Court Case Notes

Court Case Notes

Terms:
Free Speech
Clear and present danger doctrine
Advocacy of incitement of an illegal act doctrine with imminence
Prior restraint
Due process
Enumerated rights
Unenumerated rights

Exclusionary rule: prevents the government from using most evidence gathered in violation of the United
States Constitution

Equal protection
Rational basis doctrine
De facto segregation
DeJure Segregation

Compelling interest test: an element of the strict scrutiny test by which courts exercise judicial review of
legislative and executive branch enactments that affect constitutional rights

plaintif: person prosecuting

defendant: person defending

Percurium: a unsigned decision where the court speaks as one. 9 : 0 votes

Justiciable e refers to a matter which is capable of being decided by a court.

Districts every congressional district must have around the same amount of people.

Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving
identical or similar facts, or similar legal issues

amicus curiae brief is a brief filed by a outside (interests group), that is, a text that is sufficiently authoritative
in its field to be admissible as evidence in a court.

De Facto: "in fact" or "in reality", which is used to qualify many legal concepts, even when the formal legal
requirements have not been met.

De Jure: for “by law” or “by right” and is used to describe a practice that exists by right or according to law.

litmus test: opposition to the nomination became a litmus test for political support of candidates

Habeas Corpus is a fundamental right in the Constitution that protects against unlawful and indefinite
imprisonment.

Writs of Certiorari This is a request that the Supreme Court order a lower court to send up the record of the
case for review. (Rule of 4 :Needs 4 judges to agree to review case)

ACLU The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The
ACLU works in the courts, legislatures, and communities to defend and preserve the individual rights and
liberties guaranteed to all people in this country by the Constitution and laws of the United States.
The majority opinion is an appellate opinion supporting the court's judgment (the result reached in the case)
which receives a majority vote of the justices or judges hearing the case.

A dissenting opinion is an appellate opinion of one or more judges which disagrees with the reasoning stated
in the majority or plurality opinion and, consequently, with the result reached in a case.

A concurring opinion is an appellate opinion of one or more justices or judges which supports the result
reached in a case for reasons not stated in the majority opinion

Standing: Legal Reasoning for suing

Guidelines:
(A) Must be controversy between adversaries
(B) personal harm must be demonstrated
(C) being taxpayer not entitlement for suit
(D) sovereign immunity

Attorney General Head of department of justice

solicitor general the person that argues in favor of the us in the supreme court

Every 10 years

Census: The U.S. census counts every resident in the United States. It is mandated by Article I, Section 2 of
the Constitution and takes place every 10 years

reapportionment (house of rep. was caped at 435 seats). Congressional apportionment (or reapportionment)
is the process of dividing seats for the House among the 50 states following the decennial census.

Redistricting, the process of drawing electoral district boundaries, takes place in the United States following
the completion of each decennial census to account for population shifts.

Gerrymandering is the practice of setting boundaries of electoral districts to favor specific political interests
within legislative bodies, often resulting in districts with convoluted, winding boundaries rather than compact
areas. (Optional)

List of Cases
Establishment:
Marbury v Madison

Federalism:
McCulloch v. Maryland
Heart of Atlanta V US
Gibbons v ogden

Checks and Balances

US v Nixon
INS v Chada
Clinton v NY

We the people
US term limits v Thornton
Shaw v Reno
Miller v Johnson
Baker v. Carr
Buckley v Valeo
Wesbury v Sanders

Civil Rights
Plessy v Feguson
Brown v Board
California v Bakke
Obgerefel v Hodges
Loving v. VA
Buck v Bell

Right to privacy
Griswald v Connecticut
Roe v Wade
Dobbs v. Jackson Women's Health Organization
Webster v Reproductive
Planned Parenthood v Casey
DC v Heller
McDonald v Chicago
US V Lopez

Religious Freedom
Lemon v Kurtzman
Santa Fe v Doe
Engle v. Vitale
Abington v Schempp
Reynolds v US
Oregon v Smith
Edwards v Aquillard
Wallace v Jaffree
WV v Barnette
Wisconsin v Yoder

Free Speech
Schenck v US
Abrams v US
Gitlow v NY
Dennis v US
Brandenberg v US
Elonis v US
NY Times v Sullivan
NY Times v US
Texas v Johnson
Tinker v Des Moines
Skokie v Illinois
Snyder v Phelps
Mahanoy v. B.L.
Morse v Frederick
Citizens United v FEC

Due process
Terry v ohio
Korematsu v US
Miranda v Arizona
Hazelwood v Kuhelmeier
Mapp v Ohio
Timbs v Indiana
Gideon v Wainright
Furman v Georgia
NJ v TLO

Establishment:
Marbury v. Madison

UNANIMOUS DECISION FOR MARBURY

Facts of the case

Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on
March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added
judges, and gave the president more control over appointment of judges. The Act was essentially an attempt
by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42
new justices of the peace. The appointees were approved by the Senate, but they would not be valid until
their commissions were delivered by the Secretary of State.

William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was
not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison,
to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of
mandamus compelling the delivery of the commissions.

Question

1. Do the plaintiffs have a right to receive their commissions?

2. Can they sue for their commissions in court?
3. Does the Supreme Court have the authority to order the delivery of their commissions?

Conclusion
The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to
hand over Marbury’s commission via writ of mandamus. Instead, the Court held that the provision of the
Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional,
since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2,
established.

Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court
could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress
did not have power to modify the Constitution through regular legislation because Supremacy Clause places
the Constitution before the laws.

In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law
unconstitutional.

Federalism:
McCulloch v. Maryland: IMPORTANT

6:1

Facts of the case

In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed
legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank,
refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the
Constitution did not provide a textual commitment for the federal government to charter a bank.

Question

1. Did Congress have the authority to establish the bank? (yes, so the goverment has the capabilities of
applying the necessary and proper clause)
2. Did the Maryland law unconstitutionally interfere with congressional powers? (No, because of supremacy
clause)

Conclusion
In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that
Maryland could not tax instruments of the national government employed in the execution of constitutional
powers.

Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress
possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined “necessary” to mean
“appropriate and legitimate,” covering all methods for furthering objectives covered by the enumerated
powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws
made in pursuance thereof are supreme and cannot be controlled by the states.

Heart of Atlanta Motel, Inc. v. United States

UNANIMOUS DECISION FOR UNITED STATES

Facts of the case

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their
operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black
Americans. The government sought to enjoin the motel from discriminating on the basis of race under Title II.

Question
Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving
places of public accommodation of the right to choose their own customers?

Conclusion
The Commerce Clause extends the anti-discrimination provisions in the Civil Rights Act of 1964 to hotels that
host travelers from outside the state.

In a unanimous decision authored by Justice Clark, the Court held the government could enjoin the motel from
discriminating on the basis of race under the Interstate Commerce Clause. Since the motel was positioned
near Interstates 75 and 85 and received most of its business from outside Georgia, this showed that it had an
impact on interstate commerce, which is all that is needed to justify Congress in exercising the Commerce
Clause power.

Justices Black, Douglas, and Goldberg concurred in a separate opinion.

Gibbons v. Ogden:

8-1

description
A New York state law gave Robert R. Livingston and Robert Fulton a 20-year monopoly over navigation on
waters within state jurisdiction. Aaron Ogden and other competitors tried to forestall the monopoly, but
Livingston and Fulton largely succeeded in selling franchise or buying competitors’ boats. Thomas Gibbons --
a steamboat owner who did business between New York and New Jersey under a federal coastal license –
formed a partnership with Ogden, which fell apart after three years when Gibbons operated another
steamboat on a New York route belonging to Ogden. Ogden filed suit against Gibbons in New York state court,
and received a permanent injunction. The New York state court rejected Gibbons’ argument asserting that U.S.
Congress controlled interstate commerce.
Question
Does the Commerce Clause give Congress authority over interstate navigation?

Conclusion
Justice Marshall concluded that regulation of navigation by steamboat operators and others for purposes of
conducting interstate commerce was a power reserved to and exercised by the Congress under the
Commerce Clause. As interstate navigation fell under interstate commerce, New York could not interfere with
it, and the law was therefore invalid.

In a concurring opinion, Justice William Johnson argued that the national government had exclusive power
over interstate commerce, negating state laws interfering with the exercise of that power.

Justice Thompson did not participate in the discussion or decision of the case.

Checks and Balances

US v Nixon

Unanimous decision for us

Facts of the case

A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate
affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations
recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming
"executive privilege," which is the right to withhold information from other government branches to preserve
confidential communications within the executive branch or to secure the national interest. Decided together
with Nixon v. United States.

Question
Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power,
entirely immune from judicial review?

Conclusion
No. The Court held that neither the doctrine of separation of powers, nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential
privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic
affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of
justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon
resigned shortly after the release of the tapes.

INS v. Chadha

7–2 DECISION
MAJORITY OPINION BY WARREN E. BURGER
Legislative veto was deemed unconstitutional

Facts of the case

In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to
invalidate and suspend deportation rulings of the United States Attorney General. Chadha had stayed in the
U.S. past his visa deadline. Though Chadha conceded that he was deportable, an immigration judge
suspended his deportation. The House of Representatives voted without debate or recorded vote to deport
Chadha. This case was decided together with United States House of Representatives v. Chadha and United
States Senate v. Chadha.

Question
 Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the
separation of powers doctrine?

Conclusion
The Court held that the particular section of the Act in question did violate the Constitution. Recounting the
debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice
Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the
"explicit constitutional standards" regarding lawmaking and congressional authority.

Clinton v City of New York:

line item veto - to veto a specific line or section of a spending bill while still approving the rest. (Deemed
unconstitutional only on a federal level.)

6:3 DECISION
MAJORITY OPINION BY JOHN PAUL STEVENS

Facts of the Case

This case consolidates two separate challenges to the constitutionality of two cancellations, made by
President William J. Clinton, under the Line Item Veto Act ("Act"). In the first, the City of New York, two hospital
associations, a hospital, and two health care unions, challenged the President's cancellation of a provision in
the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6
billion in taxes levied against Medicaid providers by the State of New York. In the second, the Snake River
farmer's cooperative and one of its individual members challenged the President's cancellation of a provision
of the Taxpayer Relief Act of 1997. The provision permitted some food refiners and processors to defer
recognition of their capital gains in exchange for selling their stock to eligible farmers' cooperatives. After a
district court held the Act unconstitutional, the Supreme Court granted certiorari on expedited appeal.

Question
Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate
the Presentment Clause of Article I?

Conclusion
Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the
farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to
challenge the President's actions. The Court then explained that under the Presentment Clause, legislation
that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by
the President. The Court held that by canceling only selected portions of the bills at issue, under authority
granted him by the Act, the President in effect "amended" the laws before him. Such discretion, the Court
concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers.

We the people
U. S. Term Limits, Inc. v. Thornton

5–4 DECISION

Facts of the case

On November 3, 1992, Arkansas voters adopted Amendment 73 to their State Constitution. The "Term
Limitation Amendment," in addition to limiting terms of elected officials within the Arkansas state government,
also provided that any person who served three or more terms as a member of the United States House of
Representatives from Arkansas would be ineligible for re-election as a US Representative from Arkansas.
Similarly, the Amendment provided that any person who served two or more terms as a member of the United
States Senate from Arkansas would be ineligible for re-election as a US Senator from Arkansas.
Question
Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the
Constitution?

Conclusion
No. The Constitution prohibits States from adopting Congressional qualifications in addition to those
enumerated in the Constitution. A state congressional term limits amendment is unconstitutional if it has the
likely effect of handicapping a class of candidates and "has the sole purpose of creating additional
qualifications indirectly." Furthermore, "...allowing individual States to craft their own congressional
qualifications would erode the structure designed by the Framers to form a 'more perfect Union.'"

Shaw v Reno

5–4 DECISION FOR SHAW

Facts of the case

The U.S. Attorney General rejected a North Carolina congressional reapportionment plan because the plan
created only one black-majority district. North Carolina submitted a second plan creating two black-majority
districts. One of these districts was, in parts, no wider than the interstate road along which it stretched. Five
North Carolina residents challenged the constitutionality of this unusually shaped district, alleging that its only
purpose was to secure the election of additional black representatives. After a three-judge District Court ruled
that they failed to state a constitutional claim, the residents appealed and the Supreme Court granted
certiorari.

Questions
Did the North Carolina residents' claim, that the State created a racially gerrymandered district, raise a valid
constitutional issue under the Fourteenth Amendment's Equal Protection Clause?

Conclusion
Yes. The Court held that although North Carolina's reapportionment plan was racially neutral on its face, the
resulting district shape was bizarre enough to suggest that it constituted an effort to separate voters into
different districts based on race. The unusual district, while perhaps created by noble intentions, seemed to
exceed what was reasonably necessary to avoid racial imbalances. After concluding that the residents' claim
did give rise to an equal protection challenge, the Court remanded - adding that in the absence of
contradictory evidence, the District Court would have to decide whether or not some compelling
governmental interest justified North Carolina's plan.

Miller v Johnson

5–4 DECISION
MAJORITY OPINION BY ANTHONY M. KENNEDY

Facts of the case

Between 1980 and 1990, only one of Georgia's ten congressional districts was majority-black. According to
the 1990 decennial census, Georgia's black population of 27% entitled blacks to an additional eleventh
congressional seat, prompting Georgia's General Assembly to re-draw the state's congressional districts. After
the Justice Department refused pre-clearance of several of the Assembly's proposed new districts, the
Assembly was finally successful in creating an additional majority-black district through the forming of an
eleventh district. This district, however, was called a "geographic monstrosity" because it extended 6,784.2
square miles from Atlanta to the Atlantic Ocean. In short, "the social, political, and economic makeup of the
Eleventh District tells a tale of disparity, not community."

Question
Is racial gerrymandering of the congressional redistricting process a violation of the Equal Protection Clause?

Conclusion
Yes. In some instances, a reapportionment plan may be so highly irregular and bizarre in shape that it
rationally cannot be understood as anything other than an effort to segregate voters based on race. Applying
the rule laid down in Shaw v. Reno requires strict scrutiny whenever race is the "overriding, predominant force"
in the redistricting process.

Baker v. Carr

6:2 DECISION FOR BAKER

Facts of the case

Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the
state's General Assembly was virtually ignored. Baker's suit detailed how Tennessee's reapportionment efforts
ignored significant economic growth and population shifts within the state.

Question
Did the Supreme Court have jurisdiction over questions of legislative apportionment?

Conclusion
In an opinion which explored the nature of "political questions" and the appropriateness of Court action in
them, the Court held that there were no such questions to be answered in this case and that legislative
apportionment was a justiciable issue. In his majority opinion, Justice Brennan provided past examples in
which the Court had intervened to correct constitutional violations in matters pertaining to state
administration and the officers through whom state affairs are conducted. Brennan concluded that the
Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial
evaluation.

Justices Douglas, Clark, and Stewart filed separate concurring opinions.

Justice Frankfurter, joined by Justice Harlan, dissented.

Buckley v Valeo

7:2 for buckley

Facts of the case

In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by
restricting financial contributions to candidates. Among other things, the law set limits on the amount of
money an individual could contribute to a single campaign and it required reporting of contributions above a
certain threshold amount. The Federal Election Commission was created to enforce the statute.

Question
Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related
provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and
association clauses?

Conclusion
In this complicated case, the Court arrived at two important conclusions. First, it held that restrictions on
individual contributions to political campaigns and candidates did not violate the First Amendment since the
limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against
unscrupulous practices. Second, the Court found that governmental restriction of independent expenditures in
campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the
limitation on total campaign expenditures did violate the First Amendment. Since these practices do not
necessarily enhance the potential for corruption that individual contributions to candidates do, the Court
found that restricting them did not serve a government interest great enough to warrant a curtailment on free
speech and association.

Wesbury v Sanders

6–3 DECISION FOR WESBERRY

MAJORITY OPINION BY HUGO L. BLACK
Facts of the case
James P. Wesberry resided in a Georgia congressional district with a population two to three times greater
than that of other congressional districts in the state. He asserted that because there was only one
congressman for each district, his vote was debased as a result of the state apportionment statute and the
state's failure to realign the congressional districts. Wesberry sought to invalidate the apportionment statute
and enjoin defendants, the Governor and Secretary of State, from conducting elections under it. The district
court dismissed the complaint for non-justiciability and want of equity. Wesberry appealed.

Question
Did Georgia's congressional districts violate the Fourteenth Amendment or deprive citizens of the full benefit
of their right to vote?

Conclusion
Congressional districts must have roughly equal populations if this is feasible.

In an opinion authored by Hugo L. Black, the 6-3 majority held that the district court had jurisdiction because
debasement of the right to vote as a result of a state congressional apportionment law was justiciable and not
subject to dismissal for "want of equity." The Court further held that the apportionment statute was invalid
because it abridged the requirement of Article 1, section 2 of the Constitution that The House of
Representatives shall be composed of members chosen every second year by the people of the several
states, and the electors in each state shall have the qualifications requisite for electors of the most numerous
branch of the state legislature.

Justice Clark concurred in part and dissented in part. He agreed with the majority that the trial court erred in
dismissing the case for nonjusticiability and want of equity, but stated further that Article 1, section 2, does
not forbid disproportionate congressional districts and that the case should be remanded for a hearing to
determine whether the apportionment statute violated the Equal Protection Clause of the Fourteenth
Amendment.

Justice Harlan dissented on the ground that the Constitution expressly provides that state legislatures and
Congress have exclusive jurisdiction over problems of congressional apportionment of the type involved in the
case.

Justice Stewart stated that he joined with Mr. Justice Harlan's dissent except insofar as there might be implied
in that dissent the view that the issues were not justiciable.

Civil Rights
Plessy v. Ferguson

7–1 DECISION FOR FERGUSON

Facts of the case

Louisiana enacted the Separate Car Act, which required separate railway cars for blacks and whites. In 1892,
Homer Plessy – who was seven-eighths Caucasian – agreed to participate in a test to challenge the Act. He
was solicited by the Comite des Citoyens (Committee of Citizens), a group of New Orleans residents who
sought to repeal the Act. They asked Plessy, who was technically black under Louisiana law, to sit in a "whites
only" car of a Louisiana train.

The railroad cooperated because it thought the Act imposed unnecessary costs via the purchase of additional
railroad cars. When Plessy was told to vacate the whites-only car, he refused and was arrested.

At trial, Plessy’s lawyers argued that the Separate Car Act violated the Thirteenth and Fourteenth
Amendments. The judge found that Louisiana could enforce this law insofar as it affected railroads within its
boundaries. Plessy was convicted.
Question
Does the Separate Car Act violate the Fourteenth Amendment?

Conclusion
The Court held that the state law was constitutional. In an opinion authored by Justice Henry Billings Brown,
the majority upheld state-imposed racial segregation. Justice Brown conceded that the 14th Amendment
intended to establish absolute equality for the races before the law, but held that separate treatment did not
imply the inferiority of African Americans.

In short, segregation did not in itself constitute unlawful discrimination.

In dissent, John Marshall Harlan argued that the Constitution was color-blind and that the United States had
no class system. Accordingly, all citizens should have equal access to civil rights.

established Separate but equal clause

Brown v. Board of Education

UNANIMOUS DECISION FOR BROWN ET AL.

Facts of the case

This case was the consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and
Washington D.C. relating to the segregation of public schools on the basis of race. In each of the cases,
African American students had been denied admittance to certain public schools based on laws allowing
public education to be segregated by race. They argued that such segregation violated the Equal Protection
Clause of the Fourteenth Amendment. The plaintiffs were denied relief in the lower courts based on Plessy v.
Ferguson, which held that racially segregated public facilities were legal so long as the facilities for blacks and
whites were equal. (This was known as the “separate but equal” doctrine.)

Question
Does the segregation of public education based solely on race violate the Equal Protection Clause of the
Fourteenth Amendment?

Conclusion
Separate but equal educational facilities for racial minorities is inherently unequal, violating the Equal
Protection Clause of the Fourteenth Amendment.

Chief Justice Earl Warren delivered the opinion of the unanimous Court. The Supreme Court held that
“separate but equal” facilities are inherently unequal and violate the protections of the Equal Protection Clause
of the Fourteenth Amendment. The Court reasoned that the segregation of public education based on race
instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of
African American children. Warren based much of his opinion on information from social science studies rather
than court precedent. The decision also used language that was relatively accessible to non-lawyers because
Warren felt it was necessary for all Americans to understand its logic.

California v Bakke

8–1 DECISION FOR BAKKE

Facts of the case

Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California
Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering
class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an
effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications
(college GPA and test scores) exceeded those of any of the minority students admitted in the two years
Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court,
that he was excluded from admission solely on the basis of race.
Question
Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil
Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's
application for admission to its medical school?

Conclusion
No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system
supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the
deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid
use of racial quotas as employed at the school violated the Equal Protection Clause of the Fourteenth
Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in
higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use
of race was permissible as one of several admission criteria. So, the Court managed to minimize white
opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through
affirmative action.

Obgerefel v Hodges

5–4 DECISION FOR OBERGEFELL

Facts of the case

Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to
challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-
sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case
argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the
cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed
and held that the states' bans on same-sex marriage and refusal to recognize marriages performed in other
states did not violate the couples' Fourteenth Amendment rights to equal protection and due process.

Question
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same
sex?

(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same
sex that was legally licensed and performed in another state?

Conclusion
Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due
Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental
liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-
sex couples. Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent
to the concept of individual autonomy, it protects the most intimate association between two people, it
safeguards children and families by according legal recognition to building a home and raising children, and it
has historically been recognized as the keystone of social order. Because there are no differences between a
same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex
couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal
Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as
the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have
traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated
principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the
fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the
rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex
couples the right to marry on the same terms as those for opposite-sex couples.

Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be
good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court
to decide whether states have to recognize or license such unions. Instead, this issue should be decided by
individual state legislatures based on the will of their electorates. The Constitution and judicial precedent
clearly protect a right to marry and require states to apply laws regarding marriage equally, but the Court
cannot overstep its bounds and engage in judicial policymaking. The precedents regarding the right to marry
only strike down unconstitutional limitations on marriage as it has been traditionally defined and government
intrusions, and therefore there is no precedential support for making a state alter its definition of marriage.
Chief Justice Roberts also argued that the majority opinion relied on an overly expansive reading of the Due
Process and Equal Protection Clauses of the Fourteenth Amendment without engaging with the judicial
analysis traditionally applied to such claims and while disregarding the proper role of the courts in the
democratic process. Justice Antonin Scalia and Justice Clarence Thomas joined in the dissent. In his separate
dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Court’s authority both by
exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves
for the states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is
one for the state legislatures, and that for the issue to be decided by unelected judges goes against one of
the most basic precepts of the Constitution: that political change should occur through the votes of elected
representatives. In taking on this policymaking role, the majority opinion departed from established Fourteenth
Amendment jurisprudence to create a right where none exists in the Constitution. Justice Thomas joined in the
dissent. Justice Thomas also wrote a separate dissent in which he argued that the majority opinion stretched
the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so
distorted the democratic process by taking power from the legislature and putting it in the hands of the
judiciary. Additionally, the legislative history of the Due Process Clause in both the Fifth and Fourteenth
Amendments indicates that they were meant to protect people from physical restraint and from government
intervention, but they do not grant them rights to government entitlements. Justice Thomas also argued that
the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather than
allowing the state legislature to determine how best to address the competing rights and interests at stake.
Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the
Constitution does not address the right of same-sex couples to marry, and therefore the issue is reserved to
the states to decide whether to depart from the traditional definition of marriage. By allowing a majority of the
Court to create a new right, the majority opinion dangerously strayed from the democratic process and greatly
expanded the power of the judiciary beyond what the Constitution allows. Justice Scalia and Justice Thomas
joined in the dissent.

Loving v Virginia

UNANIMOUS DECISION FOR LOVING

Facts of the case

In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were
married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then
charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings
were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings
would leave Virginia and not return for 25 years).

Question
Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion
Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious
to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia
law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court
rejected the state's argument that the statute was legitimate because it applied equally to both blacks and
whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth
Amendment. The Court also held that the Virginia law violated the Due Process Clause of the Fourteenth
Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a
person of another race resides with the individual, and cannot be infringed by the State."
Buck v Bell

Facts of the case

Carrie Buck was a "feeble minded woman" who was committed to a state mental institution. Her condition had
been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of
inmates of institutions to promote the "health of the patient and the welfare of society." Before the procedure
could be performed, however, a hearing was required to determine whether or not the operation was a wise
thing to do.

Question
Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the
equal protection of the laws as protected by the Fourteenth Amendment?

Conclusion
The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's
challenge was not upon the medical procedure involved but on the process of the substantive law. Since
sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be
present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if
so requested by the patient. Only after "months of observation" could the operation take place. That was
enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state,
Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped
with incompetence . . . Three generations of imbeciles are enough."

Right to privacy
Griswald v Connecticut

7–2 DECISION FOR GRISWOLD

Facts of the case

In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in
furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control
clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in
Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by
higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the
Fourteenth Amendment before the Supreme Court.

Question
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be
counseled in the use of contraceptives?

Conclusion
A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states
from making the use of contraception by married couples illegal.

In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the
right of marital privacy against state restrictions on contraception. While the Court explained that the
Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of
Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and
Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the
exercise of this right and was therefore held null and void.

Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to
privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.
Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the
right to privacy.

Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.

Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black
felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the
views of the concurrences that it could be found in the Ninth and Fourteenth Amendments.

Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his
personal view that the law was "uncommonly silly," he felt that the Court had no choice but to find it
constitutional.

Roe v Wade

7–2 DECISION FOR JANE ROE

Facts of the case

In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s identity) filed a lawsuit
against Henry Wade, the district attorney of Dallas County, Texas, where she resided, challenging a Texas law
making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the
state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.

Question
Does the Constitution recognize a woman's right to terminate her pregnancy by abortion?

Conclusion
Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental “right to privacy” that
protects a pregnant woman’s choice whether to have an abortion. However, this right is balanced against the
government’s interests in protecting women's health and protecting “the potentiality of human life.” The Texas
law challenged in this case violated this right.

Justice Harry Blackmun delivered the opinion for the 7-2 majority of the Court.

First, the Court considered whether the case was moot, concluding that it was not. When the subject of
litigation is “capable of repetition yet evading review,” a case need not be dismissed as moot. Pregnancy is a
“classic justification for a conclusion of nonmootness.”

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and
a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly
prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the
state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,”
the relative weight of each of these interests varies over the course of pregnancy, and the law must account
for this variability.

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman
and her attending physician can make that decision. In the second trimester, the state may impose regulations
on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the
point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain
exceptions for cases when abortion is necessary to save the life or health of the mother.

Dobbs v. Jackson Women's Health Organization

overturned roe v wade

Facts of the case

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few
exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion
facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and
requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the
TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion
for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided
evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from
banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question
Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

Conclusion
The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, are overruled. Justice Samuel Alito authored the majority opinion of
the Court.

The Constitution does not mention abortion. The right is neither deeply rooted in the nation’s history nor an
essential component of “ordered liberty.” The five factors that should be considered in deciding whether a
precedent should be overruled support overruling Roe v. Wade and Planned Parenthood v. Casey: (1) they
“short-circuited the democratic process,” (2) both lacked grounding in constitutional text, history, or
precedent, (3) the tests they established were not “workable,” (4) they caused distortion of law in other areas,
and (5) overruling them would not upend concrete reliance interests.

Justices Clarence Thomas and Brett Kavanaugh concurred.

Chief Justice John Roberts concurred in the judgment.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

Webster v. Reproductive Health Services

Facts of the case

In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The
statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified
the following restrictions: public employees and public facilities were not to be used in performing or assisting
abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was
prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of
pregnancy. Lower courts struck down the restrictions.

Question
Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause
of the Fourteenth Amendment?

Conclusion
In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the
Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any
concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question.
Second, the Court held that the Due Process Clause did not require states to enter into the business of
abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights.
Third, the Court found that no case or controversy existed in relation to the counseling provisions of the law.
Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting
potential life could come into existence before the point of viability. The Court emphasized that it was not
revisiting the essential portions of the holding in Roe v. Wade.

Planned Parenthood v. Casey

5–4 DECISION FOR PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA

Spousal notification was deemed a undue burden
Undue burden- Undue burden means significant difficulty or expense. In determining whether an action
would result in an undue burden, factors to be considered include

Facts of the case

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions,
the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an
abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman
seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These
provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the
provisions except for the husband notification requirement.

Question
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify
their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed
by Roe v. Wade?

Conclusion
In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions.
For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions.
The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue
burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the
fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband
notification requirement. In a rare step, the opinion for the Court was crafted and authored by three justices:
O'Connor, Kennedy, and Souter.

DC v Heller

5–4 DECISION
MAJORITY OPINION BY ANTONIN SCALIA

Facts of the case

Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the
registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code
also contained provisions that required owners of lawfully registered firearms to keep them unloaded and
disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of
business or being used for legal recreational activities.

Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He
applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller
sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the
Code and argued that they violated his Second Amendment right to keep a functional firearm in his home
without a license. The district court dismissed the complaint. The U.S. Court of Appeals for the District of
Columbia Circuit reversed and held that the Second Amendment protects the right to keep firearms in the
home for the purpose of self-defense, and the District of Columbia’s requirement that firearms kept in the
home be nonfunctional violated that right.

Question
Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed
firearms kept in the home to be kept nonfunctional violate the Second Amendment?

Conclusion
The ban on registering handguns and the requirement to keep guns in the home disassembled or
nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered
the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that
references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment.
Additionally, the term “militia” should not be confined to those serving in the military, because at the time the
term referred to all able-bodied men who were capable of being called to such service. To read the
Amendment as limiting the right to bear arms only to those in a governed military force would be to create
exactly the type of state-sponsored force against which the Amendment was meant to protect people.
Because the text of the Amendment should be read in the manner that gives greatest effect to the plain
meaning it would have had at the time it was written, the operative clause should be read to “guarantee an
individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal
writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is
commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the
area traditionally in need of protection, violates the Second Amendment.

In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right
to possess guns for self-defense purposes. Instead, the most natural reading of the the Amendment is that it
protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s
power to regulate nonmilitary use and ownership of weapons. Justice Stevens argued that the Amendment
states its purpose specifically in relation to state militias and does not address the right to use firearms in self-
defense, which is particularly striking in light of similar state provisions from the same time that do so. Justice
Stevens also notes that “the people” does not enlarge the protected group beyond the context of service in a
state-regulated militia. This reading is in line with legal writing of the time that contextualizes the Amendment
in relation to state militias and post-enactment legislative history. Justices David Souter, Ruth Bader Ginsburg,
and Stephen G. Breyer joined in the dissent. Justice Breyer also wrote a separate dissent in which he argued
that the Second Amendment protects militia-related, not self-defense-related, interests, and it does not
provide absolute protection from government intervention in these interests. Historical evidence from the time
of ratification indicates that colonial laws regulated the storage and use of firearms in the home. Justice
Breyer argued that the Court should adopt an interest-balancing test to determine when the government
interests were sufficiently weighty to justify the proposed regulation. In this case, because the interest-
balancing turns on the type of analysis that the legislature, not the court, is best positioned to make, the Court
should defer to the legislature and uphold the restrictions. Justices Stevens, Souter, and Ginsburg joined in
the dissent.

McDonald v Chicago

5–4 DECISION FOR OTIS MCDONALD, ET AL.

MAJORITY OPINION BY SAMUEL A. ALITO, JR.

Facts of the case

Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme
Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of
Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question
was enacted under the authority of the federal government and, thus, the Second Amendment was applicable.
Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court
dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.

Question
Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's
Privileges and Immunities or Due Process clauses and thereby made applicable to the states?

Conclusion
The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second
Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice
Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's
scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately
applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-
defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its
holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the
Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear
arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment
incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's
separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately
incorporates the Second Amendment against the states. Alito stated that the Court's decision in
the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of
incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the
Due Process Clause.

Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with
Justice John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He
agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but
disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated
that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice
John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second
Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest
protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and
Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or
underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the
Fourteenth Amendment.

US V Lopez

5–4 DECISION
MAJORITY OPINION BY WILLIAM H. REHNQUIST
Facts of the case
Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high
school. He was charged under Texas law with firearm possession on school premises. The next day, the state
charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-
Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that
[he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months'
imprisonment and two years' supervised release.

Question
Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone,
unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

Conclusion
Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition
elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to
do with "commerce" or any sort of economic activity.

Religious Freedom
Lemon v. Kurtzman

8–1 DECISION FOR LEMON

Facts of the case

Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-
secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-
public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular
subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public
elementary schools in the form of supplementing 15% of teachers’ annual salaries.
The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that
the statute violated the separation of church and state described in the First Amendment. Appellant Lemon
also had a child in Pennsylvania public school. The district court granted the state officials’ motion to dismiss
the case. In the Rhode Island case, the appellees were citizens and tax payers of Rhode Island who sued to
have the statute in question declared unconstitutional by arguing that it violated the Establishment Clause of
the First Amendment. The district court found in favor of the appellees and held that the statute violated the
First Amendment.

Question
Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of
the First Amendment?

Conclusion

Yes. Chief Justice Warren E. Burger delivered the opinion for the 8-0 majority as to the Pennsylvania statute
and 8-1 as to the Rhode Island statute. The Court held that a statute must pass a three-pronged test in order
to avoid violating the Establishment Clause. The statute must have a secular legislative purpose, its principal
or primary effect must be one that neither promotes nor inhibits religion, and it must not foster “excessive
government entanglement with religion.” The Court held that both the state statutes in question had secular
legislative purposes because they reflected the desire of the states to ensure minimum secular education
requirements were being met in the non-public schools. The Court did not reach a holding regarding the
second prong of the test, but it did find that the statutes constituted an excessive government entanglement
with religion. In the Rhode Island program, the amount of oversight of teachers and curricula required to
ensure that there is no unnecessary injection of religion into secular topics would require the government to
become excessively involved in the nuances of religious education. The same danger holds true for the
Pennsylvania statute, which additionally provides state funding directly to a church-related organization.
Government financial involvement in such institutions inevitably leads to “an intimate and continuing
relationship” between church and state. The Court also noted the potential political implications of public
funding, as there is a risk of religious issues becoming politically divisive.

In his concurring opinion, Justice William O. Douglas wrote that the intrusion of the government into the
running of non-public schools through grants and other funding creates the entanglement that the
Establishment Clause prohibits. He also argued that non-secular schools are so thoroughly governed by
religious ideologies that any amount of public funding supports those doctrines, which the Framers of the
Constitution dictated the government must not do. Justice Hugo L. Black joined in the concurrence, and
Justice Thurgood Marshall joined in the parts relating to case numbers 569 and 570. Justice William J.
Brennan, Jr. wrote a separate concurrence in which he argued that the danger was not only that religion would
infiltrate the government, but also that the government would push secularization onto religious creeds. An
analysis of the statutes in question shows that they impermissible involve the government in “essentially
religious activities,” which the Establishment Clause is meant to prevent. In his opinion concurring in part and
dissenting in part, Justice Byron R. White wrote that the majority opinion goes too far and, in restricting the
use of state funds in non-secular schools, creates an obstacle to the use of public funds for secular education.
He argued that there was no proof that religion would invade secular education or that the government
oversight of the use of public funds would be so extensive as to constitute entanglement.

Justice Thurgood Marshall did not participate in the discussion or decision of case number 89.

Lemon Test

The Supreme Court agreed and established the so-called Lemon Test for evaluating the constitutionality of
laws alleged to violate the Establishment and Free Exercise Clauses: the law must have a secular legislative
purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and must not
foster “an excessive government entanglement with religion.”

Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by
the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can
assist religion only if
(1) the primary purpose of the assistance is secular,
(2) the assistance must neither promote nor inhibit religion, and
(3) there is no excessive entanglement between church and state.

Santa Fe Independent School District v. Doe

6–3 DECISION

Facts of the case

Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer,
described as overtly Christian, over the public address system before each home varsity football game. One
Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause
of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the
District) from implementing its policy as it stood. While the suit was pending, the District adopted a new policy,
which permitted, but did not require, student-initiated and student-led prayer at all the home games and
which authorized two student elections, the first to determine whether "invocations" should be delivered at
games, and the second to select the spokesperson to deliver them. After the students authorized such
prayers and selected a spokesperson, the District Court entered an order modifying the policy to permit only
nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court,
the football prayer policy was invalid. The District petitioned for a writ of certiorari, claiming its policy did not
violate the Establishment Clause because the football game messages were private student speech, not
public speech.

Question
Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at
football games violate the Establishment Clause of the First Amendment?

Conclusion
Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the District's policy
permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The
Court concluded that the football game prayers were public speech authorized by a government policy and
taking place on government property at government-sponsored school-related events and that the District's
policy involved both perceived and actual government endorsement of the delivery of prayer at important
school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority.
In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted
the "disturbing" tone of the Court's opinion that "bristle with hostility to all things religious in public life."

Engle v. Vitale

Facts of the case

The New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each
school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the
Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments.

Question
Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of
religion" clause of the First Amendment?

Conclusion
The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied
to a particular religion.

In an opinion authored by Hugo L. Black, the Court held that respondent's decision to use its school system to
facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached
the constitutional wall of separation between church and state. The Court ruled that the constitutional
prohibition of laws establishing religion meant that government had no business drafting formal prayers for
any segment of its population to repeat in a government-sponsored religious program. The Court held that
respondent's provision of the contested daily prayer was inconsistent with the Establishment Clause.

Justice Douglas concurred in the judgment on the ground that the state's financing a religious exercise
violated the First Amendment.

Justice Stewart dissented, arguing that no "official religion" was established by permitting those who want to
say a prayer to say it.

Abington v Schempp

8–1 DECISION
MAJORITY OPINION BY TOM C. CLARK
Facts of the case
Under Pennsylvania law, public schools were required to read from the bible at the opening of each school
day. The school district sought to enjoin enforcement of the statute. The district court ruled that the statute
violated the First Amendment, even after the statute had been amended to permit a student to excuse
himself.

The Court consolidated this case with one involving Maryland atheists who challenged a city rule that
provided for opening exercises in the public schools that consisted primarily of reading a chapter from the
bible and the Lord's Prayer. The state's highest court held the exercise did not violate the First Amendment.
The religious character of the exercise was admitted by the state.

Question
Did the Pennsylvania law requiring public school students to participate in classroom religious exercises
violate the religious freedom of students as protected by the First and Fourteenth Amendments?

Conclusion
Public schools cannot sponsor Bible readings and recitations of the Lord’s Prayer under the First Amendment’s
Establishment Clause.

In an opinion authored by Justice Clark, the majority concluded that, in both cases, the laws required religious
exercises and such exercises directly violated the First Amendment. The Court affirmed the Pennsylvania
decision, and reversed and remanded the Maryland decision because the mandatory reading from the bible
before school each day was found to be unconstitutional.

Justice Stewart dissented, expressing the view that on the records it could not be said that the Establishment
Clause had necessarily been violated. He would remand both cases for further hearings.

Reynolds v US

Facts of the case

George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, was charged with bigamy
under the federal Morrill Anti-Bigamy Act after marrying a woman while still married to his previous wife.
Reynolds argued that the law was unconstitutional. He reasoned that his religion required him to marry
multiple women and the law therefore violated his First Amendment right to free exercise of religion.

Question
Is religious duty or belief a defense to a criminal charge?

Conclusion
The Court upheld Reynolds's conviction and Congress’s power to prohibit polygamy. The Court held that while
Congress could not outlaw a belief in the correctness of polygamy, it could outlaw the practice thereof. The
majority reasoned that while marriage is a “sacred obligation,” it is nevertheless “usually regulated by law” in
“most civilized nations.” Finally, the Court held that people cannot avoid a law due to their religion.
Oregon v Smith

6–3 DECISION FOR EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON

religious beliefs do not allow you to comply with a valid law

Facts of the case

Two counselors for a private drug rehabilitation organization ingested peyote -- a powerful hallucinogen -- as
part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the
rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation.
The government denied them benefits because the reason for their dismissal was considered work-related
"misconduct." The state appellate court reversed the denial of benefits, finding that the denial violated their
First Amendment right to the free exercise of religion. The state supreme court affirmed the appellate court.
The U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees,
and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs
violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded
that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this
prohibition violated the Free Exercise Clause. The case returned to the U.S. Supreme Court in this new posture

Question
Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Conclusion
Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's
religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government
is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the
prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."
Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-
neglect laws

Edwards v. Aguillard

7–2 DECISION
MAJORITY OPINION BY WILLIAM J. BRENNAN, JR.

Facts of the case

A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School
Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction
was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared
abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be
addressed, evolution or creation, teachers were obligated to discuss the other as well.

Question
Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution,
violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth
Amendment?

Conclusion
Yes. The Court held that the law violated the Constitution. Using the three-pronged test that the Court had
developed in Lemon v. Kurtzman (1971) to evaluate potential violations of the Establishment Clause, Justice
Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted to further a
clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a
"supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations.
Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial
support of government to achieve a religious purpose."
Wallace v Jaffree

6–3 DECISION
MAJORITY OPINION BY JOHN PAUL STEVENS

Facts of the case

An Alabama law authorized teachers to conduct regular religious prayer services and activities in school
classrooms during the school day. Three of Jaffree's children attended public schools in Mobile.

Question
Did Alabama law violate the First Amendment's Establishment Clause?

Conclusion
Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the
secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The
Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the
state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As
such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby
violating the First Amendment's Establishment Clause.

West Virginia State Board of Education v. Barnette

6–3 DECISION FOR BARNETTE

Facts of the case

In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers
and students as a mandatory part of school activities. The children in a family of Jehovah's Witnesses refused
to perform the salute and were sent home from school for non-compliance. They were also threatened with
reform schools used for criminally active children, and their parents faced prosecutions for causing juvenile
delinquency.

Question
Did the compulsory flag-salute for public schoolchildren violate the First Amendment?

Conclusion
In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that
compelling public schoolchildren to salute the flag was unconstitutional. In an opinion written by Robert
Houghwout Jackson, the Court found that the First Amendment cannot enforce a unanimity of opinion on any
topic, and national symbols like the flag should not receive a level of deference that trumps constitutional
protections. He argued that curtailing or eliminating dissent was an improper and ineffective way of
generating unity.

Justices Black and Douglas concurred to repudiate their earlier opinions in First Amendment decisions.

Justice Frankfurter dissented. He believed the Court was exceeding the scope of the judicial role and was
taking on a legislative function in striking down the law.

Wisconsin v Yoder

7 - 2 Decision for Yoder

Facts of the case

Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of
the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children
to attend public schools until age 16. The three parents refused to send their children to such schools after the
eighth grade, arguing that high school attendance was contrary to their religious beliefs.

Question
Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First
Amendment by criminalizing the conduct of parents who refused to send their children to school for religious
reasons?

Conclusion
The Court held that individual's interests in the free exercise of religion under the First Amendment
outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority
opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school
were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an
additional one or two years of high school would not produce the benefits of public education cited by
Wisconsin to justify the law. Justice William O. Douglas filed a partial dissent but joined with the majority
regarding Yoder. Justices Lewis Powell and William Rehnquist took no part in the consideration or decision of
the case.

Free Speech
Schenk, Abrams, Gitlow v. US

war time speech - is way more restricted then peace time speech.

they were all under the Clear and present danger limit of free speech

Dennis v US

6–2 DECISION FOR UNITED STATES

Facts of the case
In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US
government and for the violation of several points of the Smith Act. The Act made it unlawful to knowingly
conspire to teach and advocate the overthrow or destruction of the United States government. The party
members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment
rights. Party leaders were found guilty and lower courts upheld the conviction.

Question
Did the Smith Act violate the First Amendment?

Conclusion
In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the
Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there
was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas.
Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the
consequences, the Court held that success or probability of success was not necessary to justify restrictions
on the freedom of speech.

Justices Frankfurter and Jackson concurred in separate opinions.

Justices Black and Douglas dissented in separate opinions. Justice Black stressed that the petitioners were
not charged with an attempt to overthrow the Government or any overt acts designed to overthrow the
Government. They were not even charged with saying anything or writing anything designed to overthrow the
Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later
date. “No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I
believe the First Amendment forbids.”

Brandenburg v. Ohio

Facts of the case

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an
Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with
any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal
syndicalism."

Question
Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate
Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Elonis v US

8–1 DECISION FOR ANTHONY ELONIS

MAJORITY OPINION BY JOHN G. ROBERTS, JR.

Facts of the case

Anthony Elonis was convicted under 18 U. S. C. §875(c), which criminalizes the transmission of threats in
interstate commerce, for posting threats to injure his coworkers, his wife, the police, a kindergarten class, and
a Federal Bureau of Investigation agent on Facebook. The district court instructed the jury that a "true threat,"
which falls outside the scope of First Amendment speech protections, requires an objective intent to threaten.
Elonis appealed and argued that "true threats" require a subjective intent to threaten. The U.S. Court of
Appeals for the Third Circuit affirmed Elonis' conviction and held that a subjective intent standard would fail to
protect individuals from the fear of violence which the "true threat" exception was created to prevent.

Question
Does a conviction of threatening another person under 18 U. S. C. §875(c) require proof of the defendant's
subjective intent to threaten?

Conclusion
Yes. Chief Justice John G. Roberts, Jr. delivered the opinion for the 8-1 majority. The Court held that the
prosecution needed to show that Elonis intended the posts to be threats, and therefore that there was a
subjective intent to threaten . An objective reasonable person standard does not go far enough to separate
innocent, accidental conduct from purposeful, wrongful acts. The Court held that, in this case, an objective
standard would risk punishing an innocent actor because the crucial element that makes this behavior criminal
is the threat, not merely the posting.

Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and dissenting in part in which he agreed that
the prosecution only needed to prove negligence, but he argued that the majority opinion should have
addressed what the proper instruction should be. By leaving out what the prosecution did need to show,
attorneys and judges are left to guess whether knowledge or recklessness is the appropriate standard. Justice
Alito also argued that recklessness should be the standard because a higher standard would effectively
change the law rather than clarify it.

Justice Clarence Thomas wrote a dissent in which he argued that nine of the eleven circuit courts of appeals
had already addressed this issue and resolved it with a general intent standard. The majority opinion not only
overturns their rulings but also leaves the courts uncertain as to whether an intent to threaten is required or
whether recklessness will suffice. Justice Thomas also argued that knowledge of posting the relevant threats
is enough to establish the intent element because knowledge of those facts is required to make the actions
illegal; ignorance of those actions being illegal should not provide shelter from the law.

NY Times v Sullivan

Facts of the case

During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing
donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual
inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates
reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to
publicly retract the information, as required for a public figure to seek punitive damages in a libel action under
Alabama law.
When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action
against the Times and a group of African American ministers mentioned in the ad. A jury in state court
awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.

Question
Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom
of press protections?

Conclusion
To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the
defendant knew that a statement was false or was reckless in deciding to publish the information without
investigating whether it was accurate.

In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement
concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for
libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard
for its falsity. Brennan used the term "actual malice" to summarize this standard, although he did not intend
the usual meaning of a malicious purpose. In libel law,“malice” had meant knowledge or gross recklessness
rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false
information without a bad intent.

NY Times v US

6:3

DECISION FOR NEW YORK TIMES COMPANY

Facts of the case

In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the
New York Times and Washington Post from publishing materials belonging to a classified Defense Department
study regarding the history of United States activities in Vietnam. The President argued that prior restraint
was necessary to protect national security. This case was decided together with United States v. Washington
Post Co.

Question
Did the Nixon administration's efforts to prevent the publication of what it termed "classified information"
violate the First Amendment?

Conclusion*
Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption
against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word
"security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice
Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling
the safety of American forces, prior restraint was unjustified.

Texas v. Johnson

5–4 DECISION
Facts of the case
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest
against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag
desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of
Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question
Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the
First Amendment?
Conclusion
In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First
Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a
distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court
found, does not justify prohibitions of speech. The Court also held that state officials did not have the
authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f
there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable."

Tinker v Des Moines

Symbolic Speech

7–2 DECISION FOR TINKER

Facts of the case

In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher
Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black
armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of
the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any
student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On
December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home.
The following day, John Tinker did the same with the same result. The students did not return to school until
after New Year's Day, the planned end of the protest.

Through their parents, the students sued the school district for violating the students' right of expression and
sought an injunction to prevent the school district from disciplining the students. The district court dismissed
the case and held that the school district's actions were reasonable to uphold school discipline. The U.S.
Court of Appeals for the Eighth Circuit affirmed the decision without opinion.

Question
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the
students' freedom of speech protections guaranteed by the First Amendment?

Conclusion
Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands
represented pure speech that is entirely separate from the actions or conduct of those participating in it. The
Court also held that the students did not lose their First Amendment rights to freedom of speech when they
stepped onto school property. In order to justify the suppression of speech, the school officials must be able
to prove that the conduct in question would "materially and substantially interfere" with the operation of the
school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather
than any actual interference.

In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full
extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he
noted that the majority's opinion relies on a distinction between communication through words and
communication through action.

Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not
provide the right to express any opinion at any time. Because the appearance of the armbands distracted
students from their work, they detracted from the ability of the school officials to perform their duties, so the
school district was well within its rights to discipline the students. In his separate dissent, Justice John M.
Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can
be proven to stem from a motivation other than a legitimate school interest.

National Socialist Party of America v. Village of Skokie

DECISION FOR NATIONAL SOCIALIST PARTY OF AMERICA

Facts of the case
The village of Skokie, Illinois had a population of approximately 70,000 persons, of whom approximately
40,500 were Jewish. Included within this population were thousands who survived detention in Nazi
concentration camps. On March 20, 1977, Frank Collin, the leader of the National Socialist ("Nazi") Party of
America, informed Skokie's police chief that the National Socialists intended to march on the village's sidewalk
on May 1. As a result of media attention and a number of phone calls allegedly made by Nazi Party members to
residents with "Jewish names", this planned demonstration became common knowledge among Skokie's
Jewish community.

Collin wrote a letter to Skokie officials stating that the purpose of the demonstration was to protest the Skokie
Park District's ordinance requiring a bond of $350,000 to be posted prior to the issuance of a park permit. He
also stated that the demonstration would consist of 30-50 demonstrators marching in single file in front of the
Skokie Village Hall. The demonstrators intended to wear uniforms similar to those traditionally worn by Nazis,
including swastika armbands. Collin also said that the demonstrators would not make derogatory public
statements and would cooperate with reasonable police instructions.

The district court of Cook County conducted a hearing on a motion by the Village of Skokie for a preliminary
injunction. The court considered Collin's letter as an affidavit and took the testimony of a number of Skokie
residents. One resident testified that a number of Jewish organizations planned a counterdemonstration for
the same day with an expected attendance of 12,000 to 15,000 persons, and that the appearance of Nazi
demonstrators could well lead to violence. The mayor of Skokie also testified that the demonstration could
lead to uncontrollable violence. The court entered an order enjoining defendants from marching, walking, or
parading or otherwise displaying the swastika on or off their person on May 1, 1977. The Nazi Party applied to
the Illinois appellate court for a stay of the district court's injunction; the appellate court denied their
application. On appeal, the Illinois Supreme Court also denied the petition for a stay. The Nazi Party then filed
an application for a stay with Justice John Paul Stevens, who referred the matter to the Court.

Question

Did the Illinois Supreme Court improperly deny the National Socialist Party's request for a stay of the district
court's injunction?

Conclusion
Yes. In a per curiam opinion, the Court held that Illinois must provide strict procedural safeguards, including
appellate review, to deny a stay for an injunction depriving the Nazi Party of protected First Amendment rights.
The Court treated the Illinois Supreme Court's denial of a stay as a final judgment for the purposes of Supreme
Court jurisdiction because it involved a right separable from and collateral to the merits of the Nazi Party's
case. Hence, the Court also treated the Nazi Party's application for a stay as a petition for certiorari. The
Court reversed and remanded the case for further proceedings.

Justice William Rehnquist, joined by Chief Justice Warren Burger and Justice Potter Stewart, dissented. He
disagreed that the refusal of the Illinois Supreme Court to stay an injunction could be described as a final
judgment or decree by the highest court of a state. He noted that no Illinois appellate court had heard or
decided the merits of the Nazi Party's federal claim.

snyder v. phelps :

8-1
Majority opinion
written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer,
Sotomayor, and Kagan.

Concurring opinion
written by Justice Breyer.

Dissenting opinion
written by Justice Alito.
description
The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro
Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation,
invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank
God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the
family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment
violated the First Amendment's protections on religious expression. The church members' speech is protected,
"notwithstanding the distasteful and repugnant nature of the words.

Question
Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional
distress on the family of the deceased?

Conclusion
Justice Marshall concluded that regulation of navigation by steamboat operators and others for purposes of
conducting interstate commerce was a power reserved to and exercised by the Congress under the
Commerce Clause. As interstate navigation fell under interstate commerce, New York could not interfere with
it, and the law was therefore invalid.

In a concurring opinion, Justice William Johnson argued that the national government had exclusive power
over interstate commerce, negating state laws interfering with the exercise of that power.

Justice Thompson did not participate in the discussion or decision of the case.

Mahanoy Area School District v B.L.

8–1 DECISION FOR B.L

Facts of the case

B.L., a student at Mahanoy Area High School (MAHS), tried out for and failed to make her high school's varsity
cheerleading team, making instead only the junior varsity team. Over a weekend and away from school, she
posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck
everything.” The photo was visible to about 250 people, many of whom were MAHS students and some of
whom were cheerleaders. Several students who saw the captioned photo approached the coach and
expressed concern that the snap was inappropriate. The coaches decided B.L.’s snap violated team and
school rules, which B.L. had acknowledged before joining the team, and she was suspended from the junior
varsity team for a year.

B.L. sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First
Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that
those rules were unconstitutionally vague. The district court granted summary judgment in B.L.’s favor, ruling
that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit
affirmed.

Question
Does the First Amendment prohibit public school officials from regulating off-campus student speech?

Conclusion
The First Amendment limits but does not entirely prohibit regulation of off-campus student speech by public
school officials, and, in this case, the school district’s decision to suspend B.L. from the cheerleading team for
posting to social media vulgar language and gestures critical of the school violates the First Amendment.
Justice Stephen Breyer authored the 8-1 majority opinion of the Court.

Although public schools may regulate student speech and conduct on campus, the Court’s precedents make
clear that students do not “shed their constitutional rights to freedom of speech or expression” when they
enter campus. The Court has also recognized that schools may regulate student speech in three
circumstances: (1) indecent, lewd, or vulgar speech on school grounds, (2) speech promoting illicit drug use
during a class trip, and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the
school,” such as that appearing in a school-sponsored newspaper. Moreover, in Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969), the Court held that schools may also regulate
speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The school’s interests in regulating these types of student speech do not disappear when the speaker is off
campus. Three features of off-campus speech diminish the need for First Amendment leeway: (1) off-campus
speech normally falls within the zone of parental responsibility, rather than school responsibility, (2) off-
campus speech regulations coupled with on-campus speech regulations would mean a student cannot
engage in the regulated type of speech at all, and (3) the school itself has an interest in protecting a student’s
unpopular off-campus expression because the free marketplace of ideas is a cornerstone of our
representative democracy.

In this case, B.L. spoke in circumstances where her parents, not the school, had responsibility, and her speech
did not cause “substantial disruption” or threaten harm to the rights of others. Thus, her off-campus speech
was protected by the First Amendment, and the school’s decision to suspend her violated her First
Amendment rights.

Justice Samuel Alito authored a concurring opinion, joined by Justice Neil Gorsuch, explaining his
understanding of the Court’s decision. Justice Alito argued that a key takeaway of the Court’s decision is that
“the regulation of many types of off-premises student speech raises serious First Amendment concerns, and
school officials should proceed cautiously before venturing into this territory.”

Justice Clarence Thomas authored a dissenting opinion, arguing that schools have historically had the
authority to regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the
school, its faculty or students, or its programs. Justice Thomas viewed the facts of this case as falling
squarely within that rule and thus would have held that the school could properly suspend B.L. for her speech.

Morse v Frederick

5–4 DECISION FOR DEBORAH MORSE, ET AL.

Facts of the case

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a
slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended
Frederick for ten days. She justified her actions by citing the school's policy against the display of material
that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute,
alleging a violation of his First Amendment right to freedom of speech. The District Court found no
constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the
principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The
Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First
Amendment protection to student speech except where the speech would cause a disturbance. Because
Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the
punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any
reasonable principal would have known that Morse's actions were unlawful.

Question

1. Does the First Amendment allow public schools to prohibit students from displaying messages promoting
the use of illegal drugs at school-supervised events?

2. Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in
accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a
school-supervised event?

Conclusion
Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can
prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's
majority opinion held that although students do have some right to political speech even while in school, this
right does not extend to pro-drug messages that may undermine the school's important mission to discourage
drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as
promoting marijuana use - equivalent to "Take bong hits" or "bong hits are a good thing." In ruling for Morse,
the Court affirmed that the speech rights of public school students are not as extensive as those adults
normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In
concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to
students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision
applied only to pro-drug messages and not to broader political speech. The dissent conceded that the
principal should have had immunity from the lawsuit, but argued that the majority opinion was "... deaf to the
constitutional imperative to permit unfettered debate, even among high-school students ..."

Citizens United v. Federal Election Commission

5:4
DECISION FOR CITIZENS UNITED
FEC Federal elections committee

Facts of the case

Citizens United sought an injunction against the Federal Election Commission in the United States District
Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to
its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would
make a good president.

In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to
"electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding
such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to
such communication and a disclaimer when the communication is not authorized by the candidate it intends to
support.

Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The
Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to
the circumstances.

The United States District Court denied the injunction. Section 203 on its face was not unconstitutional
because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court
also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters
that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it
held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements.
The court reasoned that the McConnell decision recognized that disclosure of donors "might be
unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular
cause," but those circumstances did not exist in Citizen United's claim.

Question

1. Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the
BCRA when it upheld the disclosure requirements of the statute as constitutional?

2. Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering
requirements because they are protected "political speech" and not subject to regulation as "campaign
speech"?

3. If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to
regulation under the BCRA?

4. Should a feature length documentary about a candidate for political office be treated like the
advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?
Conclusion

No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions
of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the
speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First
Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited.
Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices
Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by
Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. The majority maintained that political
speech is indispensable to a democracy, which is no less true because the speech comes from a corporation.
The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional,
reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information"
about election-related spending resources. The Court also upheld the disclosure requirements for political
advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and
unions.

In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with
which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all
possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment
issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices
Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations.
Justice Stevens argued that corporations are not members of society and that there are compelling
governmental interests to curb corporations' ability to spend money during local and national elections.

Due process
Terry v Ohio

8–1 DECISION
MAJORITY OPINION BY EARL WARREN

Facts of the case

Terry and two other men were observed by a plain clothes policeman in what the officer believed to be
"casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them.
Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

Question
Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Conclusion
In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the
Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting
to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a
"hunch" and that "a reasonably prudent man would have been warranted in believing Terry was armed and
thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court
found that the searches undertaken were limited in scope and designed to protect the officer's safety incident
to the investigation.

Korematsu v. United States

6–3 DECISION FOR UNITED STATES

Facts of the case

In response to the Japanese attack on Pearl Harbor during World War II, the U.S. government decided to
require Japanese-Americans to move into relocation camps as a matter of national security. President Franklin
Roosevelt signed Executive Order 9066 in February 1942, two months after Pearl Harbor. A Japanese-
American man living in San Leandro, Fred Korematsu, chose to stay at his residence rather than obey the
order to relocate. Korematsu was arrested and convicted of violating the order. He responded by arguing that
Executive Order 9066 violated the Fifth Amendment. The Ninth Circuit affirmed Korematsu's conviction.

Question
Did the President and Congress go beyond their war powers by implementing exclusion and restricting the
rights of Americans of Japanese descent?

Conclusion
In an opinion written by Justice Black, the Court ruled that the evacuation order violated by Korematsu was
valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the
strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure
from invasion. The Court relied heavily on a 1943 decision, Hirabayashi v. U.S., which addressed similar issues.
Black argued that the validation of the military's decision by Congress merited even more deference.

Justice Frankfurter concurred, writing that the “martial necessity arising from the danger of espionage and
sabotage” warranted the military’s evacuation order.

Justice Jackson dissented, arguing that the exclusion order legitimized racism that violated the Equal
Protection Clause of the Fourteenth Amendment.

Miranda v Arizona

5–4 DECISION FOR MIRANDA

Facts of the case

This case represents the consolidation of four cases, in each of which the defendant confessed guilt after
being subjected to a variety of interrogation techniques without being informed of his Fifth Amendment rights
during an interrogation.

On March 13, 1963, Ernesto Miranda was arrested in his house and brought to the police station where he was
questioned by police officers in connection with a kidnapping and rape. After two hours of interrogation, the
police obtained a written confession from Miranda. The written confession was admitted into evidence at trial
despite the objection of the defense attorney and the fact that the police officers admitted that they had not
advised Miranda of his right to have an attorney present during the interrogation. The jury found Miranda
guilty. On appeal, the Supreme Court of Arizona affirmed and held that Miranda’s constitutional rights were not
violated because he did not specifically request counsel.

Question
Does the Fifth Amendment’s protection against self-incrimination extend to the police interrogation of a
suspect?

Conclusion
The Fifth Amendment requires that law enforcement officials advise suspects of their right to remain silent
and to obtain an attorney during interrogations while in police custody.

Chief Justice Earl Warren delivered the opinion of the 5-4 majority, concluding that defendant’s interrogation
violated the Fifth Amendment. To protect the privilege, the Court reasoned, procedural safeguards were
required. A defendant was required to be warned before questioning that he had the right to remain silent, and
that anything he said can be used against him in a court of law. A defendant was required to be told that he
had the right to an attorney, and if he could not afford an attorney, one was to be appointed for him prior to
any questioning if he so desired. After these warnings were given, a defendant could knowingly and
intelligently waive these rights and agree to answer questions or make a statement. Evidence obtained as a
result of interrogation was not to be used against a defendant at trial unless the prosecution demonstrated the
warnings were given, and knowingly and intelligently waived.
Justice Tom C. Clark wrote a dissenting opinion in which he argued that the majority’s opinion created an
unnecessarily strict interpretation of the Fifth Amendment that curtails the ability of the police to effectively
execute their duties. He wrote that the state should have the burden to prove that the suspect was aware of
his rights during the interrogation, but that statements resulting from interrogation should not be automatically
excluded if the suspect was not explicitly informed of his rights. In his separate dissenting opinion, Justice
John M. Harlan wrote that the judicial precedent and legislative history surrounding the Fifth Amendment does
not support the view that the Fifth Amendment prohibits all pressure on the suspect. He also argued that
there was no legal precedent to support the requirement to specifically inform suspects of their rights.
Justices Potter Stewart and Byron R. White joined in the dissent.

Justice White wrote a separate dissent in which he argued that the Fifth Amendment only protects defendants
from giving self-incriminating testimony if explicitly compelled to do so. He argued that custodial interrogation
was not inherently coercive and did not require such a broad interpretation of the protections of the Fifth
Amendment. Such an interpretation harms the criminal process by destroying the credibility of confessions.
Justices Harlan and Stewart joined in the dissenting opinion.

Hazelwood v Kuhelmeier

5–3 DECISION FOR HAZELWOOD SCHOOL DISTRICT

MAJORITY OPINION BY BYRON R. WHITE
Facts of the case
The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by
students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13
issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which
the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East
students brought the case to court.

Question
Did the principal's deletion of the articles violate the students' rights under the First Amendment?

Conclusion
No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively
promote particular types of student speech. The Court held that schools must be able to set high standards
for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor
speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the
First Amendment by exercising editorial control over the content of student speech so long as their actions
were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court
held, met this test.

Mapp v. Ohio

6–3 DECISION FOR DOLLREE MAPP

Facts of the case

Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her
home for a fugitive. She appealed her conviction on the basis of freedom of expression.

Question
Were the confiscated materials protected from seizure by the Fourth Amendment?

Conclusion
In an opinion authored by Justice Tom C. Clark, the majority brushed aside First Amendment issues and
declared that all evidence obtained by searches and seizures in violation of the Fourth Amendment is
inadmissible in a state court. The decision launched the Court on a troubled course of determining how and
when to apply the exclusionary rule.

Justices Black and Douglas concurred.

Justice Stewart concurred in the judgment but agreed fully with Part I of Justice Harlan's dissent and
expressed no view as to the merits of the constitutional issue.

Justice Harlan, joined by Justices Frankfurter and Whittaker, wrote a dissenting opinion.

Timbs v Indiana

UNANIMOUS DECISION FOR TIMBS

Facts of the case

Tyson Timbs purchased a Land Rover for approximately $42,000 in January 2013 using the proceeds from his
father’s life insurance policy. During the following four months, Timbs used the vehicle for multiple trips within
Indiana to transport heroin. After a series of controlled purchases involving a confidential informant, Timbs
was arrested at a traffic stop. At the time of his arrest in May, the Land Rover had approximately 15,000 more
miles on it than when he purchased it in January.

The state charged Timbs with two charges of felony dealing and one charge of conspiracy to commit theft. He
later pleaded guilty to one charge of felony dealing and one charge of conspiracy to commit theft in exchange
for the state dismissing the remaining charge. After accepting the plea, the trial court sentenced Timbs to six
years, five of which were to be suspended. Timbs also agreed to pay fees and costs totaling approximately
$1200.

In addition, the state sought to forfeit Timbs’ Land Rover. The trial court denied the state’s action, ruling that
the forfeiture would be an excessive fine under the Eighth Amendment, characterizing it as grossly
disproportional to the seriousness of the offense. The court also noted that the maximum statutory fine for
Timbs’ felony dealing charge was $10,000, and the vehicle was worth roughly four times that amount when
Timbs purchased it. The trial court ordered the state to release the vehicle immediately. The court of appeals
affirmed.

The Indiana Supreme Court reversed, concluding that the U.S. Supreme Court had never clearly incorporated
the Eighth Amendment against the states under the Fourteenth Amendment. The court also ruled that the
state had proven its entitlement to forfeit the Land Rover under state law.

Question
Has the Eighth Amendment’s excessive fines clause been incorporated against the states under the
Fourteenth Amendment?

Conclusion
The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states. In an
opinion authored by Justice Ruth Bader Ginsburg, the Court found that the Excessive Fines Clause finds its
origins in the Magna Carta, the historic English Bill of Rights, and state constitutions from the colonial era to
the present day. As such, it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this
Nation’s history and tradition.” As such, the Fourteenth Amendment’s Due Process Clause incorporates the
Clause against—that is, applies to—the states with equal force as against the federal government.

Justice Neil Gorsuch filed a concurring opinion to acknowledge that, in his opinion, the appropriate vehicle for
incorporation is the Fourteenth Amendment’s Privileges or Immunities Clause, rather than its Due Process
Clause.

Justice Clarence Thomas filed an opinion concurring in the judgment but expressly disagreeing with the
majority’s use of the Fourteenth Amendment’s Due Process Clause to incorporate, instead finding that the
Clause must be incorporated by the Privileges or Immunities Clause.

Gideon v Wainright

UNANIMOUS DECISION FOR CLARENCE EARL GIDEON

Facts of the case

Clarence Earl Gideon was charged in Florida state court with felony breaking and entering. When he appeared
in court without a lawyer, Gideon requested that the court appoint one for him. According to Florida state law,
however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did
not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison.
Gideon filed a habeas corpus petition in the Florida Supreme Court, arguing that the trial court's decision
violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas
corpus relief.

Question
Does the Sixth Amendment's right to counsel in criminal cases extend to felony defendants in state courts?

Conclusion
The Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in state
court by way of the Fourteenth Amendment.

In a unanimous opinion authored by Justice Hugo L. Black, the Court held that it was consistent with the
Constitution to require state courts to appoint attorneys for defendants who could not afford to retain counsel
on their own. The Court reasoned that the Sixth Amendment's guarantee of counsel is a fundamental and
essential right made obligatory upon the states by the Fourteenth Amendment. The Sixth Amendment
guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts
to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently
waived.

Justice Douglas, while joining the Court's opinion, elaborated, in a separate opinion, the relation between the
Bill of Rights and the first section of the Fourteenth Amendment.

Justices Clark and Harlan concurred in separate decisions.

Furman v. Georgia

Decision for Furman

Facts of the case

Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in
doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was
convicted of murder and sentenced to death (Two other death penalty cases were decided along with
Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death
sentence for rape and murder convictions, respectively).

Question
Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments?

Conclusion
Yes. The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases
constituted cruel and unusual punishment and violated the Constitution. In over two hundred pages of
concurrence and dissents, the justices articulated their views on this controversial subject. Only Justices
Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences
focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias
against black defendants. The Court's decision forced states and the national legislature to rethink their
statutes for capital offenses to assure that the death penalty would not be administered in a capricious or
discriminatory manner.

New Jersey v T.L.O

6–3 DECISION FOR NEW JERSEY

Facts of the case

T.L.O. was a high school student. School officials searched her purse suspecting she had cigarettes. The
officials discovered cigarettes, a small amount of marijuana, and a list containing the names of students who
owed T.L.O. money. T.L.O. was charged with possession of marijuana. Before trial, T.L.O. moved to suppress
evidence discovered in the search, but the Court denied her motion. The Juvenile and Domestic Relations
Court of New Jersey, Middlesex County found her guilty and sentenced her to probation for one year. On
appeal, the Superior Court of New Jersey, Appellate Division affirmed the denial of the motion to suppress
evidence. The New Jersey Supreme Court reversed, holding that the exclusionary rule of the Fourth
Amendment applies to searches and seizures conducted by school officials in public schools.

Question
Does the exclusionary rule apply to searches conducted by school officials in public schools?

Conclusion
After the original oral argument in March of 1984, the Supreme Court restored the case to the calendar for
reargument. In addition to the previously argued question, the Court requested that the parties brief and
argue the additional question of whether the assistant principal violated the Fourth Amendment in opening
T.L.O's purse.

The Court heard reargument on October 02, 1984. The Court held that while the Fourth Amendment's
prohibition on unreasonable searches and seizures applies to public school officials, they may conduct
reasonable warrantless searches of students under their authority notwithstanding the probable cause
standard that would normally apply to searches under the Fourth Amendment. The Court held that the search
of T.L.O.'s purse was reasonable under the circumstances.

Other Cases
United States v. Tsarnaev

6–3 DECISION FOR UNITED STATES

Facts of the case

In 2013, Dzhokhar Tsarnaev and his brother detonated two homemade pressure cooker bombs near the finish
line of the race, killing three and injuring hundreds. He was sentenced to death for his role in the bombings,
but the U.S. Court of Appeals for the First Circuit threw out his death sentences on the grounds that the
district court should have asked potential jurors what media coverage they had seen about Tsarnaev’s case,
and the district court should not have excluded from the sentencing phase evidence that Tsarnaev’s brother
was involved in a separate triple murder.

Question
Did the U.S. Court of Appeals for the First Circuit err in vacating the death sentence for the district court’s
failure to ask prospective jurors for a specific accounting of the pretrial media coverage they had seen, heard,
or read, and for its exclusion of evidence at the sentencing phase of trial that Tsarnaev’s brother had been
involved in different crimes two years before the bombing?

Conclusions
The First Circuit improperly vacated Tsarnaev’s capital sentences. Justice Clarence Thomas authored the 6-3
majority opinion of the Court.

The district court did not abuse its discretion during jury selection when it declined to ask every prospective
juror what they learned from the media about the case. The district court has substantial discretion during jury
selection, and it was reasonable for the court to conclude that the proposed question wrongly emphasized
what a juror knew before coming to court rather than revealing potential bias. The “supervisory authority” of
federal courts does not allow them to “create prophylactic supervisory rules that circumvent or supplement
legal standards” established by the Supreme Court.
Additionally, the district court did not abuse its discretion when it excluded from sentencing the evidence that
Tsarnaev’s brother was possibly involved in an unsolved triple homicide. A district court has the discretion to
exclude evidence “when its probative value is outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.” The bare inclusion of this evidence risked producing a “confusing
mini-trial” about an unsolved crime in which all witnesses were dead.

Justice Amy Coney Barrett authored a concurring opinion, in which Justice Neil Gorsuch joined, noting her
skepticism about the “supervisory authority” of federal courts of appeals.

Justice Stephen Breyer authored a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan
joined. Justice Breyer argued that the district court abused its discretion by excluding the evidence of the
brother’s involvement in the unsolved triple homicide because, in his view, the record does not adequately
support the court’s conclusions that the evidence lacks probative value, is insufficient to corroborate the
brother’s role in the murders, is a waste of time, and would confuse the jury.