrary use or abuse. Congress has
thought that a people like the Filipinos, or the Porto Ricans, trained to a complete
judicial system which knows no juries, living in compact and ancient communities, with
definitely formed customs and political conceptions, should be permitted themselves to
determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.”
Buck v. Bell (1927)

JUSTICE OLIVER WENDELL HOLMES delivered the opinion of the Court.

“Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due
form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate
feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the
latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the
welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful
safeguard, &c.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy,
without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions
many defective persons who, if now discharged, would become a menace, but, if incapable of procreating,
might be discharged with safety and become self-supporting with benefit to themselves and to society, and that
experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc…

There can be no doubt that, so far as procedure is concerned, the rights of the patient are most carefully
considered, and, as every step in this case was taken in scrupulous compliance with the statute and after
months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law.

The attack is not upon the procedure, but upon the substantive law. It seems to be contended that in no
circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon
the existing grounds. The judgment finds the facts that have been recited, and that Carrie Buck "is the
probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized
without detriment to her general health, and that her welfare and that of society will be promoted by her
sterilization," and thereupon makes the order. In view of the general declarations of the legislature and the
specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and, if
they exist, they justify the result. We have seen more than once that the public welfare may call upon the best
citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the
State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being
swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring
for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from
continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes. Three generations of imbeciles are enough.”

The only dissenter on the court, Justice Pierce Butler, did not write a dissenting opinion.
Korematsu v. United States (1944)

Opinions
MR. JUSTICE BLACK delivered the opinion of the Court.
“It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely
because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the
United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal
citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and
relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly
connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this
case into outlines of racial prejudice, without reference to the real military dangers which were presented,
merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or
his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted
military authorities feared an invasion of our West Coast and felt constrained to take proper security measures,
because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry
be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this
time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do
just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need
for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of
hindsight -- now say that, at that time, these actions were unjustified.”

MR. JUSTICE FRANKFURTER, concurring.

The provisions of the Constitution which confer on the Congress and the President powers to enable this
country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we
have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war
power of the Government is "the power to wage war successfully." Hirabayashi v. United States, supra, at 320
U. S. 93, and see Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398, 290 U. S. 426. Therefore, the validity of
action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as
lawless because like action in times of peace would be lawless. To talk about a military order that expresses
an allowable judgment of war needs by those entrusted with the duty of conducting war as "an unconstitutional
order" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres
of action of military authorities and of judges are, of course, very different. But, within their sphere, military
authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The
war power of the United States, like its other powers . . . is subject to applicable constitutional limitations,"
Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 251 U. S. 156. To recognize that military orders are
"reasonably expedient military precautions" in time of war, and yet to deny them constitutional legitimacy,
makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-
headed Framers, of whom a majority had had actual participation in war. If a military order such as that under
review does not transcend the means appropriate for conducting war, such action by the military is as
constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of
the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by
the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the
Constitution which denies to Congress the power to enforce such a valid military order by making its violation
an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U. S. 447;
155 U. S. 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U. S. 177. To find that the
Constitution does not forbid the military measures now complained of does not carry with it approval of that
which Congress and the Executive did. That is their business, not ours.”

R. JUSTICE ROBERTS, dissenting.

“I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, nor a case of
temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering
him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his
fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to
imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without
evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct
statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor
the conclusion that Constitutional rights have been violated.

The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is
single and indivisible, and thus make the case appear as if the petitioner violated a Military Order, sanctioned
by Act of Congress, which excluded him from his home by refusing voluntarily to leave, and so knowingly and
intentionally defying the order and the Act of Congress.

The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of
Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation.”
New York Times Company v. United States (1971)

Opinions:
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
“....We are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the
Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the
press in the name of "national security." The Government does not even attempt to rely on any act of
Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it
upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and
national security, even when the representatives of the people in Congress have adhered to the command of
the First Amendment and refused to make such a law. To find that the President has "inherent power" to halt
the publication of news by resort to the courts would wipe out the First Amendment and destroy the
fundamental liberty and security of the very people the Government hopes to make "secure." No one can read
the history of the adoption of the First Amendment without being convinced beyond any doubt that it was
injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all
time....”

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
“In the absence of the governmental checks and balances present in other areas of our national life, the only
effective restraint upon executive policy and power in the areas of national defense and international affairs
may lie in an enlightened citizenry -- in an informed and critical public opinion which alone can here protect the
values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free
most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there
cannot be an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective
national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an
atmosphere of mutual trust unless they can be assured that their confidences will be kept. And, within our own
executive departments, the development of considered and intelligent international policies would be
impossible if those charged with their formulation could not communicate with each other freely, frankly, and in
confidence. In the area of basic national defense, the frequent need for absolute secrecy is, of course, self-
evident.

I should suppose that moral, political, and practical considerations would dictate that a very first principle of
that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified,
then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to
be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing
that secrecy can best be preserved only when credibility is truly maintained. But, be that as it may, it is clear to
me that it is the constitutional duty of the Executive -- as a matter of sovereign prerogative, and not as a matter
of law as the courts know law -- through the promulgation and enforcement of executive regulations, to protect
the confidentiality necessary to carry out its responsibilities in the fields of international relations and national
defense.

This is not to say that Congress and the courts have no role to play. Undoubtedly, Congress has the power to
enact specific and appropriate criminal laws to protect government property and preserve government
secrets…But in the cases before us, we are asked neither to construe specific regulations nor to apply specific
laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the
Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the
Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is
correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will
surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can
under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the
Court.”

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
“I concur in today's judgments, but only because of the concededly extraordinary protection against prior
restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the
First Amendment permit an injunction against publishing information about government plans or operations.
Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I
deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident
that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the
very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the
absence of express and appropriately limited congressional authorization for prior restraints in circumstances
such as these....

MR. CHIEF JUSTICE BURGER, dissenting.

“In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the
effective functioning of a complex modern government, and, specifically, the effective exercise of certain
constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all
circumstances -- a view I respect, but reject -- can find such cases as these to be simple or easy.

These cases are not simple for another and more immediate reason. We do not know the facts of the cases.
No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court
knows all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits
of no restraint in any circumstances or for any reason, are really in a position to act?
…The newspapers make a derivative claim under the First Amendment; they denominate this right as the
public "right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of its
journalistic "scoop." The right is asserted as an absolute. Of course, the First Amendment right itself is not an
absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire" in a
crowded theater if there was no fire…Conceivably, such exceptions may be lurking in these cases and, would
have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and
frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to
thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long
period the Times, by its own choice, deferred publication…

The consequence of all this melancholy series of events is that we literally do not know what we are acting on.
As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an
adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court.
It is interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to
respond to questions on factual points. Not surprisingly, they pointed out that they had been working literally
"around the clock," and simply were unable to review the documents that give rise to these cases and were not
familiar with them. This Court is in no better posture. I agree generally with MR. JUSTICE HARLAN and MR.
JUSTICE BLACKMUN, but I am not prepared to reach the merits.”
Roe v. Wade (1973)

Opinions
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of
the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human
existence, one's religious training, one's attitudes toward life and family and their values, and the moral
standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and
conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify
the problem.

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be
possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right
in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in
personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back
perhaps as far as Union Pacific R. Co. v. Botsford, the Court has recognized that a right of personal privacy, or
a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the
Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the
Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, or in the
concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear
that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko
v. Connecticut, are included in this guarantee of personal privacy. They also make it clear that the right has
some extension to activities relating to marriage, Loving v. Virginia; procreation, Skinner v. Oklahoma;
contraception, Eisenstadt v. Baird.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and
restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's
reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this
choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the
distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into
a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the
additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the
woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute
and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason
she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at
all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's
sole determination, are unpersuasive. The

Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected
by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these
respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that
the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a
close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused
to recognize an unlimited right of this kind in the past (Jacobson v. Massachusetts)…

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is
not unqualified, and must be considered against important state interests in regulation.”

MR. JUSTICE REHNQUIST, dissenting.

I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by
the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that
word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and
seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy.

If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted
state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment,
there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I
agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against
deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights
found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against
deprivation without due process of law. The test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. The
Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on
legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the
mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state
objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on
abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of
competing factors that the Court's opinion apparently substitutes for the established test is far more
appropriate to a legislative judgment than to a judicial one.
Bush v. Gore (2000)
Facts
Leading up to the 2000 presidential election, polls had indicated that the race between Bush and Gore would be
close, with an especially slim margin in several key states. By the end of election day, November 7th, Gore held a
lead over Bush in the national popular vote, but the contest in the Electoral College was tight, and it all came down to
Florida. Potentially affecting the outcome were two other candidates: Ralph Nader, of the left-wing Green Party,
and Pat Buchanan, of the right-wing Reform Party.

On Election Day, a number of counties in Florida reported problems. A confusing ballot—the so-called butterfly
ballot—in Palm Beach County prompted thousands of voters to cast their ballot unwittingly for Buchanan. Ballots in
Duval County also caused confusion; some 22,000 votes there were disqualified because voters chose more than
one candidate. The punch-card apparatus used elsewhere in the state sometimes failed to punch out a hole
completely, meaning that the machine would not record a ballot choice.

On November 8, 2000, a preliminary vote tally in Florida showed Bush leading Gore by about 1,700 votes in the state.
With its 25 electoral votes up for grabs, the winner in Florida would become the next President of the United States.

The initial vote tally was so close in Florida, with a less than 0.5 percent difference, that Florida’s state laws triggered an
automatic machine recount. The mechanical recount reduced Bush’s margin to 327 votes. Gore had the right to request a
hand recount in each of Florida’s 67 counties—the request had to be made county by county—but he asked for a recount
in just four: Broward, Miami-Dade, Palm Beach, and Volusia. All of them were populous and heavily Democratic. They
were also counties where problems with voting had been concentrated.

The Bush camp sought to stop hand recounts, and lost, on constitutional grounds, in federal court. The Gore camp
sought, in state court, to prevent certification of the results until hand counts in four counties were complete. On
November 17, the Florida Supreme Court stepped in to prevent certification until it could rule on whether hand recounts
should be accepted; in the meantime, hand recounts continued. On Tuesday, November 21, the court decided
unanimously that hand recounts should go on, and gave the counties five days to finish them.

Bush immediately appealed to the United States Supreme Court, which ordered the recount halted on December 9, 2000
until it could hear arguments in the case. The question before the U.S. Supreme Court was: Did the Florida Supreme
Court exceed its authority by ordering a state-wide manual recount? And, would such a recount be constitutional?
George W. Bush argued that a statewide manual recount would violate the United States Constitution’s Fourteenth
Amendment. The Fourteenth Amendment says that “no state shall…deny to any person within its jurisdiction the equal
protection of the laws.” Since counties were using different standards to decide which votes would count, Bush argued
that Florida was not treating all its citizens equally under the law.

Gore argued that there was in fact a uniform standard for re-counting votes. The standard, as stated in Florida statute,
was that a vote would count if the “clear intent of the voter” was reflected in the ballot. Gore also pointed out that there
were five times as many “undervotes” (votes where machines registered no vote for President) in punch-card counties
than in counties with optical voting machines. Therefore, he argued, the recount standard would actually be more uniform
than the standards applied on Election Day.

The Justices faced a legal deadline: Under federal law (3 U.S. Code § 5) known as the safe harbor provision, a state must
determine its electors six days before the Electoral College members meet in person. In 2000, that deadline was
December 12 and the arguments would be held on December 11, giving the Court one day to reach a decision.

On December 12, 2000, the divided Court issued an unsigned per curium main decision, with concurrences and dissents
written by specific justices.

In the first part of the decision, the court ruled 7-2 that the Florida Supreme Court's scheme for recounting ballots was
unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different
standards were applied from ballot to ballot, precinct to precinct, and county to county.

Another part of the decision, a 5-4 vote along ideological lines, said that any solution to the recount problem couldn’t be
put in place by December 12, the safe-harbor deadline which the Florida state legislature wanted to honor. The dissenting
justices argued that a new constitutional standard for recounting the votes should be established because the deadline is
less important than the constitutional rights at stake.

The majority opinion includes a statement that the decision was “limited to the present circumstances.” To some, this is
simply a straightforward acknowledgement by judges prone to fact-specific reasoning that the court was treading into
unfamiliar recount territory warily, and therefore lawyers in future cases should be cautious against overreading anything
said in this hastily drafted opinion. To others, this is a confession of the court’s own unprincipled decision in the case. It is
a fundamental principle of American law that court rulings have precedential value, and that Supreme Court decisions are
binding on the lower federal courts. Scalia, one of the five justices in the majority, had written in an opinion only a few
years earlier that the Supreme Court “does not sit to announce ‘unique’ dispositions.” The court’s “principal function,” he
said, was “to establish precedent—that is, to set forth principles of law that every court in America must follow.” In Bush v.
Gore, however, the majority announced that its decision would be just the sort of “’unique’ disposition” that Scalia had
disclaimed.

The Supreme Court decision, in total, went against the Florida Supreme Court, remanding the case back to it for further
action. But since the safe-harbor deadline was passed, Bush remained as the certified winner in Florida, and Gore
conceded the next day.

Sources:
 the Constitution Center
 the Bill of Rights Institute
 The Atlantic
 the Oyez Project
 Ruth Bader Ginsburg, "Remarks on Judicial Independence: the Situation of the U.S. Federal Judiciary" speech to
the University of Melbourne
 Supreme Inequality by Adam Cohen

Unsigned Per Curiam (majority) decision:

The individual citizen has no federal constitutional right to vote for electors for the President of the
United States unless and until the state legislature chooses a statewide election as the means to
implement its power to appoint members of the electoral college…History has now favored the voter,
and in each of the several States the citizens themselves vote for Presidential electors. When the
state legislature vests the right to vote for President in its people, the right to vote as the legislature
has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight
accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting
the franchise in the special context of Article II, can take back the power to appoint electors.

The right to vote is protected in more than the initial allocation of the franchise. Equal protection
applies as well to the manner of its exercise. Having once granted the right to vote on equal terms,
the State may not, by later arbitrary [random] and disparate [unequal] treatment, value one person's
vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966)…

The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do
not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the
fundamental right. Florida's basic command for the count of legally cast votes is to consider the
"intent of the voter." 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a
starting principle. The problem inheres in the absence of specific standards to ensure its equal
application…As seems to have been acknowledged at oral argument, the standards for accepting or
rejecting contested ballots might vary not only from county to county but indeed within a single county
from one recount team to another…

The recount process, in its features here described, is inconsistent with the minimum procedures
necessary to protect the fundamental right of each voter in the special instance of a statewide recount
under the authority of a single state judicial officer. Our consideration is limited to the present
circumstances, for the problem of equal protection in election processes generally presents many
complexities…

None are more conscious of the vital limits on judicial authority than are the Members of this Court,
and none stand more in admiration of the Constitution's design to leave the selection of the President
to the people, through their legislatures, and to the political sphere. When contending parties invoke
the process of the courts, however, it becomes our unsought responsibility to resolve the federal and
constitutional issues the judicial system has been forced to confront.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

When questions arise about the meaning of state laws, including election laws, it is our settled
practice to accept the opinions of the highest courts of the States as providing the final answers. On
rare occasions, however, either federal statutes or the Federal Constitution may require federal
judicial intervention in state elections. This is not such an occasion…

As the majority explicitly holds, once a state legislature determines to select electors through a
popular vote, the right to have one's vote counted is of constitutional stature. As the majority further
acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid
votes. Recognizing these principles, the majority nonetheless orders the termination of the contest
proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate
course of action would be to remand to allow more specific procedures for implementing the
legislature's uniform general standard to be established…

Neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, did the
Florida Supreme Court make any substantive change in Florida electoral law. Its decisions were
rooted in long-established precedent and were consistent with the relevant statutory provisions, taken
as a whole. It did what courts do—it decided the case before it in light of the legislature's intent to
leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of
the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review
by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we
assume—as I do—that the members of that court and the judges who would have carried out its
mandate are impartial, its decision does not even raise a colorable federal question…

It is confidence in the men and women who administer the judicial system that is the true backbone of
the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's
decision. One thing, however, is certain. Although we may never know with complete certainty the
identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is
the Nation's confidence in the judge as an impartial guardian of the rule of law.

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, and with whom JUSTICE SOUTER and
JUSTICE BREYER join as to Part I, dissenting.

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper
resolution: Federal courts defer to a state high court's interpretations of the State's own law. This
principle reflects the core of federalism, on which all agree. "The Framers split the atom of
sovereignty. It was the genius of their idea that our citizens would have two political capacities, one
state and one federal, each protected from incursion by the other." Saenz v. Roe. THE CHIEF
JUSTICE'S solicitude for the Florida Legislature comes at the expense of the more fundamental
solicitude we owe to the legislature's sovereign.

I agree with JUSTICE STEVENS that petitioners have not presented a substantial equal protection
claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an
imperfect world, one in which thousands of votes have not been counted. I cannot agree that the
recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise
than the certification that preceded that recount.
Obergefell v. Hodges (2015)

Opinions
Justice Kennedy delivered the opinion of the Court.
“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow
persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find
that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same
terms and conditions as marriages between persons of the opposite sex.
From their beginning to their most recent page, the annals of human history reveal the transcendent
importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to
all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and
offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a
life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the
most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for
millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives,
binding families and societies together. Confucius taught that marriage lies at the foundation of government.
This wisdom was echoed centuries later and half a world away by Cicero, who wrote, "The first bond of society
is marriage; next, children; and then the family." There are untold references to the beauty of marriage in
religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their
forms. It is fair and necessary to say these references were based on the understanding that marriage is a
union between two persons of the opposite sex…

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to
demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that
is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that
underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue
marriage, the petitioners seek it for themselves because of their respect and need for its privileges and
responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this
profound commitment…

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law
and society. The history of marriage is one of both continuity and change. That institution even as confined to
opposite-sex relations has evolved over time.

For example, marriage was once viewed as an arrangement by the couple's parents based on political,
religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary
contract between a man and a woman. As the role and status of women changed, the institution further
evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as
a single, male-dominated legal entity. As women gained legal, political, and property rights, and as society
began to understand that women have their own equal dignity, the law of coverture was abandoned. These
and other developments in the institution of marriage over the past centuries were not mere superficial
changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed
by many as essential.

These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed
understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent
to new generations, often through perspectives that begin in pleas or protests and then are considered in the
political sphere and the judicial process.

Under the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life,
liberty, or property, without due process of law." The fundamental liberties protected by this Clause include
most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices
central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the
Constitution. That responsibility, however, "has not been reduced to any formula." Poev. Ullman, 367 U. S.
497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying
interests of the person so fundamental that the State must accord them its respect. See ibid. That process is
guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth
broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do
not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it
without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and
ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all
of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to
enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central
protections and a received legal stricture, a claim to liberty must be addressed.

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In
Lovingv. Virginia, which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the
vital personal rights essential to the orderly pursuit of happiness by free men." The Court reaffirmed that
holding in Zablockiv. Redhail, which held the right to marry was burdened by a law prohibiting fathers who
were behind on child support from marrying. The Court again applied this principle in Turnerv. Safley, which
held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time
and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process
Clause.

It cannot be denied that this Court's cases describing the right to marry presumed a relationship involving
opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time
of which it is a part.

A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is
inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why
Loving invalidated interracial marriage bans under the Due Process Clause. Like choices concerning
contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution,
decisions concerning marriage are among the most intimate that an individual can make. Indeed, the Court has
noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and
not with respect to the decision to enter the relationship that is the foundation of the family in our society."

A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a
two-person union unlike any other in its importance to the committed individuals.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning
from related rights of childrearing, procreation, and education. The Court has recognized these connections by
describing the varied rights as a unified whole: "[T]he right to 'marry, establish a home and bring up children' is
a central part of the liberty protected by the Due Process Clause." Under the laws of the several States, some
of marriage's protections for children and families are material. But marriage also confers more profound
benefits. By giving recognition and legal structure to their parents' relationship, marriage allows children "to
understand the integrity and closeness of their own family and its concord with other families in their
community and in their daily lives. Marriage also affords the permanency and stability important to children's
best interests.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice,
and family. In forming a marital union, two people become something greater than once they were. As some of
the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It
would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they
do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be
condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal
dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting.
“Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that
same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-
sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven
States and the District of Columbia have revised their laws to allow marriage between two people of the same
sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.
Under the Constitution, judges have power to say what the law is, not what it should be. The people who
ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The
Federalist No. 78, p. 465

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal
arguments for requiring such an extension are not. The fundamental right to marry does not include a right to
make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that
has persisted in every culture throughout human history can hardly be called irrational. In short, our
Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to
include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-
sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those
who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters
of same-sex marriage have achieved considerable success persuading their fellow citizens—through the
democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted
their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many
cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage
should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that
decision should rest with the people acting through their elected representatives, or with five lawyers who
happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution
leaves no doubt about the answer.”
Trump v. Hawaii (2018)

Facts of the case

On January 27, 2017, President Donald Trump signed Executive Order No. 13,769 (EO-1), which,
among other things, suspended entry for 90 days of foreign nationals from seven countries identified
by Congress or the Executive as presenting heightened terrorism-related risks. EO-1 was
immediately challenged in federal district court, and the judge entered a nationwide temporary
restraining order enjoining enforcement of several of its provisions. A panel of the Ninth Circuit denied
the government's emergency motion to stay the order pending appeal. Rather than continuing to
litigate the matter, the government announced that it would revoke that order and issue a new one.

On March 6, 2017, President Trump issued Executive Order No. 13,780 (EO-2). Section 2(c) of EO-2
directed that entry of nationals from six of the seven countries designated in EO-1 be suspended for
90 days from the effective date of the order, citing a need for time to establish adequate standards to
prevent infiltration by foreign terrorists. Section 6(a) directed that applications for refugee status and
travel of refugees into the United States under the United States Refugee Admissions Program
(USRAP) be suspended for 120 days from the effective date "to review the adequacy of USRAP
application and adjudication procedures." Section 6(b) suspended the entry of any individual under
USRAP once 50,000 refugees have entered the United States in fiscal year 2017. The effective date
of the order was March 16, 2017. EO-2 was subject to swift litigation as well.

On June 14, just before Section 2(c) of EO-2 was by its terms set to expire, President Trump issued a
memorandum to Executive Branch officials declaring the effective date of each enjoined provision of
EO–2 to be the date on which the injunctions in these cases “are lifted or stayed with respect to that
provision." The government sought review in both cases, making arguments both on the merits of the
cases and on procedural issues.

In a per curiam opinion issued simultaneously with an order granting certiorari, the Court granted the
government's applications for a stay of the preliminary injunction with respect to Sections 6(a) and (b)
of Executive Order 13,780 (EO-2), thereby allowing enforcement of those provisions. Under the
Court's ruling, the government may enforce Section 6(a) except as to any "individual seeking
admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the
United States," nor may such an individual be excluded under Section 6(b).

On September 24, 2017—the same day EO-2 was expiring—President Donald Trump issued a
Proclamation restricting travel to the United States by citizens from eight countries. That Proclamation
too was challenged in federal court as attempting to exercise power that neither Congress nor the
Constitution vested in the president. The Ninth Circuit struck down the Proclamation, and the
Supreme Court granted review.

Question
1. Are the plaintiffs’ claims challenging the president’s authority to issue the Proclamation reviewable
(“justiciable”) in federal court? 
2. Does the president have the statutory authority to issue the Proclamation?
3. Is the global injunction barring enforcement of parts of the Proclamation impermissibly overbroad?
4. Does the Proclamation violate the Establishment Clause of the Constitution?
Conclusion

Opinions
Chief Justice Roberts delivered the opinion of the Court.

“Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a
vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the
President with authority to restrict the entry of aliens when- ever he finds that their entry “would be detrimental
to the interests of the United States.”8 U. S. C. §1182(f). Relying on that delegation, the President concluded
that it was necessary to impose entry restrictions on nationals of countries that do not share adequate
information for an informed entry determination, or that otherwise present national security risks.

The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f ) is
that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the
United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other
agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and
risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing
how deficiencies in the practices of select foreign governments—several of which are state sponsors of
terrorism—deprive the Government of “sufficient information to assess the risks [those countries’ nationals]
pose to the United States.” Proclamation §1(h)(i). Based on that review, the President found that it was in the
national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect
national security and public safety, and to induce improvement by their home countries. The Proclamation
therefore “craft[ed] . . . country-specific restrictions that would be most likely to encourage cooperation given
each country’s distinct circumstances,” while securing the Nation “until such time as improvements occur.”

In short, the language of §1182(f ) is clear, and the Proclamation does not exceed any textual limit on the
President’s authority…

We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding
Muslims…The First Amendment provides, in part, that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” Our cases recognize that “[t]he clearest
command of the Establishment Clause is that one religious denomination cannot be officially preferred over
another.” Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored
treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in part because most of
the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from
the information-sharing baseline criteria suggest that the results of the multi-agency review were
“foreordained.” Relying on Establishment Clause precedents concerning laws and policies applied
domestically, plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the
President’s stated concerns about vetting protocols and national security were but pretexts for discriminating
against Muslims…

The Proclamation does not fit the pattern of discriminatory policies. It cannot be said that it is impossible to
“discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.”
Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis
review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in
national security concerns, quite apart from any religious hostility, we must accept that independent
justification.

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be
adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.
Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the
Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious
hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that
were previously designated by Congress or prior administrations as posing national security risks.”

Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.

“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored
that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s
decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised
openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because
the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to
cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words
have created. Based on the evidence in the record, a reasonable observer would conclude that the
Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to
succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts,
misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts
upon countless families and individuals, many of whom are United States citizens. Because that troubling
result runs contrary to the Constitution and our precedent, I dissent.

During his Presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban
Muslims from entering the United States. Specifically, on December 7, 2015, he issued a formal statement
“calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement,
which remained on his campaign website until May 2017 (several months into his Presidency), read in full:

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United
States until our country’s representatives can figure out what is going on. According to Pew
Research, among others, there is great hatred towards Americans by large segments of the
Muslim population. Most recently, a poll from the Center for Security Policy released data
showing ‘25% of those polled agreed that violence against Americans here in the United States
is justified as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America
should have the choice of being governed according to Shariah.’ Shariah authorizes such
atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable
acts that pose great harm to Americans, especially women.
 “Mr. Trum[p] stated, ‘Without looking at the various polling data, it is obvious to anybody the
hatred is beyond comprehension. Where this hatred comes from and why we will have to
determine. Until we are able to determine and understand this problem and the dangerous
threat it poses, our country cannot be the victims of the horrendous attacks by people that
believe only in Jihad, and have no sense of reason or respect of human life. If I win the election
for President, we are going to Make America Great Again.’—Donald J. Trump.”

…As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements.
Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with
all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of
events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its
adherents by excluding them from the country. See McCreary, 545 U. S., at 862–863. The answer is
unquestionably yes.

Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was
driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security
justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App.
399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming
into the country,” id., at 121, promised to enact a “total and complete shutdown of Muslims entering the United
States,” id., at 119, and instructed one of his advisers to find a “lega[l ]” way to enact a Muslim ban, id., at 125.
[3] The President continued to make similar statements well after his inauguration, as detailed above…

Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security interests
the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to
articulate any credible national-security interest that would go unaddressed by the current statutory scheme
absent the Proclamation. The Government also offers no evidence that this current vetting scheme, which
involves a highly searching consideration of individuals required to obtain visas for entry into the United States
and a highly searching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is
inadequate to achieve the Proclamation’s proclaimed objectives of “preventing entry of nationals who cannot
be adequately vetted and inducing other nations to improve their [vetting and information-sharing] practices.”

…Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that
of Korematsu v. United States,323 U. S. 214 (1944). In Korematsu, the Court gave “a pass [to] an odious,
gravely injurious racial classification” authorized by an executive order. As here, the Government invoked an ill-
defined national-security threat to justify an exclusionary policy of sweeping proportion. Here, the exclusion
order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to
assimilate and desire to harm the United States. As here, the Government was unwilling to reveal its own
intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. And as
here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy.

…By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by
animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court
redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision
with another.

Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to
account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in
that respect, with profound regret, I dissent.”
Nielsen v. Preap (2019)

Facts of the case

Three lawful permanent residents filed a class action for habeas relief in the US District Court for the Northern
District of California when immigration authorities took them into custody and detained them without bond
hearings years after they had been released from serving criminal sentences for offenses that could lead to
removal. The plaintiffs’ position was that they were not detained “when . . . released” from criminal custody,
and thus were not subject to mandatory detention under 8 U.S.C. § 1226(c).

The district court certified the class, which included “[i]ndividuals in the state of California who are or will be
subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been
taken into custody by the government immediately upon their release from criminal custody for a Section
1226(c)(1) offense.” The court also issued a preliminary injunction directing the government to provide all class
members with a bond hearing pursuant to § 1226(a).

The Ninth Circuit affirmed, agreeing with the First Circuit and rejecting reasoning followed in four other circuits,
holding that the immigration detention at issue under § 1226(c) must take place promptly upon the noncitizen’s
release from criminal custody. The appellate court explained that the statute’s plain language reflected an
immediacy with regard to when the immigration detention must take place in relation to the release from
custody, and rejected arguments by the government that would allow for detentions to occur following
significant delays.

Question
Does a noncitizen released from criminal custody become exempt from mandatory detention under 8 U.S.C. §
1226(c) if, after the noncitizen is released from criminal custody, the Department of Homeland Security does
not take the noncitizen into immigration custody immediately?

Opinions
Justice Alito announced the opinion of the court.
“Aliens who are arrested because they are believed to be deportable may generally apply for release on bond
or parole while the question of their removal is being decided. These aliens may secure their release by
proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they
would not endanger others and would not flee if released from custody.

Congress has decided, however, that this procedure is too risky in some instances. Congress therefore
adopted a special rule for aliens who have committed certain dangerous crimes and those who have
connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009–585, 8 U. S. C.
§1226(c), these aliens must be arrested “when [they are] released” from custody on criminal charges and (with
one narrow exception not involved in these cases) must be detained without a bond hearing until the question
of their removal is resolved…

Under federal immigration law, aliens present in this country may be removed if they fall “within one or
more . . . classes of deportable aliens.” 8 U. S. C. §1227(a). In these cases, we focus on two provisions
governing the arrest, detention, and release of aliens who are believed to be subject to removal.

The first provision, §1226(a), applies to most such aliens, and it sets out the general rule regarding their arrest
and detention pending a decision on removal…

Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, and it sprang from a “concer[n] that deportable criminal aliens who are not detained continue to engage
in crime and fail to appear for their removal hearings in large numbers.” Demore v. Kim, 538 U.S. 510, 513
(2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk
be arrested and detained without a chance to apply for release on bond or parole.

Respondents in the two cases before us are aliens who were detained under §1226(c)(2)’s mandatory-
detention requirement—and thus denied a bond hearing—pending a decision on their removal. Though all
respondents had been convicted of criminal offenses covered in §§1226(c)(1)(A)–(D), none were arrested by
immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until
several years later.

Respondents contend that they are not properly subject to §1226(c)’s mandatory-detention scheme, but
instead are entitled to the bond hearings available to those held under the general arrest and release authority
provided in §1226(a). Respondents’ primary textual argument turns on the interaction of paragraphs (1) and (2)
of §1226(c). Recall that those paragraphs govern, respectively, the “[c]ustody” and “[r]elease” of criminal aliens
guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien “when the alien is
released,” and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a
determination on removal (with one exception not relevant here). Because the parties’ arguments about the
meaning of §1226(c) require close attention to the statute’s terms and structure, we reproduce the provision in
full below. But only the portions of the statute that we have highlighted are directly relevant to respondents’
argument. Section 1226(c) provides:

‘The [Secretary] shall take into custody any alien who—(A) is inadmissible by reason of having
committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having
committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is
deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has
been sentence[d] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section
1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is
released, without regard to whether the alien is released on parole, supervised release, or probation,
and without regard to whether the alien may be arrested or imprisoned again for the same offense.

The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides
pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide
protection to a witness, a potential witness, a person cooperating with an investigation into major
criminal activity, or an immediate family member or close associate of a witness, potential witness, or
person cooperating with such an investigation, and the alien satisfies the [Secretary] that the alien will
not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled
 proceeding. A decision relating to such release shall take place in accordance with a procedure that
considers the severity of the offense committed by the alien.’

…Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics
and that the Secretary must do this “when the alien is released” from criminal custody…The “when . . .
released” clause…plays no role in identifying for the Secretary which aliens she must immediately arrest. If it
did, the directive in §1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying:
“The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones?
Only those who are arrested upon their release from jail.” Since it is the Secretary’s action that determines who
is arrested upon release, “being arrested upon release” cannot be one of her criteria in figuring out whom to
arrest….

Respondents say we should be uneasy about endorsing any reading of §1226(c) that would mandate arrest
and detention years after aliens’ release from criminal custody—when many aliens will have developed strong
ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents
argue, mandatory detention may be insufficiently linked to public benefits like protecting others against crime
and ensuring that aliens will appear at their removal proceedings. In respondents’ view, detention in that
scenario would raise constitutional doubts under Zadvydas v. Davis, 533 U.S. 678 (2001), which held that
detention violates due process absent “adequate procedural protections” or “special justification[s]” sufficient to
outweigh one’s “ ‘constitutionally protected interest in avoiding physical restraint,’. Thus, respondents urge, we
should adopt a reading of §1226(c)—their reading—that avoids this result…

We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns
are offered as just another pillar in an argument for their preferred reading of the language of §1226(c)—an idle
pillar here because the statute is clear. While respondents might have raised a head-on constitutional
challenge to §1226(c), they did not. Our decision today on the meaning of that statutory provision does not
foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have
now read it.”

Justice Kavanaugh, concurring.

“I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what
this case is not about.

This case is not about whether a noncitizen may be removed from the United States on the basis of criminal
offenses. Under longstanding federal statutes, the Executive Branch may remove noncitizens from the United
States when the noncitizens have been convicted of certain crimes, even when the crimes were committed
many years ago.

This case is also not about whether a noncitizen may be detained during removal proceedings or before
removal. Congress has expressly authorized the Executive Branch to detain noncitizens during their removal
proceedings and before removal. 8 U. S. C. §§1226(a), (c), and 1231(a).

This case is also not about how long a noncitizen may be detained during removal proceedings or before
removal. We have addressed that question in cases such as Zadvydas v. Davis, 533 U.S. 678 (2001), Clark v.
Martinez, 543 U.S. 371 (2005), and Jennings v. Rodriguez, 583 U. S. ___ (2018).

This case is also not about whether Congress may mandate that the Executive Branch detain noncitizens
during removal proceedings or before removal, as opposed to merely giving the Executive Branch discretion to
detain. It is undisputed that Congress may mandate that the Executive Branch detain certain noncitizens
during removal proceedings or before removal. Congress has in fact mandated detention of certain noncitizens
who have been in criminal custody and who, upon their release, would pose a danger to the community or risk
of flight. As relevant here, Congress has mandated detention “when” such noncitizens are “released” from
criminal custody. 8 U. S. C. §1226(c)(1).

The sole question before us is narrow: whether, under §1226, the Executive Branch’s mandatory duty to detain
a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the
Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal
custody—for example, if the Executive Branch fails to immediately detain the noncitizen because of resource
constraints or because the Executive Branch cannot immediately locate and apprehend the individual in
question. No constitutional issue is presented. The issue before us is entirely statutory and requires our
interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110Stat. 3009–546.

It would be odd, in my view, if the Act (1) mandated detention of particular noncitizens because the noncitizens
posed such a serious risk of danger or flight that they must be detained during their removal proceedings, but
(2) nonetheless allowed the noncitizens to remain free during their removal proceedings if the Executive
Branch failed to immediately detain them upon their release from criminal custody. Not surprisingly, the Act
does not require such an odd result. On the contrary, the relevant text of the Act is relatively straightforward, as
the Court explains. Interpreting that text, the Court correctly holds that the Executive Branch’s detention of the
particular noncitizens here remained mandatory even though the Executive Branch did not immediately detain
them. I agree with the Court’s careful statutory analysis, and I join the Court’s opinion in full.”

Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.
“A provision of the Immigration and Nationality Act, 8 U. S. C. §1226(c), focuses upon potentially deportable
noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of
Homeland Security to take those aliens into custody “when . . . released” from prison and to hold them without
a bail hearing until Government authorities decide whether to deport them. The question is whether this
provision limits the class of persons in the “no-bail-hearing” category to only those aliens who were taken into
custody “when . . . released” from prison, or whether it also places in that “no-bail-hearing” category those
aliens who were taken into custody years or decades after their release from prison…

The issue may sound technical. But it is extremely important. That is because the Government’s reading of the
statute—namely, that paragraph (2) forbids bail hearings for all ABCD aliens regardless of whether they were
detained “when . . . released” from criminal custody—would significantly expand the Secretary’s authority to
deny bail hearings. Under the Government’s view, the aliens subject to detention without a bail hearing may
have been released from criminal custody years earlier, and may have established families and put down roots
in a community. These aliens may then be detained for months, sometimes years, without the possibility of
release; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of
“moral turpitude” such as illegally downloading music or possessing stolen bus transfers; and they sometimes
may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn
out after months of custody that they will not be removed from the country because they are eligible by statute
to receive a form of relief from removal such as cancellation of removal. These are not mere hypotheticals. See
Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, the question
before us is not a “narrow” one, ante, at 2 (Kavanaugh, J., concurring)…

The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in
identifying for the Secretary which aliens she must immediately arrest.” Ante, at 13. That may be so. But why is
that a “crucial point” in the majority’s favor? …The key word “described” appears not in paragraph (1), but in
paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the
release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already
occurred. Thus, the function of the phrase “an alien described in paragraph (1)” is not to describe who must be
detained, but instead to describe who must be denied bail.

In short, the language demonstrates that an alien is “described in paragraph (1)”—and therefore subject to
paragraph (2)’s bar on bail hearings—only if the alien is “take[n] into custody . . . when the alien is released.”

If the majority were correct that the “when . . . released” provision does not set a time limit on the Secretary’s
authority to deny bail hearings, then a special transition statute delaying implementation for one year would
have been unnecessary. To avoid overcrowding, the Government simply could have delayed arresting aliens
for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-
year transition period? The majority responds that the transition statute still served a purpose: to “dela[y] the
onset of the Secretary’s obligation to begin making arrests.” But that just raises the question: Why would
Congress have needed to “dela[y] the onset of the Secretary’s obligation” if it thought that the Secretary could
detain aliens without a bail hearing after a year-long delay? The majority offers no good answer. The transition
statute therefore strongly suggests that Congress viewed the “when . . . released” provision as a constraint on
the Secretary’s authority to deny a bail hearing.
To reiterate: The question before us is not “narrow.” Ante, at 2 (Kavanaugh, J., concurring). See supra, at 4.
That is because we cannot interpret the words of this specific statute without also considering basic promises
that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote
this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended
that persons who have long since paid their debt to society would be deprived of their liberty for months or
years without the possibility of bail. We cannot decide that question without bearing in mind basic American
legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,” U. S.
Const., Amdt. 5; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less
abstractly and more directly, the longstanding right of virtually all persons to receive a bail hearing.

I would have thought that Congress meant to adhere to these values and did not intend to allow the
Government to apprehend persons years after their release from prison and hold them indefinitely without a
bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an
intent that is consistent with our basic values. To speak more technically, I believe that aliens are subject to
paragraph (2)’s bar on release only if they are detained “when . . . released” from criminal custody. To speak
less technically, I fear that the Court’s contrary interpretation will work serious harm to the principles for which
American law has long stood.

For these reasons, with respect, I dissent.”