SUBSTANTIVE DUE PROCESS
SDP Analysis: Is there a fund. right?  (a) Textual Basis (b) Hist. & Trad. (c) Social Mov’t Twrds Recog. (d) Nat’l Conscience  No: Rat. Bas./Yes: Strict Scrut.
RATIONAL BASIS TEST: Is the law reasonably related to a legitimate government interest.
(1) Is there any state of facts either known or which could reasonably be assumed affords support for the law. If so uphold it.
(i) Conceivable Purp. (ii) Admin. Conv. (iii) Econ. Classifs. (iv) Plaintiff carries burden
STRICT SCRUTINY: Is the law narrowly tailored to promote a compelling govt. interest.
(1) Is the fund right infringed?  (2) Does the govt. have a compelling interest for infringing on the right?
(3) Is the law effective? (4) Is the law narrowly tailored?  Are there less restrictive alternatives?
List of Recognized Privileges & Immunities
Habeas corpus; Petition seat of govt; Transact business with govt (1st A); Seek protection; Free access to seaports, subtreasuries, land offices and courts of justice (Art. 1 Sec.9)
Incorporation Doctrine
Twiney v. New Jersey (1908) (inventing incorporation doctrine by holding that the 14 th A makes the 1st A freedom of speech applicable to the states) Presser v. Illinois (1886)
(holding that 2nd A right to bear arms is not incorporated) D.C. v. Heller (2008): (finds a fundamental right to bear arms making it more likely 2 nd A could be applied to states in
the future (DC Cir. so this is a federal issue)) Mapp v. Ohio (1961) (finds 4th A right against unreasonable search and seizures to be incorporated) Hutardo v. California (1884)
(finding 5th A Right to a Grand Jury in criminal indictments is the only section of 5 th A not incorporated all other sections inc. in different cases) Duncan v. Louisiana (1968)
(6th A right to jury in criminal trial is incorporated) (all other provisions of 6 th A also incorporated by different cases) Minn. & St. Louis RR v. Bombolis (1916) (finding 7th A
right to civil trial by jury not incorporated. 3rd A Freedom from Quartering of Soldiers: No SCT ruling but presumed to be incorporated Robinson v. California (1962) (unlike
right against excessive bail 8th A right against cruel unusual punishment is inc)
Fundamental Rights (derived from the word liberty in 14th A DPC  Privacy)
(1) Marriage (2) Procreation (3) Contraception (4) Living with extended family (5) Custody of ones children (6) Abortion (only one that gets undue burden test) (7) Right of
consenting adults to engage in consensual sexual activity is not a fund. right but is a “very important liberty interest” that receives similar treatment
Use Glucksburg/ Michael H. to minimize the right  define narrowly
Use Roe/Lawrence/Griswold to argue the right can be implied then compare it to existing rights  define broadly
Calder v. Bull (1798)
Facts: Subsequent to new leg. CN ct changes ruling allowing inheritance under a will.
Holding: Does not violate ex-post facto principles
Majority (Chase) (Prevailing View): (1) Certain fund. rights can be implied from nat law and read into Const. if there is some textual connection. (2) Const. not exhaustive.
Criticism (Strict Constructivist): Justice Iredell says slippery slope ensue if court starts implying rights
Davis v. Davis (1992) (Couple divorces, husband wants frozen embryo destroyed, wife wants someone else to get it)
1) Balancing Test: a fund’l right to not be parent trumps the right to give someone an embryo Note: IA law  nothing happens until consent, de facto victory for father.
Note: If women wanted to have child  Ruling in favor of father one step twrds fathers right to in utero/abortion decision  Ct has said no veto power or notice in Casey
Right to Marry Loving v. Virginia (1967) (VA law forbids interracial marriages) Majority (Warren): (1) Marriage is a fund’l right (2) Racial classif is discrim’y  state’s
interest to not mix the races was relig. and not justified Rejects: State arg. that it was not discrim b/c it treated both races poorly. Only outlaws whites from interracial marriage.
Note: App. to Gay Marriage  holds marriage is one of the basic civil rights under the 14 th A but ruling is based on the tradition of marriage, gay marriage not hist’l/trad’l
Zablocki v. Redhail (1978) (WI law  if behind on child-support payments, you can’t get married without making difficult showing that child will not become ward of the state)
Majority (Marshall) (1) EQP applies “critical examination scrutiny” (basically strict scrutiny) Apply to all right to marry cases but note that this is not a typical SDP
analysis and maybe only works for EQP right to marry analysis (2) the law fails b/c it is not narrowly tailored; it infringes upon the right to marry and other alternatives to
promote child support exist (3) Not effective: Some ppl will always be indigent. Maybe counter-effective: some ppl able to pay child support with dual income after marriage.
(4) Also implies fund’l right to procreate. (5) Fund’l rights being denied to vulnerable group Concurrence (Stewart) Should not be an EQP case; more analogous to SDP;
marriage is not absolute—restrictions on marriage are allowed (age, incest) Dissent (Rehnquist): No fund’l to marry
Right to Custody of One’s Children Santosky v. Kramer (1982) (1) Fund’l right to custody Must be a sub’l reason before parental custody can be term.  A “nat’l parent’s
desire for and right to the companionship, care, custody, and mgmt of his or her children is an interest far more precious than any property right.”
Stanley v. Ill (1972) (IL law  kids of unwed dads wards upon death of mom) Majority (White): Presump that dads are bad allowable, but must provid hearing to rebut)
Micheal H. v. Gerald D. (1989) (CA law provided that a child of disputed parentage would reside with the “father” in the marriage, not the biological)
Majority (Scalia) (Strict constructivist) (1) Law is upheld: No fund’l right for an adulterer to have a rel. with a nat. daughter. (2) No hist. or trad. for this right. No text support
(3) Scalia fn 23: analysis must be fact intensive or slippery slope ensues (avoids jud’l subjectivity). (4) Valid state interest in protecting fam unit/rights of parent raising child
Dissent (Brennan) (living constitution/evolving: Kende calls this the most left wing analysis) (1) Liberty interest implicates the right to privacy in DPC. From right to
privacy the right of a bio father to have contact w/ child is implied. Higher level of scrutiny. (2) Hist & Trad Problematic. Very malleable. Notions of family are outdated 
“The majority treats the const. as stagnant and archaic” (3) Technology has evolved  fathers can be determined conclusively
Right of Extended Family to Live Together Moore v. East Cleveland (1977) (City ordinance restricts the amount of people that could live in a house)
Majority (Powell) (1) Fund’l right for fam members to live together (even beyond nuc. family) (2) State interests in relieving congestion in schools, parking, and overcrowding
fail strict scrutiny  ordinance is not narrowly tailored since alternatives exist (3) Nuclear fam draws arbitrary boundary Dissent (Stewart) (1) Ordinance is a valid effort by the
city to promote the comm’y welfare. (2) Court should not micromanage b/c any def of fam will cause hardship under some circum.
Belle Terre v. Boraas (1974) (Upholding zoning ordinance in a college town limiting number of unrelated people who could live together based on exception for related persons)
Slaughter-House (1873)
Facts: Monopoly to butchers in New Orleans. Goal is to promote sanitation isolate bloodshed and filth of business. Butchers argue this violates right to work.
Majority (Miller) (Textual and Formalistic): (1) Civil war amends not the source of fund’l rights (2) 13th A: Created involuntary servitude does not apply. (3)EQP irrelevant
 passed to protect recently freed slaves. (4) DPC fails b/c procedural hearings occurred. (5) Does the law abridge their 14th A P&I as citizens? P&I protects rights granted by
US to US citizens not state to state citizens.  Criticism: citizen of the state is left out when it is so carefully used in the preceding sentence (textual argument) (6) 14th A P&I
is specific to interstate discrim. and interpretation of 5 th A P&I cannot be transplanted
Dissent (Fields): (1) Redundancy: If 14th A P&I clause only protects textually enumerated privileges it is “vain and idle enactment that affected nothing” since these rights are
already ensured by the 5th A DPC (2) (Intra-textual) 14th A P&I should be used in the same way as in Art. 5 Support: Scholar Michael Ross argues that Miller, a doc. and part
of sanitation movt, deferred to a legit sanitation concern. Not a racist retreat from reconstruction since post-civil war LA leg. had blacks Criticism: Leg. was captured. This
case is about a monopoly obtained by power and money. Academics point to writings of John Bingham and argue that 14 th A P&I was intended to be biggest source of implied
rights. Tragic since purpose of 14 th A was to grant fed. power to control states. Aftermath: 14th A P&I rendered virtually useless until . . .
Cruzan v. MO (1990) (Right to Refuse Med. Trtmnt) (MO law forbids parents of veg. to remove feeding tube (starve the patient?)) Liberty  bodily integrity  Fund’l Right
Washington v. Glucksberg (1997) (Major Victory for Conservative Approach to SDP) (WA law prohibited assisted suicide)
Majority (Rehnquist) (1) No right to assisted suicide. The case is a big victory for the conservative interp. of the DPC. (2) SDP Trad. Test: Does not find hist of narrowly
defined right to commit suicide with the help. Quite contrarily there is a hist and even a present tradition of rejecting all kinds of suicide and protecting life. (3) Rationality
Review  Interested in protecting life  Interest in protecting vulnerable people  Slippery Slope to euthanasia (4) Relies on foreign data from the Netherlands  troubling
evidence of coercion Note: Only OR, WA, and ID have right to die with dignity. This case does not ban such a law but a law that outlaws it is ok.  Criticism: difficult to
reconcile w/ Roe where CT went beyond hist and trad. This is very narrow. Concurrence (O’Connor): can only provide palliative care  goal is to alleviate pain even if doc
knows overdose will occur Concurrence (Stevens with 5 joining): Creates an exception when this law would be unconst’l  person is terminally ill, mentally competent, and no
medication can help. Just too cruel. Concurrence (Breyer): Would define liberty interest broadly as “right to die with dignity” and find a fund’l right
Saenz v. Roe (1999) (Edwards v. CA (1941) finds fund. right to travel. This law limits welfare benefits to newly arrived citizens in CA)
Majority (Stevens): (1) Law impermissible infringement on 14th A P&I  always included right to travel: deters right to travel and infringes right to be treated equally in new
state (sounds like an EQP analysis) Analysis: Avoids discussion of right to welfare, which would raise econ. rights, federalism, state police power issues. SCT does not support
affirmative socio econ. rights b/c it does not like to allocate state resources. Criticism: CA had a legitimate budgetary concern
Vacco v. Quill (1997) No EQP violation that paralyzed people cannot get help committing suicide. State interest in protecting life is valid
Reconcilable?: Pro-Life & For Assisted Suicide: Fetal v. person distinction  fetus no choice Pro-Choice & Against Assisted Suicide: Fetus not person
Economic Rights
Lochner v. NY (1905) (Overturned by Carolene Products and West Coast Hotel) (NY law imposes limits on hours a baker can work)
Majority (Peckham): (1) Strikes down law. Big decision  some fund’l rights can be implied by dpc of 14th amendment (2) Freedom to contract implied from the word
liberty in 14 A DPC. This liberty interest is not absolute but it can’t be infringed w/out major justif. Doesn’t rely on K Clause in Const. Art. I, sect. 10, clause 1  narrowly
interpreted and limited to existing Ks. (3) State justifs weak. Tight means/end connection required  bread will still be safe law does not promote public health. (4) Labor
justifs weak and can only be used to protect vulnerable groups. These ppl may need the $. (5) Slippery slope  bad if all professions (especially lawyers) will be subject to
state regulation Criticsim  Peckham recogs possibility of capture by unions. Ct is lochnerizing  inventing rights. Disfavor of mkt reg demontrates that ct. is really just
against redistribution of wealth.
Dissent (Holmes): Capital/free markets are not guaranteed by Const. and cannot be implied. Defer to leg. defer to facts do not defer to laissez faire economic bs. Majority
should not impose personal views by reading social Darwinism into const. and prohibiting legit state ends.
Dissent (Harlan): Tight means/end connection standard is too high. Defer to leg. and facts.
Critiques of Lochner:
(1) Tight Means/ends (need perfect proof that means will promote the ends): (a) Harlan: court has mistakenly req’d a tight means/ends. Many bakers will benefit from the
law. (b) Proof does not have to be perfect, just reasonably related. (c) Not the court's job to introduce econ philosophy (2) Pluralism (Modern Approach: variation of Holmes
dissent): (a) Let plural groups in the political process make that leg. process play out. (b) Court should gen. not be allowed to specify prohibited ends (Holmes) (3) Trad’l
view of process  procedural due process is enough and SDP does not exist. (4) Trad’l view of liberty  Only contemplates bodily restraint: slavery, false imprison.
(5) Privacy-broad notion of liberty (Modern Approach): (a) SDP fund. rights exist but not here. Prob. not that ct is too substantive just it is in the wrong area. (Anti-Holmes)
(6) Rejection of Free Market Theory (No neutral baseline) (a) Based on mistaken notion that bargaining power is equal between emp’ees and emp’ers. (b) No such thing as a
truly free mrkt  gov’t protections. All elements of free mkt req. govt protection (taxes, corp. regs, patents). Laws protecting business owner (e.g. trespass, fire, b&e, theft,
police). (c) Great dep tends to legitimize this theory. Civil right mvt and feminist movt maybe also played a role. (d) Richard Posner wrote The Failure of Capitalism: paradigm
shift based on recent economic crisis
Aftermath: 3 Doctrines that still define SDP
(1) tight means/ends fit (2) certain leg. ends are illegal and prohibited (3) aggressive role for the cts
Lawrence v. Texas (2003) (Overrules Bowers)
Majority (Kennedy) (1) Important liberty interest, but not a fund’l right that gets strict scrutiny; finds important liberty interest from the right to privacy based on “liberty” 
heightened scrutiny (2) Def. of Right (Broad)  Personal liberty interest in choosing the relationships engaged in within privacy of home without being punished as criminals
 can’t demean and stigmatize consensual adult sexual conduct (3) No legitimate state interest (4) Modern trend (5) Laws based on moral are invalid  Support: John Stuart
Mill (Political Philosopher) Criticism: Difficult to reconcile w/ Glucksburg narrow approach to SDP Concurrence (O’Connor): Not a SDP problem but an EQP issue 
unfairly harms gays Dissent (Scalia) (1) Stare Decisis; Federalism; Dem’y; Hist. (2) No fund’l right  passes SDP rationality review. Regs conduct not persons  passes EQP
analysis (3) All laws with a moral component are in trouble if you take Kennedy “no morals” arg. seriously (4) Accuses the ct of taking sides in the culture wars  “Todays
opinion is the product of a court that is a product of a law professor culture.” (populist dem. argument) (5) Concedes stare decisis opens the door for gay marriage can be used
against conservs when gay marriage case comes before SCT (6) Frustration over failure to declare level of scrutiny Dissent (Thomas): Textualism; Counter-majoritarian dilemma
Nebbia v. New York (1934) (NY law  Min Milk Price)
Majority (Roberts) (Reasonableness Test, Deferential to Leg) (1) Right to K is not absolute. No right to sell milk as cheap as you want. (2) State has the right to promote
gen. welfare: milk is essential for strong bones and teeth  milk mkt is failing and price undercuts are putting small ops out of biz (3) Law does not violate 14th A SDP  Not
unreasonable or arbitrary (reasonableness test difficult to reconcile with Lochner)  prevents ruthless comp. from destroying price structure/milk industry
Criticism: Helps dairy producers to disadvantage of consumer. Reverse lochnerizing.
PROCEDURAL DUE PROCESS: Given the gov. action infringing on life, liberty or property were sufficient procedures granted to those effected?
Goldberg v. Kelly (1970)
Majority (Brennan): (1) Ppl become so reliant on statutory entitlement (welfare benefits) that these benefits become a prop. interest (Reich on New Property) (2) Explicit
wording in stat. lends itself twrds finding prop interest (3) Pre-dep hearing is req’d for ppl who lack resources to contest ruling post-deprivation. Dissent (Black) (1) Legit interest
in conserving fiscal/admin resources (2) No text support (3) More depriv  state will require lengthy proceedings to determine initial eligibility
West Coast Hotel Co. v. Parrish (1937) (State law  Womens min wage) (Overturns Lochner)
Majority (Hughes): (1) No Violation of 14th SDP b/c freedom of K is not a fund. right  Liberty contemplates protection from evils which menace the health, safety,
morals, and welfare of the people (2) Must not subsidize unconscionable policies of employers  Must protect vulnerable workers or comm’y (taxpayers, charities) will bear
the cost. (3) Defer to leg: Reg. reasonable in rel. to its subject and adopted in interest of comm’y does not violate SDP (4) More critical of free market than any other opinion
Mathews v. Eldridge (1976) (No property interest in disability benefits withdrawn without pre-dep hearing dif. from welfare which provides basic sustenance)
3 part test for determining process (right to hearing in advance) (1) Private interest that is effected  How big is need to individual (2) Risk of error if you don't have
certain procedures (3) Nature of burden on the government
U.S. v. Carolene Products (1938) (state law prohibits filled milk) (Overturns Lochner even more)
Majority (Stone) (1) Defer to leg. on economic regulations and reserve aggressive judicial review for cases involving fund’l rights (2) Rational basis test- Is there any state
of facts either known or which could reasonably be assumed affords support for the law. If so uphold it. (3) Strict scrutiny requires tight means/end connect but is
for fundamental rights listed in const. and will not be applied to economic laws. (4) FAMOUS FOOTNOTE 4: Two kinds of laws get strict scrutiny (1) Laws that
interfere with political process (e.g. voting). (2) Laws that effect on discrete and insular minorities. Discrete means obvious (skin color), insular=segregated. Deserving
of the most protection  easily identified and harmed.
Since striking down such law protects the pol. process there is no counter-majoritarian dilemma. Criticism: Pure dem’y is maj. rule  Counter-criticism: playing field is
unfair and minorities are prevented from contrib. to the pol. process so their views are not accounted for. Criticism: Bruce Ackerman: “discrete and insular” paradigm is
outdated by civil rights legislation. Courts should adopt newer paradigm to protect “hidden and diffuse” minorities.
Happy Version: Ruling is about health, and strong bones and teeth. Holmes  pluralism is good. Cynical Version: Ruling is about dairy prod. who “captured the pol. process”
Reproductive Autonomy
Buck v. Bell (1927) (State law forces sterilization for mentally infirm)
Majority (Holmes) (Not his finest moment): (1) Defer to leg (federalism)  police power/pub. welfare arguments for implementing eugenics (2) General declarations of
legislature and findings of the court support the law (3) “One generation of imbeciles is enough”
*** Skinner v. Oklahoma (1942) (OK criminal predilection statute: allows sterilization of 3 time offenders if crimes involve moral turpitude)
Majority (Douglas): (1) Finds that right to procreation and marriage are fund’l rights but did not rule on this issue to avoid Lochnerizing. (2) Decides on EQP grounds
b/c white collar crimes are exempted (class based)  strict scrutiny  No basis for the distinction-inheritability of criminal traits. Even if criminal predilection is heredity how
are some crimes more hereditary. Same fines and imprisonment, just a difference for sterilization No genetic evidence of criminal predilection (3) WWII era climate
Chemical Castration Laws Hypo
(1) Fund’l right?  Con: Yes. Right to marry, right to procreate. Bodily integrity argument (like abortion). Pro: (i) Temp.: Does not perm. remove right to procreate or
marry (ii) Unlike Skinner these laws are not based on reproduction but rather recidivist studies. (2) Compelling govt interest? Yes. (3) Effective and narrowly tailored  Con:
The drug is not always effective. Many sex offenders are impotent. Drugs can be taken to reverse the effect. ACLU says sex offenders typically have psych. not hormonal
problems. This will increase psych. instability and violence.  Pro: Balances perfectly with the crime. (4) Less Rest. Alternatives  Pro: Consent/release program minimizes
restrict  Con: Consent/release programs are not a real choice. Convict will consent to anything to get released. Doesn’t matter if there are no alternatives b/c this is cruel and
unusual punishment and double jeopardy.
Griswold v. Connecticut (1965) (Foundation of Right to Privacy) (CN law heavily restricts use of contraceptives for anyone and provides for accessory/accomplice liability)
State: Public morality/Police Power Argument: reduces likelihood affairs, infidelity, and fornication
Majority (Douglas) (1) Ct find fund’l right to privacy based on “penumbras” of privacy not textually mentioned.  Criticism (textualism): lochnerizing again. Framers left
privacy out of const. on purpose.  Counter-criticism: Implication is based on various const. provisions not the word liberty. (2) Privacy can be implied: various const.
guarantees create zones of privacy  1st A: Freedom of Assoc.  3rd A: Prohibits mandatory quartering of soldiers  4th A: Prohibits unreasonable searches and seizures  5th
A: Prohibits self-incrim. (3) State law is to broad and invades privacy  Can’t infringe on privacy of marital relationship (unclear whether this right extends beyond marital
relationship  probably does) Goldberg Concurrence (living const) (1) Emphasizes the relevance of 9th A in implying rights “retained by the ppl” (few and final use of 9 th
A)  "liberty" protected by 5th and 14th As from infringement is not restricted to rights specifically mentioned in first 8 As  To determine fund’l rights-look to traditions
and collective conscience of our people  State concern is dubious Harlan Concurrence: (criticized by both sides) (1) SDP of 14th A is enough to find a right to privacy (2)
Encourages judicial restraint (3) There is no right to privacy outside marital privacy. Unlike Douglas very clear that it does not extend beyond marital relationship to same sex
marriage or adultery. White Concurrence: (1) Poor means/end fit. Ban does not accomplish state goals. Allows sale of contraceptives in the state Black Dissent: (1) There
is no const’l right to privacy and it cannot be inferred. The govt has a right to invade privacy unless prohibited by some specific const’l provision (2) SDP must be based on
text, history, and tradition: No real way to determine Nat’l Conscience, not for judges to decide (3) Critical of prenumbras b/c they are not in the text and lead to a slippery
slope (4) 9th A is not a license to create fundamental rights and impose personal views of ct. Stewart Dissent: Uncommonly silly laws will be dealt w/ by dem. process
Eisenstadt v. Baird (1972) (State law prohibits unmarried couples from obtaining contraceptives)
Majority (Brennan): (1) Right to privacy: freedom from unwanted gov’t intrusion is an individual right Privacy of married couples in Griswold married couple is made
up of individuals who each have their own rights (2) EQP (3) Rights must be the same for the unmarried and married alike (4) Rejects state promiscuity argument  they still
have sex Dissent (Burger): Nothing says that contraception has to be available on open market, not a flat prohibition
Carey v. Pop. Services Int’l (1977) (Minors have a right to contraception as well; cannot punish ppl w/ pregnancy; tension over breadth of right to privacy)
Roe v. Wade (1973) (TX law bans abortions)
Majority (Blackmun) (1) Fund’l right based on the grounds of women’s choice/autonomy before the fetus is viable (not burden on body)  Extension of Griswold: Liberty 
privacy  abortion (2) Sets up the trimesters to evaluate state’s interest (3) Law fails strict scrutiny  1st –state has no interest in protecting life of fetus  2nd –state has some
legit interest to protect the life of fetus and health of mom through persuasion, cannot prevent abortions  3rd –state has absolute interest; must include exceptions for the life
and perhaps safety of the mother  Criticism: instead of Lochnerizing, there are three alternative approaches: (1) equal protection, sex discrimination  regulating pregnancy
is sexist (2) older version of liberty (3) secularism  any pro-life decision would have been based on religion (Jeff Stone Theory)  groups justices decisions by their religious
affiliation). Other criticisms Federalism; Textualism; Trimester framework  arbitrary line drawing Backlash thesis: pol.backlash provided ammunition to conservative
opponents. Let pol. process run its course. States were trending towards liberalizing and even legalizing laws on abortion. Counter: fund’l rights are not dependent on pol.
process Dissent (Rehnquist) (1) No text support. (2) Right to privacy cannot be read out of “liberty.” The histories and tradition of state abortion laws reflect the fact that
abortion is not a trad’l fund’l right. (3) Exception for life/health of mother  Criticism: opens the door for other exceptions Criticism of Dissent: (1) Laws are not enforceable
(2) Laws only affect poor women who cannot afford to travel to have abortion (3) Hist and tradition alone do not determine fund’l rights and would freeze us in the past
Planned Parenthood v. Casey (1992) (PA law restricts abortions by requiring informed and parental consent, 24 hr waiting pd, contained an emergency exemption)
Plurality (O’Connor)
(1) Affirms central ruling in Roe b/c Stare decisis should be followed, except in four cases: (i) central rule is unworkable (nothing has changed) (ii) Law changes
(central rule becomes doctrinal anachronism) (iii) facts change (iv) social reliance on the law has eroded (speeding) (2) Throws out the trimester framework and strict
scrutiny approach (so much for stare decisis) (3) State interest starts at conception, supposed compromise is made. New undue burden test  the state can take actions
before viability if there’s no undue burden (substantial obstacle) Ex. spousal notification—could trigger abuse Blackmun (Concur & Dissent) Uphold Roe in its entirety.
Female autonomy arguments. Trimester framework is more workable. Dissent (Rehnquist): History and tradition.
Dissent (Scalia) (1) Federalsim, textualism, dem’y (2) Decision is based on silly mysteries of life argument: “At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of human life.”
Maher v. Roe (1977); Harris v. McRae (1980) ((1) Const. of negative rights  State has no affirmative duty to fund abortions (2) the state cannot prevent abortions, but
does not have to oblige to paying for them for indigent women (not a suspect class)).
Gonzales v. Carhart (2009) Facts: Stenberg (2000) (invalidated a NE prohibition of partial-birth abortions, O’Connor writing for majority said “substantial portion” test of NE
law was too vague); 2003 fed. statute outlaws partial-birth abortions; Alito replaces O’Connor
Majority (Kennedy) (1) Upholds the fed law prohib. intact D&Es; the law includes intent req. & anatom. landmarks to clarify what is an intact D&E; not an undue burden b/c
alternatives exist (experts argue alternatives are safer) (2) Defer to Congress (3) Protect women from psych impact of brutal procedure Criticism: majority opinion concedes
other options exist; does not promote life  Criticism: Not only inconsistent with Stenberg but also Roe and Casey  should be choice of woman and her physician
Dissent (Ginsburg) (1) The majority invokes an “antiabortion shibboleth” for which it concededly has no reliable evidence to justify “pure sexism” depression approach
(2) Law must fail b/c lacks exception is only for life not health of mother.
Right to Engage in Homosexual Activity Bowers v. Hardwick (1986) (ruling that law banning homo sodomy is not unconst’l. Right to privacy does not protect it)
DeShaney v. Winnebago County Dept. of Social Services
Majority (Rehnquist): DPC does not impose an affirmative duty on state to provide security for abused child since no min. level of protection guaranteed from private actors.
Diff in pub enviro (ie prison). Dissent (Brennan, Blackmun): Govt. got involved and in taking an active step by involving themselves created the affirmative duty.
District DA’s Office v. Osborne (2009) (Convict challenged AK ruling that denied exculpatory DNA testing)
Majority (Roberts) (1) No right to DNA test b/c there’s no hist (2) No hist of convicted inmate to have a SDP fund’l right to exculpatory evidence (3) Policy argument: Concern
that ct will end up governing states preserv and use of DNA. Dissent (Stevens): Truth and justice. Law an order support making sure you get the right guy.
DC v. Heller (2008)
Majority (Scalia) (Originalism: partly due to lack of precedent) (1) Intra-textualism (2) Hist & Tradition (3) Does not state the level of scrutiny  Appears to employ a
balancing test: state interest in regs v. indiv. right to bear arms. Dissent (Breyer): Pragmatic looks like EU or CAN ct decision  balancing/proportionality. (Stealth Foreign
Law Approach) Interpretations of Heller: (1) Lochner (2) Like Marbury v. Madison Court uses const’l and legal tools to come to a reasonable apol’l decision. (3) Like
Griswold: minimalist decision acknowledgment of a nat’l majority support. Note: Judge Wilkenson  a conservative southern justice does not like this decision
Caperton v. Massey Coal (2009) (Judge elected with funds from a contrib’r then overturns 50 mil judgment against him. Non-recusal challenged.)
Majority (Kennedy): Objective test: does not say that the judge has been proven to be biased but probability of actual bias was too high casts doubt on fair hearing.
Dissent (Roberts): facts may be troubling but the legal test is just a “does this look bad test” with no workability or guidance. Poses problematic questions.
EQUAL PROTECTION
Class Discrimination + Important Liberty Interest. Used to avoid creating affirmative socio-economic rights.
Hybrid Test: Skinner v. OK (1942), Zablocki v. Redhail (1978), Plyler v. Doe (1982)
(1) Is there a very important Liberty Interest? (2) Is there a disproportionate impact on the poor.  If yes use some heightened level of scrutiny.
(1) What is the classification? (2) What is the appropriate level of scrutiny? (3) Does the govt. action meet the level scrutiny.
Current State of the Law: Scrutiny Rules
(1) Rationality: law must be reasonably related to a legitimate government interest
(2) Intermediate scrutiny: law must be substantially related to an important government interest. (3) Strict scrutiny: law must be narrowly tailored to promote a
compelling govt. interest.
Rationality
Is the govt. action rationally related to an important state interest?
(1) Law can stand if the ct. can invent a conveivable purpose (2) Economic classifications interests (3) Very deferential to legislature: considers administrative convenience (4)
Burden lies on the plaintiff to show that legislation is irrational and arbitrary (5) Allows Underinclusiveness/Overinclusiveness
Rationality with a bite: Heightened scrutiny under rationality if the law affects a vulnerable group. Desire to harm/prejudice. City of Cleburne v. Cleburne Living Center, Inc.
(1985) (ordinance exluding home for mentally retarded held invalid). USDA v. Moreno (1973) (Law denies food stamps to hippies in communes. Bare desire to harm hippies
cannot meet rationality review). Romer v. Evans (1996).
Romer v. Evans (1996)
State Interests: (1) Protect freedom of assoc. (2) Remove a preference for one group (3) Use of limited resources to enforce other laws
Majority (Kennedy) (1) follows amicus submitted by L. Tribe) CO referendum withdrawing and forbidding anti-discrim laws in protection of gays can’t meet rationality review
under EQP analysis. (2) Bare Desire to Harm (animosity) is never allowed (3) Bowers is disapproval of a conduct not a disapproval of a status/group which is more
problematic. Criticism  Ct seems to misallocate the burden onto the state instead of correctly on ∏ to show law is irrational. Approach to SDP rationality seems irreconcilable
with Fritz. Dissent (Scalia): (1) Stare Decisis re: No mention of Bowers in Maj. (2) One-way ratchet (3) Antidem. engagement in the cultural war.
U.S. RR Retirement Board v. Fritz (1980) (Underinclusiveness) (Delineation btw who gets windfall benefits: dbl benefits from rr and ss. Law favors continued ties w/ RR)
Majority (Rehnquist): (1) Invents Conceivable Purpose: Favoring employees that stay in RR industry. (2) Highly Deferential Criticism  In reality this law reflects capture of
leg. by RR industry Dissent (Brennan): (1) Should use actual reasons of congress not just plausible reasons. (2) Leg. is actually written by RR mgmt
New York City Transit Authority v. Beazer (1979) (Overinclusiveness) (NY law bans methadone users from working in Transit Authority) Maj (Stevens): (1) No suspect class
(2) Legit but generic state interest is safety. (3) Ct does not want to make personnel decisions. (4) Admin. Conv.: Ct does not want to force leg. to do detailed rehab analysis
Dissent (White) (1) Misallocates burden by req. govt. to prove admin. inconvenience. (2) Vulnerable group  Counterarg: Vulnerable due to voluntary actions
Banning Cigs on Job Hypo: Extremely underinclusive, cigs do not impair funct’g like methadone may (safety concern undermined), leg invades privacy, arbitrary probably
fails rationality review. State has health costs args. State can make one step at a time arg for wellness.
Strict Scrutiny
Reasons for Application of Strict Scrutiny: (1) History of Discrim (2) Minorities are underrepresented (3) Immutability of Race (4) Laws based on Stigma (Stigma
Justification) (5) Racial classifications are useless (6) Racial Classification are Based on Stereotypes (7) Principles of color blindness/equality read into constitution
Facially Discriminatory: Race specific laws automatically get strict scrutiny and the presumption is that they are illegal.
Facially Discriminatory Test: (1) Does the law discriminate against a suspect class. (2) Is the discrim necessary to achieve a compelling govt purpose. (state should make
police power argument) (3) Is the law narrowly tailored (not over/underinclusive) (4) Is the law/policy the least restrictive means of achieving that interest.
Korematsu v. U.S. (1944) (Historical situation where Japanese are put in internment camps during WWII after Pearl Harbor including many citizens)
Maj (Black) (1) Nat’l security interest: close relationship btw relocation and prevention of espionage/sabotage is an effective compelling govt interest. (2) Not about race b/c
would be difficult to separate loyal from disloyal (3) Narrowly tailored: no less restrictive means available. (4) Policy: deference to the military Dissent (Murphy) (1) This
amounts to plain racism b/c Germans and Italians are not interned. Japanese stereotype and racial distinction. (2) There is a hist. of discrim and mistrtmt of group. (3) Could be
done less restrictive. Procedures could avoid blanket mistrtmt i.e. British style tribunals (4) Danger of invasion is BS no proof of imminent danger. Dissent (Jackson): The
most dangerous thing is ruling in a way that twists the constitution during war time. This sets a dangerous precedent that can live on.
Plessy v. Ferguson (1896)
Maj (Brown) (1) Purpose of 14th A is to enforce absolute equality of races not abolish distinctions or force social equality/commingling (Weird: advocates togetherness but
prevents nat. interactions) (2) Social prejudices may not be overcome by leg (3) Must be result of nat affinities (4) Separate but equal Dissent (Harlan): Const color blind
Brown v. Board of Education (1954)
Maj (Warren) (1) Direct negative effect of seg. itself on pub. ed. (2) Ed. most important function of local gov. and must be available on equal terms Can’t do well in soc’y w/o
ed. (3) Psych evidence not available at time of Plessy used to show stigma (4) Separate ed facilities inherently unequal  Criticism: Good result weak reasoning  no level of
scrutiny applied Stigma-Clark Experiment  Social science studies relied on have proven unsophisticated by modern standards Follow Up  Brown was subsequently used to
strike down several segregation laws showing that the decision stands for equality in a broader context than education.
Intersectionality Theory: Court has not yet acknowledged, intersectionality, a theory which seeks to examine the ways in which various socially and culturally constructed
categories interact on multiple levels to manifest themselves as inequality in society.
Facially Neutral Laws with Disparate Impact: A law that is racially neutral but has a disparate impact on racial minorities is presumptively legal.
Test (1) Has the plaintiff shown a discriminatory purpose (the law was promulgated out of a “bare desire to harm”  If disparate impact is high enough may allow
inference of discriminatory purpose  Use circumstantial evidence to show discriminatory purpose. (i) Did gov. follow normal operating procedures (ii) Is there a
history of racial bias (iii) Testimony in front of committee (2) Burden shifts to gov. to show that result would have been the same anyway. i.e. incompetence/personality
(3) Apply Strict Scrutiny
Yick Wo v. Hopkins (1886) (if the effect of the law has a clear pattern unexplainable on grounds other than race then discrim. purpose can be found)
Village of Arlington Heights v. Met. Housing Dev. Corp. (1977) (no gov viol’n for deny’g zoning for low income hous’g circumstantial evidence is used to show discrim purp)
Mt. Healthy City Bd. of Educ. v. Doyle (1977) (finding no const’l violation: once plaintiff shows defendant acted from discriminatory motive in not rehiring him, burden shifts
to defendant to show result would have been same in the absence of that motive; const’l violation not established merely by showing of wrongful motive).
Gomillion v. Lightfoot (1960) (drawing town voting boundary to include all whites and exclude all blacks is disparate impact high enough to allow inference of discrim. purp)
Ashcroft v. Ichball (2009) (top government officials were not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity)
Washington v. Davis (1976) (D.C. has a test for police to test verbal skills that is argued to be discriminatory against blacks since a much higher percentage of blacks failed)
Majority (White) (1) Disparate impact not enough must show discrim purp. (2) No sign of maliciousness. Skills are not irrelevant and state should be able to test for them. (3)
Slippery slope ensues if laws can be struck down based on disparate impact alone. Dissent (Brennan) (1) Can always argue that law has some legit purp. Too easy. (2) Test is
not validated no evidence test is related to job perf. (3) Once disparate impact is shown the burden should shift to gov. to justify test. (4) Maj. slippery slope arg = too much
justice is bad  counterarg: too idealistic, cripples gov, will have even less $ to help ppl get more justice. Criticism of Maj: (1) Minorities do worse on these exams due to
hist. of discrimand lower prop. taxes to improve schools. (2) Gov should have affirmative duty due to discrim. acts in past & therefore carry burden of justifying the law.
Personnel Admin’r of Mass. v. Feeney (1979) (absolute vet. pref. in MA stat. has disparate impact on women. 98% of vets were men, no stats about how many were hired.
Maj (Stewart) (1) Holds that the stat is const’l b/c of compelling govt. interests.  Rewards vets provides incentives to military service and no discrim purpose is shown.
(2) Reasonable foresseability not enough “Must show the law was passed because of not merely in spite of” Criticism (1) Point system would be a less restrictive alternative.
Selective Indifference: Plaintiff might be able to prevail if they can show state was indifferent to disparate impact.
Pre-emptory Challenges Batson v. Kentucky (1986) (holding that you cannot exclude ppl from jury based on race or gender even if stereotype is true. Religion unclear.)
Test: (1) Lawyer suspects racial discrimination (2) Raises issue with the judge (3) Mini hearing takes place (4) In defense lawyer can give nondiscriminatory reasons
(5) Judge decides whether reasons are just a pretext.
Remedies
Brown v. Board of Ed. II (1954) (remanding to fed. dist. ct to determine approp. integ. remedy with “all deliberate speed”) (1) No specific directives to avoid undermining
institutional legitimacy (2) not clear integ. is req. but est. by later cases that even use Brown to strike down other laws. Resistance: Cooper (Alabama noncompliance, Griffen
(Public schools closed, subsidization of private schools for whites not allowed)
Swann v. Charlotte Bd. of Ed. (1971) (Ct approves intra-district bussing and race quota remedies. These are facially racially discriminatory)
Maj (Burger): Maybe they could survive strict scrutiny since nothing else has worked. Since this is a remedy case where there is already a finding of illegal unconst’l acts
only remedy is to engage in temp. race based measures. Very important distinction since racial classifs getting strict scrutiny does not apply in remedies part of the case.
Criticism  inconsistent with dissent in Plessy. Parents argue that their kids should not have to suffer when they moved to a certain place in order to get them in good schools.
Sep of powers issue  Fed Dist Judges are made into school bd supervisors. Must approve integration efforts. Such detailed judicial scrutiny is too intrusive.
 counterarg: However, ct finds that they have already allowed discretion it did not work and this is the only way.
Milliken v. Bradley (1974) Majority (Burger) (1) Inter-district remedy in Detroit not allowed absent finding of inter-district responsibility for seg (2) Admin Nightmare:
Impractical for ct to decide taxes, district lines, school bd restructuring etc Dissent (White) (1) Inter-district remedy is Detroit’s only option to achieve integration. (2) State of
Michigan is not blameless so any districts in Michigan can be involved in solution.
Bowling v. Sharp (1954): Reverse incorporation: 5 th amendment due process clause applies 14 th A EQP Clause to the federal gov.
Bd. of Ed. of OK City Pub. Schools v. Dowell (1991) (Dist had segregation problem that was improved and came close to unitary status but still vestiges of segregation)
Majority (Rehnquist) (current approach): pendulum swings away from ct control of school dist. (1) the order has been complied with in good faith and (2) the vestiges
of past discrimination have been eliminated to the extend practicable (3) Injuction lifted. Huge victory for federalism and for sep. of powers. Dissent (Marshall): Terrible
decision. Injunction has not been in place long enough and re-seg is likely to occur. Rights violation & SCT ruling requiring remedies trumps federalism and sep. of powers.
Freeman v. Pitts (1992) (removing injunction in parts of district that have been remedied  counterarg: these areas will revert)
Parents Involved v. Seattle School District #1 (2009) (Racial classification used to promote diversity in Seattle schools.)
Majority (Roberts)
(1) Law fails. Race based classifs which amts to proportionality invalid. Does not promote diversity this is just like race based quotas. (2) Strict scrutiny applies  quotas are
not a compelling govt. interest  not narrowly tailored. (3) Only affected 50 students in 3 yrs. Outrageous b/c the scope is trivial. (4) Moral argument  cannot use racism to
fix racism (5) This violates case law inconsistent with Gratz and more importantly Brown. (6) Quotes from oral args in Brown. Context matters. Not sympathetic to School Bds
at all. (6) No racial engineering w/out courts supervision  Note: now school dists sometimes invite suits Concurrence (Thomas) (1) Social science unpersuasive, must be
colorblind, poor evidence of threat of reseg, cites to Harlan dissent in Plessy. Dissent is says that black kids can only learn if whites are around but some black schools have
been successful.  Counterarg: integration is not designed to benefit only minorities. Concurrence (Kennedy) (typically considered to be the controlling opinion. This is
weird since nobody joins) (1) Cannot be racial but can be racially conscious. (2) Two compelling interests in this type of case: (i) diversity (ii) remedying past discrim (3) Can’t
be crude w/ race, diversity is still important so must use other mechanisms with an impact that promote diversification without dif trtmnt based on a classifs. Must be more
sophisticated. (5) Critiques Breyers use of strict scrutiny and compares it to rationality. Breyer (Dissent) (Courts Pragmatist) (1) Hist’l correction of past discrim and
promotion of diversity in ed. are important compelling interests that can meet strict scrutiny (2) This is the best case to allow flexibility b/c unlike jobs or law school every kid
still gets to go to a relatively equal school. This is practical and Kennedy’s approach has not worked. (3) Most democratic: protects acts of school bds
Kende’s Dissent  Now school districts cannot act to preempt segregation and must wait till they get sued.
Affirmative Action: Typically comes up in admissions and contracting.
Argument for why affirmative action should get intermediate scrutiny (Minority view) (1) White majority is not a protected class needing political protection. (2) Race is
used for a beneficial purpose not malicious. (3) Selected by majority as a remedy (4) Gender laws get intermediate scrutiny. Greater hist. of discrim. against minorities. (5)
Under Washington v. Davis noble purpose should be considered in ruling on facially neutral laws.
Fullilove v. Klutznik (1980) (upholding fed law that sets aside 10% of fed pub works monies for minority biz in order to remedy past discrim)
Richmond v. J.A. Croson Co. (1989) (Controls) (Richmond plan 30% of Ks to minority biz. Justification  city is 50% black but only 1% of contracts go to minority biz.
Maj (O’Connor): (1) City council is maj black and this may be pol. patronage. Strict scrutiny used to smoke out illegitimate use of race.  Criticism: Turns majoritarianism
on its head. (2) City/Ct must make finding of past discrim and only ct can issue a remedy. 30% is arbitrary so law is not narrowly tailored.
Croson Rule for Aff Action in K’ing: (1) not permitted unless the municipality is found by itself or by ct to have engaged in past discrimination, details about nature
of discrimination, remedy imposed is carefully crafted (2) time limit on the remedy (3) waiver provision (city not liable as long as they look for a minority contractor)
Adarand Constructors, Inc. v. Pena (1995) (Fed gov. law provides financial incentives for awarding bids to minority biz)
Maj (O’Connor): (1) Congress gets no more leaway that others (2) Strict scrutiny applies for all laws based on racial distinctions (3) Croson requires findings and a
narrowly tailored law  Criticism (1) Socioeconomic status is a problematic distinction that is difficult to define. Have not suffered the same systemic discrimination as
minorities. (2) Feds have extra authority to use affirmative action pursuant to congressional power of enforcement Sec. 5 of 14 th A.
Adarands 3 Principles that must be used to Analyze Af. Action (not just in contracting): (1) Consgruence (Intratextual): 5 th or 14th Amendment ie fed/state Af. Action
both get strict scrutiny  Criticism: 14th A Cong. Power of Enforcement means that fed Af. Action should get more deference (2) Skepticism of all racial distinctions
= strict scrutiny (3) Consistency: Black, white or yellow strict scrutiny does not change  Criticism: inconsistent with Grutter  Counterarg Grutter was still strict
scrutiny and strict scrutiny does not necessarily look the same every time.
U of CA v. Bakke (1978) (White guy dsnt get into med school despite scores on MCATS exceeding those of minorities admitted. Set-aside is invalidated)
Plurality: Unsophisticated set-asides/quotas are invalid but unis can use race as factor in benefitting minorities & enhancing diversity.
Brennan and 4 Justices: Use intermediate scrutiny for laws that benefit minorities. Stevens and 4 Justices: Completely impermissible. Race should not even be a factor.
Powell: Strict scrutiny for all racial classifications. The problem is the plan is a racial quota. Too crude must be more sophisticated.
Gratz v. Bollinger (2003) (prohibs point system in undergrad) Grutter v. Bollinger (2003) (Stict Scrutiny Light) U of Mich law has wholistic approach and race is considered.
Maj (O’Connor) (1) Diversity Rationale: School has compelling interest in promoting diversity and cross-racial understanding in an evolving society. (2) Can’t have role
models that are all white (3) May actually be pretext for remedying history of institutionalized racism  Criticism: Analysis is way too deferential to Uni to be considered
strict scrutiny.  (i) Innocent victim doctrine: people who are hurt by AA were not responsible for racism years ago. Ppl being benefited never wronged by discrim. (ii)
Grutter is a scam: Talks about factors and considering ppl as individuals but really just amts to a point system. (iii) Creamy layer problem: (India caste system) AA continues to
benefit the most privileged of the class. (2) Academic freedom and the integrity of the uni (3) Free Speech: diversity of pp=diversity of ideas (4) Individualized notion of
equality  no quotas must have an individualized look at ppl (5) Critical mass concept: Only way to have a critical mass is to take account of race as long as it is not a quota:
Criticism just a different name for a quota and often seems not to work. (6) Military filed a brief that says the army cannot function w/ out affirmative action (7) 25 Year limit
on AA Criticism: Arbitrary. Where does this come from. Dissent (Thomas): (1) The only interest here is for Mich. to have snooty elitist law school. This cannot be a
compelling interest. Criticism Perhaps it is a compelling interest for the nation to have a great law schools with well-trained lawyers/leaders. Not the cts job to refigure the
institutional mission of the law school
Aftermath: After Grutter Mich had state-wide referendum to abolish AA. There is a pending EQP lawsuit on behalf of proponents of affirmative action with a Romer (discrete
and insular minorities) like argument. Fed Dist Ct ruled in favor of referendum: “to impune the motives of 58% of Michigan’s electives… is not warranted.” This ruling is
now on appeal, unlikely 6th Circuit will reverse since it is a referendum
Richard Sander of UCLA Study: (1) Very controversial study of AA in law schools (2) Detailed Statistical Analysis (3) All preferences cause academic problems regardless
of the race involved (4) Increased drop out and bar failure rates and most blacks would still get into law school.
Counterargs  Lemper of U of Michigan Law: (1) Eliminating preferences would reduce black attorneys by 25% (2) Sander statistics are flawed (3) Many would be
unwilling or unable to go to lower ranked schools
The Hollow Hope by Gerald N. Rosenberg  Cts cannot achieve social change. Brown is an icon w/ little real effect. $ on cases should be spent on grassroots org. Roe
created a backlash and a base in the Republican party. Contrary View  although cts cannot do everything Brown and Roe had a big effect. Pol. process is so cumbersome
that it is difficult for cong. to change everything. Catalytic Theory: Brown was a catalyst, blunt/blatant discriminatory laws are no longer acceptable.
Johnson v. CA (2009) (Earlier decisions defer to prison authorities since running a prison is dangerous. Prison decisions usually get rationality. Clash since race standards get
strict scrutiny. CA Dept of Corrections  evaluates inmates in reception centers for up to 60 days. Classif mostly race based in order to prevent gang violence)
Maj (O’Connor) (1) Presumption that race classifs get strict scrutiny since they may be based on bad motives (2) Be deferential to prison authorities: racial concern trumps
potential violence Criticism  Race can be a consideration in justice system unless there are exceptional circumstances (3) Separating ppl by race will make the prob worse
(4) Remands  does not decide case  tells the state to present good evidence that dangers and violence are real and approach is narrowly tailored. Criticism 
Inconsistency: O’Connor is much more deferential in Grutter Dissent (Stevens): Paradoxically liberal finds this form of racial classif very offensive and over broad by
assuming certain races can’t get along. (2) No evidence that CA authorities considered any alternatives. (3) Rely on pre-sentence reports for individualized approach: Fed
Prison Authorities have a much more individualized approach. (4) This should not be remanded b/c it is simply not allowed. Dissent (Thomas and Scalia): (1) Paradoxically
these conservative justices do not oppose racial classifs. (2) defer to the prison authorities.  Highly racial prison gangs are unique to CA. Very reasonable way to deal with
these problems  Only a 60 day time period of racial seg. Aftermath: State implements opt-out for provision (defer to the prisoners). Within a year huge riots.
Ricci v. Destefano (2009) (Tests that cands take for promotion in FD has a disparate impact & might be illegal under Title 7 since no blacks pass. City will be sued by blacks if
they don’t throw out the test. City will be sued by whites and Hispanics if they keep the results.
Maj (Kennedy) (1) This is a race base decision so that is problematic under title 7.  Acknowledges New Haven has legit arg that this decision is not based on race but rather
to avoid liability under Title 7 disparate treatment (2) Strong basis in evidence test  If there is demonstrative evidence that the city will be held liable under disparate
impact then it can engage in race based decision that amounts to disparate treatment  Evidence of disparate impact must be overwhelming. Ideally we want them
to figure this out in advance not midstream. (3) Reverse Sotomayor on the 7th Circuit Conccurrence (Alito): Concern that pol. patronage was at play in New Haven decision
 appease black voters Dissent (Ginsburg): (1) Disparate impact and disparate trtmnt should complement each other. Ct is reading them in conflict against cong. intent.
(2) Must consider the business necessity defense  Decision was about avoiding litig. (3) Good cause stdrd: Does not put as large a burden on city to show liability of disparate
impact. Scalia  Is disparate impact even constitutional?
Aftermath: (1) Briscoe: pending litig. in which black fire fighters have law suit under Title 7 disparate impact. (2) White fire-fighters have a legacy advantage. Test locks in
effects of past racism (3) Test does not test skills for being a good fire-fighter (4) Getting rid of a bad test is not affirmative action. Concern is a valid result.  Counterarg:
Assumes test is invalid. Maybe legacy advantage cannot be remedied.  Prediction of ruling in Briscoe  probably loses in the SCT based on Kennedy opinion.
Gender Discrimination: Strangely many of early cases on gender discrimination were men and Ginsburg was the lawyer building up the principles.
Four Principles of Gender Discrimination
(1) Intermediate scrutiny is used. (2) Administrative convenience is typically insufficient under intermediate scrutiny. (3) Actual purpose is key and no purpose can
be invented.  Actual purpose issue is whether it is based on stereotypes or desire to compensate for real differences and help women who have been discriminated
against.
Bradwell v. Ill. (1872) (presumption that women cannot be lawyers is valid under P&I clause)
Reed v. Reed (1971) (presumption of male as estate administrator is arbitrary, impermissible gender discrimination under EQP for the first time in 100 yrs)
Geduldig v. Aiello (1974) (majority promulgates sameness theory and dissent promulgates difference theory)
Orr v. Orr (1979) (Alimony statute that only provides benefits to women is impermissible gender discrimination based on stereotypes. Must have individualized hearings.)
Mississippi University for Women v. Hogan (1982)
Majority (O’Conner) (1) Law that prohibits men from attending all female nursing school struck down as impermissible gender discrimination based on stereotypes (2)
Births “exceedingly persuasive justification” language (3) Already male auditors in the classroom Dissent (Powell): (1) No big deal, diverse education ops like single sex ed.
are historical and important (2) Men can still go to nursing school and EQP suits should not be brought on behalf of men. No need to be politically correct.
Michael M. v. Superior Court of Sonoma County (1981) (CA has gender discriminatory statutory rape law)
Maj (Rehnquist): (1) This approach is const’l based on legit state purpose of minimizing pregnancy. (2) If women were criminalized they would not report  Nat.
disinclination. Woman already has an incentive not to have underage sex b/c she can get pregnant Concurrence (Blackmun): (1) facts in this case show that gender specific
law law contemplates date rape. (2) Men are the natural aggressors. Sexual safety.  Criticism: reference to chastity/religion/vulnerability reveals the real purpose is
stereotype Dissent (Stevens): Protect the vulnerable. Dissent (Brennan): CA must show law is more effective than less restrictive alternatives (gender neutral law)
Rostker v. Goldberg (1981) (Good Law) (Women not req’d to do selective service)
Majority (Rehnquist) (1) Deference to military (Admin Convenience Exception): Admin pool arg. Although not everyone in military in combat it is more administratively
convenient if they are all eligible. (2) Uses PDP to help validate law (3) Real bio differences not stereotypes (3) Ct punts on the issue of whether statute that does not allow
women in combat is const’l. Dissent (White) (1) 80,000 non-combat jobs, potential shortage that can be filled by women defeats admin. conv. arg (2) Defer to Pres.
Califano v. Webster (1977) (facially discriminatory statute that gives women more benefits than men is upheld b/c of remedial nature)
Frontiero v. Richardson (1973) (Airforce has a presumption that wives are dependent but women have to prove that husbands are actually dependant)
Govt: Presumption based on a true stereotype.
Plurality (Brennan and 4 Justices) (Does not control)
(1) Actual party injured is men (2) Impermissible violation of 5th A. Under Bowling reverse incorporation. (3) Administrative convenience will not justify gender
discrimination. (Const. Right Trumps Admin. Conv.) (4) Strict scrutiny applies: laws based on sex, like race, are suspect (skepticism).  History of discrimination  Less
power in political process  Criticism: women constitute majority of eligible voters.  Immutable characteristic (insular)  Irrelevant to most government classification
Concurrence (Powell) (1) Advocates case-by-case basis no need for a general rule that all gender classifications get strict scrutiny. (2) Sex does not imply a suspect class (3)
Finds that the law violates 5th A  Criticsim: Let the legislative, amendment, democratic process be dispositive.  Counter-criticism: Equal Rig(hts Amendment failed
Craig v. Borden (1976) (Controls) (Higher age limit for men to buy alcohol than women. FBI stats show men 10 x more likely to be prob.)
Maj (Brennan) (1) Impermissable gender discrimination. Traffic safety is a legit govt. interest but insufficient under heightened scrutiny. Gets maj. for intermediate scrutiny
(2) Intermediate scrutiny: law must be substantially related to a legitimate government interest.  Requires analysis of actual purpose. (3) Not narrowly tailored:
Discrims against men who are not causing soc. probs. Only 2% of men in this group not enough to justify ban for 98% from buying alcohol no matter how much higher a % than
women. Social science evidence unreliable (inconsistent with Brown). Criticism: Males: might be too low b/c of ones not caught Females: might be too low due to reduced
prosecutions against women by primarily male officers (4) Not Effective and impractical: STUPID LAW  does not work since it is unbelievably easy to circumvent by getting
women to buy the alcohol. (5) This is just beer not hard liquor (counterarg: 4/5 of men stated preference for beer) Dissent (Rehnquist) (1) Does not like intermediate scrutiny,
which will require all kinds of mushy value judgments. No precedent for it (2) Heightened scrutiny should not be used to protect non-suspect class  Criticism: gender
jurisprudence should be gender blind like racial jurisprudence is colorblind.
United States v. Virginia (1996) (VMI dst admit women. Solution/alternative is institution for women: Mary Baldwin College  Not similar opps, inferior resources and profs)
US: Argues for strict scrutiny for gender classifs. VA: (1) Single sex ed. benefits (2) Diverse ed. opps  Criticism: Sep but Equal (3) Adversative method not suited for women
 Criticism: Some women like this and are better suited for it. Not sufficiently related to biological difference btw men and women.
Maj (Ginsburg) (1) Sticks with intermediate scrutiny. However, “exceedingly persuasive justification” language from Hogan resembles strict scrutiny. Unlike race there are
legit bio difs (2) Law is based on stereotypical assumps/self-fulfilling prophecy  women will benefit from VMI, cannot assume they will contam prgrm (4) Does not address
the real question of whether women can be excluded from combat (VMI does not req. grads to go into military) Majority (Scalia) (1) Long hist of single sex ed (2) Disaster
Modifs destroy institute as it existed: male composition is essential to VMI's character. Let the institution decide. (3) Counter-majoritarian: Law trained elitist court should not be
making social policy. (4) Military Deference: previous cases have acknowledged bio difs exception Aftermath: De-facto discrimination intense hazing of women.
Single Sex Ed: Is this constitutional that no child left behind allows it in pub. schools. Evidentiary Views Supporters: (1) Teacher can employ strategies that don’t work in coed
classrooms (2) Dramatic test score improvements ie FL (3) “non-macho” boys feel less intimidated (4) Less social distractions, better discussion on dating and pregnancy (5) SAT
composite scores 43% higher among women (6) Interviewed parents just want more options Opponents (1) Some benefits but trad’l gender stereotypes are reinforced and
perpetuated  boys are more regimented and individualistic and boys taught to be wage earners and strong for emotionally weaker wives. Women are more therapeutic and
nurturing  Girls taught to be aware of restrictions on behavior and clothing. (2) Stats that difference is b/c struggling are the ones to move and get special attention.
Geduldig v. Aiello (1974) (CA disability program excludes pregnancy. So controversial that the ACLU was split)
Majority (Stewart) (1) Not illegal gender discrim: not invidious, everyone treated equal. Illegal discrim occurs when two similarly situated ppl are treated differently (sameness)
(2) State interest in minimizaing cost: More disabilities will result in destruct of self contained pool: fund will become insolvent and state picks up tab. (3) One step at a time:
Some line-drawing is req’d Dissent (Brennan) (1) Dbl standard: male only afflictions are covered (2) What about loser husbands who depend on their wives
Aftermath  Congress passes the pregnancy discrimination act bans this kind of statute
What does it mean to strive for equality for women under EQP?
(1) Sameness theory (tradtl view): What women want is to have everything that men have.  Women should get all the same benefits/opps as men. (Gedulgig)
(2) Difference Theory (modern view): (1) Recognize/accommodate/celebrate the difference btw men and women. (1) Critical of sameness approach. (2) Men are not the
baseline paradigm. This approach is to narrow. Counterarg  measurability.  Kende likes this view but acknowledges that sameness theory may be more legally workable.
Voting Rights: 15th A bans laws that prohibit ppl from voting based on race
Harper v. Virginia State Board of Elections (1966)
Maj (Douglas) (1) No poll taxes. Once the right to vote is granted by state leg they cannot discrim (2) Right not guaranteed once granted cannot discrim. (3) Right to vote is
preservative of dem’y (1 st A expression)  fund’l strict scrutiny applies (4) Tax is arbitrary and capricious (sounds like rationality review Maybe court is just saying this cant
even pass rationality like Skinner.
City of Mobile v. Bolden (1980) (No blacks ever elected in at-large elections. City has history of discrim.)
Majority (Stewart): (1) This law is not a violation of EQP. Faicially neutral laws require a showing of discrim purpose. Disproportionate impact and hist not enough 
Presumption that leg. did not have discrim. purpose in 1911 (2) Black comm’y was not excluded and put forth candidates. Dissent (J. White) (1) Look at the totality of the facts.
(2) Past discrim is pervasive and continues to undermine black pol. participation. (3) The extreme disproportionate impact should trigger the idea that discrim. purposes at work.
Rodgers v. Lodge (1982) (outlaws at-large elections on the basis that GA has worse facts than AL poll taxes, literacy tests, white primaries, little evidence of active blacks
Austin v. Holder (2009) Facts: Classic provision in voting rights act is Sec. 5. If state meets the formula of: history of of election discrimination and they have low numbers of
minorities voting then they are a covered and in order to make any election related changes they need clearance from DOJ or court. TX (1) statistics are 40 yrs old (2) federalism
(3) This provision is not congruent and proportional b/c findings bear no relationship to the current problem. Majority (Roberts) (1) Uses bail out provision to allow for preclearance. (2) However, this is a utility dist. that does not register voters. This rare bail out provision was presumed be for districts that register voters.
Bush v. Gore (2000) (7-2 EQP violation and 5-4 on rejecting FL remedy) (1) Inanimate object cannot discern intent of the voter. No objective criteria. Fl Sup Ct failed to provide
adequate guidance. (2) Insufficient time to implement a remedy.
Education
San Antonio School District v. Rodriguez (1973) (Big Deal Case) (litigation over education funding and property taxes  Leads to inequity)
The Poor: SDP and if not then EQP b/c the poor minorities are disenfranchised.
Majority (Powell): (1) No fund’l right to ed. (2) Ed. is preservative of other rights but this is not dispositive. Criticism: Tension with Harper b/c court said that ed. is
important and preservative of other rights. Problematic to reconcile with Brown since that case said that quality of ed. was dispositive. However, this is not a race case.Kende
Criticism: Weak arg. Stronger arg is that this is a quality issue not complete deprivation so this is partial deprivation of a right that is not even fund’l. (3) Slippery slope  if ct
starts to find fund’l rights anytime a right is preservative. Ct does not want to tell the govt. how to manage the budget. (4) No fund’l right  Rationality review  Federalism
wins out (5) EQP issue  While this divides TX into different dist’s all dist’s have mix of poor and wealthy so no clear delineation btw rich and poor. (6) Poor ppl would not be
a suspect class (see Skinner). Even with a disparate impact on minorities not enough. Need discrim purpose. Dissent (Marshall and Brennan) (1) Maj analysis is Divide and
conquer  cannot separate education and discrimination issues. Serious discrim in re something close to funda’l right. Rigidness should be abandoned heightened scrutiny
should be used to find the law arbitrary. Law has disrim impact and impinges on liberty. (2) Marshall’s Sliding Scale: Should be many types of scrutiny. Counterarg  too
discretionary
Plier v. Doe (1982) (New mathematics where 0+0=1: No right to education + No suspect class = violation)
(1) It is illegal to req illegal immigrants to pay for school. (2) Law is illogical b/c if you don’t ed. kids at all you set up society for a mess with permanent underclass. Not
children’s fault they should not pay for their parents mistake. Support  illegal immigrants not a drag on economy, they are scared to show up for services and they pay taxes.
FIRST AMENDMENT
BIG PRINCIPLE: If govt. tries to ban speech that does not fall into one of the unprotected categories that amts to content discrim and strict scrutiny will be used.
Justification for freedom of expression. (1) Pol, Ends (Robert Bork) (a) 1st A is really about political speech which should be protected more. (b) Comes from desire to
outlaw British prior restraint system. (c) Maybe also designed to limit seditious libel laws.  Counterargs: (i) Shortly after const. passed Cong. enacted sedition laws. (ii)
Definition of pol. speech is elusive. (2) Marketplace of Ideas: Through debate the truth will win out over stupid ideas. Counterarg  takes a long time. Mrktplace is distorted in
favor of powerful and wealthy. (3) Self Fulfillment Theory (1) If you limit speech ppl cannot express themselves Counterarg  what goes too far (4) Toleration
 Free speech is to teach the pop. tolerance and restraint. (5) Safety Valve Theory  w/o free speech ppl would act out in damaging and even violent ways
Different test must apply to different type of laws restrincting speech. Question is the statute constitutional. Vague (unclear) and overbroad (regulates beyond area
intended and allowed to regulate) statutes will almost never be upheld: ie R.A.V. or “nobody can treat the flag contemptuously.”
Expression Mini-Outline
If the law burdens speech:
(1) What does it regulate? Pure speech or conduct.
(a) If CONDUCT if it has an element of speech then use Obrien analysis  is this within power of govt., is their a substantial interest, is govt. motivated by something
other than hostility to ideas, are there less restrictive alternatives.
(b) If it is PURE SPEECH (i) Is it vague or overbroad (poorly drafted and covers protected things R.A.V. could have probably ended here)? (ii) If it is a PRIOR
RESTRAINT it is heavily presumed to be unconstitutional (strict scrutiny)  Under Pentagon can only get around this if it infringes on Nat Security in a major way.
(2) Is the law banning or channeling speech.
(a) If it is CHANNELING (time, place, manner restriction) (i) Intermediate scrutiny that looks like Obrien test (A) What is state interest (B) Is it substantial
(C) Is it content based discrimination (no) or based on secondary effects (maybe ok) (D) This law must still allow the speech to occur in some place. There is a case
where a community restricted adult theatres to a place that did not exist. This is a fraudulent façade that will fail here.
(b) LAW BANS SPEECH (i) Is the banned speech unprotected  Libel, fighting words, obscenity, incitement (Brandenburg), threats (ii) Does the law meet const. reqs
for that category of unprotected speech
Incitement and Threats
Schenk v. US (1919) (Espionage Act forbade attempt to cause insubordination in the military. Ppl protesting the draft encourage resistance of draft.)
Maj. (1) There are limitations on free speech. Incitement is not protected. (2) Clear and present danger test: Cannot restrict speech that encourages illegal conduct as long
as it does not create a clear and present danger of what congress was worried about.  Danger contemplated by Cong. is undermining of war effort. (3) Holmes famous
analogy: cannot falsely yell fire in a crowded theater  Counterarg: Easily restrict speech w/o an immediate danger. This was political argument & should get most protection.
Dennis v. US (1951 (Communists advocate illegal overthrow of U.S. gov)
Majority (Vinson) (1) Ct upholds conviction. (2) Judge Learned Hand Gravity of evil test is added to clear and present danger and analysis.  Ct must “ask whether the
gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger.” (3) Even though it is not very probably that the
govt. will be overthrown this can be justified by super duper evil. (4) Gov. does not have to wait until the danger is imminent. Dissent (Douglas) (Prevailing view): (1) These ppl
were actually just reading Marx and Lenin not ppl in combat uniforms using dangerous books. (2) Cannot convict ppl for just talking about the possibility of doing bad things.
This view ultimately wins out. Note: Douglas and especially Black were nearly free speech absolutists.
Brandenberg v. OH (1969) (Modern Approach) (Worlds most pathetic rally (KKK rally). Advocacy of illegal actions)
Per Curiam (1) Does not overturn Dennis but cites it (2) Statutes designed to restrict incitement must meet these constitutional reqs.
Modern current test for incitement, threats: (1) express advocacy (a) statute must only regulate explicit advocacy of illegal conduct  counterarg: codes can be used so
there is no explicit advocacy this is too speech protective (2) intent (3) (imminence) something that is likely to occur
Note: Case from 7th circuit. Three federal judges are listed as ppl who deserve to be killed. Posted names photos and work addresses and posted a map with arrows pointing to
truck bomb barriers. Explicitness not met  does not say “kill them.” Hard to show imminence
Prior Restraints: Must be licensed by govt. or get court approval to speak/publish on a certain issue. Sometimes appear in movie licensing.
NY Times Co. v. US (1971) (Gov seeks to require approval to publish any part of pentagon papers that show lies about Vietnam. Gov. argues nat’l security threat)
Holding (1) SCT refuses to enjoin publication. Core purpose of this was to ban licensing schemes. Prior restraints are heavily presumed to be unconst’l (like strict scrutiny).
 “any system of prior restraints of expression comes to this court bearing a heavy presumption against constitutional validity” (2) Restraint cannot pass strict scrutiny like
analysis Brennan opinion (best reflects courts reasoning) (1) Provides exceptions: ie nat’l security (2) Gov must show likelihood of nat’l security threat (3) Under these
circumstances no likelihood  absolutely unconstitutional Note: Internet makes things happen so fast that prior restraints become somewhat irrelevant.
Fighting Words: Words when directed at someone are likely to cause the other person to retaliate.
Chaplinsky v. New Hampshire (1942) (Jehovah witness says religion is a racket)
Maj: If the statute is crafted in such a way to meet this test it is constitutional. Profane obscene. (1) Is the statute narrowly tailored (2) Does the judge believe those words are
likely to cause the reasonable person to retaliate
Obscenity is not protected
Miller v. CA (1973) (Current law for obscenity including the internet)
(Burger) (1) Does it offend the contemporary community standard: jury is impaneled to decide this point. (2) Specificity (3) If the work taken as a whole has serious
literary artistic political or scientific (SLAPS) value it cannot be banned. This is a nat’l standard.
 Counterarg: Problematic for the internet since it is worldwide. If they can get person into conservative forum they are prosecuted there. What is the applicable
community standard  some justices have argued that this test does not make sense for the internet. States have tried to regulate internet porn and they have been
defeated by dormant commerce clause.
Stanley v. Georgia (1969) once obscene material gets into your home you cannot be prosecuted
Note: Some critics including Justice Brennan have said that these laws should be done away altogether since standards are vague and outdated.
Cohen v. CA (1971) (Seminole Victory for Free Speech) (Man wears fuck the draft jacket into ct. house. Is this breach of the peace?)
Maj (Harlan) (1) Freedom of speech includes freedom of emotion not just rational discussions. (2) Profanity can be protected depending on context not necessarily obscene
 this part reverses Chapinsky.
R.A.V. v. City of St. Paul MN (1992) (Racists burn a cross on a black persons lawn. Charged with hate crime ordinance)
MN argues that if they can ban all fighting words then they should be able to ban racist fighting words (smaller subset of most dangerous fighting words)
Majority (Scalia) (1) Law does not reg speech in one of the unprotected categories so strict scrutiny applies (2) Even if the category regulated is not protected when you single
out a certain subset content discrimination applies.  Counterarg: Statute bans threats against pres. and singles them out for more punishment Scalia argues that these are the
worst kind of threats that puts the whole nation at risk.  Counterarg: Amts to a 1st A req. that state must regulate more speech. Inconsistent with free speech principles.
Time Speech and Manner Restrictions: Newspapers and internet get the most protection. Cable tv goes in the middle. TV and Radio get the least protection.
Indecent speech: Material inappropriate for kids. Cong. laws regulating it on internet have been struck down. Obscene speech: sexually explicit. Can be regulated on internet.
FCC v. Pacifica (still good law) (George Carlin 7 famous words monologue)
Majority (Stevens) (1) Given limited nature of penalty, exposure to children, and potentially dangerous/invasive nature of this medium (no advanced warning), speech can be
restricted. (2) Other times where media can be shown, scarcity of stations so govt. has more discretion to reg since they must dole them out.  Criticism: Arguably a political
satirist. Afermath: What does this mean for other tech. (internet)
US v. Obrien (1968) (Man arrested for burning draft card in protest of Vietnam war  highly political conduct that sends an unambiguous message)
Majority (Warren) (1) Conduct, while easier to regulate, is protected as speech if it sends reasonably coherent message (2) Law is upheld based on admin convenience and
danger of fire. (3) Deference to military.