Thursday March 20, 2014
• OBJ: SWBAT demonstrate their
understanding of how the Supreme Court
differs in their interpretation of the
Constitution.
• Drill: How involved in shaping policy do
you think the Supreme Court should be?
(think of some of the cases you have
looked at already)
• HW: Wilson pages 450-458, answer
questions.
Homework
• Thursday 3/20- Wilson questions
• Friday 3/21- Certiorari reading-reading
quiz Monday
• Monday- Judiciary Vocab (due
Wednesday)
Review Quiz #16
Name three factors that have helped decrease the
power of political parties
• Civil Service laws, ticket-splitting, rise of pollsters, candidatecentered campaigns, loss of patronage power, issue-oriented
politcis, rise of technology, suburbanization, money
Define/Explain critical elections/complete realignments
• When one or more demographic groups switches political parties
and does not switch back
Define/explain a single-member district plurality system
• Winner take all system; whichever candidate gets the most votes
wins
Define/explain what a coalition is:
• A group of demographics that work together to help a political
party win elections
Justices
• When did Justices begin to serve longer
terms on the Supreme Court
I, _______________do solemnly swear
`that I will administer justice without
respect to persons, and do equal right
to the poor and to the rich, and that I
will faithfully and impartially discharge
and perform all the duties incumbent
upon me as Associate Justice of the
United States Supreme Court under
the Constitution and laws of the
United States. So help me God and
my fourth quarter grade.
Judicial Activism
Judicial Restraint
Judicial Restoration
Part 1: Equal Protection
• We have been discussing the EPC under
the 14th Amendment.
• For each landmark case summarize the
facts, list the outcome, and the precedent
set along with reasoning from the court.
• Then explain whether you believe the 14th
Amendment was violated or not.
Griswold v. Connecticut (1965)
A Connecticut statute of 1879 made it a crime for any person to use any drug, article, or instrument to prevent
conception. In 1963, the executive director of Planned Parenthood in Connecticut was charged with providing
medical advice to married couples on how to prevent conception. The case was found in favor of Connecticut
in two lower federal courts, and was granted Certiorari in 1964.
Precedent: On two previous occasions the Supreme Court had heard cases regarding the Connecticut
statute. In both instances they upheld the statute because of technical facts relating to the plaintiffs in the
case, not due to the statute. Other seemingly unrelated cases may hold possibilities. The court has ruled that
privacy, though not enumerated in the Constitution may be implied and therefore protected. In Meyer v.
Nebraska (1923) they ruled it was a family’s private decision to teach a child a foreign language; Pierce v.
Society of Sisters (1925) they ruled it was constitutional to send one’s children to a private school; Skinner v.
Oklahoma they ruled it was a private decision to procreate. In each of these cases they felt the implied right
to privacy was protected by the Constitution.
Relevant Amendments: 1st, 3rd, 4th, 5th, 9th, and 14th amendments
Decision: 7-2, in favor of Griswold
Majority Opinion: Although divided in justification, the court generally felt that the rights in the First, Third,
Fourth, Fifth, and Ninth Amendments implied a general “zone of privacy” that form the basis for general
privacy. It was argued that specific guarantees of rights in the Bill of Rights have “penumbras, formed by the
emanations, from those guarantees that help to give them life and substance. In a concurring opinion,
Justice’s Goldberg argued that the Ninth Amendment provided “strong support for judicial incorporation of
additional rights”
Dissenting Opinion: The dissenters argued that the Connecticut statute did not interfere with any
fundamental constitutional right. The protection of such a right represents an arbitrary exercise of judicial
power that threatened the American system of government. “Use of any such broad, unbounded judicial
authority would make this court’s members a day-to-day constitutional convention; this would amount to an
unconstitutional shift of power to the courts…which would be bad for the courts and worse for the country.”
Roe v. Wade (1973)
Norma McCorvey (Roe) sought an abortion in the state of Texas. Although initially arguing that she
was gang raped, McCorvey later admitted that the abortion was desired as a result of a failed
relationship. Texas law only allowed an abortion if it endangered the mother and was authorized
by a hospital committee of doctors. The question is whether the state has a compelling interest
in restricting the access to an abortion.
Precedent: Since the 1880’s most states had made abortion illegal as the direct result of the
medical profession attempting to legitimize their powers. The Supreme Court ruled once on
abortion-related issues, in 1971 when it ruled that abortions in the District of Columbia were
legal if the mother’s life was in danger. Also, the court had begun to define the right to privacy
very broadly as the result of Griswold v. Connecticut (1965).
Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments
Decision: 5-4 in favor of Roe
Majority Opinion: After a failed attempt to persuade the court, Justice Blackmun argued that the
Texas statute was unconstitutional because it violated the woman’s right to privacy which was
located in the Due Process clause of the 14th Amendment. Despite this, Blackmun felt that
states did have some valid interests in abortion. He divided the pregnancy into trimesters. In
the first trimester the women had an unrestricted right to choose an abortion in consultation with
her physician. In the second trimester, state could regulate the abortion to protect the health of
the mother. Finally, it was only in the third trimester that the state had an interest in protecting
the fetus.
Dissenting Opinion: The dissenters argued that the court was enforcing a right that was not
specified in the Constitution, and were overturning statutes that were no more restrictive then
when the 14th Amendment was passed. Also, if a state felt it had an interest in protecting the
potential life of the fetus, the interest then existed and was equally as strong throughout the
pregnancy. The court’s attempt to lay out what doctors could or could not do in various
circumstances resembled a statute, which is an unconstitutional authority of the court.
Bowers v. Hardwick (1986)
The case evolved out of the arrest of Michael Hardwick, a gay Atlanta
bartender, for engaging in illicit sexual relations with a man in his own bedroom.
The two were discovered by a police officer that was coming to serve a warrant
for Michael’s arrest on an unrelated charge. Charged with violating Georgia’s
sodomy laws, Hardwick was not convicted, nor prosecuted, but the charges
were never dropped. He sued and argued that the law was an unconstitutional
violation of his right to privacy.
Precedent: In the 1969 case of Stanley v. Georgia, the court ruled that a person
was allowed to read obscene materials inside their own homes as part of the
First Amendment. In addition, the court ruled in Griswold v. Connecticut that
there was a Constitutional right to privacy as protected by the 14th Amendment.
Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments
Decision: In a 5-4 decision, they ruled in favor of Bowers.
Majority Opinion: The court ruled that the constitutional right to privacy was not to
be extended to protect acts of consensual homosexual sodomy performed in the
privacy of one’s home. This case was different from others because it did not
involve “family, marriage, or procreation.” The court felt that to protect this right
violated the “fundamental principles of the nation’s history and tradition.”
Dissenting Opinion: The dissenter Harry Blackmun argued that this case was not
about sodomy, but about the “most comprehensive of rights and the right most
valued by civilized men (sic), namely the right to be left alone.” In addition he felt
that the court erred in not evaluating the case in light of the 8th, 9th, and 14th
amendments.
Planned Parenthood v. Casey (1992)
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among
the new provisions, the law required informed consent and a 24-hour waiting period
prior to the procedure. A minor seeking an abortion required the consent of one parent
(the law allows for a judicial bypass procedure). A married woman seeking an abortion
had to indicate that she notified her husband of her intention to abort the fetus. These
provisions were challenged by several abortion clinics and physicians. A federal appeals
court upheld all the provisions except for the husband notification requirement. The
Court was asked to decide if a state can require women who want an abortion to obtain
informed consent, wait 24 hours, and, if minors obtain parental consent, without
violating their right to abortions as guaranteed by Roe v. Wade?
Precedent: Roe v. Wade, Webster v. Reproductive Services
Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments
Decision: 5-4 in favor of Pennsylvania
Majority Opinion: The Court again reaffirmed Roe, but it upheld most of the Pennsylvania
provisions. For the first time, the justices imposed a new standard to determine the
validity of laws restricting abortions. The new standard asks whether a state abortion
regulation has the purpose or effect of imposing an "undue burden," which is defined as
a "substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability." Under this standard, the only provision to fail the undue-burden test
was the husband notification requirement. Thus, states were free to regulate abortions
placing restrictions such as 24 waiting periods, parental notification, and educational
seminars before an abortion could be performed.
Dissenting Opinion: The dissenters argued that Roe was wrongly decided. In addition,
they argued that the concept of privacy is not within the original intent of the
constitutional framers and therefore any extension of these rights is unconstitutional.
Finally, the dissenters argued that the entire Pennsylvania decision should be
overturned.
Webster v. Reproductive Health Service (1989)
In 1986, the state of Missouri enacted legislation that placed a number of restrictions on
abortions. The statute's preamble indicated that "[t]he life of each human being begins at
conception," and the law codified the following restrictions: public employees and public
facilities were not to be used in performing or assisting abortions unnecessary to save the
mother's life; encouragement and counseling to have abortions was prohibited; and
physicians were to perform viability tests upon women in their twentieth (or more) week of
pregnancy. Lower courts struck down the restrictions.
The court was asked to determine if the Missouri restrictions unconstitutionally infringe upon
the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?
Precedent: Roe v. Wade (1973)
Relevant Constitutional Provisions: 1st, 2nd, 3rd, 4th, 5th, 9th, and 14th Amendments
Decision: 5-4 in favor of Missouri
Majority Opinion: In a controversial and highly fractured decision, the Court held that none of
the challenged provisions of the Missouri legislation were unconstitutional. First, the Court
held that the preamble had not been applied in any concrete manner for the purposes of
restricting abortions, and thus did not present a constitutional question. Second, the Court
held that the Due Process Clause did not require states to enter into the business of
abortion, and did not create an affirmative right to governmental aid in the pursuit of
constitutional rights. Third, the Court found that no case or controversy existed in relation
to the counseling provisions of the law. Finally, the Court upheld the viability testing
requirements, arguing that the State's interest in protecting potential life could come into
existence before the point of viability. The Court emphasized that it was not revisiting the
essential portions of the holding in Roe v. Wade.
Dissenting Opinion: The dissenters argued that Roe was wrongly decided. In addition, they
argued that the concept of privacy is not within the original intent of the Constitution and
therefore any extension of these rights is unconstitutional. Finally, the dissenters argued
that the entire Pennsylvania decision should be overturned.
Lawrence and Garner v. Texas (2003)
Responding to a reported weapons disturbance in a private residence, Houston police entered John
Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private,
consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual
intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in
certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was
not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v.
Hardwick, 478 U.S. 186 (1986), controlling. Do the criminal convictions of John Lawrence and
Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by
same-sex couples, but not identical behavior by different-sex couples; violate the Fourteenth
Amendment guarantee of equal protection of laws? Do their criminal convictions for adult
consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected
by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S.
186 (1986), be overruled?
Precedent: Bowers v. Hardwick (1986)
Relevant Constitutional Provisions: 1st, 2nd, 3rd, 4th, 5th, 9th, and 14th Amendments
Decision: 6-3 in favor of Lawrence
Majority Opinion: No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the
Court held that the Texas statute making it a crime for two persons of the same sex to engage in
certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed
the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on
whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise
of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of the government," wrote
Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual," continued Justice Kennedy.
Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion
concurring in the judgment.
Dissenting Opinion: Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William
H. Rehnquist and Justices Thomas joined, filed dissents. Arguing that the precedent had been set
in Hardwick only 17 years prior and it was not only too early to overturn the precedent but that the
choice to do so was inconsistent with other decisions regarding Roe and privacy where the court
has consistently not chosen to overturn precedent.
Wrap Up
• Did the court show more activism,
restraint, or restoration? Explain.