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Case Briefs on Constitutional Law

Yin Huang

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From the Author
I wrote the following briefs while taking the first-year
course in constitutional law at Columbia Law School.
The briefs are keyed to Processes of Constitutional
Decisionmaking, 5th edition, by Brest et al. Most briefs
consist of five sections: (1) an overview stating the
nature of the case; (2) a summary of the facts, (3) the
legal issue to be addressed; (4) the court’s resolution of
the issue, and (5) the reasoning used to reach the court’s
conclusion. Owing to differential coverage of material,
some cases appear as abbreviated “squibs” rather than
full-length briefs. In such instances, I have striven to
capture the essence of the case without adverting to too
much information not contained within the book.

—Y. H.
July 6, 2010

Thanks
I’d like to thank the many software developers who
contributed their time and effort to making OpenOffice.
This project would not have been possible without the
fruits of their labor.

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TABLE OF CONTENTS
CONSTITUTIONAL ARGUMENT 7
McCulloch v. Maryland, Part I.......................................................... 7

THE JUDICIAL POWER 8


Chisholm v. Georgia.......................................................................... 8
Marbury v. Madison.......................................................................... 8
Martin v. Hunter’s Lessee................................................................. 9
Cohens v. Virginia............................................................................. 9

ANTEBELLUM FEDERALISM 9
McCulloch v. Maryland, Part II........................................................ 9
Gibbons v. Ogden............................................................................. 10
Wilson v. Black-Bird Creek Marsh Co............................................ 10
Mayor of New York v. Miln............................................................. 11
The Passenger Cases....................................................................... 11
Cooley v. Board of Wardens.............................................................12

SLAVERY 13
Groves v. Slaughter......................................................................... 13
Prigg v. Pennsylvania...................................................................... 13
Dred Scott v. Sandford.....................................................................14

RECONSTRUCTION 15
Corfield v. Coryell............................................................................ 15
The Slaughterhouse Cases.............................................................. 15
Bradwell v. Illinois........................................................................... 16
Minor v. Happersett........................................................................ 16
Strauder v. West Virginia...............................................................17
The Civil Rights Cases.................................................................... 17
Plessy v. Ferguson........................................................................... 18
Giles v. Harris.................................................................................. 19

THE LOCHNER ERA 19

SUBSTANTIVE DUE PROCESS 19


Calder v. Bull................................................................................... 19
Lochner v. New York....................................................................... 20
Muller v. Oregon.............................................................................. 20
Adkins v. Children’s Hospital..........................................................20

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THE COMMERCE CLAUSE 21
Champion v. Ames........................................................................... 21
Hammer v. Dagenhart..................................................................... 21
THE GENERAL WELFARE CLAUSE 22
The Child Labor Tax Case............................................................... 22
United States v. Butler.................................................................... 22

THE NEW DEAL ERA 23


Nebbia v. New York......................................................................... 23
Home Building & Loan Association v. Blaisdell............................. 23
Carter v. Carter Coal Co..................................................................24
Schechter Poultry Corp. v. United States....................................... 24
West Coast Hotel Co. v. Parrish...................................................... 24
United States v. Carolene Products Co........................................... 25
Williamson v. Lee Optical Co.......................................................... 25
NLRB v. Jones & Laughlin Steel Corp...........................................26
United States v. Darby Lumber Co................................................. 26
Wickard v. Filburn........................................................................... 26

INDIVIDUAL RIGHTS 27

DESEGREGATION 27
Sweatt v. Painter............................................................................. 27
McLaurin v. Oklahoma State Regents............................................ 27
Brown v. Board of Education of Topeka..........................................27
Bolling v. Sharpe............................................................................. 27
Cooper v. Aaron............................................................................... 28
Green v. New Kent County School Board....................................... 28
Swann v. Charlotte-Mecklenburg Board of Education................... 28
Keyes v. School District No. 1, Denver, Colorado........................... 28
Milliken v. Bradley.......................................................................... 29
CONGRESSIONAL ACTION 29
Heart of Atlanta Motel v. United States......................................... 29
Katzenbach v. McClung................................................................... 29
South Carolina v. Katzenbach.........................................................29
Katzenbach v. Morgan..................................................................... 30
Jones v. Alfred H. Mayer Co............................................................31
EQUAL PROTECTION 31

Discriminatory Intent 31
Griggs v. Duke Power Co................................................................. 31
Washington v. Davis........................................................................ 31
Personnel Administrator of Massachusetts v. Feeney...................32
Village of Arlington Heights v. Metropolitan Housing Development
Corp............................................................................................ 32

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Suspect Classifications 32
Korematsu v. United States............................................................ 32
Loving v. Virginia............................................................................ 33
Palmore v. Sidoti.............................................................................. 34
Frontiero v. Richardson................................................................... 34
Craig v. Boren.................................................................................. 35
United States v. Virginia (The VMI Case)...................................... 35
City of Cleburne v. Cleburne Living Center, Inc............................36
Affirmative Action 37
Regents of the University of California v. Bakke...........................37
Fullilove v. Klutznick...................................................................... 38
Wygant v. Jackson Board of Education..........................................38
City of Richmond v. J.A. Croson Co................................................38
Metro Broadcasting v. FCC............................................................. 40
Adarand Constructors v. Peña........................................................ 40
Grutter v. Bollinger......................................................................... 41
Gratz v. Bollinger.............................................................................42
Parents Involved in Community Schools v. Seattle School District
No. 1........................................................................................... 43
SUBSTANTIVE DUE PROCESS REVISITED 45

Reproductive Freedom 45
Meyer v. Nebraska........................................................................... 45
Pierce v. Society of Sisters............................................................... 45
Skinner v. Oklahoma....................................................................... 45
Griswold v. Connecticut...................................................................45
Eisenstadt v. Baird.......................................................................... 46
Roe v. Wade...................................................................................... 46
Doe v. Bolton.................................................................................... 48
Planned Parenthood of Southeastern Pennsylvania v. Casey.......48
Stenberg v. Carhart......................................................................... 50
Gonzales v. Carhart......................................................................... 51
Education 52
San Antonio Independent School District v. Rodriguez.................52
Plyler v. Doe..................................................................................... 54
Privacy and Liberty 55
Washington v. Glucksberg............................................................... 55
Vacco v. Quill................................................................................... 55
Bowers v. Hardwick......................................................................... 56
Romer v. Evans................................................................................ 57
Lawrence v. Texas........................................................................... 57
Lofton v. Secretary of Department of Children & Family Services
.................................................................................................... 59

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MODERN FEDERALISM 59

LIMITS ON THE RECONSTRUCTION POWER 59


City of Boerne v. Flores................................................................... 59
United States v. Morrison, Part I....................................................60
Kimel v. Florida Board of Regents.................................................. 60
Board of Trustees of the University of Alabama v. Garrett...........60
Nevada Department of Human Resources v. Hibbs.......................60
Tennessee v. Lane............................................................................ 60
LIMITS ON THE COMMERCE POWER 61
United States v. Lopez.....................................................................61
United States v. Morrison, Part II.................................................. 62
Gonzales v. Raich............................................................................. 62
South Dakota v. Dole....................................................................... 62
THE TENTH AMENDMENT 63
New York v. United States.............................................................. 63
Printz v. United States.................................................................... 64

WAR POWERS 65
The Prize Cases............................................................................... 65
Ex parte Merryman......................................................................... 66
Ex parte Milligan............................................................................. 66
Ex parte Quirin................................................................................ 66
Hamdi v. Rumsfeld.......................................................................... 67
Youngstown Sheet & Tube Co. v. Sawyer....................................... 69
Boumediene v. Bush........................................................................ 70

6
CONSTITUTIONAL ARGUMENT

McCulloch v. Maryland, states themselves, who chose to adopt the Con-


Part I stitution as the supreme law of the land. Al-
though necessity dictated that the ratification
17 U.S. 316 (1819)
conventions be held in the individual states,
such incidental circumstances give no support
Overview to the argument that consent to be governed by
the Constitution actually came from the states.
A dispute arose as to whether Congress had the
power to incorporate the second Bank of the Maryland contends in the alternative that Con-
United States. gress had no power to incorporate the Bank be-
cause such a power of incorporation does not
Facts appear among the enumerated powers of the
federal government. This argument, however,
The embarrassments that followed the dissolu-
makes the mistaken assumption that any
tion of the first Bank of the United States
power must first be enumerated before Con-
spurred Congress to charter the second Bank of
gress can make use of it. The Necessary and
the United States. One of its branches was loc-
Proper Clause was written specifically to avoid
ated in Maryland, which took issue with its
the difficulties and embarrassments that would
presence. The Maryland legislature enacted a
result from such a stringent requirement. In-
law levying a tax on out-of-state banks, and the
corporation is not a power in itself; it is only the
only bank that fit the description was the Bank
means that Congress has chosen to administer
of the United States. McCulloch, the adminis-
the finances of the country.
trator of the Bank, refused to pay the tax. The
dispute resulted in a lawsuit. Maryland finally argues that the Necessary and
Proper Clause really means that Congress is
Issue prohibited from incorporating the Bank unless
it were absolutely necessary. This reading of
Did Congress have the power to incorporate the
the Clause, however, contradicts the plain
Bank?
meaning of “necessary” and blatantly disreg-
ards the structure of the Constitution. “Neces-
Holding
sary” is generally taken to mean “convenient” or
Congress had power to incorporate the Bank. “conducive”; that this meaning was intended is
clear from the use of that word in conjunction
Reasoning with “proper.” Had the Framers intended to
Maryland argues that Congress had no power impose strict limits on the meaning of the term,
to incorporate the Bank on the grounds (1) that they would surely have used the phrase “abso-
sovereignty lies with the states and (2) that the lutely necessary,” as they did in the case of im-
Necessary and Proper Clause does not permit posts and duties. Furthermore, the location of
Congress such great leeway in the administra- the Clause shows that the Framers intended it
tion of the nation’s affairs. Both lines of reason- as a grant of, and not a limitation on, congres-
ing lack merit. The Constitution was submitted sional power. Limitations on powers under the
to the people, not the states, for ratification. It Clause would almost certainly have been set
was the people of the United States, and not the forth elsewhere in the Constitution.

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THE JUDICIAL POWER

Chisholm v. Georgia should that remedy be a writ of mandamus


from the Supreme Court?
2 U.S. (2 Dall.) 419 (1793)
Holding
Squib. Two British creditors sued the State of
Georgia for debts the state had incurred. Al- (1) Marbury has a right to the commission. (2)
though Georgia had not waived its sovereign Marbury has a legal remedy. (3) That remedy
immunity, the Supreme Court held that Geor- is not a writ of mandamus from the Supreme
gia could nonetheless be liable. The decision set Court.
off a wave of protest across the states, which
eventually led to the adoption of the Eleventh Reasoning
Amendment. (1) There can be no doubt that the appointment
was finalized when the president signed and
Marbury v. Madison sealed the letter. Since the appointment is irre-
vocable, that moment marked the end of all ex-
5 U.S. (1 Cranch) 137 (1803)
ecutive power over the choice of Marbury for
the position. From that moment on, the discre-
Overview tion to accept or reject the appointment lay
solely with Marbury. The delivery of the com-
A dispute arose as to the disposition of certain
mission is irrelevant. Such delivery is simply a
judicial appointments made by John Adams.
ministerial duty to be carried out by the secret-
Facts ary of state. The commission might arrive soon-
er or later as circumstances dictate, but the
By the end of the Adams administration, it had conveyance of the document itself has no impact
become clear that political power was moving on the validity of the appointment.
from the hands of the hitherto-dominant Feder-
alists to those of the Democratic Republicans. (2) Although there are certain acts that fall out-
In an attempt to entrench Federalist influence side the scope of judicial review, the delivery of
in the judiciary, John Adams appointed the so- the commission is not such an act. The presid-
called Midnight Judges, among whom was Mar- ent, in choosing the individuals to appoint, ex-
bury. Although Adams had already signed and ercises discretion subject to review only in the
sealed the commission appointing Marbury as a political, rather than judicial, arena. Once that
justice of the peace in the District of Columbia, power has been exercised, however, the ap-
there was no time to deliver the letter before pointee has a right to his position. President
the Jefferson administration took office. When Adams, having decided to appoint Marbury,
the duty to deliver the letter devolved upon had exercised the full extent of his power. The
James Madison, Madison flatly refused to make appointment imposed upon Madison a legal
the deliveries. Following stonewalling by duty to deliver the commission. The failure to
Madison, Marbury sued for his appointment. do so gives rise to a remedy.
(3) Marbury maintains his suit on the ground
Issue that the Judiciary Act of 1789 grants this Court
(1) Does Marbury have a right to the commis- the power to issue writs of mandamus to of-
sion? (2) If he has such a right, does the law af- ficers such as Madison. The Act, however, con-
ford him a remedy? (3) If he has a remedy, flicts with Article III of the Constitution insofar
as the former authorizes this Court to exercise

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original jurisdiction in the current case whereas vidual states, which might otherwise run
the latter authorizes it to exercise only appel- rampant. Furthermore, the Court stressed the
late jurisdiction. When a law conflicts with the importance of its own function as the final ar-
Constitution, it is the law that must be declared biter in resolving differences in legal interpreta-
invalid. To allow a law to intrude upon the do- tion among the states.
main of the Constitution would negate the en-
tire purpose of the Constitution, which is to be
the supreme law of the land. Given that the
Cohens v. Virginia
Act is invalid on this ground, a writ of manda- 19 U.S. 264 (1821)
mus cannot issue.
Squib. A dispute arose as to whether the Su-
preme Court had appellate jurisdiction over
Martin v. Hunter’s Lessee criminal cases. The Court held that it did. Ex-
14 U.S. 304 (1816) plaining its decision, the Court said that many
sovereign powers of the states had been cur-
Squib. A dispute arose as to the preemption of tailed when they entered the Union. Among
Virginia statutes by federal treaties. In the the curtailed powers were those to make war, to
subsequent decision, the Virginia Court of Ap- regulate commerce, and so forth. To hold other-
peals held that part of the Judiciary Act of 1789 wise would be to submit the federal government
was unconstitutional. The Supreme Court re- to the will of the states, which might administer
versed. Justifying its authority to review the federal laws as they saw fit. The Constitution
judicial opinions of states, the Court said that cannot possibly be construed to permit the
deference to the its decisions was a necessary states to undermine the integrity of the Union.
check against the prejudices and biases of indi-

ANTEBELLUM FEDERALISM

McCulloch v. Maryland, ment entirely. Although Maryland correctly ob-


Part II serves that the states have broad discretion in
levying taxes within their respective territories,
17 U.S. 316 (1819)
it is equally important that the Constitution
has limited the states’ power of taxation in cru-
Note. The overview and facts have been stated cial respects. The states, for instance, are for-
in Part I. bidden from levying imposts or duties except
what may be absolutely necessary. Such limita-
Issue tions are intended to assure the supremacy of
May Maryland tax the second Bank of the the federal government. The federal govern-
United States? ment is supreme because it was formed by the
people of the entire United States, not by the
Holding people of any single state. The decision wheth-
er to tax a federal institution such as the Bank
Maryland may not tax the Bank.
therefore lies with the national legislature. Al-
Reasoning lowing Maryland to tax the Bank would allow
the people of a single state to influence an insti-
The power to tax is the power to destroy. Left tution that requires the consent of all. Such a
unchecked, taxation of federal institutions by state of affairs is unacceptable, as the people of
the states might undermine the federal govern- any one state could not be imagined to entrust

9
even the most minor functions of their own that “commerce” should be interpreted to refer
state government to another state. It is also no only in the traffic of goods as contrasted with
argument to say that the states can be trusted navigation in general.
to restrict taxation to certain institutions.
Unlike the power of taxation, the power to regu-
Those advancing this argument have stated no
late interstate commerce in this case cannot be
basis on which one might distinguish taxable
exercised concomitantly and harmoniously by
institutions from non-taxable ones. Maryland
the states and the federal government. In taxa-
has exceeded its authority in attempting to tax
tion, a state may take its share of the economic
the operations of the Bank itself, as opposed to
output without interfering with the federal gov-
property held by the Bank.
ernment’s ability to take from the remainder.
In the current case, New York’s attempted reg-
Gibbons v. Ogden ulation of navigation has brought its state law
22 U.S. 1 (1824) into conflict with a federal statute. In such a
case, the federal statute must prevail.

Overview Johnson, J. The nature of the power to regu-


late commerce is such that its grant to Congress
A dispute arose as to the regulation of the oper- must be plenary, leaving no residual power to
ation of steamboats by the State of New York. the states. It is important to note, however,
that identity of means does not necessarily im-
Facts ply identity of power. Federal statutes may act
New York had granted Robert Livingston and on navigation with the end of regulating com-
Robert Fulton the exclusive right to operate merce while state statutes may act on the same
steamboats between New York and New Jersey. navigation with a view toward preventing the
Livingston and Fulton then assigned this right spread of disease. No conflict exists as long as
to Ogden. When Gibbons established compet- the states and the federal government use regu-
ing steamboat routes, Ogden sued for enforce- lations for sufficiently distinct ends.
ment of his monopoly rights. Gibbons respon-
ded by stating that a federal statute authorized Wilson v. Black-Bird Creek
him to navigate the routes in question. Marsh Co.
Issue 27 U.S. (2 Pet.) 245 (1829)

Should Gibbons be allowed to operate his Squib. Delaware incorporated the Black-Bird
steamboats notwithstanding the monopoly Creek Marsh Company for the purpose of dam-
granted by New York? ming a creek. Wilson, who operated a boat,
challenged the constitutionality of the Company
Holding on the ground that Delaware, in having the
Gibbons should be allowed to operate his steam- creek dammed, had intruded upon the congres-
boats. sional authority to regulate interstate com-
merce. The Supreme Court held that the Com-
Reasoning pany did not constitute an infringement of con-
gressional power under the Commerce Clause.
Marshall, C.J. In attempting to create a Given that Congress had enacted no statute de-
monopoly on interstate navigation, New York signed to limit the states’ power to dam creeks,
has intruded upon powers reserved to Congress Delaware’s decisions did not amount to interfer-
under the Commerce Clause. The Clause states ence with the regulation of interstate com-
that Congress has the power to regulate “com- merce.
merce” without qualifying the grant of power
with any restrictions. Ogden therefore takes an
overly narrow view of the Clause in arguing

10
Mayor of New York v. Miln Congress. Since the Constitution has not re-
strained the states’ power to regulate the mat-
36 U.S. 102 (1837)
ter currently under consideration, New York
should be accorded full discretion in this case.
Overview Thompson, J. Since Congress has not acted to
Miln challenged the constitutionality of a New restrict state legislation on the issue under con-
York law regulating the entry of persons into sideration, there is no need to decide the extent
the state. to which Congress and the states may concomit-
antly exercise the power to regulate commerce.
Facts Such a decision need not be made until a con-
flict arises.
To combat the flood of poor immigrants arriving
in New York, the New York legislature had en- Story, J., dissenting. The effects of the stat-
acted a statute imposing financial burdens and ute show that it indeed amounts to a regulation
other responsibilities upon the captains of ships of interstate commerce. New York does not
bringing passengers to New York. The captains merely attempt to regulate the presence of per-
of such ships were required, among other sons within its own territory; it imposes a bur-
things, to post security for passengers who den on ships leaving from foreign ports by re-
might become dependent on the state. Miln quiring their captains to gather and provide in-
sued to recover a substantial fine incurred after formation on the passengers. Indeed, it has
a violation of the statute. already been conceded that the same statute, if
enacted by Congress, would undoubtedly quali-
Issue fy as a regulation of interstate commerce. The
Is the New York law an unconstitutional at- argument in favor of the statute seems to be
tempt to regulate interstate commerce? that its additional existence as an exercise of
police power allows it to comport with the Con-
Holding stitution. If this argument were upheld, then
states would be free to supplement federal regu-
The law is not an unconstitutional attempt to lations with their own laws. This, in turn,
regulate interstate commerce. would bring about the unacceptable result of
subjecting interstate commerce to regulation by
Reasoning dual sovereignties.
Barbour, J. The New York statute is plainly
an exercise of police power that does not inter- The Passenger Cases
fere with the congressional power to regulate
48 U.S. 283 (1849)
interstate commerce. The statute does not con-
cern itself with the interstate transportation of
Squib. The Supreme Court struck down legis-
people. To the contrary, its provisions take ef-
lation in New York and Massachusetts that re-
fect only after the passengers of a ship have de-
quired the operators of ships to pay landing fees
barked in the state. It was passed for the bene-
for their passengers in order to fund the sup-
fit of the people of New York. The statute
port of paupers. The Court, however, did not
therefore resembles inspection and quarantine
make any substantial move toward abolishing
laws, which the courts have consistently re-
state regulation of immigration. Even as it
garded as legitimate exercises of the police
struck down the particular means employed by
power. The facts make it plain that New York
the two states, it allowed the states to continue
has a pressing interest in controlling the arrival
regulation of immigration through bonds and
of immigrants in its cities, which are already
other instruments.
swelling with the poor. More importantly, the
statute addresses a right that falls within the
category of those that have not been granted to

11
Cooley v. Board of Wardens Holding
53 U.S. 299 (1852) The law does not amount to an unconstitutional
regulation of commerce.
Overview
Reasoning
A dispute arose as to Pennsylvania laws gov-
Curtis, J. Although the Commerce Clause au-
erning the navigation of its waterways.
thorizes Congress to regulate interstate com-
merce, one should not blindly construe the
Facts
Clause to mean that the Constitution leaves no
Pennsylvania had enacted a law requiring ships regulatory power to the states. In some cases,
navigating its waterways to employ local pilots. it is advisable that one uniform system should
The rationale of the law was to improve the be established throughout the country. In such
safety of navigation. Failure to comply with the cases, the regulatory power devolves upon Con-
law resulted in a fine. When Cooley failed to gress. In other cases, however, local regulation
hire a local pilot for one of ships and sub- would be more advisable. Since Congress has
sequently refused to pay the fine, the Board of taken no action to regulate the particular as-
Wardens sued. pects of navigation currently in question, the
regulatory power should be allocated to the
Issue state.
Does the Pennsylvania law amount to an un- McLean, J., dissenting. The Court’s decision
constitutional regulation of interstate com- opens the door to rampant interference with in-
merce by a state? terstate commerce by the states. There is noth-
ing to stop every state along a river from regu-
lating its portion of the river as it sees fit.

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SLAVERY

Groves v. Slaughter Prigg v. Pennsylvania


40 U.S. 449 (1841) 41 U.S. 539 (1842)

Squib. The Mississippi Constitution included a


Overview
provision that arguably prohibited the importa-
tion of slaves from other states. Little doubt ex- A dispute arose as to a conflict between the Fu-
isted as to its purpose, which was to provide gitive Slave Act of 1793 and a Pennsylvania
economic protection to local slave traders from statute.
out-of-state competition. From a constitutional
standpoint, the difficult problem was distin- Facts
guishing the economic protectionism of the Mis- Nathan Bemis had technically gained through
sissippi Constitution from other state laws that inheritance the ownership of a slave, Margaret
likewise prohibited the importation of slave, but Morgan. By the time the inheritance took ef-
on abolitionist grounds. If either was struck fect, however, Morgan had become, for all prac-
down as an unconstitutional state regulation of tical purposes, a free woman. Although Morgan
interstate commerce, then logic seemed to dic- had been a slave in Maryland, her owner had
tate that the same fate should befall the other. informally set her free shortly before his death.
The majority opinion artfully avoided this Morgan then married a free black man; the
nettlesome question. couple moved to the free state of Pennsylvania,
McLean, J., concurring. Given that slavery where they started a family. Bemis, evidently
is local in its effects, the states should be able to intent on repossessing Morgan, engaged Prigg
regulate their respective slave trades. The and several others to capture Morgan and her
states have an interest in making sure that the family in accordance with the Fugitive Slave
slave population does not become a threat to Act. Although the initial capture was success-
the general public. ful, there arose some question as to whether the
local Pennsylvania court had jurisdiction over
Taney, C.J. Justice McLean correctly con-
the question of Morgan’s status. While the is-
cludes that the power to regulate slavery should
sue was still being resolved, Morgan and her
rest with the states.
children were sold as slaves. The sale en-
Baldwin, J. A state may abolish slavery en- gendered public outrage in Pennsylvania, which
tirely, but it may not maintain slavery within demanded that Prigg be tried for violating
its own borders and simultaneously attempt to Pennsylvania law.
regulate the interstate slave trade. A state may
regulate slavery within its own borders to any Issue
extent it desires, but it cannot purport to ex-
May Pennsylvania impose regulations of
tend such regulations to trade with other
slavery in addition to those provided by the Fu-
states. The Privileges and Immunities Clause
gitive Slave Act?
requires that states treat each other on equal
footing. Holding
Pennsylvania may not impose such additional
regulations.

13
Reasoning Facts
Story, J. The Fugitive Slave Clause expressly Dred Scott had been the slave of Emerson, an
requires each state to deliver fugitive slaves to Army officer. In performing his duties, Emer-
their owners. The Clause therefore plainly au- son had traveled to various parts of the country,
thorizes Prigg to engage in the sort of self-help taking Scott with him wherever he went. For
currently under question. Moreover, the Clause some time, Emerson was stationed north of the
implicitly requires states to refrain from inter- line drawn by the Missouri Compromise. Scott
fering with the capture of escaped slaves, such later sued on the theory that he had gained his
as through the Pennsylvania law. The power to freedom by setting foot in free territory.
regulate the handling of fugitive slaves rests
with Congress alone; the states may not enact Issue
additional legislation to supplement what Con- May Scott sue for his freedom?
gress has decided. The history of the Constitu-
tion supports this construction since it is Holding
scarcely conceivable that the slave states would
have allowed free states the power to interfere Scott may not sue because he is neither a cit-
with property rights in slaves through state- izen of Missouri nor a citizen of the United
level legislation. States.
Taney, C.J., concurring. The states should Reasoning
be allowed to aid owners in recovering fugitive
slaves. The Fugitive Slave Act merely prohibits Taney, C.J. The text and history of the Consti-
states from passing any law interfering with tution point forcefully to the conclusion that
the recapture of slaves. It says nothing about persons descended from slaves should not be
legislation to designed to actively aid slave own- considered citizens. The Constitution itself au-
ers. Indeed, it is the duty of the states to thorized the slave trade until 1808. Prior to
provide such aid. that year, the states and the British colonies
that predated them had actively engaged in the
McLean, J., dissenting. The issue here is not slave trade. Society assumed that slaves were
whether an owner may recover his slave from not persons but property. State laws reinforced
another; it is whether the owner may remove this notion, chiefly by prohibiting marriage
the slave from that state without a judicial de- between white persons and persons of color.
termination of his rights over the slave. Slaves were excluded from the population for
Pennsylvania, being a free state, acts on the as- certain purposes, such as determining each
sumption that every person of color is free. state’s obligation to raise militias. Although
This assumption should receive deference; a the Constitution occasionally refers to “people”
purported slave owner should not be allowed to in the general sense, history makes clear that
remove a purported slave from the state until this term could not have been intended to in-
the courts have determined that it is indeed clude slaves.
proper to do so.
Recognizing Scott as a citizen of Missouri or a
citizen of the United States would lead to dire
Dred Scott v. Sandford results. The Constitution has plainly conferred
60 U.S. (19 How.) 393 (1857) the power of naturalization on the federal gov-
ernment. Naturalization, as stated therein,
was intended to apply only to persons arriving
Overview
from foreign countries. It would be absurd to
A dispute arose as to whether Dred Scott had think that the Framers, who so strictly con-
standing to sue for his freedom. strained this power in its application to foreign
immigrants, would intentionally have left to the
states the power to confer citizenship upon the

14
much more numerous class of slaves. It is also particular state, one need only consider wheth-
no solution to recognize Scott as a citizen of er that person was born of free parents at the
Missouri only; if that were the case, then the time of the adoption of the Constitution. Noth-
Privileges and Immunities Clause would force ing in the Constitution suggests that the rights
every other state to recognize his rights of cit- of citizenship, having been so conferred, can
izenship as well. The consequence would be ef- subsequently be taken away. The Court’s fears
facement of the well-recognized difference of the consequences under the Privileges and
between slaves and free persons. Immunities Clause are also unfounded. There
is nothing to suggest that a citizen must auto-
Curtis, J., dissenting. To determine whether
matically be accorded every right of citizenship.
a person is a citizen of the United States or a

RECONSTRUCTION

Corfield v. Coryell form their slaughtering at a designated


slaughterhouse. The statute effectively estab-
6 F. Cas. 546 (1823)
lished a state monopoly on the operation of
slaughterhouses. The statute was challenged
Squib. A dispute arose as to whether New Jer-
on the theory that it amounted to an infringe-
sey could prohibit out-of-state persons from
ment of the privileges and immunities guaran-
gathering clams and oysters from the state’s
teed by the Fourteenth Amendment.
waters. The court held that this right was not
protected by the Privileges and Immunities
Issue
Clause.
Does the establishment of a state monopoly on
Washington, J. The Privileges and Immunit-
slaughterhouses infringe the privileges and im-
ies Clause guarantees to each person only those
munities guaranteed by the Fourteenth Amend-
rights that are essential to citizenship. These
ment?
rights include the right to habeas corpus, the
right to dispose of property, the right not to be Holding
charged higher taxes than in-state residents,
and so forth. The Clause, however, cannot be The state monopoly does not so violate the
supposed to grant to out-of-state persons every Fourteenth Amendment.
right incident to being the resident of a particu-
lar state. Reasoning
Miller, J. A state undoubtedly may exercise its
The Slaughterhouse Cases police power to regulate noxious trades such as
the operation of slaughterhouses. Such regula-
83 U.S. 36 (1873)
tions cannot be said to conflict with the Four-
teenth Amendment. In particular, the Amend-
Overview ment draws a distinction between the privileges
and immunities arising from citizenship in a
A dispute arose as to the constitutionality of a
particular state and those that arise from cit-
state-controlled monopoly on slaughterhouses.
izenship in the United States. The Amendment
protects only the latter. It cannot be thought
Facts
that the Amendment was intended to remove
Louisiana had passed a statute requiring all all regulation of privileges and immunities to
butchers within the city of New Orleans to per- the federal domain. Rather, the federal priv-

15
ileges and immunities include only the right to Miller, J. The decision whether to admit an in-
peaceably assemble and petition for redress, to dividual to a state’s bar in no way rests on the
use navigable waterways, and so forth. All oth- question of citizenship. Even if citizenship were
er rights are properly subject to regulation by allowed to be a criterion, the application of that
the states. Any other holding would drastically criterion should rest with the respective states.
alter the balance between state and federal
Bradley J., joined by Swayne and Field JJ,
power.
concurring. Although the Fourteenth Amend-
Field, J., dissenting. Although Louisiana ment guarantees certain privileges and im-
may exercise its police powers, the establish- munities, these privileges and immunities can-
ment of the monopoly goes beyond any legitim- not be said to include the right of women to
ate purpose to promote public health or morals. practice law. History shows that men and wo-
The state was within its power to command men have always occupied separate spheres
that slaughtering should take place down- and that women have been properly allocated
stream from New Orleans and that animals domestic duties. This natural balance has been
should be inspected prior to slaughter. These reflected in the law, which prevents a married
ends, however, do not necessitate the formation woman from making a contract without her
of a monopoly held by a private corporation. husband’s consent. The settled order should
Nothing suggests that the health regulations not be upset.
would be better served by a monopoly than by
multiple independent actors.
Minor v. Happersett
Bradley, J., dissenting. The Fourteenth 88 U.S. 162 (1874)
Amendment, like the Magna Carta, is intended
to protect certain essential rights. These rights
include the right to pursue one’s calling or pro- Overview
fession. In restricting the ability of butchers to A dispute arose as to whether a state could
engage in their trade outside the terms of the deny women the right to vote.
state-granted monopoly, Louisiana has in-
fringed the fundamental rights of its citizens. Facts
Swayne, J., dissenting. Prior to the Civil Virginia Minor attempted to register to vote in
War, amendments to the Constitution were in- Missouri. After the state turned her away, she
tended mainly to protect rights from infringe- sued on the ground that it had violated the
ment by the federal government. The Four- Fourteenth Amendment.
teenth Amendment makes it clear that such
rights are to be protected from infringement by Issue
the states as well. The Court has taken an
overly narrow view of the Amendment. Is the right to vote one of the privileges and im-
munities guaranteed by the Fourteenth Amend-
ment?
Bradwell v. Illinois
83 U.S. 130 (1873) Holding
The right to vote is not one of those privileges
Squib Myra Bradwell sued the State of Illinois and immunities.
for refusing to grant her a license to practice
law solely on account of her being female. Reasoning
Bradwell argued that a woman’s right to prac-
tice law was one of the privileges and immunit- Waite, C.J. Historical evidence within and out-
ies guaranteed by the Fourteenth Amendment. side the Constitution strongly suggest that the
The Court, however, disagreed. right to vote is not coextensive with citizenship.
When the Constitution was adopted, most
states had limited, either expressly or impli-

16
citly, suffrage to male citizens. If the Framers Reasoning
had intended to change this state of affairs,
Strong, J. The Fourteenth Amendment was
they almost certainly would have done so using
ratified specifically for the purpose of protecting
a clause in the Constitution. The lack of such a
the recently emancipated slaves against dis-
clause indicates that they intended to leave vot-
crimination by the states. The West Virginia
ing rights as they had existed. Furthermore,
statute infringes upon Strauder’s right to a fair
understanding the right to vote as a component
trial, as a jury consisting entirely of whites
of citizenship would lead to an absurd con-
could not possibly be a jury of his peers. The
sequences. Under this view, the Privileges and
prejudices of certain classes in society against
Immunities Clause of Article IV would neces-
others are well known. It could hardly be
sarily mean that each state is bound to allow a
doubted that a rule prohibiting whites from
citizen of any other state to vote. The Four-
serving on juries would be regarded as unfair.
teenth and Fifteenth Amendments explicitly
prohibit disenfranchisement on the basis of race Justice Field, joined by Justice Clifford,
or previous condition of servitude, but they dissenting. Equal protection under the Four-
glaringly omit any mention of disenfranchise- teenth Amendment does not require a black
ment based on sex. When the states were ad- person to be entitled to a mixed jury. No one
mitted to the Union, no objection was ever contends that women or other groups should be
made on grounds that they denied women the entitled to jurors from their respective groups.
right to vote; such was the case even in the There is no reason to think that white jurors
readmission of the Southern states following would not be equally fair to all defendants.
the Civil War. Furthermore, the Fourteenth Amendment guar-
antees only civil rights as opposed to political
rights. Jury duty is a political right and ought
Strauder v. West Virginia to be regulated as the states see fit.
100 U.S. 303 (1880)

The Civil Rights Cases


Overview 109 U.S. 3 (1883)
A dispute arose as to whether a state could dis-
criminate on the basis of race in selecting jur-
Overview
ors.
A dispute arose as to the constitutionality of the
Facts Civil Rights Act of 1875.
Strauder had been convicted of murder by a
Facts
West Virginia court. At the time, a West Vir-
ginia statute prohibited blacks from serving on A number of cases had arisen to challenge the
juries. Strauder sought to remove the case to Act, which required public establishments to re-
federal court and to challenge the composition frain from exercising racial discrimination.
of the jury, but his efforts were unsuccessful.
Issue
Issue Is the Civil Rights Act of 1875 unconstitutional
Does a law prohibiting blacks from serving on in giving Congress the power to enact affirmat-
juries violate the Fourteenth Amendment? ive legislation in order to prohibit the forms of
discrimination disallowed by the Fourteenth
Holding Amendment?
Such a law violates Fourteenth Amendment.

17
Holding Plessy v. Ferguson
The Civil Rights Act of 1875 is unconstitutional 163 U.S. 537 (1896)
because it gives Congress such powers.
Overview
Reasoning
A dispute arose as to the constitutionality of
Bradley, J. The Fourteenth Amendment gives
separate but equal facilities for white persons
Congress only the power to enact legislation to
and for persons of color.
correct state laws and practices that might in-
fringe upon rights guaranteed by the Four-
Facts
teenth Amendment. It does not, however, give
Congress the right to legislate affirmatively on Louisiana had enacted a statute requiring rail-
such issues. Congress is not authorized to act road conductors to segregate passengers based
until a state has definitively enacted a law or on race. The law was phrased in such a way
other policy that perpetuates the forms of dis- that a railroad was potentially liable for mis-
crimination prohibited by the Fourteenth taken assignments. Plessy, who was one-eighth
Amendment. The Civil Rights Act therefore black but who looked like a white person, chal-
finds finds no support under this Amendment. lenged the statute on the ground that it violated
the Thirteenth and Fourteenth Amendments.
Supporters of the Act contend alternatively that
it actually derives its authority from the Thir-
Issue
teenth Amendment. This argument also lacks
merit. The Thirteenth Amendment, insofar as Does the statute violate the Thirteenth or Four-
it grants Congress the power to make affirmat- teenth Amendment?
ive legislation, grants that power only in rela-
tion to the abolition of slavery. Supporters of Holding
the Act are essentially arguing that unequal The statute violates neither Amendment.
treatment in public facilities amount to slavery.
This argument is implausible. Reasoning
Harlan, J., dissenting. The majority has evis- Brown, J. The statute plainly has no relation
cerated the intent of the Fourteenth Amend- to the Thirteenth Amendment, which addresses
ment using clever language. It could not pos- involuntary servitude as opposed to segrega-
sibly be that Congress intended the rights of tion. Although the Fourteenth Amendment is
former slaves to be subjected to the whim of intended to make the races equal before the
states governments, which might restrict those law, that equality extends only to political, as
rights as they see fit. The Thirteenth Amend- opposed to social, rights. There is no reason to
ment was intended to eliminate all “badges” of consider the assignment of colored persons and
slavery, not just the institution itself. Racial white persons to separate railroad cars an un-
discrimination at the hands of inns and other constitutional practice in itself. If segregation
public facilities are such a badge. Moreover, an is seen as a mark of inferiority upon black per-
essential part of the privileges and immunities sons, then such is the case only because black
secured by the Fourteenth Amendment is free- persons have collectively chosen to interpret se-
dom from discrimination. Even if one adopts gregation in that way. Plessy argues that social
the majority’s view that a state violation of such integration might be better served through in-
rights must occur before Congress can take ac- termingling of blacks and whites, but such in-
tion, the current situation makes it clear that termingling cannot be achieved through a legis-
such a violation has occurred. lative mandate. The races must approach each
other on their own terms. It also cannot be ar-
gued that upholding the statute would lead to
segregation based on hair color, country of ori-

18
gin, or other arbitrary criteria. Adherence to vent segregation from being applied along arbit-
reasonableness will ensure that segregation is rary criteria, but it offers no further explana-
not so capriciously applied. tion of its conclusion. The ruling will certainly
engender racial animosity.
Harlan, J., dissenting. It is beyond doubt
that the true intent of the statute in question
was not to ensure equal accommodations; Giles v. Harris
rather, it was to ensure that black persons 189 U.S. 475 (1903)
could not occupy facilities reserved for use by
white persons. The current situation places a Squib. Giles challenged an Alabama statute
badge of inferiority on the entire black popula- forbidding blacks to vote.
tion. That such is the case becomes plain when
one considers that Chinese persons, who are in Holmes, J. Even if the statute were unconsti-
many respects even more restricted in their tutional, there is nothing the Court could do to
rights, nonetheless face lighter sanctions for vi- enforce black voting. Unless the Court is pre-
olating segregation than do black persons. The pared to supervise directly all voting in
Court suggests that “reasonableness” will pre- Alabama, a court order will do nothing to
change the current situation.

THE LOCHNER ERA

Issue
SUBSTANTIVE DUE PROCESS Did the Connecticut legislature have authority
to pass a resolution on the matter of the will?

Calder v. Bull Holding


3 U.S. 386 (1798) The Connecticut legislature had such authority.

Overview Reasoning
Chase, J. A legislature cannot do what the
Calder sued to invalidate a will of whom Bull
people have implicitly left beyond its powers
was the beneficiary.
even if there is no express constitutional pro-
Facts hibition of those actions. The Connecticut legis-
lature did not exceed the boundaries of its
Calder successfully sued to invalidate a will of power, as Calder had no vested interest in the
whom Bull was the beneficiary. Calder thus be- inheritance in the first place.
came the decedent’s heir at law. The Connectic-
ut legislature subsequently passed a resolution Iredell, J. Even if an act of legislature is
setting aside the outcome of the trial and grant- thought to conflict with natural justice, the
ing a new hearing. The will was approved at courts are powerless to do anything to overturn
the new hearing, thereby restoring the inherit- that act. All a court can say is that it does not
ance to Bull. Calder then claimed that the le- agree with the legislature’s reasoning.
gislature’s act amounted to an ex post facto law.

19
Lochner v. New York facilities. That the act of baking might have
some inchoate impact on health is also insuffi-
198 U.S. 45 (1905)
cient to justify the statute. Scarcely any profes-
sion does not affect the health in some way. If
Overview this contention is allowed, then no profession
would be free from regulation.
A dispute arose as to the constitutionality of a
maximum-hours law enacted by the State of Harlan, J., dissenting. A statute should not
New York. be invalidated unless it plainly contradicts con-
stitutional bounds or equally fundamental lim-
Facts its on state power. Here, there is a colorable ar-
gument that the statute in question really is de-
New York had enacted a law prohibiting baker-
signed to promote the public health. Reason-
ies from requiring their employees to work
able and intelligent men could disagree as to
more than sixty hours per week or more than
whether bakers need the protection set forth in
ten hours per day. Lochner was convicted of
the statute. At least one scholar has observed
failing to comply with these limits in operating
that bakers work under conditions generally
his bakery.
detrimental to health. The courts should there-
Issue fore defer to the legislature on this issue.

Is the New York statute a legitimate exercise of Holmes, J., dissenting. The question is one
police power, or does it constitute an unreason- for the state legislatures. The courts should not
able interference with the private right of con- be so quick to invalidate the statute because of
tract? perceived social norms.

Holding Muller v. Oregon


The statute unreasonably interferes with the 298 U.S. 412 (1908)
private right of contract.
Squib. The Supreme Court upheld a statute
Reasoning limiting the workday of women in laundries and
factories to ten hours per day. The Court found
Peckham, J. Although the states may gener-
that women had always been considered de-
ally use their police power to regulate activities
pendent upon men. Although the rights of wo-
that affect public health, public morals, or pub-
men had been greatly expanded in the recent
lic safety, this power cannot be used as a pre-
past, the inherent limitations of women, physic-
text to enact laws that otherwise have no bear-
ally and otherwise, still placed them in such a
ing on the public good. If this limitation did not
position as to necessitate special protection by
exist, then the legislature could justify almost
the state. The Court observed that the protec-
any law as an exercise of police power. Here,
tion of women’s health is especially important
there is no reason to believe that bakers are
since women’s role as mothers are essential to
less capable of protecting their own interests
the survival of the human race.
than their employers or that they otherwise
need protection from the state. The statute, if
justifiable at all, must be justified for reasons of Adkins v. Children’s
public health. Public health, however, also fails Hospital
to support the statute. There is no reason to 261 U.S. 525 (1923)
suspect that the quality of the bread depends on
the fact that the baker works no more than
Squib. The Supreme Court invalidated a law
sixty hours per week. Regulations to that effect
establishing a minimum wage for women but
already exist in the form of building codes,
not for men as a violation of the due process
which require separate washrooms and other
guaranteed by the Fifth Amendment. The

20
Court found that legislation had reduced the interstate commerce does not include the power
legal differences of men and women almost to of prohibition, such as that used against the
the vanishing point. Although physical differ- shipping of lottery tickets. In response to the
ences between men and women still existed, first argument, it may be said that lottery tick-
such differences did not justify the restrictions ets do qualify as commercial goods because they
on contract imposed by the minimum-wage law. have value in the form of the prize promised to
the winner. In response to the second argu-
ment, it is necessary to consider the nature of
THE COMMERCE CLAUSE the goods being regulated. Lotteries have gen-
erally been regarded as a societal pest. Unlike
conventional forms of gambling, it tends to af-
fect all sectors of society. The Court has
Champion v. Ames already held that a state may not contract away
188 U.S. 321 (1903) its duty to protect public morals by establishing
a state-run lottery. Indeed, many states have
banned lotteries for being immoral games. Con-
Overview gress, in fact, is probably supplementing such
A dispute arose as to the constitutionality of a state legislation by prohibiting the interstate
federal law prohibiting the sale of lottery tick- transportation of lottery tickets.
ets. Fuller, C.J., dissenting. Lottery tickets can-
not be said to fall within the scope of interstate
Facts commerce. They are no different from insur-
Congress had enacted a law prohibiting the in- ance policies because they are merely contracts
terstate transport of lottery tickets by any between two parties. The Court has held that
means. Champion was indicted under the law insurance policies are not articles of interstate
for shipping Paraguayan lottery tickets from commerce, and it should make the same finding
Texas to California. Champion challenged the for lottery tickets. An article does not come
indictment on ground that the law exceeded the within the power of the Commerce Clause
congressional power to regulate interstate com- simply because it is being transported from
merce. state to state. The majority’s decision infringes
on states’ power.
Issue
Does the interstate transportation of lottery Hammer v. Dagenhart
tickets fall within the congressional power to 247 U.S. 251 (1918)
regulate interstate commerce?

Holding Overview
The interstate transportation of lottery tickets A dispute arose as to the constitutionality of a
falls under the congressional power to regulate federal statute prohibiting interstate trade in
interstate commerce. the products of child labor.

Reasoning Facts
Harlan, J. Congress has the power to prohibit Congress had enacted a statute stating that the
the interstate transportation of lottery tickets; products of any factory, mine, or other manufac-
that power stems from the commerce power set turing concern could not be transported
forth in the Constitution. Champion argues (1) between different states if that establishment
that lottery tickets do not fall within the defini- had employed child labor within the thirty days
tion of “commerce” because they have no value prior to the shipment of the products. Hammer
and (2) that the congressional power to regulate

21
sued to prevent the enforcement of the law in
North Carolina. THE GENERAL WELFARE
Issue CLAUSE
Does the statute exceed the congressional
power to regulate interstate commerce?
The Child Labor Tax Case
Holding 259 U.S. 20 (1922)
The statute exceeds the congressional power to
regulate interstate commerce. Squib. Congress had enacted the Child Labor
Tax Act, which imposed a 10% tax on the net
Reasoning income of any manufacturer using child labor.
The Supreme Court invalidated the Act on the
Day, J. The Court has upheld statutes forbid- ground that it violated the Tenth Amendment.
ding the transportation of lottery tickets, prosti- The Court found that Congress, despite having
tutes, and tainted food across state lines. In all the power to tax, could not use that power as a
these cases, the interstate traffic of such goods pretext for invading subjects that lay within the
was essential to the evil being done. Such is sphere of state regulation. The purpose of an
not the case here. Here, the goods to be shipped ordinary tax was to raise revenue; although
are themselves harmless. In fact, even goods such a tax may have some effects on intrastate
that were produced with child labor may be activities, such effects would be purely incident-
shipped as long as the manufacturer waits more al. By contrast, the purpose of the Act was not
than thirty days after their production. Al- to raise revenue but to coerce compliance with a
though it has been argued that permitting the congressional mandate.
interstate traffic in such might place some
states at a competitive disadvantage because of
the strictness of their child-labor laws, Con- United States v. Butler
gress has no power to equalize such differences 297 U.S. 1 (1936)
under the guise of regulating interstate com-
merce. The regulation of production within a Squib. Congress had passed the Agricultural
state is solely the business of that state. Adjustment Act, which paid farmers to reduce
the amount of crops they grew. A dispute arose
Holmes, J., dissenting. A Congressional stat-
as to whether the Act was permitted under the
ute cannot be invalidated solely because of its
General Welfare Clause.
indirect effects on state activities. The Com-
merce Clause gives Congress the unqualified Roberts, J. The Act attempts to accomplish
power to regulate interstate commerce. Con- through constitutional means an unconstitu-
gressional regulation cannot be curtailed simply tional end. Even if one construes the General
because some states might find such regulation Welfare Clause broadly, that Clause still cannot
inconvenient. be read to mean that Congress has the power to
regulate agriculture. It is no argument to say
that the Act obtains the voluntary compliance
of farmers; such “voluntary” compliance is in
fact coerced through the loss of benefits for
those farmers who would rather not comply.
Stone, J., joined by Brandeis and Cardozo,
JJ., dissenting. The Court takes the self-con-
tradictory position that Congress has the power
to spend but does not have the power to impose
conditions on that spending.

22
THE NEW DEAL ERA

Nebbia v. New York Issue


291 U.S. 502 (1934) Does the Minnesota statute violate the Con-
tracts Clause?
Squib. Nebbia had been convicted of selling
milk below the minimum wholesale price man- Holding
dated by the New York Milk Control Board.
The statute does not violate the Contracts
The Supreme Court upheld the law on the
Clause.
ground that it had a reasonable relation to the
goal of preventing ruthless competition from Reasoning
driving milk prices to ruinously low levels. Al-
though the production of milk was not “affected Hughes, C.J. Emergencies do not grant to the
with the public interest” in the same way as federal government or to the states powers they
public utilities, the Court found that nothing do not already possess. Rather, existing consti-
prevented a state legislature from enacting reg- tutional grants of power should be interpreted
ulations for the public good. In his dissent, in light of the circumstances. The Contracts
Justice McReynolds said that the Court was in- Clause was added to the Constitution in the
terfering with one’s ability to conduct his own period following the Revolutionary War. At
affairs on terms of his choosing. that time, the states had imposed so many lim-
itations on the collection of debts that the entire
system of credit threatened to collapse. The
Home Building & Loan Contracts Clause was apparently added to the
Association v. Blaisdell Constitution to prevent interference with the
290 U.S. 398 (1934) collection of such private debts. The history of
the Clause, however, does not suggest that it
should be read as a categorical prohibition on
Overview state action in relation to the enforcement of
A dispute arose as to the constitutionality of a contracts.
moratorium on foreclosures.
Here, the Minnesota legislature has sought to
ameliorate the effects of a severe economic
Facts
downturn by temporarily altering the means by
The Great Depression had led to widespread de- which contracts may be enforced. Similar legis-
faults on mortgages. The Minnesota legislature lation has been upheld in the past. The consti-
tried to stanch the resulting wave of foreclos- tutionality of the statute in question cannot be
ures by enacting a law that extended the period challenged on ground that the Framers would
during which a defaulting homeowner could re- have interpreted the Constitution differently.
cover possession of a foreclosed home. Blais- The Constitution was intended to adapt to the
dell, whose home had been foreclosed, sought times.
refuge under the statute. The Home Building &
Sutherland, J., dissenting. The history of
Loan Association, which had foreclosed the
the Commerce Clause reveals that it was inten-
home, argued that the statute violated the Con-
ded to prevent the government from interfering
tracts Clause of the Constitution.
with the collection of private debts during pre-
cisely the sort of crisis now existing. At that
time, the rampant cancellation of debts through
legislation threatened to destroy the reputation

23
of the American people in the eyes of their cred- West Coast Hotel Co. v.
itors. The circumstances that gave rise to the Parrish
Clause cannot now be invoked to prevent it
300 U.S. 379 (1937)
from taking effect.
Cardozo, J., concurring. The Contracts
Clause was drafted in a time when contracts Overview
were thought to affect only private parties as A dispute arose as to the constitutionality of a
opposed to the state. The development of soci- minimum-wage law for women.
ety has shown that this assumption is no longer
true. The statute was designed to protect the Facts
stability of society. The Framers would agree
The State of Washington had enacted a law spe-
with its constitutionality.
cifying a minimum wage for women. The con-
stitutionality of the law was challenged.
Carter v. Carter Coal Co.
298 U.S. 238 (1936) Issue
Is the minimum-wage law for women unconsti-
Squib. The Court invalidated a part of the Bi- tutional?
tuminous Coal Conservation Act of 1936, which
required coal companies to engage in collective Holding
bargaining with miners. The Court drew a dis-
The minimum-wage law for women is not un-
tinction between “manufacture” and
constitutional.
“commerce,” emphasizing that Congress had
the power to regulate only the latter. Mining,
Reasoning
by contrast, was only a “manufacturing” activ-
ity because it bought into exist the object of Hughes, C.J. Although the Constitution guar-
commerce. Although the Court conceded that antees liberty, that liberty is not absolute;
manufacturing inevitably had some impact on rather, it is constrained by countervailing con-
interstate commerce, that impact was not suffi- cerns for the public health, public morals, and
ciently “direct” to make it regulable by Con- public safety. It is beyond dispute that the pro-
gress. tection of women from unscrupulous employers
is a legitimate state interest. In the current
case, women have been exploited through the
Schechter Poultry Corp. v. payment of woefully inadequate wages. Fur-
United States thermore, women themselves can scarcely
295 U.S. 495 (1935) change their current position since they lack
bargaining power against their employers. The
Squib. The Supreme Court struck down a New burden of providing adequate living conditions
York law regulating the poultry industry be- to those women unable to afford such conditions
cause it found that poultry ceased to be an ob- themselves invariably devolves upon the state.
ject of interstate commerce once it arrived in The citizenry should not be expected to thus
the destination state. subsidize private greed.

24
United States v. Carolene Justice Butler, concurring in the result.
Products Co. Carolene should be allowed to show that Milnut
is not injurious to the health or a fraud upon
304 U.S. 144 (1938)
the public. Denying it this chance would violate
due process.
Overview
Carolene Products challenged a law prohibiting Williamson v. Lee Optical
the sale of filled milk. Co.
348 U.S. 483 (1955)
Facts
Congress had passed the Filled Milk Act, which Overview
prohibited interstate commerce in “filled milk,”
milk in which the original milk fat had been re- A dispute arose as to the constitutionality of an
placed by vegetable oil. The Act was passed Oklahoma statute regulating the fitting of pre-
after a legislative inquiry showed that filled scription lenses.
milk was injurious to the public health because
it lacked certain nutrients present in natural Facts
milk. Carolene Products produced Milnut, a Oklahoma had passed a law making it illegal
filled-milk product. Carolene sued on the the- for any person to replace, duplicate, or fit lenses
ory that the Act violated the Fifth Amendment for glasses without the written permission of an
guarantee of due process by depriving Carolene optometrist or ophthalmologist. Lee Optical
of the right to sell filled milk. challenged the statute for violating the Four-
teenth Amendment. The District Court invalid-
Issue ated several of the statute’s provisions.
Does the Act violate the Fifth Amendment?
Issue
Holding Does the statute violate the (1) Due Process
The Act does not violate Fifth Amendment. Clause or the (2) Equal Protection Clause of the
Fourteenth Amendment?
Reasoning
Holding
Mr. Justice Stone delivered the opinion of
the Court. In general, the legislature is to be The statute violates neither the (1) Due Process
given deference in its decisions. To that end, Clause nor the (2) Equal Protection Clause of
the courts should presume the constitutionality the Fourteenth Amendment.
of a statute unless the circumstances plainly
suggest otherwise. The constitutionality of a Reasoning
statute may be challenged in two ways. First, Douglas, J. The Oklahoma legislature was
the courts may investigate facts that might un- competent to determine when such permission
dermine the presumption of constitutionality. should be required for the fitting of prescription
Second, the statute can be argued not to apply lenses. Although it is true that new lenses may
to a particular situation because that situation be produced and existing lenses duplicated
is so peculiar as to fall outside the purpose of without guidance from an eye-care professional,
the statute. In either case, the challenge must the legislature may have a legitimate interest
be founded on a set of facts that are at least dis- in promoting eye checkups. The court below
coverable in principle. Here, Carolene has chal- erred in holding that it was unconstitutional to
lenged not specific facts but the general wisdom limit the marketing of eyeglass frames. Al-
of the statute. That is a question for Congress, though the Lee Optical contends that such
not the courts. frames are merely ordinary merchandise, regu-

25
lation is proper because they are invariably quirements. A Georgia lumber manufacturer
used in conjunction with prescription lenses. It was indicted for violating the Act.
is therefore proper for Oklahoma to impose lim-
itations on the marketing of such frames. The Issue
court below also erred in holding that it was un- Is the Act a valid regulation of interstate com-
constitutional to prohibit optometrists from oc- merce?
cupying space in retail establishments. Ok-
lahoma has a legitimate interest in preventing Holding
the eye-care profession from being tainted by
commercialism. The Act is a valid regulation of interstate com-
merce.

NLRB v. Jones & Laughlin Reasoning


Steel Corp.
Stone, J. Congress has plenary power to regu-
301 U.S. 1 (1937) late interstate commerce. This power extends
even to the regulation of goods produced en-
Squib. The Supreme Court upheld the Nation- tirely within a single state. Congress passed
al Labor Relations Act (NLRA) in the face of a the Act with the manifest purpose of preventing
challenge by the Jones & Laughlin Steel Cor- goods manufactured under substandard labor
poration, which wanted to prevent its employ- conditions from competing with those manufac-
ees from bargaining collectively. tured in compliance with the Act. Although the
Hughes, C.J. The multi-state operations of employees of the lumber manufacturer do not
Jones & Laughlin are so closely connected to in- themselves engage in interstate commerce, the
terstate commerce that Congress should not be goods they produce are so tied to interstate
denied the power to regulate its activities. Al- commerce as to fall under congressional regula-
though there are circumstances in which the ef- tion.
fects of a business are too remote from inter-
state commerce to warrant congressional regu-
Wickard v. Filburn
lation, such is not the case here. Here, the res-
ults of a labor dispute between Jones & Laugh- 317 U.S. 111 (1942)
lin and its employees would have immediate
and catastrophic consequences. Squib. The Agricultural Adjustment Act of
1938 placed limits on the amount of wheat each
farmer can grow. A farmer was penalized for
United States v. Darby produce above that limit 239 bushels, or over
Lumber Co. six tons, of wheat. Although the farmer avowed
312 U.S. 100 (1941) that the wheat was intended for his private use,
the Supreme Court found that it nonetheless
fell within the scope of congressional regulation.
Overview
Jackson, J. Congressional regulation of inter-
A dispute arose as to the constitutionality of a state commerce extends not only to those art-
federal minimum-wage law. icles that participate directly in such commerce
but also to articles that may indirectly affect
Facts such commerce. The home-consumed wheat
Congress had enacted the Fair Labor Standards here “competes” with wheat on the market in
Act of 1938, which required employers to ob- the sense that the former reduces the con-
serve minimum-wage and maximum-hours re- sumer’s demand for the latter. This impact on
commerce at large makes the wheat regulable.

26
INDIVIDUAL RIGHTS

prived students of equal protection as guaran-


DESEGREGATION teed by the Fourteenth Amendment.

Issue
Sweatt v. Painter Does segregation of schools violate equal protec-
339 U.S. 629 (1950) tion under the Fourteenth Amendment?

Holding
Squib. The Supreme Court found that a hast-
ily established law school for black students Segregation of schools does violate equal protec-
was probably not equal to the University of tion under the Fourteenth Amendment.
Texas Law School. Aside from the difference in
the quality of facilities and student activities, Reasoning
the Court found that the black school was also Warren, C.J. “Separate but equal” does not
lacking in essential but intangible factors, such exist because segregation itself creates inequal-
as the quality of the faculty, alumni networks, ity. Segregation tends to impose feelings of in-
and overall prestige. feriority in black children. Such feelings in
turn influence their motivation to learn and ul-
McLaurin v. Oklahoma timately the effectiveness of the education that
State Regents is essential to good citizenship. It is unneces-
sary to consider whether the quality of the re-
339 U.S. 637 (1950)
spective facilities in schools for white and non-
white students are materially identical.
Squib. The Supreme Court struck down a
graduate school’s attempt to make its single
black student sit in a separate section of the Bolling v. Sharpe
classroom, library, and cafeteria. The Court 347 U.S. 497 (1954)
found that such segregation interfered with the
exchange of ideas between the affected student Squib. The Supreme Court struck down the
and the rest of the student body. segregation of schools in the District of
Columbia, to which the Fourteenth Amendment
Brown v. Board of technically did not apply. The Court found se-
Education of Topeka gregation to be so repugnant that it would have
been unthinkable for schools within the District
347 U.S. 483 (1954)
of Columbia to remain segregated after the
Brown decision.
Overview Brown II
A dispute arose as to the constitutionality of se- Squib. The Supreme Court determined that
gregation in public schools. the schools were to be integrated with “all delib-
erate speed.” School districts were to bear the
Facts burden of desegregation while federal district
Residents of several states challenged the con- courts oversaw their efforts. The courts were to
stitutionality of segregated public schools. apply principles of equity to allow for flexibility,
They sued on the ground that segregation de- but they were also to ensure that the schools

27
made good-faith efforts at desegregation. Any reflect the racial composition of the district as a
school that desired additional time for desegreg- whole, (2) that the existence of one-race schools
ation carried the burden of showing that such was not automatically unconstitutional, (3) that
time was necessary. the district court could order race-based assign-
ment of students once a constitutional violation
had been found, and (4) that busing was a valid
Cooper v. Aaron judicial remedy.
358 U.S. 1 (1958)

Squib. Following massive Southern resistance Keyes v. School District No.


to desegregation, the Supreme Court ordered 1, Denver, Colorado
the city of Little Rock, Arkansas, to proceed 413 U.S. 189 (1973)
with desegregation despite intense opposition
from within the state. Squib. The Supreme Court ordered a Colorado
school district to desegregate. Unlike Southern
school districts, the Colorado district had never
Green v. New Kent County
been segregated by law. The plaintiffs, how-
School Board ever, argued that the district had segregated it-
391 U.S. 430 (1968) self through race-conscious manipulation of stu-
dent assignments. The district contained both
Squib. The Supreme Court held that the New suburban and inner-city schools. Although the
Kent County School Board, whose school dis- Court found intentional segregation only in the
trict contained only two schools, could not settle former, it nonetheless ordered desegregation of
on a “freedom of choice” plan for desegregation the inner-city schools as well.
because that plan tended to perpetuate segrega-
tion. Brennan, J. Although the plaintiffs bear the
burden of proving that segregation exists, they
Brennan, J. Although of freedom-of-choice need not prove that segregation exists in every
plan is not unconstitutional in itself, it plainly school. Rather, establishing segregation in a
fails to constitute an adequate step toward de- substantial number of schools allows the pre-
segregation here. Under the plan, 85% of the sumption that the remaining schools have been
black children in the school district still attend intentionally segregated as well. Since the dis-
the all-black school. It is also worth noting that trict here has been shown to have implemented
the school district made no effort toward deseg- intentional segregation, it must bear the bur-
regation until a decade after the Brown de- den of showing that particular schools in ques-
cision. tion are not intentionally segregated.
Rehnquist, J., dissenting. The Court’s de-
Swann v. Charlotte- cision amounts to a drastic and unjustified ex-
Mecklenburg Board of pansion of the Brown decision. The Brown de-
Education cision required only that school districts refrain
402 U.S. 1 (1971) from active segregation; it did not create an af-
firmative duty to integrate.
Squib. The Supreme Court authorized federal Powell, J., concurring in part and dissent-
district courts to use broad equitable remedies ing in part. The distinction between “de jure”
to desegregate schools. The Court upheld a dis- and “de facto” segregation should be phased
trict-court plan that required the Charlot- out. These terms were coined in a time when
te-Mecklenburg School District to implement segregation by law was widespread. Now, se-
busing and to maintain a certain ratio between gregation persists not because of laws but be-
black and white students in its schools. The cause of entrenched residential patterns and
Court also held (1) that not every school had to similar factors. Where segregation still exists,

28
the courts should presume that the local school
district has not taken adequate efforts to deseg- CONGRESSIONAL ACTION
regate. Where the school districts have failed to
integrate, the courts should have the authority
to order remedies such as redrawing district
lines, busing, and transfer programs. Heart of Atlanta Motel v.
United States
379 U.S. 241 (1964)
Milliken v. Bradley
418 U.S. 717 (1974) Squib. The Supreme Court found that the
Heart of Atlanta Motel had violated Title II of
Squib. After finding de jure segregation in a the Civil Rights Act of 1964, which prohibited
Detroit school district, a district court handed racial discrimination in segregation in places of
down a desegregation plan that included not public accommodation. The Court justified the
only the segregated district but 53 surrounding authority of Congress to pass this act using the
districts. The Supreme Court struck down the Commerce Clause. It found that the generally
plan as unconstitutionally broad. lack of accommodations receptive to black cus-
Burger, C.J. Before a court can order an inter- tomers had reached epidemic proportions and
district remedy, it must first find that any in- that congressional action was appropriate.
ter-district segregation is the product of the se-
gregative actions of a particular district or of Katzenbach v. McClung
deliberate attempts to draw boundaries in such
379 U.S. 294 (1964)
a way as to separate the races. Having failed to
show inter-district segregation, the court
Squib. The Supreme Court struck down as un-
ordered a remedy that was too broad.
constitutional the racially discriminatory prac-
White, J., joined by Douglas, Brennan, and tices of a restaurant in Alabama. The Court
Marshall, JJ., dissenting. The state should justified its ruling using the Commerce Clause.
have authority to redraw district boundaries if
Clark, J. The record shows that racial discrim-
necessary. The Court has upheld the redrawing
ination tends to depress spending at restaur-
of political districts for the purpose of equaliz-
ants by black customers. Such depression, in
ing representation.
turn, affects interstate commerce by altering
Marshall, J., dissenting. The state has indir- the amount food sold across state lines. While a
ectly facilitated segregation by drawing district single restaurant may have a negligible impact
lines in such a way as to keep blacks and whites on the economy at large, this fact alone does not
in separate schools. Districts so defined tend to justify the segregation here. As the Court ob-
keep blacks in predominantly black schools and served in Wickard v. Filburn, the conduct of a
to fuel white flight. The state should bear at single actor may nonetheless be restrained if it
least some responsibility for these effects. bears any connection to interstate commerce.

South Carolina v.
Katzenbach
383 U.S. 301 (1966)

Overview
A dispute arose as to the constitutionality of the
Voting Rights Act.

29
Facts in a discriminatory way, Congress has the
power to forbid their use.
Congress had passed the Voting Rights Act in
response to persistent Southern efforts to pre- Black, J., concurring and dissenting. Al-
vent blacks from voting. Southern states had though the Act is mostly constitutional, it may
been restricting the black vote through a num- not demand the states to seek federal approval
ber of instruments, such as “grandfather before enacting laws that have potential impact
clauses” and other tests. Although the Court of voting. That provision distorts the balance of
had struck down many of these schemes, liter- power between the states and the federal gov-
acy tests became an entrenched way of discrim- ernment.
inating against blacks at the polls. The Act
provided in relevant part (1) that no literacy
Katzenbach v. Morgan
tests could be used, (2) that federal authorities
would review all new voting regulations, and (3) 384 U.S. 641 (1966)
that the Attorney General had the power to
qualify individuals to vote on a case-by-case Squib. One provision of the Voting Rights Act
basis. South Carolina challenged the Act as an specified that no state could deny its residents
improper exercise of congressional power. the right to vote on the ground of not knowing
English. New York had enacted precisely such
Issue a law, whose effect was to make a number of
Puerto Rican residents unable to vote because
Does the Fifteenth Amendment authorize Con- they did not know enough English. New York
gress to pass the Act? challenged the voting rights act on the theory
that Congress had exceeded its powers in
Holding passing the relevant provision.
The Fifteenth Amendment authorizes Congress Brennan, J. New York argues that Congress
to pass the Act. has power to override a state law only when the
courts have made an express determination
Reasoning that the law contravenes the Fourteenth
Warren, C.J. South Carolina challenges the Amendment. This theory lacks merit, as it
Act on the theory that the Fifteenth Amend- would confine congressional action too strictly.
ment allows Congress only the power to nullify Rather, section 5 of the Amendment authorizes
state statutes that interfere with the right to Congress to pass whatever laws it deems neces-
vote. This position blatantly contradicts the sary to further the ends of that Amendment.
plain language of the Amendment, which states Congressional action is to be upheld as long as
that “Congress shall have power to enforce this the courts can discern a rational basis for that
article by appropriate legislation.” The Amend- action. Here, Congress could reasonably have
ment, moreover, has always been understood to concluded that the English-language require-
be self-executing. The Act was appropriate in ment worked more harm than good. Although
light of the entrenched nature of voting discrim- historical evidence suggests that the require-
ination. Congress fairly concluded from the ment was enacted for the goal of encouraging
facts that case-by-case litigation, which had immigrants to learn English, the evidence also
been the dominant strategy for challenging suggests that discrimination may have been a
such discrimination, failed to provide an ad- motivation as well. Furthermore, Congress was
equate solution to the problem. Such litigation within its discretion to conclude that a thorough
had been time-consuming to boot; even when it knowledge of English was unnecessary for the
succeeded, states often switched to non-prohib- effective exercise of the vote since Spanish-lan-
ited methods of discrimination or flouted court guage materials can be equally effective in in-
orders outright. It is also no argument to say forming the citizenry of political issues. It is
that literacy tests are not forbidden by the Con- also no argument to say that the Act discrimin-
stitution. Because such tests have been applied ates against non-American-flag schools as com-

30
pared to American-flag schools. The Act is de- should have a high-school diploma and pass a
signed to expand the franchise, not to restrict it general intelligence test. The Court found that
to particular classes of people. these requirements, despite being neutral on
their face, had discriminatory effects.
Harlan, J., joined by Stewart, J., dissent-
ing. The Court has ignored the question of Burger, C.J. Title VII of the Civil Rights Act
whether the discrimination purportedly result- is intended to prevent not only overt discrimin-
ing from the New York law actually amounts to ation but also discrimination implemented
a constitutional violation. Rather, the Court through facially neutral criteria. The record
seems to state that Congress has the power to shows that neither the high-school diploma re-
define the substantive scope of the Fourteenth quirement nor the intelligence test tend to pre-
Amendment and to declare that state laws con- dict the performance of any candidate. Even if
travene that Amendment. This power should the employer acted with good intentions in set-
rest with the judiciary. In any case, the Court ting up these requirements, the requirements
has failed to show convincingly that Span- cannot stand if they operate as built-in head-
ish-language materials would offer the same winds against minority groups.
coverage of election news as English-language
materials.
Washington v. Davis
426 U.S. 229 (1976)
Jones v. Alfred H. Mayer
Co.
Overview
392 U.S. 409 (1968)
A dispute arose as to whether discriminatory ef-
Squib. The Supreme Court upheld a Recon- fect alone is sufficient to support a finding of
struction-era statute prohibiting private dis- unconstitutionality.
crimination in real estate. In so holding, the
Court took a significantly expanded view of Facts
what Congress could do under the Thirteenth The District of Columbia required prospective
Amendment. police officers to take a written test before they
Stewart, J. The Enabling Clause of the Thir- could qualify for employment by the police de-
teenth Amendment gave Congress the power to partment. Several black candidates, after being
eliminate all the badges and incidents of rejected for failing the test, sued on the theory
slavery. This power includes the ability to in- that the test violated equal protection as guar-
validate laws, such as the Black Codes, that anteed by the Fifth Amendment. They did not
tend to perpetuate the effects of slavery. sue under Title VII because that Title did not
yet cover municipal employees.

Issue
EQUAL PROTECTION
Does the disparate impact of the test on black
candidates support a finding of unconstitution-
ality?
Discriminatory Intent
Holding
The disparate impact does not in itself support
Griggs v. Duke Power Co. a finding of unconstitutionality.
401 U.S. 424 (1971)
Reasoning
Squib. The Supreme Court struck down an White, J. Although disparate impact alone
employer’s requirement that each job applicant may permit the conclusion that Title VII has

31
been violated, this low standard should not be Village of Arlington
applied in finding constitutional violations. In Heights v. Metropolitan
the context of school desegregation, the Court
Housing Development
has found that the existence of predominantly
white or black schools does not in itself give rise
Corp.
to an inference of segregation across the entire 429 U.S. 252 (1977)
school district. The Court reached the same
conclusion with respect to racially skewed jur- Squib. The Supreme Court upheld a zoning
ies. Although disparate impact may serve as plan that reserved a certain area of land to be
evidence of underlying discrimination, a used for single-family homes as opposed to mul-
plaintiff must make a basic showing of discrim- ti-family homes. The Metropolitan Housing De-
inatory intent before a constitutional violation velopment Corporation (MHDC) had challenged
can be found. Here, the District of Columbia the zoning decision on the theory that it dis-
has a legitimate interest in ensuring that its criminated against poor tenants. The Court,
employees meet certain standards of written however, found that the MHDC had not shown
and oral communication. It should not be anything beyond discriminatory effect and
forced to settle for lower standards simply be- therefore was not entitled to a finding of uncon-
cause black candidates are more likely to be dis- stitutionality. The Court set forth six stand-
qualified than white candidates. ards for determining when discriminatory effect
may indicate discriminatory intent: (1) the im-
Stevens, J., concurring. The line between pact of the action, including a pattern of racially
discriminatory effect and discriminatory intent disparate impact unexplainable on grounds oth-
is not nearly as bright as the Court makes it er than intnetional discrimination; (2) the his-
seem. torical background of the decision; (3) the spe-
cific sequence of events leading to the decision;
Personnel Administrator of (4) departures from normal procedure; (5)
Massachusetts v. Feeney whether the decision-maker departs from the
usual consideration of the facts; and (6) the le-
442 U.S. 256 (1979)
gislative or administrative history of the de-
cision.
Squib. The Supreme Court upheld a Mas-
sachusetts statute giving preference to veterans
in certain forms of employment. The plaintiff Suspect Classifications
had challenged the statute on the ground that it
discriminated against women and that the le-
gislature had intended such discrimination
since it was obvious that women were largely Race
barred from military service. The Court, how-
ever, found that intent to discriminate could be
found only when a regulation had been adopted Korematsu v. United States
“because of,” as opposed to “in spite of,” its dis- 323 U.S. 214 (1944)
parate impact.
Overview
A dispute arose as to the constitutionality of Ja-
panese internment during World War II.

Facts
Following the attack on Pearl Harbor, Presid-
ent Roosevelt authorized the military to remove
persons of Japanese descent from certain areas

32
of the West Coast. The decision was justified on Murphy, J., dissenting. No one questions
the ground of military necessity. Korematsu that the military may use reasonable means to
challenged the constitutionality of the intern- ensure the safety of the country in times of war.
ment order. The internment order, however, works such
heavy-handed discrimination that it plainly
Issue falls outside constitutional bounds. The milit-
Does the internment of persons of Japanese ary’s appears to have founded its decision on
conclusory judgments framing all Japanese-des-
descent violate the Constitution?
cended persons as disloyal. No evidence of sab-
Holding otage or other subversion has ever been pro-
duced, and the lack of martial law in the af-
The internment does not violate the Constitu- fected regions suggests that the situation was
tion. not as dire as the military has portrayed. Fur-
thermore, it is altogether unjustifiable that per-
Reasoning sons of German and Italian descent should be
Black, J. Although a racial classification is im- afforded individual hearings to determine their
mediately suspect and must undergo rigid scru- loyalties while those of Japanese descent are ef-
tiny, it may nonetheless pass constitutional fectively subjected to group punishment. The
muster. Here, the internment order was not ex- internment policy works precisely the kind of
ecuted solely because of racial prejudice; rather, discrimination that the United States has been
it was designed to serve the legitimate military fighting in the War.
purpose of protecting the country from attack Jackson, J., dissenting. Although military
by Japan. The military had well-founded con- necessity may trump constitutional doctrine in
cerns about possible subversion from Japanese times of war, this does not mean that the Court
elements within the United States. Following should give the constitutional stamp of approv-
the outbreak of the War, thousands of Japanese al to every military decision. It is true that the
residents either refused to renounce allegiance Court is bound to accept military decisions,
to the Japanese Emperor or repatriated to Ja- even if those decisions are justified only by self-
pan. While such individuals of questionable serving testimony. The exigencies of war do not
loyalty may have comprised only a small frac- normally permit the courts to engage in any
tion of the total Japanese-descended popula- real review of military decisions. The Court,
tion, the military was within its discretion to however, has done much more damage by giv-
decide that separating the loyal from the disloy- ing post hoc approval to the internment order.
al would have been impractical in the face of The Court has transformed internment from a
wartime realities. one-time necessity to a legal precedent that
Frankfurter, J., concurring. The Constitu- may be invoked by anyone who can think up a
tion authorizes Congress to make war, and war- suitable national emergency.
time decisions should be enough deference to
ensure that war can be waged successfully. Loving v. Virginia
Such decisions should not be evaluated in the
388 U.S. 1 (1967)
same light as decisions made during peacetime.
As long as a military order does not go beyond
the constitutional war powers, it should not be Overview
questioned.
A dispute arose as to the constitutionality of a
Roberts, J., dissenting. A citizen has been Virginia anti-miscegenation statute.
singled out for punishment solely on the basis
of race. That such treatment is unconstitution- Facts
al cannot be doubted.
Richard Loving, a white man, had married Mil-
dred Jeter, a black woman, in the District of

33
Columbia. Following their marriage, they re- Sex
turned to Virginia to start a family. Loving was
then indicted for violating a Virginia anti-mis-
cegenation statute. Frontiero v. Richardson
411 U.S. 677 (1973)
Issue
Does the Virginia statute violate the Four-
teenth Amendment?
Overview
Frontiero challenged a statute establishing dif-
Holding ferent requirements for men and women in
The Virginia statute violates the Fourteenth claiming government benefits for their spouses.
Amendment.
Facts
Reasoning Frontiero, a woman, was a lieutenant in the Air
Mr. Chief Justice Warren delivered the Force. At that time, the government had en-
opinion of the Court. Virginia argues that acted several measures designed to boost enlist-
the statute comports with the Fourteenth ment, one of which was the granting of housing
Amendment because it mandates equal punish- and medical benefits to dependents of soldiers.
ment for white and non-white participants in The relevant statute provided that all men
an interracial marriage. This theory of “equal could automatically claim their wives as de-
application,” however, has been overturned. pendents without regard to any actual need for
The question is not how the law is applied; the financial support. By contrast, women were re-
question is whether the law attempts to create quired to prove that their husbands relied on
a distinction solely on the basis of race. The them for more than half their support. Fron-
Virginia statute plainly serves no purpose aside tiero challenged the statute on the ground that
from racial discrimination. That it applies only it violated the Equal Protection Clause of the
to interracial marriages involving whites shows Fourteenth Amendment.
that the legislature passed it with the intent to
protect white supremacy.
Issue
Does the statute violate the Equal Protection
Clause of the Fourteenth Amendment?
Palmore v. Sidoti
466 U.S. 429 (1984) Holding
Squib. The Supreme Court reversed a state The statute violates the Equal Protection
court’s decision to grant custody of a white child Clause of the Fourteenth Amendment.
to the father because the mother had entered a
relationship with a black man. The state court Reasoning
had found that the mother had chosen for her Brennan, J. The legislature has apparently
child a lifestyle unacceptable to the father and said little of the reasons for the distinction now
to society and that the child might be exposed challenged. The trial court applied the ration-
to pressures for having parents of different al-basis test and concluded that the legislature
races. The Court, however, found that the Con- could have had in mind legitimate concerns
stitution may not be used to give effect to about costs when enacting this policy. Given
private prejudices. that the vast majority of the members of the
Armed Forces are male, perhaps the legislature
thought it could save money by restricting to
women any inquiries as to dependency.

34
The rational-basis test, however, is inappropri- United States v. Virginia
ate in this situation. The statute appears to (The VMI Case)
draw the distinction solely on the basis of sex; it
518 U.S. 515 (1996)
has therefore used sex as an inherently suspect
classification. Here, heightened scrutiny should
be applied. The government has conceded that Overview
the distinction is not intended to serve any pur-
A dispute arose as to the admission of women to
poses beyond mere administrative convenience.
the Virginia Military Institute.
While efficient administration is desirable, it
should not take precedence over more-import-
Facts
ant constitutional values. The statute draws an
arbitrary distinction between men and women Since its founding, the Virginia Military Insti-
who are similarly situated. It runs afoul of tute (VMI) had been a male-only institute of
Title VII of the Civil Rights Act and similar pro- higher learning. VMI differed from convention-
visions. al colleges in educating its students through the
“adversative” method, which incorporated milit-
Powell, J., joined by Burger, C.J., and
ary-style physical regimen into the students’
Blackmun, J., concurring. The result is cor-
lives. A female high-school student complained
rect, but the Court need not have expanded the
that the exclusion of women from VMI violated
law so drastically as to identify sex as a suspect
the Equal Protection Clause of the Fourteenth
classification. Given that Congress is already
Amendment.
acting on the issue, it would be improper for the
Court to overstep its bounds and preempt a le-
Issue
gislative decision.
Does the restriction of VMI attendance to men
violate the Fourteenth Amendment?
Craig v. Boren
429 U.S. 190 (1976) Holding
The restriction violates the Fourteenth Amend-
Squib. The Supreme Court struck down an
ment.
Oklahoma statute that allowed women, but not
men, between the ages of 18 and 21 years to
Reasoning
purchase “near beer.” The Court established
that distinctions based on sex required interme- Justice Ginsburg delivered the opinion of
diate scrutiny. Under intermediate scrutiny, the Court. A state must justify the use of sex-
the regulation in question was presumptively based criteria by giving “exceedingly persuas-
unconstitutional unless the state could show ive” reasons for the use of such criteria in
that it “substantially related” to “important achieving important governmental objectives.
governmental objectives.” This language par- Virginia argues (1) that VMI contributes to the
alleled the definition of strict scrutiny, which diversity of educational options within the
required the challenged regulation to be “neces- state, (2) that admitting women would be detri-
sary” to promote a “compelling state interest.’’ mental to the adversative model of education,
and (3) that the state has proposed a reasonable
alternative to admitting women. All three ar-
guments lack merit.
Virginia’s argument for diversity amounts to
little more than a post hoc rationalization of the
male-only admissions policy at VMI. The state
has produced no evidence to suggest that VMI
was originally founded with the intention of in-
creasing the diversity of educational options.

35
To the contrary, higher education was already The Court’s duty extends only to making sure
restricted to men at the time of its founding. that existing constitutional standards are not
Indeed, the diversity argument itself rests on a violated; it does not extend to creating new con-
flawed premise, as any such diversity would be- stitutional limits. The Court has created such a
nefit only the men, and not the women, in Vir- limit by making sure that single-sex education
ginia. is functionally dead. In doing so, it disregards
factual findings showing that single-sex educa-
Virginia next tries to justify the men-only policy
tion tends to improve the performance of stu-
by arguing that most women would not find the
dents. It also makes the sweeping conclusion
adversative model suitable to their education
that the admission of women would not inter-
needs. In making this argument, however, the
fere with VMI’s educational methods despite
state has resorted to precisely the sort of sweep-
evidence to the contrary. Finally, the Court has
ing generalization that the Court has found un-
eviscerated any meaningful distinction between
constitutional. Although it is probably true
intermediate scrutiny and strict scrutiny.
that most women would not choose to attend
VMI, the real question here is whether it is con-
stitutional to deny admission to those women Disability
who do have a desire to attend the school. The
record shows that some women are capable of
meeting the demands of a VMI education. Not- City of Cleburne v.
withstanding the practical challenges of admit- Cleburne Living Center,
ting women, the basic mission of VMI is not in- Inc.
herently incompatible with women.
473 U.S. 432 (1985)
Finally, Virginia argues that the proposed Vir-
ginia Women’s Leadership Institute (VWIL)
would be a suitable alternative to VMI. The re- Overview
cord shows, however, that VWIL offers none of A dispute arose as to whether mental retarda-
the features that are central to a VMI educa- tion is a suspect classification.
tion. Indeed, this alternative is reminiscent of
the hastily proposed all-black law school in Facts
Sweatt v. Painter.
Cleburne Living Center (CLC) intended to es-
Chief Justice Rehnquist, concurring in tablish a home for the mentally retarded in the
judgment. Although the Court reaches the City of Cleburne. While the home complied
correct conclusion, it has confused its analysis with the zoning restrictions that normally ap-
with references to “exceedingly persuasive justi- plied to a structure of its type, the City non-
fications.” This term was originally used to il- etheless determined that CLC would need to ob-
lustrate the challenges of applying intermediate tain a special permit. When CLC applied for
scrutiny, not to act as a standard in itself. The the permit, the City denied it.
Court should have considered only those actions
that VMI took after cases made it clear that sex Issue
discrimination had become unconstitutional.
(1) What should be the standard of review for
Furthermore, VMI should not be required to
classifications based on mental retardation? (2)
remedy the situation by admitting women;
Does the City’s requirement of a permit violate
rather, it suffices for Virginia to establish a sep-
the Equal Protection Clause of the Fourteenth
arate, women-only school.
Amendment?
Justice Scalia, dissenting. Since the main-
tenance of single-sex colleges dates back to the Holding
beginning of the nation and the Constitution (1) The standard of review should be the ration-
says nothing about their legality, the Court al-basis test. (2) The City’s requirement of a
should not have forced VMI to admit women.

36
permit violates the Equal Protection Clause of legislative action has been taken to protect that
the Fourteenth Amendment. class. This reasoning suggests that the Court’s
power of review would be strictly confined. Fi-
Reasoning nally, the Court should have struck down the
White, J. delivered the opinion of the permit requirement outright rather than limit-
ing its application only in the current case.
Court. The Court should apply rational-basis
review to distinctions founded on mental re-
tardation. The record shows that the degree of
mental retardation varies widely from patient
Affirmative Action
to patient. Given the great variation, the Court
would not be competent to dictate how this pur-
ported class should be treated; that task should Regents of the University
be left to the legislature. The record also shows of California v. Bakke
that the legislature has taken pains to protect 438 U.S. 265 (1978)
the mentally retarded through statutes. This
solicitude shows that the mentally retarded are Squib. The Supreme Court struck down an af-
not a class that is politically powerless. firmative-action program implemented by the
The City, however, nonetheless fails to pass University of California at Davis Medical
muster under rational-basis review. It has School. The program set aside 16 out of the 100
stated no convincing reason that demanding a seats in each incoming class for certain minor-
special permit in the current case would further ity students. Minorities could qualify for these
any state interest. The City argues that the seats even if they had GPAs that would ordin-
residents of the home might be harassed by arily have disqualified them from admission.
nearby children or pose a threat to nearby res- Bakke, a rejected white applicant, sued after
idents, but these arguments seem to rest on discovering that several minority applicants
vague fears rather than clear evidence. The had been admitted despite having significantly
City’s purported concerns about the safety of lower grades than he did.
the home also fail to clarify how special restric- Justice Powell stated that equal protection
tions should apply here but not to other homes “cannot mean one thing when applied to one in-
of similar structure. In all, the City’s decision dividual and something else when applied to a
appears to have arisen from antipathy toward person of another color.” Powell rejected in par-
mentally retarded individuals. ticular the idea that individuals could be
Marshall, J., joined by Brennan and Black- grouped into classes, which would then be used
mun, JJ., concurring in the judgment in as the basis for affirmative action. Powell ar-
part and dissenting in part. The Court has gued that such classifications would inevitably
actually applied heightened scrutiny under the lead to intractable line-drawing problems as to
banner of rational-basis review. In failing to what constituted a discriminated-against class.
differentiate this heightened standard from the Powell also observed that UC Davis had no au-
“traditional” rational-basis review used in cases thority to remedy “societal discrimination,” as
such as Williamson v. Lee Optical Co., the such a heavy-handed approach would tend to
Court has muddled the doctrinal foundations of compensate victimized groups at the expense of
the different levels of review. The Court has innocent individuals within the majority. Fi-
also glossed over the fact that mentally re- nally, Powell took issue with the quota imposed
tarded persons have been subject to abuses by the program; while it was acceptable to treat
comparable to the worst excesses of the Jim race as a “plus” in admissions, it was going too
Crow laws. The Court also claims that far to exclude whites categorically from compet-
heightened scrutiny is inappropriate in cases ing for a certain fraction of the seats.
where (1) individual differences between mem- Justice Brennan dissented, arguing that the
bers of a discriminated-against class or (2) some history of discrimination justified the use of

37
race-conscious admissions criteria. He found teachers first so as to preserve the racial di-
race-neutral alternatives to be inadequate given versity of the faculty. Justice Powell, writing
the numerical superiority of whites at every so- for the plurality, stated that preserving the di-
cioeconomic level. An affirmative action favor- versity of the faculty was a “compelling state in-
ing poor applicants, for instance, would simply terest.” The layoff policy, however, was not a
favor poor white applicants as opposed to poor legitimate means to achieve that end because it
black ones. imposed excessive burdens on innocent parties.
Justice White concurred on the ground that the
Justice Marshall dissented, stating that it was
policy was invalid because it tied layoffs to the
ironic for the Court to strike down a class-based
percentage of minority students in the district.
remedy for class-based discrimination.
Justice Marshall dissented, arguing that such
Justice Blackmun dissented, stating that the protection of minority teachers was necessary;
Court was creating undue difficulties for the af- otherwise, the usual last-in-first-out layoff
firmative-action program when it allowed policy would almost certainly lay off such teach-
schools to give preference on the basis of athlet- ers first. Justice Stevens dissented, arguing
ic ability, “legacy” status, and other criteria. that prior discrimination against minority
teachers was not necessary to justify the pro-
gram.
Fullilove v. Klutznick
448 U.S. 448 (1980)
City of Richmond v. J.A.
Squib. The Supreme Court upheld the “minor- Croson Co.
ity business enterprise” (MBE) provision of the 488 U.S. 469 (1989)
Public Works Employment Act of 1977. The
MBE required that a certain portion of govern-
ment contracts were to be granted to minor- Overview
ity-owned businesses. Chief Justice Burger A dispute arose as to the constitutionality of an
wrote that Congress had power to pass the pro- affirmative-action program for awarding gov-
vision under the Fourteenth Amendment be- ernment contracts.
cause past discrimination had placed minor-
ity-owned businesses at a disadvantage in com- Facts
peting for government contracts. Justice Powell
The City of Richmond had adopted a plan re-
concurred on the ground that Congress need not
quiring awardees of government contracts to
engage in fresh fact-finding for every piece of le-
subcontract at least 30% of the work to minority
gislation if its experiences supported the view
business enterprises (MBEs). An MBE was
that such legislation was necessary. Justice
defined to be any business at least 51% of which
Marshall concurred on other grounds. Justice
was owned by minority individuals. The stated
Rehnquist dissented on the ground that the
purpose of the plan was to remedy the effects of
government may not afford a person different
past discrimination, which had depressed
treatment solely on account of race. Justice
minority participation in such businesses to ef-
Stevens dissented, arguing that the policy
fectively negligible levels despite that blacks ac-
presented intractable questions of racial classi-
counted for more than 50% of the population.
fication.
The plan allowed waivers where a contractor
showed that no qualified MBEs existed to take
Wygant v. Jackson Board of the requisite subcontracts. After J.A. Croson
Education Company was denied such a waiver, it chal-
476 U.S. 267 (1986) lenged the constitutionality of the plan.

Squib. The Supreme Court struck down a


school board’s policy of laying off non-minority

38
Issue in legislative fact-finding on the issue of dis-
crimination. Such fact-finding should be re-
Is the Richmond plan a proper exercise of legis-
served to the courts. Finally, affirmative-action
lative power under the Fourteenth
programs should be based on a detailed analys-
Amendment?
is of the characteristics of the discrimin-
ated-against class. Here, Richmond has failed
Holding
to engage in such analysis, opting instead to im-
The Richmond plan is not a proper exercise of plement a heavy-handed policy categorically fa-
power under the Fourteenth Amendment. voring certain classes. As a result, some MBEs
which have never been victimized by discrimin-
Reasoning ation may receive windfalls. At the same time,
Justice O’Connor announced the judgment non-MBEs which never engaged in discrimina-
of the court . . . . The states may not exercise tion may be unfairly burdened by the plan.
the same level of discretion as the federal gov- Kennedy, J., concurring in part and con-
ernment in formulating affirmative-action curring in the judgment. The Court’s de-
plans. The Fourteenth Amendment expressly cision reaches the somewhat puzzling conclu-
reserves to Congress the power to legislate in sion that a federal affirmative-action program
accordance with the goals of the Amendment. might become unconstitutional if implemented
Indeed, the Amendment was ratified with the by a state. The states should have not only the
very purpose that it should act as a check power, but also the duty, to actively remedy the
against abuses by state governments. Allowing effects of discrimination, especially if those ef-
the states the discretion that Richmond has ex- fects resulted from the state’s own doing. Still,
ercised would undermine the balance of state it is not entirely clear that the Court should
and federal powers. strike down any plan that uses racial classifica-
Richmond has failed to produce sufficient evid- tion. Rather, the strict scrutiny suggested by
ence that its plan addresses well-defined in- Justice O’Connor is a good standard of review.
stances of discrimination. Rather, it relies Scalia, J., concurring in the judgment. The
solely on federal findings of discrimination and Court correctly concludes that the states may
tends to make generalizations about discrimin- not attempt to remedy discrimination with
ated-against classes. This sort of reasoning race-based classifications. Such classifications
runs afoul of the principle that equal protection tend to perpetuate the basis of discrimination,
cannot mean one thing when applied to one per- and the Fourteenth Amendment was ratified
son and something else when applied to anoth- with the purpose of combating prejudices at the
er. Richmond argues that the low presence of state level. Here, Richmond has assumed the
minorities in businesses necessarily means that existence of “societal” discrimination rather
discrimination is taking place. This conclusion, than attempting to identify individual discrim-
however, rests on the faulty assumption that ination. The practice of lumping people into
minority persons would indeed choose to go into groups and then according preferences to one or
business at the same rate as non-minority per- the other will inevitably prove detrimental to
sons. Richmond has failed to establish that the racial relations.
apparent dearth of minorities resulted from
Marshall, J., with whom Justice Brennan
some discriminatory purpose. Absent a
and Justice Blackmun join, dissenting.
stronger factual basis, Richmond has simply ap-
The Court blatantly disregards the factual find-
plied an arbitrary racial classification.
ings of Richmond and launches a broad attack
Stevens, J., concurring in part and concur- against all race-conscious remedies for discrim-
ring in the judgment. Richmond has failed to ination. It is ironic that the Court would strike
make a convincing case that granting prefer- down the former Confederate capital’s own ef-
ence to MBEs would further a public interest. forts to combat discrimination. It is too late to
Richmond also exceeded its bounds in engaging deny that Richmond has had a history of racial

39
discrimination. While statistical evidence alone Adarand Constructors v.
may not always establish underlying discrimin- Peña
ation, the gross disparity between the fraction
515 U.S. 200 (1995)
of blacks in the Richmond population and the
tiny number of MBEs among Richmond busi-
nesses strongly suggests that discrimination is Squib. Congress had enacted the Small Busi-
at work. The Court should not reject the factu- ness Act, which provided certain advantages to
al determinations of local authorities, who best minority-owned businesses in the awarding of
understand local issues. government contracts. After submitting the low
bid but losing the contract to another bidder be-
The Richmond plan cannot be said to be too cause of the Act, Adarand Constructors chal-
broad. It has a sunset provision, and it lenged the constitutionality of the Act.
provides for waivers in cases where no MBEs
can be found to take subcontracts. The Court O’Connor, J. The Court’s rulings through Cro-
makes a misplaced demand for racially neutral son established (1) that any race-based criterion
alternatives. Richmond had already experi- is subject to strict scrutiny, (2) that the Equal
mented with such alternatives and found them Protection Clause must mean the same thing
inadequate. The 30% set-aside cannot be con- when applied to every individual regardless of
sidered too drastic; indeed, it was modeled on race, and (3) that equal protection is the same
the federal quota upheld in Fullilove. under the Fifth Amendment as under the Four-
teenth Amendment. To the extent that Metro
The Court also should not have insisted on ap- Broadcasting held that certain “benign” racial
plying strict scrutiny to race-based remedies. classifications could be exempted from strict
There is a world of difference between using scrutiny, it is overruled. It cannot be said that
race to create invidious discrimination and us- strict scrutiny is “strict in theory but fatal in
ing race to remedy that discrimination. The fact.” Indeed, the very point of strict scrutiny is
Court’s ruling makes the erroneous suggestion to distinguish acceptable race-based criteria
that the Fourteenth Amendment somehow re- from unacceptable ones.
quires federal anti-discrimination measures to
preempt similar measures taken by the states. Scalia, J., concurring in part and concur-
There is nothing to suggest that the states ring in the judgment. The government is
should be prohibited from fighting discrimina- never justified in attempting to remedy discrim-
tion alongside the federal government. ination by applying even more race-conscious
criteria.
Thomas, J., concurring in part and concur-
Metro Broadcasting v. FCC
ring in the judgment. Strict scrutiny should
497 U.S. 547 (1990) apply to all race-conscious criteria regardless of
whether such criteria might be characterized as
Squib. The Supreme Court upheld an FCC “benign.” Race-based classifications are inher-
policy giving preferences to minorities in the ently discriminatory.
granting of broadcasting licenses. Justice Bren-
nan found that “benign” race-conscious meas- Stevens, J., with whom Ginsburg, J., joins,
ures were to be upheld as long as they dissenting. The Court refuses to recognize the
furthered some important governmental object- difference between using race-based criteria to
ive. Justice O’Connor dissented, arguing that discriminate against minorities and the use of
federal racial policies should not be subject to a such criteria to affirmatively remedy the effects
lower standard of scrutiny than similar state of discrimination. By subjecting all race-based
policies. Justice Kennedy, dissenting, argued affirmative-action programs to strict scrutiny,
that race-conscious measures would tend to the Court has made it easier for Congress to
stigmatize minorities. remedy discrimination against women than to
remedy discrimination against racial minorit-
ies.

40
Grutter v. Bollinger Law School and amici have produced abundant
evidence to show that exposure to a racially di-
539 U.S. 306 (2003)
verse environment is crucial to a student’s suc-
cess. This factor is especially important here
Overview since law schools are responsible for training a
significant portion of the country’s leaders.
A dispute arose as to the constitutionality of an
affirmative-action that considered race as one of The Law School has taken care not to use race
many factors in admission. in the heavy-handed way disapproved in Bakke.
It does not attempt to set aside a certain num-
Facts ber of seats for minority students, nor does it
otherwise attempt to insulate minority applic-
The University of Michigan Law School had im-
ants from competition with the rest of the ap-
plemented affirmative action in its admissions
plicant pool. Rather, the Law School uses race
policy. The purpose of the affirmative-action
as one of many “plus” factors in a holistic evalu-
was to guarantee a “critical mass” of minority
ation of students. That the Law School awards
students so as to foster effective classroom dis-
“plus” factors on the basis of criteria other than
cussion. To this end, admissions officers con-
race shows that the schools is not focusing un-
sidered race as one factor in admission. Al-
duly on racial classifications. Although the Law
though the admission office monitored the num-
School has shown some concern about the num-
ber of admitted minority students, admissions
ber of minority applicants ultimately admitted,
officers also testified that “critical mass” did not
there is no evidence to show that the monitor-
translate to a particular number of minority
ing of minority admissions in any way affects
students. Barbara Grutter, who was rejected
the weight of race as a “plus” factor. Finally,
from the school, challenged the policy on the
the Court should not require the Law School to
ground that it violated equal protection under
exhaust race-neutral alternatives before imple-
the Fourteenth Amendment.
menting the current plan. Implementing such
Issue an alternative, such as a lottery system, may
force the school to make an unacceptable reduc-
Does the Law School’s admissions policy violate tion in the quality of its student body.
equal protection under the Fourteenth Amend-
ment? Justice Ginsburg, with whom Justice
Breyer joins, concurring. The Court makes
Holding an overly optimistic estimate in saying that af-
firmative action will become unnecessary in
The policy does not violate equal protection un- twenty-five years.
der the Fourteenth Amendment.
Chief Justice Rehnquist, with whom
Reasoning Justice Scalia, Justice Kennedy, and
Justice Thomas join, dissenting. The Law
Justice O’Connor delivered the opinion of School seems to be carrying out racial balancing
the Court. The maintenance of a diverse stu- in disguise. In particular, it has offered no
dent body is a compelling state interest, and the evidence to reconcile its claim of achieving “crit-
Law School’s admissions policy furthers that in- ical mass” with admissions data. The signific-
terest in a way that passes muster under strict ant differences between the numbers of stu-
scrutiny. Universities, as forums for free dents admitted from each minority suggests
speech and thought, have consistently been ac- that the “critical mass” is different for each
corded special consideration in constitutional race. This result is puzzling since one would
law. The Law School is entitled to determine expect precisely the opposite. A far more sens-
that a diverse student body would further its ible explanation is that the Law School is con-
goals; its judgment deserves a presumption of sciously manipulating the proportion of minor-
good faith absent evidence to the contrary. The ities in each admitted class. Indeed, the data

41
show that the number of admitted students qualified lawyers, its elite status belies this
from each race tracks the proportion of applic- claim since most of its graduates tend to move
ants from those races. out of state anyway. Comparing this case to the
VMI Case, it is difficult to understand how the
Justice Kennedy, dissenting. The Court has
Court can rationalize its refusal to force the
confused the legitimate goal of racial diversity
Law School to explore race-neutral admissions
with illegitimate methods of attaining that goal.
policies. In the VMI Case, the remedy was
In doing so, it has accepted wholesale the Law
more drastic and the standard of review was
School’s inadequate evidence as to the constitu-
lower, yet the Court had no problem with for-
tionality of its affirmative-action policy. The re-
cing VMI to admit women. The Court today ex-
cord shows that racial considerations carry the
presses its support for a program that tends to
most weight toward the bottom of the applicant
brand minorities with a stamp of inferiority by
pool. The Law School’s monitoring of minority
insinuating that minority individuals cannot
admissions only reinforces the impression that
succeed without special preferences.
race increasingly conflicts with individualized
review as seats become filled. The Law School
has not provided enough evidence to show that Gratz v. Bollinger
it is guarding against the possibility that race 539 U.S. 244 (2003)
will be used improperly. Indeed, some faculty
members have shown cynical views about which Squib. The undergraduate program at the
individuals should qualify as minorities. University of Michigan used a 150-point scale
Justice Scalia, with whom Justice Thomas in evaluating applicants. Applicants receiving
joins, concurring in part and dissenting in 100 points or more were guaranteed admission,
part. The Law School’s avowed interest in with the prospects for admission decreasing as
achieving “racial understanding” and related the score dropped below that threshold. The
goals should not receive constitutional recogni- admissions office awarded 20 points on the bo-
tion. If such goals are recognized, then nothing nus of race; other considerations, such as the
would lie outside the scope of affirmative action. admissions essay or personal achievements,
The Court’s decision suggests that Michigan’s might result in 3--5 points. Certain applica-
civil-service system might also benefit from ac- tions could also be flagged for review by the Ad-
cording certain preferences to minority applic- missions Review Committee (ARC), which could
ants. In any case, the Court’s decision tends to use its discretion to accept students near the
prolong, not settle, the constitutional questions borderline of admissibility. The Supreme Court
surrounding affirmative action. held that racial diversity was a legitimate goal
but that the University had sought to achieve
Justice Thomas, with whom Justice Scalia
that goal through improper means.
joins . . . , concurring in part and dissent-
ing in part. The Court has placed the Law Rehnquist, C.J. The point system provides a
School’s desire to maintain its elite status above categorical advantage to applicants of certain
the constitutional questions as to its affirmat- races. This approach contravenes the principle
ive-action program. It is hard to discern how that college should use individualized review
the Law School’s interest in the “educational when evaluating applicants. That a particular
benefits that flow from student body diversity” applicant might receive addition review from
is not simply a polite way of stating a desire for the ARC is little comfort; the University has
racial balancing. Indeed, the Court has ignored provided no indication of how many applica-
entirely the issue that maintaining a public law tions actually receive such review, and in any
school of any sort, much less an elite one, case the review takes place only after the racial
hardly qualifies as a compelling state interest. advantage has taken effect.
There are states that have no law school at all. O’Connor, J., concurring. The sheer number
While one might argue that the Law School of points assigned to race suggests an attempt
might relate to the state’s interest in training at outright racial balancing. The existence of

42
the ARC seems to be more of an afterthought Facts
than a genuine attempt to carry out individual-
Seattle School District No. 1 had never been se-
ized review.
gregated by law, but it nonetheless took efforts
Thomas, J., concurring. The University’s ad- to combat what it considered de facto segrega-
missions policy does not give adequate consider- tion. The Seattle district used race as a
ation to non-racial factors. tiebreaker in assigning children to a school
Souter, J., dissenting. The Court effectively whenever the balance between white and non-
punishes the University for transparency in its white students at that school deviated from the
admissions policy. The policy in question dif- district-wide ratio by more than 10%. Jefferson
fers significantly from the quota struck down in County Public Schools in Louisville was
Bakke. The University has not unconditionally formerly deemed to be segregated, but a court
reserved a specific number of seats to minority had declared that it had achieved “unitary”
applicants. Rather, it considers race as only status. The Louisville district restricted the
one of many factors in the admissions decision. transfer of students to a school once the propor-
It is difficult to understand how using a point tion of black students at that school fell below
system to valuate each factor makes the system 15% or rose above 50%.
suspect; it seems to do explicitly what the Uni-
versity’s law school does implicitly through Issue
“holistic” review. While the 20-point bonus for Do the race-conscious plans of the school dis-
race might come across as excessive, bare suspi- tricts pass muster under strict scrutiny?
cion of the point value cannot render the system
unconstitutional. Indeed, closer examination Holding
reveals that a non-minority applicant can easily
The plans do not pass muster under strict scru-
gain more than 20 points through a combina-
tiny.
tion of non-racial factors. The ARC also
provides a bulwark against the heavy-handed Reasoning
use of racial classifications.
Chief Justice Roberts announced the judg-
Ginsburg, J., dissenting, joined by Souter, ment of the Court . . . . The Court has recog-
J. The long history of racial discrimination is nized only two interests that warrant the use of
powerful evidence for the necessity of the Uni- race-conscious criteria: (1) remedying the ef-
versity’s affirmative-action policy. In holding fects of past discrimination and (2) maintaining
that racial classifications cannot be used even a diverse student body for the purpose of en-
for the purpose of overcoming the lingering ef- hancing education. Neither district can justify
fects of racial discrimination, the Court turns a its plan under the first interest; since the
blind eye to reality. Today’s decision will likely Seattle district was never found to be segreg-
cause colleges to resort to subtler means of im- ated and the Louisville district has achieved
plementing affirmative action. “unitary” status, there is no legally recognized
effect of discrimination to be addressed. Both
Parents Involved in districts also fall short under the second in-
Community Schools v. terest because their plans skew heavily toward
Seattle School District racial balancing for its own sake.
No. 1 The Seattle district determines the “appropri-
551 U.S. 701 (2007) ate” balance of black and white students using
no principled basis; rather, it relies only on the
current demographics of its area. The Louis-
Overview ville district, by contrast, sets a fixed range for
A dispute arose as to the constitutionality of as- the proportion of black students at each school.
signing children to schools on the basis of race. Neither district has produced evidence to show

43
any connection between its desired racial com- cial labels on students and tend to aggravate,
position and educational benefits. The districts rather than resolve, racial issues.
appear to be “working backward” to justify ra-
Justice Stevens, dissenting. The Court has
cial balancing on the basis of imagined benefits.
misinterpreted Brown. In comparing the race-
Although the districts argue vigorously that based policies of the school districts here with
their racial policies are necessary to achieving the segregation in Brown, the Court ignores
diversity, the very fact that few students are af- that segregation burdened only blacks.
fected by the plans suggest that they are inef-
Justice Breyer, with whom Justice
fective and unnecessary. Far from aiding racial
Stevens, Justice Souter, and Justice Gins-
integration, the plans are likely to perpetuate
burg join, dissenting. In striking down the
racial distinctions and to stoke racial animosity.
school districts’ plans for promoting integration,
Justice Kennedy, concurring in part and the Court ignores both legal precedent and so-
concurring in the judgment. Diversity of cial realities. Since the Brown decision, the
the student body may be a compelling interest Court has on numerous occasions ordered
under the appropriate circumstances. Here, schools to implement desegregation plans in-
however, the school districts have failed to ex- volving race-conscious criteria, such as busing
plain how their policies are narrowly tailored to and race-based restrictions. The Court has also
serve that interest. The Louisville district de- allowed school districts to exercise significant
scribes its program in only vague and general discretion in their means of promoting integra-
terms; it fails to explain how race-conscious tion. So far, the Court has set forth only min-
rules will be applied or whether any oversight imum requirements for efforts at integration; it
exists to prevent abuse of the system. The has not placed limits on what schools are con-
Seattle district provides somewhat more in- stitutionally allowed to do.
formation, but it still fails to justify its decision
The Court overplays the distinction between de
to place students into “white” and “non-white”
jure and de facto segregation in its holding. Its
categories. This two-class system disregards
decision suggests that a plan which was consti-
the fact that not all non-white persons belong to
tutional the day before a school district achieves
the same race. The districts should consider
“unitary” status would instantly become uncon-
race-conscious approaches that would not ne-
stitutional the day after it achieves that status.
cessarily involve overt classifications based on
The Fourteenth Amendment cannot possibly
race. Each district, for example, might achieve
have such an inconsistent meaning. As a mat-
integration to a significant extent through the
ter of fact, the Court also inflates the claim that
strategic drawing of district boundaries or the
neither the Seattle district nor the Louisville
strategic selection of school sites.
district were ever segregated. While it is true
The dissent appears to ignore the distinction that no court currently recognizes either as se-
between de jure and de facto segregation. The gregated, this does not mean that their integ-
central purpose of the distinction is to separate rated status has gone unchallenged. To the
those cases in which racial classifications are contrary, Louisville implemented its plan pur-
deemed a necessary evil from those in which it suant to a court order, and Seattle undertook
is not. A finding of de jure segregation amounts its efforts following lawsuits alleging that the
to a declaration that patterns of discrimination school board had enacted discriminatory
have become so entrenched that the govern- policies.
ment should be given significant leeway in com-
The Court incorrectly applies strict scrutiny be-
bating their effects. De facto segregation, by
cause it fails to distinguish between the use of
contrast, is merely “societal discrimination’’; the
race to end segregation and the use of race to
Court has held that such discrimination does
promote it. The Seattle and Louisville districts
not warrant racial classifications. The dissent’s
have a compelling interest in promoting racial
approach would promote the imposition of ra-
diversity. Research has shown that the integra-
tion of schools tends to close the performance

44
gap between black students and their white Skinner v. Oklahoma
counterparts. The plans in question may be
316 U.S. 535 (1942)
characterized as “narrowly tailored” to their
purposes; the evidence shows that other plans
Squib. The Supreme Court invalidated an Ok-
are substantially less likely to achieve the goal
lahoma statute requiring the sterilization of re-
of integration. Indeed, the current plans em-
peat offenders who committed certain crimes.
phasize race to a much lesser extent than previ-
The Court took issue with the arbitrary classi-
ous plans. The Court is taking a position that
fication of crimes that could result in mandat-
would implicitly invalidate many of the efforts
ory sterilization. The Court noted that the
at desegregation that have taken place during
power of sterilization had far-reaching con-
the past decades.
sequences and that it could easily become an in-
strument of abuse in the wrong hands.

SUBSTANTIVE DUE PROCESS


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

Overview
Reproductive Freedom A dispute arose as to the constitutionality of the
use of contraceptives by married couples.

Meyer v. Nebraska Facts


262 U.S. 390 (1923) Connecticut had enacted a criminal statute pro-
hibiting the use of contraceptives. Griswold,
Squib. The Supreme Court struck down a Neb- who operated a clinic supplying contraceptives
raska statute prohibiting the teaching of foreign to married couples, challenged the statute on
languages to children who had not yet reached the ground that it violated the Fourteenth
the eighth grade. The statute had been passed Amendment.
during a time of anti-German sentiment follow-
ing World War I. The Court found that the Issue
statute infringed the liberty guaranteed by the Does the statute violate the Fourteenth Amend-
Fourteenth Amendment. The statute limited a ment?
teacher’s right to instruct children without
providing a reasonable relation to a state in- Holding
terest.
The statute violates the Fourteenth Amend-
ment.
Pierce v. Society of Sisters
268 U.S. 510 (1925) Reasoning
Douglas, J. The Court has upheld many rights
Squib. The Supreme Court struck down an
that are not enumerated in the Constitution.
Oregon statute forbidding children from attend-
Such rights have included the right to be edu-
ing parochial and private schools. The Court
cate one’s children as he chooses and the right
found that the fundamental theory of liberty in-
to free association. These rights have special
cluded the right of parents to educate their chil-
importance because they are intimately related
dren as they saw fit. The state had no business
to those rights that are enumerated. In the cur-
in interfering with children’s development by
rent case, Connecticut seeks to control the dis-
mandating a certain form of education.
tribution of contraceptives not by regulating
their sale but by interfering directly with the

45
marital relationship. Such a heavy-handed in- into it. In doing so, the Court has significantly
trusion of privacy is not a legitimate way of pro- altered the meaning of the Constitution. The
moting the state interest at stake. Court’s appeals to consensus provide scant jus-
tification for its decision since the judiciary is
Goldberg, J., joined by Warren, C.J., and
ill-equipped to measure public opinion.
Brennan, J., concurring. The Ninth Amend-
ment justifies the Court’s ruling. That Amend- Stewart, J., joined by Black, J., dissenting.
ment was drafted specifically in response to The statute may be unwise or even asinine, but
fears that the other amendments might be the Court’s duty is not to evaluate its desirabil-
though to provide an exhaustive list of all rights ity. The Court’s only duty is to determine
falling under constitutional protection. The whether it comports with the Constitution.
right to marriage is a fundamental right deeply Since the Constitution sets forth no general
rooted in the traditions of this country. A state right to privacy, the statute should be upheld.
may not encroach upon such a right without
showing some compelling interest that would be
advanced as a result. Connecticut argues that
Eisenstadt v. Baird
the statute may help to prevent extramarital 405 U.S. 438 (1972)
relations, but a ban on contraceptives is plainly
too broad a remedy. The state has already ad- Squib. The Supreme Court struck down a
dressed the problem through statutes prohibit- Massachusetts statute prohibiting the distribu-
ing fornication. tion of contraceptives to unmarried persons.
The Court found that the distinction between
Harlan, J., dissenting [in Poe v. Ullman]. married and unmarried persons amounted to a
The Fourteenth Amendment embraces not only violation of equal protection under the Four-
the enumerated rights but also a set of unenu- teenth Amendment. Justice Brennan, writing
merated, fundamental rights. These funda- for the majority, stated that “[i]f the right of
mental rights derive from the balance that the privacy means anything, it is the right of the in-
country has struck between the need to protect dividual . . . to be free from unwarranted gov-
individual liberties and the need to maintain an ernmental intrusion . . . .” Chief Justice Burger
organized society. The right to marriage is such dissented, distinguishing the case from Gris-
an unenumerated right, and the state here pro- wold on the ground that it banned, not regu-
poses to regulate that relationship using all the lated, the distribution of contraceptives.
apparatuses of the government. Although the
state may regulate who may enter into mar-
riage, it may not dictate the details of that rela- Roe v. Wade
tionship once it is recognized. The Connecticut 410 U.S. 113 (1973)
statute fails to survive strict scrutiny.
White, J., concurring. Marriage is an unenu- Overview
merated right protected by the Fourteenth
Amendment, and a state may not infringe that Roe challenged the constitutionality of a Texas
right without providing a compelling state in- criminal statute prohibiting abortions except in
terest. Here, Connecticut has stated no such in- the circumstances where an abortion was neces-
terest; rather, it justifies the law only on the sary to preserve the life of the mother.
basis that it would prevent promiscuous rela-
tionships. While the state may have an interest
Facts
in discouraging such relationships, prohibiting Texas, like many other states, enacted a statute
the use of contraceptives is an ineffective and making abortion a crime except in situations
overly broad way to serve that purpose. where failure to perform an abortion could en-
danger the mother’s life. The Texas statute re-
Black, J., joined by Stewart, J., dissenting.
flected the anti-abortion sentiment that had
The Constitution provides no “right to privacy,”
been building since the inception of American
and the Court should not read such a provision

46
law. Regulation of abortion was historically conclusions. Roe correctly contends that sub-
lax. In Ancient Greece and Ancient Rome, anti- stantive due process extends protection to the
abortion laws existed but were rarely enforced. decision whether to have an abortion. To the
The English common law somewhat tightened extent that Roe is correct, Texas is incorrect.
the restrictions by distinguishing abortion per- The emotional impact of having an unwanted
formed before “quickening” of the fetus from child as well as the social consequences of
that performed afterward. In general, only the single motherhood can take a toll on a mother.
latter was considered a crime. In the nine- Women should therefore have significant dis-
teenth century, American states began to pun- cretion in choosing whether to abort a fetus. At
ish pre-quickening abortions, though with light- the same time, Roe incorrectly concludes that
er sentences than for post-quickening abortions. this right should constitute unlimited discretion
It was not until the twentieth century that cat- to the woman. Texas observes correctly that
egorical bans on abortion took hold. Recent de- states may have a “compelling” interest in regu-
velopments, however, have loosened the re- lating abortion. This interest begins below the
strictive views toward abortion. Roe sued on “compelling” threshold and grows throughout
the theory that abortion is right, like the right pregnancy. Data have shown that the risks of
to privacy, that is protected by substantive due abortion to the mother during the first tri-
process. mester of pregnancy are lower than those of
childbirth. During this period, the state has no
Issue argument that it has a compelling interest in
Does the Texas statute violate substantive due protecting the health of the mother. Following
the completion of the first semester, the risks of
process?
abortion rise to a sufficient extent such that the
Holding state now has a compelling interest in protect-
ing the health of the mother. When the fetus
The Texas statute violates substantive due pro- becomes viable, the potential life of the fetus
cess only to the extent that it reaches beyond also becomes a compelling interest that a state
“compelling” state interests in regulating abor- may choose to protect. The right to abortion
tion. The state interest in such regulation in- should therefore be adjusted in accordance with
creases with the development of the fetus. In the changing circumstances of the pregnancy.
the first trimester of pregnancy, states do not
have any compelling interest in regulating Douglas, J., concurring [in Doe v. Bolton].
abortion. After the first trimester of pregnancy, A woman should be free to choose whether to
states may regulate abortion to the extent re- have a child. An unwanted child may impose
quired to protect the mother’s health. After the enormous burdens on the mother, so forcing a
fetus becomes viable, states may regulate addi- woman to bear a child amounts to a violation of
tionally regulate abortion to the extent required the unenumerated rights protected by substant-
to protect the potential life of the fetus. ive due process. The Georgia statute gives too
much favor for states’ interests. In particular,
Reasoning it makes the unjustified conclusion that the
value of the embryo at the moment of concep-
Blackmun, J. The Court need not decide the tion is equal to the value of the fetus immedi-
point at which new life is formed following preg- ately before birth.
nancy. Given the vigorous disagreement within
the scientific and religious communities as to Stewart, J., concurring. The case law estab-
the answer to this issue, the judiciary is not lishes beyond doubt that substantive due pro-
competent to speculate on the outcome. All that cess protects unenumerated rights such as the
is necessary is that the Court recognize that a right to privacy and the right to personal
fetus has the potential for life and that this po- autonomy. Previous cases have held that rights
tential may become protectable. Both sides far less important than the decision whether to
state valid arguments but overreach in their bear a child may not be infringed by the govern-
ment. These lesser rights have included the

47
right to allow one’s child to attend private quirement of a concurring medical opinion un-
school and the right to have students learn a duly restricted the freedom of the patient. Fi-
foreign language. In light of these cases, it can- nally, the Court struck down the statute’s limit-
not be disputed that a woman’s right to abort a ation of the availability of abortions to residents
pregnancy is protected by the constitution. Al- of the state.
though states may regulate abortion to the ex-
tent necessary to protect the health of the
mother and fetus, the Texas statute has
Planned Parenthood of
reached far beyond these objectives. Southeastern Pennsylvania
v. Casey
Rehnquist, J., dissenting. The Court justi-
505 U.S. 833 (1992)
fies its decision on the puzzling ground that
abortion somehow implicates the right of pri-
vacy. It is unclear exactly what is “private” Overview
about an abortion. It is performed with the aid
A dispute arose as to whether key aspects of
of a doctor, so by its nature it is not private.
Roe v. Wade should be reaffirmed.
Even if such “privacy” is held to be freedom
from government interference in private trans-
Facts
actions, it is still not categorically immune from
regulation. Such laws have traditionally been Pennsylvania enacted a statute requiring wo-
upheld on the rational-basis standard. Under men to comply with certain requirements before
this standard, the “right” to abortion is not as undergoing abortions. Among these require-
“fundamental” as the Court would have one be- ments were that a woman be provided with cer-
lieve. That thirty-six states have enacted stat- tain information prior to the abortion, that she
utes restricting abortions in some way demon- wait for at least twenty-four hours after such
strates the division of opinion on the issue. The information is provided, that a minor should ob-
Court’s decision amounts to judicial legislation. tain the consent of at least one parent to the
abortion, and that a married woman report to
White, J., joined by Rehnquist, J., dissent-
her husband her intention to have an abortion.
ing [in Doe v. Bolton]. The abortions at issue
The statute provided for certain exceptions to
are those in which the mother, for reasons of
these requirements, such as medical emergency
convenience or whim rather than health,
and fear of domestic violence. A dispute arose
chooses to terminate a pregnancy. While the
to whether these requirements were constitu-
Court may be justified in its ruling from a
tional.
purely legal standpoint, it has exercised its
power in a ham-handed way. There is simply Issue
no reason for the Court to override states’ in-
terests in protecting the potential life of the Are the requirements imposed by the
fetus. Pennsylvania statute constitutional?

Holding
Doe v. Bolton
The requirements are constitutional to the ex-
410 U.S. 179 (1973)
tent that they do not impose an “undue burden”
on women seeking abortions.
Squib. The Supreme Court struck down a
Georgia statute restricting abortions. First, the
Reasoning
Court found that Georgia could not require
abortions to be performed in hospitals as op- Justice O’Connor, Justice Kennedy, and
posed to clinics or other smaller establishments. Justice Souter announced the judgment of
Second, the Court struck down requirements for the Court . . . . The Court should not overrule
special accreditation of hospitals performing precedent except when changed realities force it
abortions. Third, the Court found that the re- to do so. In particular, the Court should sup-

48
port any overruling with more than the mere decisions regarding abortion. Similar consent
feeling that a previous case was decided requirements exist for transplant surgeries,
wrongly. Excessive overruling tends not only to and there is no reason to think that such a re-
damage the reputation of the Court but to harm quirement would be inadvisable here. The only
individuals who have relied on its decisions in problem is that women who live far away from
framing their own lives. In the context of abor- abortion clinics may be inconvenienced by the
tion, it cannot be doubted that countless women need to make separate trips to their clinics.
have decided to engage or not to engage in sexu- This need, in turn, might make it difficult to
al activity on the assumption that abortion will maintain the privacy of the abortion. Still, it is
be available, even if it is anticipated as a last doubtful that such inconveniences amount to an
resort, to be used only when other methods of undue burden. The requirement that a minor
contraception have failed. obtain the consent of at least one parent is also
designed to help a minor benefit from her par-
Only two significant instances of overruling
ents’ advice. Such an end promotes a legitimate
comparable to the one now contemplated now
state interest.
have occurred in the entire history of American
law. The first was the overruling of Lochner v. The requirement that a married woman notify
New York and the related line of cases, in her husband, however, must be struck down for
which the Court had held that laissez-faire eco- imposing an undue burden. The trial court
nomics fell under the protection of substantive made copious factual findings supporting the
due process. The Court reversed its earlier rul- proposition that such reporting often exposes
ing in the face of universal recognition that lais- women to violence, intimidation, and other
sez-faire policy was woefully inadequate to en- forms of psychological pressure from husbands
sure decent living conditions for all people. The who do not want the abortion to occur. Such
second overruling occurred when Brown v. husbands might take out their anger on their
Board of Education superseded Plessy v. Fer- wives directly. Alternatively, they might try to
guson. Again, realities had become so changed coerce women through less direct means, such
that it was no longer to accept the earlier con- as by abusing their children, withholding
clusion that segregated facilities could be equal. money, or threatening to reveal the abortion to
By contrast, the current case presents no such family and friends. The constant threat of such
profound shift in the recognition of factual real- intimidation has the capacity to dissuade wo-
ity. Given the absence of such any compelling men from considering abortion entirely, as if
basis for overruling precedent, the Court should the state had outlawed abortion outright.
decline to overrule Roe v. Wade.
Justice Stevens, concurring in part and
At the same time, the holding of Roe should be dissenting in part. The required provision of
re-evaluated under the “undue burden” stand- information an the waiting period are unconsti-
ard. This standard holds that a state may not tutional to the extent that they skew a woman’s
place substantial obstacles in a woman’s path to decision-making. By allowing states to require
abortion but may enact regulations designed to women to consider alternatives to abortion, the
promote birth. Under this analysis, the tri- Court effectively interferes with the woman’s
mester framework of the original holding is choice at the moment she makes it. There is
flawed because it tends to establish overly also no evidence to suggest that the waiting
broad restrictions against regulation. There is period indeed enhances decision-making.
no reason that states should be barred from en- Rather, it seems to be an attempt to force a wo-
couraging women not to undergo abortion, even man to reconsider abortion after having made
during the first trimester, when the woman’s up her mind.
discretion is accorded effectively complete defer-
Justice Blackmun, concurring in part,
ence. The informed-consent requirement and
concurring in the judgment in part, and
the twenty-four-hour waiting period are also
dissenting in part. Restrictive abortion laws
constitutional because they advance the legit-
invade both women’s right to bodily integrity
imate state interest in promoting well-reasoned

49
and their right to equal treatment. By forcing due burden” standard, which gives effectively
women to carry pregnancies to term, the state unrestricted discretion judges in determining
effectively presses women into child-rearing whether some particular set of circumstances
without compensation. The justification of this amount to an unconstitutional restriction on
state of affairs as an “incident” of womanhood abortion. In all, the Court’s meddling in abor-
has already invoked scrutiny under the Equal tion has elevated the issue from the states to
Protection Clause. the national level and rendered compromise
much more difficult, if not impossible, to
Chief Justice Rehnquist, with whom
achieve. The Court should leave the issue to
Justice White, Justice Scalia, and Justice
Congress.
Thomas join, concurring in the judgment
in part and dissenting in part. The Court
makes a full-scale retreat from the holding of Stenberg v. Carhart
Roe v. Wade, but it attempts to disguise this re- 530 U.S. 914 (2000)
treat by citing general principles of stare decis-
is. In doing so, the Court fails to make a con- Squib. The Supreme Court struck down a Neb-
vincing argument against upholding every part raska statute banning “partial-birth abortions.”
of the Pennsylvania statute in question. The After a pregnancy reaches the second trimester,
Court has eliminated the trimester framework abortion of the fetus typically requires a proced-
of Roe. Given that this framework formed an ure known as dilation and evacuation (D&E).
essential part of that decision, it is unclear In D&E, the doctor removes at least some fetal
what part of the Roe holding remains to be up- tissue from the womb using surgical instru-
held. The Court justifies its ruling on the ments. This process often results in the dis-
ground that self-reversal is inadvisable, but it memberment of the fetus. Two variations of
puzzlingly supports this rationale with Lochner D&E exist. The first variation, known as “in-
and Plessy, two cases in which the Court did tact D&E,” is akin to a head-first delivery. The
the opposite of what it did today. These cases fetus presents head-first, and the doctor col-
would suggest that the Court should follow its lapses the head before mechanically extracting
own example and overrule Roe rather than try the otherwise intact fetus. The second vari-
to sustain it on questionable grounds. Finally, ation is known as “dilation and extraction”
it is not clear that the “reliance” argument rests (D&X), or “partial-birth abortion.” In a partial-
on any factual basis. In any case, it is not at all birth abortion, the fetus presents feet-first. The
convincing that the right to abortion is so “fun- fetus is then delivered like a normal newborn
damental” as to require strict scrutiny. Rather, until the head enters the cervix. With the lower
rational-basis review should suffice. parts of the fetus already outside the mother,
Pennsylvania has demonstrated that it has a the doctor then uses a pair of scissors to col-
rational basis for every part of the statute. lapse the head and complete the extraction.
Justice Scalia, with whom the Chief Justice Breyer, writing for the majority.
Justice, Justice White, and Justice The statute is flawed because it fails to provide
Thomas join, concurring in the judgment a health exception. Although Nebraska tries to
in part and dissenting in part. The right to justify the unconditional ban as an effort to
abortion undoubtedly carries great implications show respect for potential life, the argument
for women, but it is not a right protected by the lacks merit for two reasons. First, no fetuses
Constitution. The Court attempts to justify its are actually saved as a result of the law; the
decision with flowery rhetoric invoking concepts law governs only the method by which an abor-
like “personal autonomy,” but it advances no tion is performed, not whether that abortion oc-
principled basis for upholding the right to abor- curs in the first place. Second, the health of the
tion. “Personal autonomy” and similar concerns mother should not be subordinated to the vague
apply equally well to acts already held to be il- concerns of the state. Nebraska has also failed
legal, such as suicide. Furthermore, the Court to make a convincing argument as to the safety
replaces the trimester framework with the “un-

50
of the procedure. Although there is debate as to Gonzales v. Carhart
whether D&X is indeed preferable to other
550 U.S. 124 (2007)
methods, such debate counsels that D&X
should be available at the doctor’s discretion.
Medical necessity should not be judged using an Overview
absolute standard. By restricting a procedure
A dispute arose as to the constitutionality of the
that is arguably safer than D&E, Nebraska has
Partial-Birth Abortion Act.
imposed precisely the sort of undue burden pro-
hibited by Casey.
Facts
Justice O’Connor, concurring. Nebraska
Following the Supreme Court’s decision in
should have provided a health exception.
Stenberg v. Carhart, Congress passed the Par-
Justice Stevens and Justice Ginsburg, con- tial-Birth Abortion Act. The Act prohibited doc-
curring. D&X is not significantly more grue- tors from carrying out abortions using the
some than D&E. The Court should not force a methods known as “intact dilation and evacu-
doctor to choose one procedure when the other ation” (D&E) and “dilation and extraction”
may, in his or her judgment, be the better (D&X). The Act also established anatomical
choice. The statute amounts to little more than landmarks to define when a partial-birth abor-
a veiled attempt to chip away at abortion tion had occurred and imposed a scienter re-
rights. quirement.
Justice Kennedy, dissenting. Nebraska has
Issue
a legitimate interest in ensuring that the med-
ical profession does not tarnish its reputation Does the Act place an undue burden on women
by performing unseemly procedures. Par- seeking abortion?
tial-birth abortion presents a special risk to the
profession since it commandeers the ordinary Holding
process of birth, at least until the doctor kills The Act does not place an undue burden on wo-
the fetus. Witnesses to the procedure have re- men seeking abortion.
ported that the fetus moves as if alive and re-
acts to the piercing of its skull. The issue is not Reasoning
whether the Court can see a difference between
partial-birth abortion and other forms of abor- Justice Kennedy delivered the opinion of
tion; the issue is whether Nebraska can. The the Court. The Act does not impose an undue
questionable safety advantages of partial-birth burden on women seeking abortion because it
abortion do not justify the procedure. The in- prohibits only a narrowly defined procedure. It
crease in safety is at best marginal. defines partial-birth abortion through anatom-
ical landmarks and states that the fetus must
Justice Thomas, dissenting. The majority be killed through an act distinct from the deliv-
takes a particular form of abortion to be “neces- ery itself. The Act also sets forth a scienter re-
sary” whenever it offers benefits as compared to quirement, so that doctors who accidentally de-
other forms of abortion. This holding eviscer- liver a fetus past one of the landmarks does not
ates the notion of necessity; for almost any pro- thereby face liability. Indeed, the evidence
cedure, one could probably find some doctor shows that the accidental performance of a par-
who deems it safer than the alternatives. The tial-birth abortion is a rare occurrence. The de-
Court’s ruling effectively allows a woman to de- mands of the procedure are such that a partial-
mand whatever form of abortion she desires. birth abortion is unlikely to occur unless the
doctor clearly intends it. The Act prohibits only
the act it defines therein; it does not affect a
doctor’s ability to perform ordinary D&E abor-
tions.

51
As the Court held in Casey, the government has tect the mother’s health. The Court also fails to
a legitimate interest in showing respect for po- make any convincing argument that par-
tential life. Congress has chosen to promote tial-birth abortion really is more gruesome than
that interest here by prohibiting what it views D&E; in the latter procedure, the fetus is dis-
as an especially disturbing form of abortion. membered during extraction. Finally, Con-
Congress was within its discretion to conclude gress’s invocation of the concern that some wo-
that partial-birth abortion bore an alarming re- men might regret the decision to have abortions
semblance to live birth and tended to blur the reveals its assumption that women are incap-
ethical boundaries of the medical profession. able of making informed decisions.
The government has also expressed valid con-
It is also hard to understand how the Court be-
cerns that doctors may fail to adequately ex-
lieves that as-applied challenges will accord any
plain the procedure to women seeking abortion.
benefit to women who need partial-birth abor-
Given the debate as to the medical advantages, tions as a matter of medical necessity. By the
if any, of partial-birth abortion, Congress had time any such necessity becomes apparent, it
the authority to conclude that the procedure may be too late to wait for the courts to rule on
should be banned. There is no clear evidence the issue. In any case, the Court should not
that partial-birth abortion is any safer than the have rejected the facial challenge to the lack of
alternatives. The existence of medical doubt a health exception. Congress argues that the
does not mean that Congress should give doc- exception is unnecessary because it would not
tors unfettered discretion to choose which pro- apply in most cases, but the very purpose of an
cedure to apply. A patient is always free to exception is to protect the women who fall into
bring an as-applied challenge to the statute if the few special cases.
some special case should arise.
Justice Thomas, with whom Justice Scalia
Education
joins, concurring. The Court had no constitu-
tional basis for its decisions in Roe and Casey.
Justice Thomas, with whom Justice Scalia
San Antonio Independent
joins, concurring. The Court shows alarming
disregard for the principles established in Roe
School District v.
and Casey. The congressional fact-finding sup- Rodriguez
porting the Act is unreliable. Congress relied 411 U.S. 1 (1973)
on testimony not from specialists with experi-
ence in abortion but on doctors with minimal Overview
experience in the relevant procedures. Numer-
ous medical organizations sent letters express- A dispute arose as to the constitutionality of a
ing the view that partial-birth abortion offered system of school funding that produced schools
genuine medical advantages. Indeed, the re- of disparate quality.
cord is so shaky that many of the government’s
own experts could not recommend the ban. Facts
Congress also tries to justify the lack of a Texas created a two-tiered system of school
health exception on the meritless ground that funding wherein schools received both local tax
doing so shows respect for potential life. In ac- revenue and state funding. The state funding
cepting this argument, the Court has forgotten was intended to equalize economic disparities
that the Act does not save a single fetus; it only between school districts. Even with state fund-
“saves” fetuses from being destroyed in a partic- ing, the Edgewood Independent School District
ular way. Given that the fetus will be des- nonetheless lagged behind nearby districts in
troyed regardless of the procedure, it is absurd funding. Edgewood received only $333 per stu-
to withdraw from the doctor the discretion to dent from combined local and state sources. By
choose the procedure that will most likely pro- contrast, a nearby school district received $594

52
per student. Rodriguez sued on the theory that tionally choose the current system over one that
the funding scheme violated equal protection as produced more-equal funding but which also re-
guaranteed by the Fourteenth Amendment. serves more authority to the state. That the
boundaries of the school districts are drawn ar-
Issue bitrarily is no counterargument. Any division
of land into political regions necessarily entails
(1) Is strict scrutiny the appropriate standard
for examining this question? (2) Regardless of the drawing of arbitrary boundaries.
the standard of review, should Texas exercise White, J., joined by Douglas and Brennan,
its current level of discretion in designing the JJ., dissenting. The premise of the system
funding scheme for its schools? seems to be that the state guarantees a certain
minimum level of funding while localities have
Holding the choice of augmenting that funding through
(1) Strict scrutiny is not the appropriate stand- local property taxes. The Court has overlooked
ard. Instead, rational-basis review should be the fact that the choice to have augmented
applied. (2) Texas should be allowed to exercise funding simply does not exist in poor districts.
its current level of discretion in choosing school- Since this disparity seems to rest on no rational
funding schemes. basis, it should be regarded as a violation of
Fourteenth Amendment equal protection.
Reasoning Marshall, J., joined by Douglas, J., dissent-
Rodriguez has failed to demonstrate either that ing. The Court takes pains to explain how the
education is a right protected by substantive Texas system attempts to reduce disparities in
due process or that the current funding scheme the quality of education. The constitutionality
discriminates against any identifiable class of of the funding scheme, however, does not de-
people. While Rodriguez correctly argues that pend on whether it attempts to close some gap.
education is an indispensable aspect of Americ- It depends on whether the state has discrimin-
an society, such importance alone does not es- ated on a basis that fails to align with a suffi-
tablish that education should be protected by ciently compelling state interest. The Court
substantive due process. In this case, education has consistently recognized that some rights,
lacks a sufficient nexus with enumerated con- despite not being enumerated in the Constitu-
stitutional rights. While education is un- tion, nonetheless warrant strict scrutiny of
doubtedly a precondition to the effective exer- questionable policies. Since education is intim-
cise of rights such as those to vote and to free ately related to enumerated rights such as
speech, the Constitution does not require Texas those to free speech and to vote, the funding
to provide a top-flight education to everyone. scheme should be subject to strict scrutiny.
To the contrary, the record shows that Texas is Strict scrutiny, in turn, reveals that Texas has
doing an adequate job of ensuring that its cit- imposed burdens on certain student simply be-
izens receive the basic level of education neces- cause they happen to live in a district with
sary to the exercise of constitutional rights. lower tax revenue. This burden, in fact, is even
Furthermore, Rodriguez has failed to show that less justifiable than those the Court held uncon-
residents of “poor” school districts comprise an stitutional in the past. In past cases, the bur-
identifiable class. To the contrary, the record den turned on personal wealth; here, the bur-
suggests that poor students are substantially den turns on the aggregate wealth of a school
likely to be scattered throughout “rich” school district, which no single person can control. Al-
district as well as “poor” ones. though the state interest in local control of
schools is strong, Texas should have explored
Texas has a sufficient interest in funding its less invasive alternatives to achieving this end.
school districts that the Court’s intervention
here would be inappropriate. The current sys-
tem allows local authorities to have a say in
how schools should be operated. Texas may ra-

53
Plyler v. Doe First, it argues that prohibiting education of il-
legal children would tend to reduce the flow of
457 U.S. 202 (1982)
illegal immigrants into the country. While
Texas concededly has an interest in reducing il-
Overview legal immigration, preventing the education of
children is an exceptionally wrongheaded way
A dispute arose as to discrimination against il-
to serve this end. There is no evidence that il-
legal immigrants in education.
legal immigrants enter the country for the pur-
pose of obtaining a free education; rather, they
Facts
enter the country to obtain jobs. Curtailing the
Texas had passed a law restricting the availab- employment of illegal immigrants would be a
ility of public education to children of illegal im- much more effective way of stemming their in-
migrants. The law allowed the state to with- flux. Second, Texas argues that the use of re-
hold funding that might be used to educate sources to educate children of illegal immig-
such children. The law also allowed school dis- rants tends to diminish the quality of education
tricts to deny enrollment to children of illegal available to legal residents. The state, how-
immigrants. ever, has advanced no convincing factual basis
for this claim. Finally, Texas argues that edu-
Issue cating the children of illegal immigrants would
Does the Texas law violate the Fourteenth be a wasted investment because those children
Amendment? may not choose to remain within the state and
contribute to the local economy. Setting aside
Holding that most of these children will probably re-
main in-state, Texas has not shown that its leg-
The Texas law violates the Fourteenth Amend- al students are any more likely to remain in-
ment. state.

Reasoning Burger, C.J., with whom White, Rehnquist,


and O’Connor, JJ., join, dissenting. Texas
Brennan, J. While the state may force those enacted its law in accordance with federal im-
who enter the country to bear the consequences migration law. The Court has apparently in-
of those actions, the state should not punish il- vented a result-oriented standard of review. It
legal immigrants by directing its policies purports to protect children from discrimination
against their children. The children are inno- on the basis of factors they cannot control, but
cent parties; they cannot control the decisions of it ignores that the government may legitimately
their parents, and they should not bear the distinguish between classes on such bases as
costs of their parents’ wrongdoing. Although mental or physical illness. Such distinctions
education is not expressly guaranteed by the are not unconstitutional unless they facilitate
Constitution, the courts have long held that it is invidious discrimination. The Court also fails
an essential precondition to participating in the to make a convincing argument as to the unique
civic life of the country. The lack of education importance of education. Such importance does
will inflict upon children a lifetime handicap. not automatically elevate a governmental ser-
The importance of education therefore amounts vice to the level of a “fundamental” right. Given
to a deprivation of equal protection as provided that the Court has not shown that Texas is us-
in the Fourteenth Amendment. ing a suspect classification to abridge a funda-
While a state may take into account the illegal mental right, rational-basis review should be
status of the children in formulating policy, it the standard of review. Under that standard,
must nonetheless justify any discrimination Texas has stated an adequate case for limiting
against them on the ground that such discrim- the expenditure of resources on persons who
ination furthers a substantial goal of the state. have no right to be in the country.
Texas has fallen far short of this standard.

54
The state here has stated more than an ad-
Privacy and Liberty equate basis for its prohibition of assisted sui-
cide. It has produced evidence suggesting that
patients who desire suicide retract their re-
Washington v. Glucksberg quests once underlying conditions, such as
521 U.S. 702 (1997) physical pain or depression, have been treated.
The state has also raised a valid concern that
assisted suicide might be applied disproportion-
Overview ately to the elderly, the poor, or other stigmat-
A dispute arose as to the constitutionality of as- ized groups. Finally, the state has produced a
sisted suicide. Dutch study indicating that assisted suicide
may lead down a slippery slope to euthanasia.
Facts Souter, J., concurring in the judgment. The
The State of Washington had enacted a law possibility of going down a slippery slope to-
making it a felony to assist the suicide of anoth- ward euthanasia is sufficiently real that it
er person. Another state law, however, alone could justify the Court’s decision. The
provided that withholding life-sustaining treat- realities of health care often include mounting
ment at the patient’s direction did not consti- bills, incorrect terminal diagnoses, and other
tute a crime. factors that might push a patient or the family
thereof to choose assisted suicide despite the
Issue availability of alternatives. Furthermore, it is
not at all certain that the judgment of physi-
Does the Fourteenth Amendment guarantee a
cians alone will suffice to prevent a slide toward
right to suicide?
abuse of assisted suicide. Physicians may be
unwilling to turn down a request for assisted
Holding
suicide, or they might be tempted to choose sui-
The Fourteenth Amendment does not guaran- cide because of a hospital’s financial pressures.
tee a right to suicide. While society may one day advance to the point
where assisted suicide would be an advisable
Reasoning choice, the facts show too much danger to allow
Rehnquist, C.J., delivered the opinion of assisted suicide today.
the Court. In evaluating whether a particular
right falls under the protection of substantive Vacco v. Quill
due process, the Court must determine whether 521 U.S. 793 (1997)
that right is “deeply rooted in this Nation’s his-
tory and tradition” and “implicit in the concept Squib. The Supreme Court upheld a New York
of ordered liberty” such that “neither liberty nor statute prohibiting assisted suicide. The Court
justice would exist if they were sacrificed.” The upheld in particular the difference between re-
Court must also discern the nature of the fusing life-sustaining treatment and seeking as-
liberty interest served by the right. History sisted suicide.
shows that Anglo-American law has been
staunchly opposed to suicide since the thir- Rehnquist, C.J. There is a fundamental dif-
teenth century. Although respondents appeal ference between withdrawing life-sustaining
to the precedents of Casey and similar cases, treatment and assisting suicide. In the former,
those cases do not address the question of act- a pre-existing condition kills the patient. In the
ively assisting suicide. Given that the evidence latter, the physician kills the patient through
weighs heavily against finding any right to sui- an affirmative act. The law firmly recognizes
cide, the state need only demonstrate a rational this distinction, and it is all the more important
basis for its laws. to sustain the distinction given the factors, fin-

55
ancial or otherwise, that might pressure one to Holding
choose assisted suicide.
The Fourteenth Amendment protects no such
O’Connor, J., concurring. The Court need right.
not address whether a terminally ill patient has
a right to control the circumstances of his or her Reasoning
death. The law already allows any such patient
Justice White delivered the opinion of the
to obtain palliative care, even if that care may
Court. The right to engage in consensual ho-
hasten death. Given the availability of such
mosexual sodomy within the privacy of one’s
care, the state has a legitimate interest in pre-
home receives no support from history. To the
venting assisted suicide where consent to that
contrary, the laws have consistently opposed
suicide may not be truly voluntary.
the practice. Even in the present, the act is out-
Ginsburg, J., concurring in the judgments. lawed in a substantial number of states and in
Justice O’Connor is right. the District of Columbia. Hardwick attempts to
draw a parallel between the current case and
Breyer, J., concurring in the judgments. The
those involving abortion or contraception.
Court has perhaps framed the issue too nar-
Those cases, however, all turned on issues of
rowly by addressing it solely as “assisted sui-
personal autonomy not implicated here. Hard-
cide.” Rather, the issue should be framed more
wick also may not rest his case on the ground
broadly as a “right to die with dignity.” Even
that the state may not regulate private behavi-
so, the Court need not rule on this right in the
or. The consumption of illegal drugs in private
current case because the law already allows a
is nonetheless a crime, as is the possession of
patient to avoid pain through other means.
stolen property. In any case, the Court should
not abuse its discretion by imposing the judg-
Bowers v. Hardwick ments of its justices on the public when there is
478 U.S. 186 (1986) no constitutional support for their views.
Burger, C.J., concurring. History clearly
Overview supports the view that homosexual sodomy
should remain outlawed. To rule in favor of
A dispute arose as to the existence of any right Hardwick would overturn centuries of moral
to engage in consensual homosexual sodomy in teachings.
the privacy of one’s home.
Powell, J., concurring. The stiff sentences
Facts that Georgia imposes for homosexual sodomy
may qualify as cruel and unusual punishment.
A police officer had entered the house where Since Hardwick has not raised this Eighth
Hardwick lived to arrest him for drinking in Amendment issue, however, the Court has no
public. After looking through the house for occasion to rule on it.
Hardwick, the officer found Hardwick engaging
in oral sex with another man. Hardwick was Blackmun, J., joined by Brennan, Mar-
arrested for violating a Georgia anti-sodomy shall, and Stevens, JJ., dissenting. The
statute, though the district attorney declined to Court seems to found its decision on blind ad-
present the case to a grand jury absent addi- herence to history rather than a reasoned ana-
tional evidence. lysis of the interests involved. The current case
concerns not so much the right to engage in ho-
Issue mosexual sodomy as the right to choose the
kind of intimate relationships that one has with
Does the Fourteenth Amendment protect the others. The Court has repeatedly ruled that the
right to engage in consensual homosexual sod- right to privacy contains (1) the right to make
omy within the privacy of one’s home? certain decisions without interference from the
government and (2) the right to be physically

56
free from invasion in certain locations, such as singling out homosexuals for different treat-
the home. The Georgia statute tramples on ment. The law, far from eliminating discrimin-
both of these key aspects, yet the state has ad- ation, actually aggravates it by denying to ho-
vanced no support for its law except religious mosexuals protections that other citizens may
justifications and prevailing moral views. The take for granted. Colorado has failed to state a
mere prevalence of such views, however, cannot rational basis for Amendment 2. It has
justify the invasive nature of the law. provided no legitimate state interest that may
be advanced by the amendment; rather, the
Stevens, J., joined by Brennan and Mar-
state has cited only private prejudices against
shall, JJ., dissenting. Widespread disapprov-
homosexuality.
al of a particular form of conduct cannot save
that form of conduct from a constitutional at- Justice Scalia, with whom the Chief
tack. Such was the case with miscegenation. Justice and Justice Thomas join, dissent-
The current case implicates an individual’s ing. The Court argues that Amendment 2 dis-
right to engage in intimacy as he or she criminates against homosexuals merely because
chooses. When such intimacy takes place in the it imposes upon them some additional burden
privacy of a bedroom, the state has no authority as a prerequisite to obtaining preferential treat-
to interfere. Georgia has failed to advance any ment under the law. Such a burden has never
justification for curtailing individual autonomy been considered unconstitutional. Homosexuals
in such cases. would still receive the same protection as other
citizens under existing laws; the only thing they
have lost is the entitlement to special treatment
Romer v. Evans on the basis of sexual orientation alone. In-
517 U.S. 620 (1996) deed, the Court has apparently ignored that
states have been able to criminalize homosexu-
Overview ality without constitutionality. If such is the
case, then it should be true a fortiori that the
A dispute arose as to whether sexual orienta- states may decline to engage in preferential
tion is a protected status. treatment of homosexuals. The Court effect-
ively foists upon the public its own elitist judg-
Facts ment as to what the general view of homosexu-
Colorado passed Amendment 2 to its constitu- ality should be.
tion, which prohibited any person from being
accorded special protection on the basis of sexu- Lawrence v. Texas
al orientation.
539 U.S. 558 (2003)
Issue
Does the Colorado law violate equal protection? Overview
A dispute arose as to the constitutionality of a
Holding law prohibiting consensual homosexual sodomy
The Colorado law violates equal protection. in the privacy of one’s home.

Reasoning Facts
Justice Kennedy delivered the opinion of A police officer had gone to the home of
the Court. The law tolerates no classes among Lawrence to investigate a reported disturbance
citizens. Colorado argues that the law does not involving weapons. When the officer arrived,
discriminate against homosexuals but merely he found Lawrence having anal sex with anoth-
prevents them from receiving special protection. er man. Lawrence and his partner were con-
This argument, however, defeats itself because victed of violating a Texas criminal statute pro-
the state has already worked discrimination by hibiting “deviate sexual intercourse,” which in-

57
cluded anal sex among members of the same Justice O’Connor, concurring in the judg-
sex. ment. The law should be struck down on the
narrow ground that it infringes equal protec-
Issue tion. Texas has impermissibly chosen to burden
Does the Texas law violate the Fourteenth a class of persons, in this case homosexuals, for
no reason except moral disapprobation of that
Amendment?
group. It is settled law that the bare desire to
Holding burden a class does not constitute a rational
basis for state legislation. Texas may not argue
The Texas law violates the Fourteenth Amend- that the law applies only to homosexual conduct
ment. as opposed to homosexuality in itself; the tar-
geting of homosexual behavior invites discrim-
Reasoning ination against the underlying group.
Justice Kennedy delivered the opinion of Justice Scalia, with whom the Chief
the Court. The Court has upheld the right to Justice and Justice Thomas join, dissent-
privacy in cases involving contraception, abor- ing. The Court refuses to address the central
tion, and other issues. In all of these cases, the question of whether homosexual sodomy is a
Court protected not the right to specific forms of “fundamental right” protected under the Four-
conduct but the right to personal autonomy that teenth Amendment. Rather, it overrules the
is expressed through outward action. In hold- decision in Bowers on unsupportable grounds.
ing that private, consensual sodomy was illegal, The Court first concludes that Bowers should be
Bowers v. Hardwick construed the right to pri- overruled because it has been weakened
vacy too narrowly. In justifying its decision in through doctrinal erosion and public criticism.
that case, the Court took an inaccurate view of Oddly enough, the Court offers no convincing
history. The Court misinterpreted the evidence explanation as to how Bowers differs from Roe.
when it suggested that Anglo-American law Roe, too, faced widespread controversy, yet the
evidenced a longstanding disapproval of sod- Court decided in Casey that such controversy
omy. It is not at all clear that anti-sodomy stat- was precisely the justification to uphold that
utes were prevalent until recent decades; to the decision. The Court seemingly distinguishes
extent that such statutes did exist in earlier the current case from Casey on the ground that
times, legislatures had apparently passed them no reliance has developed following Bowers, but
with the intention of supplementing statutes the evidence belies this claim. American society
prohibiting rape or general prohibitions on ex- has always relied on the moral disapprobation
tramarital sex. There was no evidence to sug- of homosexual sodomy. Texas has a rational
gest that such laws targeted homosexuals in basis for the statute; other laws, which prohibit
particular. The Court also overstated its case acts such as polygamy and incest, have not been
with regard to any moral consensus on sodomy. questioned, and the Court has offered no dis-
Although some authorities have vocally de- tinction between those laws and the one now in
nounced the conduct as immoral, the evidence question. Finally, the law cannot be understood
also shows that even states with anti-sodomy to deny equal protection to homosexuals. Un-
laws have rarely enforced those laws. Indeed, der the law, men and women receive identical
the current case is the first time that Texas has punishment. That the law tends to burden ho-
invoked the law in decades. In any case, pre- mosexuals by prohibiting only homosexual
cedent and tradition alone do not control the activity is no counterargument. Laws prohibit-
Court’s ruling. Bowers should be overruled be- ing public nudity might be thought to burden
cause it denies to homosexuals equal protection nudists, but no one raises constitutional doubts
under the Fourteenth Amendment by imposing in that case. In all, the Court has imposed its
on them the threat of criminal sanctions for be- own pro-homosexual views on the public when
havior in which the state has no legitimate in- the issue should have been left to more-demo-
terest. cratic processes.

58
Justice Thomas, dissenting. The Constitu- ida had a legitimate interest in promoting the
tion does not provide a general right of privacy. raising of children in traditional family struc-
tures as opposed to merely placing children in
homes as quickly as possible. In particular, the
Lofton v. Secretary of court questioned evidence suggesting homo-
Department of Children & sexual couples could raise children as effect-
Family Services ively as heterosexual couples. Finally, the court
358 F.3d 804 (11th Cir. 2004) did not find any anti-gay animus underlying the
ban.
Squib. The Eleventh Circuit upheld ban on ad-
The dissent argued that the ban denied homo-
options by “practicing homosexuals.” The court
sexual couples the benefit of individual review.
distinguished the case from Lawrence on the
It noted that persons with far more troubling
grounds (1) that the act in question involved
backgrounds, such as terrorists and rapists,
children in addition to consenting adults and (2)
were not categorically banned from adoptions
that the ban affected the affirmative act of ad-
while homosexuals were. The dissent charac-
option rather than the negative right to be free
terized the legislation as the result of a
from interference in one’s private life. Applying
statewide anti-gay campaign.
rational-basis review, the court found that Flor-

MODERN FEDERALISM

tailored to advance a compelling government in-


LIMITS ON THE terest.
RECONSTRUCTION POWER Issue
Has Congress exceeded its authority under sec-
tion 5 of the Fourteenth Amendment?
City of Boerne v. Flores
521 U.S. 507 (1997) Holding
Congress has exceeded its authority under sec-
Overview tion 5 of the Fourteenth Amendment.
A dispute arose as to whether Congress had the Reasoning
authority to pass the Religious Freedom Restor-
ation Act of 1993 (RFRA). Kennedy, J. Although the Fourteenth Amend-
ment gives Congress broad discretion to legis-
Facts late in accordance with the demands of that
Amendment, Congress does not have the power
The Court had held in a previous decision that to define the substantive scope of the Amend-
a general prohibition with the incidental effect ment. Historical evidence shows that section 5
of limiting the practice of religion did not auto- of the Amendment was intended as a remedial
matically violate the Free Exercise Clause. measure; indeed, the drafters rejected alternate
Congress passed the RFRA in response to the versions that would have given more power to
holding. The RFRA stated (1) that any general Congress.
rule burdening the exercise of religion was sus-
pect and (2) that the government bears the bur- In enacting the RFRA, Congress went beyond
den of proving that any such rule is narrowly providing a remedy. The RFRA amounts to

59
sweeping, preventive legislation whose reach is Kimel v. Florida Board of
out of proportion with interest it seeks to pro- Regents
tect. The RFRA does not purport to target spe-
528 U.S. 62 (2000)
cific laws imposing religious discrimination, nor
does it contain any provisions that might limit
its applicability. The RFRA tends to upset the Squib. The Supreme Court held that Congress
balance of power between the federal and state could not extend the Age Discrimination in Em-
governments as well as the separation of ployment Act (ADEA) and the Americans with
powers. Disabilities Act (ADA) to regulate state govern-
ments. The Court found that neither age dis-
Stevens, J., concurring. The RFRA allows crimination nor discrimination on the basis of
organizations to use religion as a weapon in disability fell within the scope of the Four-
claiming exemptions to to all sorts of laws. teenth Amendment.
O’Connor, J., dissenting, joined in part by
Breyer, J. The Court bases its decision on the Board of Trustees of the
flawed holding of Smith. The Free Exercise University of Alabama v.
Clause gives Congress considerable discretion
Garrett
in choosing the means to protect the free exer-
cise of religion. The Court’s decision places too 531 U.S. 356 (2001)
great a restriction on Congress.
Squib. The Supreme Court held that extension
Souter, J., dissenting. The holding of Smith of the ADEA and ADA to state governments
is flawed. The Court should order re-argument would allow Congress to redefine the substant-
of the current case. ive scope of the Fourteenth Amendment.

Breyer, J., dissenting. Assuming Smith is Nevada Department of


correct, the Court need not consider the consti- Human Resources v. Hibbs
tutionality of the RFRA under section 5 of the 538 U.S. 721 (2003)
Fourteenth Amendment.
Squib. The Supreme Court upheld the applica-
United States v. Morrison, tion of the Family Medical Leave Act (FMLA) to
state governments.
Part I
529 U.S. 598 (2000)
Tennessee v. Lane
Squib. The Supreme Court struck down a fed- 541 U.S. 509 (2004)
eral statute creating a cause of action for wo-
men who had been victimized by gender-based Squib. The Supreme Court upheld a portion of
violence. The Court held that the Fourteenth the ADA that applied to public buildings. Lane,
Amendment applied only to state action. Since a paraplegic, had been forced to crawl up two
gender-based violence was not the result of flights of stairs in a courthouse because the
state action, Congress had no authority to pass building lacked elevators or wheelchair ramps.
the law. The Court found that the ADA, when applied to
courthouses, not only protected persons against
discrimination but also guarded those constitu-
tional rights whose exercised entailed going be-
fore a court.

60
guns on school premises and interstate com-
LIMITS ON THE COMMERCE merce. The government essentially argues that
the presence of guns in schools would lead to a
POWER higher risk of violence, which would in turn dis-
rupt education. Disruption of education would
then reduce the national productivity. This
United States v. Lopez reasoning, however, is so broad as to leave no
subject outside the scope of congressional regu-
514 U.S. 549 (1995)
lation. Such a reading of the Constitution does
not comport with the separation of state and
Overview federal powers.
A dispute arose as to whether Congress had the Justice Kennedy, with whom Justice
authority to pass the Gun-Free School Zones O’Connor joins, concurring. The Act tends
Act of 1990. to erode the boundaries between state and fed-
eral powers. The states already have adequate
Facts legislative power to deal with the presence of
Lopez, a twelfth-grade student, had brought a guns on school grounds. Indeed, some 40 states
concealed handgun to school. He was sub- have already enacted their own statutes crimin-
sequently charged under the Act. Lopez chal- alizing the possession of firearms on school
lenged the At on the ground that Congress had premises. Since Congress has failed to demon-
no authority to pass it under the Commerce strate any meaningful link between the provi-
Clause. sions of the Act and interstate commerce, the
states should have the discretion to experiment
Issue with potential solutions to the problem.

Did the Commerce Clause give Congress the Justice Thomas, concurring. A faithful con-
authority to pass the Act? struction of the Commerce Clause would not au-
thorize the Act. Historical evidence makes it
Holding clear that “commerce,” as that term was used in
the Constitution, referred only to transporting
The Commerce Clause did not give Congress and trading in goods as contrasted with the
the authority to pass the Act. manufacture of those goods. The text of the
Constitution also does not say that Congress
Reasoning should have the power to regulate all activities
Rehnquist, C.J. The Commerce Clause allows “substantially affecting” interstate commerce.
Congress to regulate (1) the use of channels of The interpretation advocated by the govern-
interstate commerce, (2) instrumentalities of in- ment would give Congress such broad discretion
terstate commerce or persons and things in in- that it would be unnecessary for the Constitu-
terstate commerce, and (3) activities that “sub- tion to set forth many of the enumerated
stantially affect” interstate commerce. Since powers delegated to Congress.
the Act addresses neither of the first two Justice Stevens, dissenting. Guns them-
factors, its constitutionality turns on whether it selves are articles of interstate commerce. Con-
regulates any activity that substantially affects gress can therefore act to restrain the traffic in
interstate commerce. The Act fails to pass guns and especially the presence of guns in par-
muster under the third factor. It is a criminal ticular locations. The alarming prevalence of
statute that does not purport to address any is- gun possession by students justifies the Act.
sue related to commerce, and it does not form
part of a larger scheme that would relate to Justice Souter, dissenting. The Court long
commerce. The government has stated only ago abandoned the untenable distinction
tenuous relationships between the possession of between “direct” and “indirect” effects on inter-

61
state commerce. Since then, the Court has con- pass the Act under the Commerce Clause. The
sistently deferred to Congress in the regulation Court reasoned that violence against women,
of interstate commerce. Today’s decision takes despite being a major problem, was neither “in-
a step backward, toward a time when the Court terstate” nor “commercial” in character.
engaged in exacting scrutiny of congressional
decisions on the subject. Congress has stated a
legitimate reason for the Act; under ration-
Gonzales v. Raich
al-basis review, Congress need not do anything 545 U.S. 1 (2005)
more.
Squib. Raich challenged a federal ban on
Justice Breyer, with whom Justice marijuana because the ban extended to medical
Stevens, Justice Souter, and Justice Gins- uses that were permitted by California legisla-
burg join, dissenting. Historical evidence es- tion. Raich argued in particular that the
tablishes a firm link between education and in- marijuana she used had been grown in-state
terstate commerce. Until well after the begin- and therefore was not a subject of interstate
ning of the twentieth century, the vast majority commerce.
of Americans received secondary education
through apprenticeships or training programs The majority of the Court found that the prin-
established by large businesses. Such busi- ciple established in Wickard applied. Even
nesses ran such programs because they had though the particular marijuana used by Raich
found that investment in “human capital” ten- may indeed never have crossed any state lines,
ded to produce gains that significantly out- private use of such marijuana nonetheless af-
stripped those derived from other sorts of in- fected interstate commerce by affecting the de-
vestment. That public education has since re- mand for marijuana in the market at large.
placed privately run training programs does not The Court took particular issue with the fact
mean that the link between education and com- that individuals could possess up to three
merce has grown any weaker. To the contrary, pounds of marijuana, enough to make more
abundant evidence shows that better education than 3,000 joints. The Court found it probable
leads to an economically robust workforce that some portion of that allotment would sup-
whereas inadequate education disadvantages ply recreational, as opposed to medical, use.
workers. Justice Scalia, concurring, noted that the fun-
The evidence also shows that gun possession in gibility of marijuana presented the constant
schools is a major problem. A substantial frac- risk that marijuana intended for medical use
tion of students have reported bringing guns to would find its way into other markets. Justice
school at least occasionally. A substantial frac- Scalia also noted that the prohibition would be
tion of students have also reported being justified even in the absence of such risk since
threatened with guns. Such threats, in turn, it was necessary to effectuate broader anti-drug
tend to interfere with the educational environ- policies.
ment. The evidence shows that Congress had a Justice O’Connor, dissenting, argued that the
more-than-adequate rational basis for conclud- Court had eviscerated the holding of Lopez by
ing that the Act was necessary to promote inter- allowing Congress to justify any ban as long as
state commerce. that ban could be characterized as a necessary
component of some larger policy.
United States v. Morrison,
Part II South Dakota v. Dole
529 U.S. 598 (2000) 483 U.S. 203 (1987)

Squib. The Supreme Court struck down the Squib. South Dakota challenged the withhold-
Violence Against Women Act of 1994 (VAWA) ing of federal highway funds from states with a
on the ground that Congress had no power to

62
legal drinking age below twenty-one years. The aged states to enter regional compacts govern-
state challenged the policy on the theory that it ing the disposal of radioactive waste generated
violated the Twenty-First Amendment, which within their borders. First, the Act allowed ex-
gave the states full discretion to make policy isting disposal sites to levy surcharges on waste
concerning the consumption of alcohol. The arriving from other sites. Second, the Act au-
Court found that Congress could use its spend- thorized existing sites to reject out-of-state
ing power to encourage states to adopt meas- waste after certain deadlines had passed. Fi-
ures that could not be achieved under its enu- nally, the Act required states to take possession
merated powers. The Court found that such ex- of waste generated within their borders after a
ercise of the spending power was constitutional certain deadline. The state would then
as long as it (1) related to the general welfare, shoulder any liability resulting from failure to
(2) set forth unambiguously the conditions for dispose of the waste. New York challenged the
receiving federal funds, (3) related to federal in- Act on the ground that it violated the Tenth
terests in particular national projects or pro- Amendment and the Guarantee Clause.
grams, and (4) comported with other constitu-
tional limitations. The Court found that the Issue
policy fell plainly within the bounds of the first May Congress direct the states to enact regula-
three criteria. As to the fourth, it found the tions?
policy to be constitutional because it did not in-
fringe anyone’s constitutional rights and did not Holding
withhold such large amounts of funding as to
amount to compulsion. Congress may not direct the states to enact reg-
ulations.
Justice O’Connor, dissenting, argued that the
link between interstate commerce and the Reasoning
drinking age to be too “attenuated.” Justice
Brennan, dissenting, argued that the Twenty- O’Connor, J. Congress may not “commandeer”
First Amendment gave states plenary power to state legislatures for the purpose of promulgat-
establish the drinking age. ing its own regulations. The Framers realized
that allowing Congress to dictate the direction
of state legislation would tend to erode political
accountability as well as the separation of state
THE TENTH AMENDMENT and federal powers. Congress would be temp-
ted to deflect responsibility for unpopular legis-
lation onto the states, and the states would be
New York v. United States tempted to do the reverse. By contrast, Con-
505 U.S. 144 (1992) gress does have the power to encourage states
to adopt its policies through means such as con-
ditioning the availability of federal funds on
Overview compliance with federal regulations. Incent-
A dispute arose as to the constitutionality of a ives, as opposed to outright coercion, allows
federal statute directing states to regulate the states the choice to decline pursuing a federal
disposal of radioactive waste. agenda if it deems other legislative goals more
important.
Facts Here, Congress plainly has the power (1) to al-
After existing federal legislation proved inef- low disposal sites to levy surcharges for out-of-
fective in managing the disposal of radioactive state waste and (2) to stop accepting out-of-
waste, Congress passed the Low-Level Radio- state waste after certain deadlines have passed.
active Waste Policy Amendments Act of 1985. The former falls within the power granted by
The Act set forth three measures that encour- the Commerce Clause, and the latter falls un-
der powers granted by both that Clause and the

63
taxing power. The “take-title” provision, how- Printz v. United States
ever, amounts to congressional coercion of state
521 U.S. 898 (1997)
legislatures. The Constitution does not give
Congress the power to shift such a burden onto
the states. While Congress might see fit to Overview
preempt state legislation with laws of its own, it
A dispute arose as to the constitutionality of a
may not force its will directly upon state legis-
gun-control law imposing certain responsibilit-
latures. New York may not argue that the Act
ies upon state officials.
is constitutional because it received support
from New York senators; an unconstitutional
Facts
exercise of power does not become constitution-
al merely because both parties involved consent Congress had passed the 1993 Brady Handgun
to the abuse. It is also no argument that the Violence Prevention Act, which mandated the
urgency of the problem demands an exception. establishment of a national system for perform-
The Constitution was drafted specifically to pre- ing background checks on gun purchasers. The
vent exceptional circumstances from justifying Act also required the “chief law enforcement of-
a change in the structure of government. ficer” (CLEO) of each local jurisdiction to con-
duct such background checks until the national
Justice White, with whom Justice Black-
system was in place.
mun and Justice Stevens join, concurring
in part and dissenting in part. New York, Issue
having taken of advantage of the interstate
waste-disposal agreements, should be estopped Does the Act impose on the states an unconsti-
from challenging the Act, which made those ad- tutional burden to implement federal policy?
vantages possible. The Court relies excessively
on dicta of questionable relevance in determin- Holding
ing that the Act amounts to a usurpation of the The Act imposes on the states an unconstitu-
states’ legislative authority. The states collab- tional burden to implement federal policy.
orated with each other and with the federal
government in deciding the provisions of the Reasoning
Act. The Court has interfered with efforts to
solve a pressing problem. Scalia, J. The history and structure of the
Constitution indicate that the Act has trans-
Justice Stevens, concurring in part and gressed constitutional bounds by requiring
dissenting in part. Nothing in the Constitu- state officials to bear the burden of implement-
tion prohibits Congress from issuing directives ing federal policy. Early legislation shows that
to the states under its Article I powers. Indeed, Congress was willing to impose burdens only on
the federal government already regulates a sig- state courts; there is little evidence that Con-
nificant number of state-run institutions, such gress ever directed the executive branches of
as elections, prisons, and school systems. Given state governments to take particular actions.
these examples, there is no reason that Con- The historical evidence shows that Congress
gress should be prohibited from regulating the could not direct state action without the consent
disposal of radioactive waste as well. of the states.
Historical evidence aside, the Act also tends to
erode the separation of powers at the federal
level. The Constitution makes it clear that the
executive branch is to oversee enforcement of
the laws. If Congress is allowed to direct the
states to act through CLEOs or other officers,
then it could effectively circumvent presidential

64
authority by requiring the states to implement out that Congress has generally issued com-
its legislation. mands only to state judiciaries, but it ignores
that state judges have historically performed
O’Connor, J., concurring. The Court’s de-
functions now associated with the executive.
cision does not necessarily nullify the Act since
The Court has not established any meaningful
CLEOs are still free to implement federal policy
distinction between the Act and similar legisla-
voluntarily.
tion requiring the states to report missing chil-
Thomas, J., concurring. Congress is appar- dren, traffic fatalities, and other facts. Indeed,
ently trying to regulate the intrastate sale of the Court seems to have ignored that the Act
firearms. It is questionable that the gun sales would be perfectly constitutional if it applied to
to be regulated “substantially affect” interstate private individuals as opposed to state officials.
commerce. Furthermore, the restrictions may
Justice Souter, dissenting. The Federalist
also run afoul of the Second Amendment.
provides adequate support for the constitution-
Justice Stevens, with whom Justice ality of the Act.
Souter, Justice Ginsburg, and Justice
Justice Breyer, with whom Justice
Breyer join, dissenting. The history of the
Stevens joins, dissenting. The experience of
Constitution shows that Congress was indeed
other countries suggests that state implementa-
authorized to direct state officials to perform
tion of federal policies may not be as detriment-
such duties as tax collection. The Court points
al as the Court imagines it to be.

WAR POWERS

The Prize Cases Holding


67 U.S. 635 (1863) Lincoln had the authority to order the blockade.

Reasoning
Overview
Grier, J. Although the president may not him-
A dispute arose as to whether Lincoln had the
self declare war, relevant acts of Congress au-
constitutional power to order a blockade of the
thorize him to respond to hostilities from for-
Confederacy prior to the official declaration of
eign nations or from within the United States.
the Civil War.
The president has full discretion in deciding
whether the hostility amounts to war and in
Facts
choosing the response.
Lincoln responded to the attack on Fort Sumter
Nelson, J., dissenting, joined by Taney,
by ordering a blockade of Southern ports. At
C.J., and Catron and Clifford, JJ. The Con-
that time, the North had not yet declared war
stitution already provides the president with
on the South. The owners of foreign ships chal-
adequate power to respond to armed hostilities.
lenged the blockade on the ground that Lincoln
The president may call forth the military as
had no power to declare the blockade absent an
well as the state militias to suppress any threat
official declaration of war.
to the nation. The power to declare a blockade,
however, rests with Congress.
Issue
Did Lincoln have the authority to order the
blockade?

65
Ex parte Merryman war, and kidnapping the governor of Indiana.
Although the Indiana courts were open, the mil-
17 F. Cas. 144 (1861)
itary was wary that Confederate sympathies
would make it difficult to obtain a jury willing
Overview to convict Milligan. The military therefore de-
cided to try Milligan in a military court.
A dispute arose as to whether Lincoln could
suspend habeas corpus during the Civil War.
Issue
Facts May a person be tried in a military court when
the civilian courts are open?
The Union Army had detained Merryman dur-
ing the course of the Civil War. Despite that a
Holding
Circuit Court had issued two writs of habeas
corpus requiring the Army to produce Merry- A person accused may not be tried in a military
man, the Army refused to comply. court when the civilian courts are open.

Issue Reasoning
May the president suspend habeas corpus dur- Davis, J. History makes it clear that the Con-
ing a time of war? stitution was intended to protect the right to
trial by jury. Indeed, the Constitution probably
Holding would never have been ratified without prom-
ises that the Bill of Rights would reinforce the
The president may not suspend habeas corpus
right to a jury trial. When war has forced the
during a time of war.
civilian courts to close, a person may be tried in
a military court for lack of an alternative. This
Reasoning
temporary measure, however, ceases to be ac-
[Taney, C.J.] The Constitution plainly does ceptable when civilian courts again become
not authorize the president to suspend habeas available. Here, it is undisputed that the Indi-
corpus. Article I expressly reserves that power ana courts were open and available to rule on
to Congress. Had the Framers intended to the the current case. The military therefore has no
president to have a similar power, they doubt- justification for seeking to try Milligan in a mil-
lessly would have stated their intentions itary court.
plainly in Article II. There is no basis for be-
Chase, J., concurring. The war powers of
lieving that the president may suspend habeas
Congress includes the power to order persons to
corpus because he deems such a suspension ne-
be tried in military tribunals when it has reas-
cessary in light of some national emergency.
on to believe that the civilian courts would be
incapable of protecting the nation against an
Ex parte Milligan imminent threat. Indeed, the Constitution ex-
71 U.S. 2 (1866) pressly excepts cases arising from war from the
constraints of the Fifth Amendment and similar
provisions.
Overview
A dispute arose as to the constitutionality of Ex parte Quirin
trying persons in military courts.
317 U.S. 1 (1942)
Facts
Milligan had been charged with plotting to dis- Overview
rupt the Union war effort by seizing Union A dispute arose as to whether a person who is
weapons, liberating Confederate prisoners of technically a citizen of the United States may

66
be tried by a military tribunal for violating the Facts
law of war.
Following the 9/11 attacks, Congress enacted
the Authorization for Use of Military Force
Facts
(AUMF), which gave the president broad discre-
During World War II, eight Nazi saboteurs tion to order military operations against terror-
landed in the United States for the purpose of ists posing a threat to the United States. Ham-
disrupting the American war effort. After one di surrendered to the Northern Alliance during
of the saboteurs turned himself in to the FBI, the ensuing war in Afghanistan. Upon discov-
the FBI arrested the remaining saboteurs, ering that Hamdi was an American citizen, the
among whom was Haupt. President Roosevelt United States military transferred him to a brig
then issued an executive order authorizing in South Carolina. The United States then de-
saboteurs to be tried by a military tribunal. clared Hamdi an “enemy combatant” and ar-
Haupt petitioned for habeas corpus on the gued that his status as such allowed the gov-
ground that he had been born in the United ernment to detain him without formal charges
States and had technically never renounced his or proceedings.
American citizenship.
Hamdi’s father then petitioned for a writ of
Issue habeas corpus on his behalf. According to his
father, Hamdi had gone to Afghanistan to do re-
May Quirin be tried by a military tribunal? lief work and had become trapped in the coun-
try when war broke out. In response to the pe-
Holding tition, the government filed the Mobbs Declara-
Quirin may be tried by a military tribunal. tion, which provides the only documentary evid-
ence concerning Hamdi’s alleged involvement
Reasoning with the Taliban. Much of the information con-
tained in the Declaration was obtained during
Stone, C.J. Congress has authorized persons military interrogations of Hamdi.
violating the laws of war to be tried by military
tribunals. There is universal agreement as to Issue
the distinction between lawful and unlawful
combatants. The former encompasses uni- May the government detain Hamdi without
formed soldiers, and the latter includes spies or providing with any further opportunity to chal-
those who otherwise surreptitiously enter en- lenge his status as an enemy combatant before
emy territory. There is no question that Haupt a neutral arbiter?
was an unlawful combatant. That Haupt is
technically an American citizen cannot excuse Holding
him from responsibility for his conduct. The The government may not so detain Hamdi.
current case differs from Milligan. In that case,
it was never demonstrated that Milligan was a Reasoning
combatant.
Justice O’Connor announced the judgment
of the Court and delivered an opinion, in
Hamdi v. Rumsfeld which The Chief Justice, Justice Kennedy,
542 U.S. 507 (2004) and Justice Breyer join. No general prin-
ciple prevents the government from detaining
individuals suspected of engaging in hostilities
Overview against the United States in a time of war. The
A dispute arose as to the process due to a per- AUMF plainly authorizes the president to order
son detained as an enemy combatant. military detentions at his discretion. The
AUMF also removes any constitutional provi-
sions that might ordinarily limit the executive

67
branch. That Hamdi is an American citizen War II. That Hamdi’s status as an enemy com-
does not change the analysis. The Court held in batant is in doubt is also no reason to detain
Quirin that any unlawful combatant, including him indefinitely. The Geneva Convention spe-
those who are American citizens, may be de- cifies that all combatants are to be treated as
tained an tried by military authorities. prisoners of war unless their status is determ-
ined to be otherwise through appropriate pro-
Despite his status as an enemy combatant,
cedures. Furthermore, the government cannot
Hamdi nonetheless has a constitutional right to
justify its conduct as a response to an emer-
due process. Since the writ of habeas corpus
gency. While extraordinary circumstances
has not been suspended, Hamdi has the right to
might demand that the president order indi-
challenge the facts underpinning his detention.
viduals to be detained without further inquiry,
The government argues that the Mobbs Declar-
no such emergency exists here. Hamdi has
ation provides all the evidence necessary to sup-
been detained for nearly two years.
port Hamdi’s detention, but this conclusion is
premature. The facts are far from Justice Scalia, with whom Justice Stevens
“undisputed,” as the government claims. In- joins, dissenting. The Court has used a res-
deed, the military’s own report on Hamdi states ult-oriented approach to circumvent the Sus-
only that he resided in Afghanistan at the time pension Clause. The Court suggests that deten-
of capture. It says nothing about his participa- tion is appropriate whenever Congress deems
tion in any combat against the United States. that detention to be appropriate by passing a
Whatever “process” Hamdi may have received statute. This approach blatantly disregards
during interrogation, it plainly does not qualify that a detainee has the unqualified right to pe-
as any process guaranteed by the Due Process tition for habeas corpus absent an express sus-
Clause. pension of that device. In any case, the Court
has overstepped its bounds by grafting the rule
The proper solution requires the Court to bal-
of Mathews v. Eldridge onto the current case.
ance the United States’ ability to wage war
The factual circumstances of that case involved
against the liberty interest of a person classi-
the suspension of Social Security benefits, not
fied as an enemy combatant. At the very least,
the rights of an individual captured during war.
a detainee must receive notice of the factual
basis for his detention and the opportunity to Justice Thomas, dissenting. The Constitu-
rebut those facts. At the same time, the exigen- tion unambiguously delegates to the president
cies of war may require the courts to relax evid- the responsibility of conducting wars. The
entiary rules against the government. Hearsay, Framers realized the realities of war necessit-
for instance, may have to be admitted. Such a ated decisions by a unitary authority and that
process would allow a detainee the meaningful the executive branch, as such, was the most
opportunity to challenge his detention without suitable for that end. The inherent war powers
unduly burdening the military with litigation. of the executive, coupled with the congressional
authorization to act in AUMF, show that the
Justice Souter, with whom Justice Gins-
president should be afforded the greatest pos-
burg joins, concurring in part, dissenting
sible leeway in determining what measures are
in part, and concurring in the judgment.
necessary to achieve victory. At the same time,
The president has no authority to detain Hamdi
the judiciary is ill-suited to the task of review-
merely because he has been classified as an en-
ing the president’s military decisions. Such de-
emy combatant. While the AUMF authorizes
cisions often rest on secret information; even if
the president to use military force against ter-
such information could be safely disclosed to the
rorist organizations, it contains no provision
courts, the courts may still be unable to render
specifically allowing the detention of individu-
any principled judgment since military de-
als. Indeed, the Non-Detention Act supports
cisions often entail speculation. The president
Hamdi’s argument for release: Congress passed
need only exercise good faith in making de-
that Act in order to prevent the sort of arbitrary
cisions relating to war. Even if a decision is
internment that had occurred during World

68
mistaken, the fact of the mistake does not make in fact, resembles presidential lawmaking. It
that decision unconstitutional. outlines a policy and the underlying rationales,
and it authorizes agents of the president to fur-
ther that policy. Any such legislative power
Youngstown Sheet & Tube should be reserved to Congress.
Co. v. Sawyer
343 U.S. 579 (1952) Mr. Justice Frankfurter, concurring. The
Labor Management Relations Act of 1947 states
in unambiguous terms that Congress alone has
Overview the power to seize and operate civilian indus-
A dispute arose as to whether the president had tries during a national emergency. Since the
the authority to seize and operate civilian in- seizure in question is not implicitly authorized
dustries during wartime. by longstanding practice, the president must
defer to the provisions of the Act.
Facts Mr. Justice Douglas, concurring. The Con-
During the Korean War, a labor dispute arose stitution expressly entrusts to Congress the
between steel mills and the United Steel Work- power to take property for public use. While
ers of America, the labor union representing the president may effect such a taking in a time
steelworkers. Despite extensive efforts to reach of emergency, that taking not constitutional un-
an agreement, no settlement was forthcoming. til it is ratified by Congress. To hold otherwise
The labor union declared that a nationwide would drastically expand the power of the exec-
strike would begin immediately after the expir- utive granted in Article II.
ation of the existing terms of employment. Mr. Justice Jackson, concurring in the
President Truman then issued an executive or- judgment and opinion of the Court. There
der directing the secretary of state to seize and are three circumstances under which the pres-
operate the steel mills in order to prevent any ident acts: (1) when he acts with congressional
strike from interfering with the production of authorization; (2) when he acts with neither the
steel for the war effort. authorization nor the disapproval of congress;
and (3) when he acts in a way incompatible
Issue with the powers of Congress. The last scenario
Did the president have the power to seize and applies here. Although the Constitution states
operate the steel mills? that the president shall be the Commander in
Chief of the military, it also reserves many ne-
Holding cessary functions of war to Congress. Congress,
for instance, has the power to fund the military.
The president did not have the power to seize Even in a time of war, the Third Amendment
and operate the steel mills. prohibition against quartering troops in private
homes cannot be abrogated absent an act of
Reasoning Congress. It is also no argument to say that the
Mr. Justice Black delivered the opinion of president may exceed the normal limits on his
the Court. Neither the Constitution nor any power in times of emergency. The Framers
statute enacted by Congress gives the president knew well the threats that might arise from a
the power to seize and operate the steel mills. national emergency, yet they refrained from
The president attempts to justify the executive writing into the Constitution any provision for
order on the ground that it constitutes an exer- “emergency powers.” The ready availability of
cise of his war powers. While it is true that the emergency powers creates the temptation to de-
president has great discretion in conducting clare emergencies in the first place.
war, activities relating to war cannot be defined Mr. Justice Burton, concurring in both the
so broadly as to include the seizure and opera- opinion and judgment of the Court. Con-
tion of civilian industries. The executive order, gress has already provided legislation designed

69
to deal with disputes such as the one currently habeas review and (2) that determinations
under question. The president has intruded made by the CSRTs could be reviewed only by
upon the domain of Congress by using an exec- the Court of Appeals for the District of
utive order to address what Congress has Columbia Circuit. When disputes subsequently
already addressed through legislation. arose as to whether the DTA applied retroact-
ively to habeas petitions filed before the DTA
Mr. Justice Clark, concurring in the judg-
took effect, Congress enacted the Military Com-
ment of the Court. The president should
missions Act (MCA), which gave the DTA retro-
have made an effort to comply with the proced-
active effect. Detainees at Guantanamo then
ures established in the Selective Service Act of
challenged the constitutionality of the restric-
1948.
tions on habeas review.
Mr. Chief Justice Vinson, with whom Mr.
Justice Reed and Mr. Justice Minton join, Issue
dissenting. The Court fails to recognize the
Does the DTA amount to an unconstitutional
gravity of the situation and the scope of the
curtailment of habeas review?
president’s power. That the Constitution deleg-
ates to Congress the power of eminent domain
Holding
does not mean that the president does not also
have the power to take private property for pub- The DTA amounts to an unconstitutional cur-
lic use. During the Civil War, Congress unam- tailment of habeas review.
biguously approved of Lincoln’s seizure of the
railroads leading to Washington despite that Reasoning
the seizure had been carried out without ex- Justice Kennedy delivered the opinion of
press congressional authorization. Here, the the Court. The case law does not definitively
president has not acted on his own whims; he establish whether the Constitution fully applies
has acted to protect the legislative schemes for in Guantanamo Bay. The government adverts
military procurement and price controls on to English cases holding that habeas corpus did
steel until Congress can further act on the is- not extend extraterritorial jurisdictions such as
sue. Indeed, the president has notified Con- the Channel Islands, but those decisions may
gress that he is prepared to comply with any have stemmed from prudential concerns rather
congressional decision as to the validity of the than legal ones. One should not blindly insist
seizure. on de jure jurisdiction as the standard for de-
termining constitutional reach. The American
Boumediene v. Bush government may not technically own
Guantanamo Bay, but it exercises complete mil-
553 U.S. 723 (2008)
itary and civil control over the area. Given the
de facto sovereignty of the United States over
Overview Guantanamo Bay, the government may not de-
A dispute arose as to the constitutionality of the prive detainees of habeas review unless Con-
gress formally invokes the Suspension Clause.
Detainee Treatment Act of 2005 (DTA).
The DTA does not provide an adequate substi-
Facts tute for habeas review. It does not allow de-
Following Hamdi v. Rumsfeld, the Secretary of tainees to be represented by counsel before the
Defense established Combat Status Review CSRTs, nor does it allow detainees to challenge
Tribunals (CSRTs) to determine the status of the evidentiary grounds for their detention.
purported enemy combatants detained at The unlimited admissibility of hearsay tends to
Guantanamo Bay. At the same time, Congress bias the evidence against any detainee seeking
enacted the DTA, which effectively stated (1) review. The Court of Appeals has the power to
that no Guantanamo detainee was entitled to review only the procedural aspects of CSRT pro-
ceedings as opposed to any substantive grounds

70
for detention. At the very least, a reviewing to suggest that the federal judiciary will be any
court must have the power to order the release more efficient in reviewing detainees than the
of any person it finds to have been erroneously system established by the DTA; to the contrary,
detained. the case-by-case approach of the courts may
prove considerably less workable. In any case,
Justice Souter, with whom Justice Gins-
the DTA already gives detainees more rights
burg and Justice Breyer join, concurring.
than at any other time in American history.
Many of the detainees have been held at
Guantanamo Bay for more than six years Justice Scalia, with whom the Chief
without any meaningful opportunity to chal- Justice, Justice Thomas, and Justice Alito
lenge the grounds for the their detention. The join, dissenting. The Court has exceeded its
Court correctly demands that the detainees authority in striking down a system of review
have access to a more comprehensive review approved by both the executive and legislative
process. branches. In doing so, it has hampered the na-
tion’s ability to wage war. The Court misinter-
Chief Justice Roberts, with whom Justice
prets the case law in concluding that habeas re-
Scalia, Justice Thomas, and Justice Alito
view should run to Guantanamo Bay. Mean-
join, dissenting. The Court has struck down a
while, detainees released in accordance with
well-considered system of review without pro-
court orders have returned to combat against
posing an acceptable alternative. Indeed, the
American forces, and information disclosed in
Court has merely shifted the task of structuring
courtrooms have found their way into the hands
review from the executive and legislative
of terrorists.
branches to the judiciary. There is no evidence

71