Pre-Lecture Assignment
Is the Judicial Branch, as stated in Federalist 78,
the weakest of the three branches?
• Identify and describe 2 reasons why it is
• Identify and describe 2 reasons why it is not
This is an independent assignment designed to
get you thinking/reflecting on the material. It
does not require discussion!
Roots of the Federal Judiciary
• Article III, Section 1 of Constitution
– “The judicial Power of the United States…in one
supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and
establish”
• Why were justices given tenure?
• What are the constitutional checks against the
Judicial branch?
Why does the appointment of SC
justices impact public policy?
• Judicial Review – the right of the federal
courts to declare laws (Congress) and acts
(Executive) unconstitutional
– Established in Marbury v. Madison
– NOT a constitutional power!!!...but does
constitute a check and balance on government
Why is Judicial Review controversial?
• …the method by which it is used
– Strict-constructionist approach: Judges should
confine themselves to applying rules that are
stated or clearly implied in the Constitution
– Activist approach: Judges should discover the
general principles underlying the Constitution and
its often vague language (use their best judgment)
What did the Founders believe?
• Is “interpreting the law” really judicial review?
What do you think the Founders meant by
this?
• Federalist 78: the judiciary “has no influence
over either the sword or the purse” and “can
take no active resolution whatever”
Creation of the Federal Judicial
System
• Judiciary Act of 1789 – established the basic
three-tiered structure of the federal court
system.
Supreme Court
Circuit Court (known today as Court of Appeals)
Federal District Courts (at least 1 in each state)
SCOTUS: 1787 – 1865
• The 1st public session (1790), demonstrated
the ineffectiveness of the court
– No one wanted the “honor” of serving as a justice
• Nation building, legitimacy of the federal
government, and slavery
– Asserted Supremacy of the Federal gov’t
– Marshall Court: McCulloch v. Maryland, Marbury
v. Madison, Gibbons v. Ogden
– Taney Court (appointed by Jackson): Dred Scott
SCOTUS: 1865 - 1937
• Relationship between government and the
economy
– Restrictions on powers of gov’t
– 14th Amendment also protected private property
and corporations (“no state shall deny any persons
of life, liberty, or property, without due process of
law”)
– Judicial Activism begins
– Reasonable v. Unreasonable regulation of the
gov’t
SCOTUS: 1938 - Present
• Personal liberty and social equality
– Enlarged the scope of personal freedom
– FDR’s court-packing bill: “the switch in time that
saved nine”
– Warren court – most active
Structure of the Federal Courts
• The Supreme Court is the only one mentioned in
the Constitution (Article III)…Congress created
the rest
– Constitution does not tell us how many justices there
should be OR what its appellate jurisdiction is
• Trial Courts – court of original jurisdiction (hears
the case first)
• Appellate Courts – reviews decisions of lower
courts
US Supreme Court (hears 75 – 90 cases per term)
The Supreme Court rarely exercises its
original jurisdiction (1 – 3%). Cases are
heard by the SC first when they involve:
•2 or more states
•US and a state
•Foreign ambassadors and other
diplomats
•A state and a citizen of another state
(if the action is begun by the state)
Most cases heard by the Supreme
Court are under its appellate
jurisdiction (97 – 99%). The SC can
agree to hear cases first heard or
decided in lower courts or the state
courts involving appeals from:
•US courts of appeals
•Highest state courts (only in cases
involving federal questions)
•Court of Military Appeals
Highest State Courts (50 courts
handling 95,000 cases per year)
US Courts of Appeals (13 courts handling 60,000 cases per year)
No original jurisdiction
Hear appeals of cases from:
•Lower federal courts
•US regulatory commissions
•Legislative courts, including the US
Court of Federal Claims and the US
Court of Veterans Appeals
State Intermediate Appellate
Courts (found in 39 states; handling
300,000 cases per year)
US District Courts (94 courts handling 325,000 cases per year)
Cases are heard in US district courts
when they involve:
•The federal government as a party
•Civil suits under federal law
•Civil suits between citizens of different
states if the amount in issue is more
than $75,000
•Admiralty or maritime disputes
•Bankruptcy
•Other matters assigned to them by
Congress
No appellate jurisdiction
State Trial Courts (100 million
filings per year)
Criminal v. Civil Law
Criminal Law
The body of law that regulates
individual conduct and its
enforced by the state and
national governments
• Felonies, misdemeanors, or
offenses
• Laws can vary from state to
state
• The government prosecutes
Civil Law
The body of law that regulates
the conduct and
relationships between
private individuals or
companies.
• Individuals must take
action on their own to seek
judicial relief
Criminal and Civil Law
• Most legal disputes never get to court
(settlements)
• Cases have a plaintiff, or petitioner, who
brings charges against a defendant, or
respondent
– Government always brings a criminal case
• Cases are always known first by the name of
the petitioner
– Marbury v. Madion: William Marbury was the
plaintiff
Trial by Jury
• This has been the subject of much controversy
– How would you define a “jury of your peers”?
– As a lawyer, why would you want to keep certain
members off of the jury?
The Federal Court System
• Called constitutional (or Article III) courts
because they are established under Article III
of the Constitution
• Judges of these courts are nominated by the
President, with the advice and consent of
Senate
The Federal Court System
• Legislative Courts are set up by Congress,
under its implied powers, for special purposes.
– Territorial Courts
• Also known as Article I courts
• Judges are also appointed by President w/
advice and consent of Senate
District Courts
• Federal trial courts of original jurisdiction
• 94 federal district courts
• Each state has a least one, most populous
states have four
• President (w/ Senate confirmation) appoints a
US attorney to each district who is the chief
law enforcement officer
The Courts of Appeals
• The losing party in a case decided by a district
court can appeal the decision.
• 11 numbered courts of appeals
• A 12th (DC Circuit) handles most appeals involving
federal regulatory commissions and agencies
– National Labor relations Board
– Securities and Exchange Commission
• 13th court is the US Court of Appeals for the
Federal Circuit (patents, contract and financial
claims against the federal government)
The Courts of Appeals
• Number of judges vary (6 – 30)
• In deciding cases, judges are divided into
rotating 3-judge panels
• Have no original jurisdiction
– Criminal and civil case appeals constitute about
90% of workload
– Appeals from administrative agencies make up
about 10%
– DC court hears more from administrative agencies
The Courts of Appeals
• These are courts of last resort for almost all
federal litigation
• They do NOT hear factual evidence; instead
the review the legal procedures
• Decisions of any court of appeals are binding
on only courts within its geographic confines
– How could this be a problem?
The Supreme Court
• Establishes national precedent (a prior judicial
decision that serves as a rule for settling
subsequent cases or a similar nature)
– The reliance on precedents in new cases is called
stare decisis (“let the decision stand)
– Was stare decisis used in Brown v. BOE
How Federal Court Judges are
Selected
• How can this be a political process? What
does it allow the president to do?
• How does the President know who is best
qualified?
– Senatorial Courtesy
– What problems can occur during a divided
government?
What should you consider when
appointing a Supreme Court judge?
•
•
•
•
•
•
Competence
Ideology or Policy Preferences
Rewards
Pursuit of Political Support
Religion
Race, Ethnicity, and Gender
Confirmation Process
1. Investigation
– Background check by FBI
– American Bar Association rates each nominee
based on qualifications
– Senate Judiciary Committee begins its own
investigation
Confirmation Process
2. Lobbying by Interest Groups – Why?
3. Senate Committee Hearings and Vote
– Senators ask probing questions
– Judiciary Committee makes recommendation to
the full Senate
The Supreme Court Today
1.
2.
3.
4.
5.
6.
7.
8.
9.
Antonin Scalia – Reagan
Anthony M. Kennedy – Reagan
Clarence Thomas – Bush, Sr.
Ruth Badar Ginsburg – Clinton
Stephen Breyer – Clinton
John G. Roberts (Chief Justice) – Bush, Jr.
Samuel Alito, Jr. – Bush, Jr.
Sonia Sotomayor – Obama
Elena Kagan – Obama
Deciding to Hear a Case
• Only takes a case if it presents “a substantial
federal question”
• Petitioner has to petition for a writ of
certiorari (simply called, a writ of cert)
Writs of Certiorari
• A request for the Court to order up the records
from a lower court to review the case
• Writ of Cert must meet 2 criteria:
1. Case must come from a US court of appeals, a
special 3-judge district court, or a state court of last
resort
2. Case must involve a federal question (questions of
constitutionality)
Rule of Four – 4 justices must agree to hear a case
How does a case survive the process?
• The solicitor general’s position (4th ranking
member of the Department of Justice)
– Acts as an Amicus Curiae (“friend of the court”)
• Conflict among the Courts of Appeals
• Interest Group Participation
Hearing a Case
• Briefs are submitted on each side
• Oral Arguments (each side is usually limited to
30 minutes, which includes questioning)
• Conference
• Vote
• Writing Opinions
– Majority, concurring, dissenting
– Why are opinions important?
Specific Court Cases that have
impacted policy or established
precedent
Marbury v. Madison
Thomas Jefferson, a member of the Republican Party, won the election of 1800. The outgoing
President, John Adams, proceeded to rapidly appoint 58 members of his own party to fill
government posts created by Congress. It was the responsibility of the Secretary of State,
John Marshall, to "deliver the commissions," finish the paperwork, and give it to each of the
newly appointed judges. Although Marshall signed and sealed all of the commissions, he
failed to deliver 17 of them to the respective appointees. Marshall assumed that his
successor would finish the job, but when Jefferson became President, he told his new
Secretary of State, James Madison, not to deliver some of the commissions, because he did
not want members of the opposing political party to take office. Those individuals couldn't
take office until they actually had their commissions in hand. William Marbury, whom Adams
had appointed as justice of the peace of the District of Columbia, was one of these lastminute appointees who did not receive his commission. Marbury sued James Madison and
asked the Supreme Court of the United States to issue a writ of mandamus, a court order
that requires an official to perform or refrain from performing a certain duty. In this case, the
writ would have ordered Madison to deliver the commission. Marbury argued that he was
entitled to his commission and that the Judiciary Act of 1789 gave the Supreme Court of the
United States original jurisdiction to issue a writ of mandamus. Madison disagreed. When the
case came before the Court, John Marshall — the person who had failed to deliver the
commission in the first place — was the new Chief Justice. If this situation were to arise today,
Marshall would likely disqualify himself because of a conflict of interest.
McCulloch v. Maryland
President Madison approved the charter re-instituting the National Bank of America. One state
opposed to the Bank of the United States was Maryland. In an attempt to drive the Baltimore
branch of the Bank of the United States out of business, the Maryland State Legislature
required that all banks chartered outside of Maryland pay an annual tax of $15,000. There
was a $500 penalty for each violation of this statute. James McCulloch, cashier of the
Baltimore branch of the Bank of the United States, refused to pay the tax.The State of
Maryland took him to court, arguing that because Maryland was a sovereign state, it had the
authority to tax businesses within its border, and that because the Bank of the United States
was one such business, it had to pay the tax. Luther Martin, one of the attorneys for
Maryland, reasoned that because the federal government had the authority to regulate state
banks, Maryland could do the same to federal banks. Besides, he argued, the Constitution
does not give Congress the power to establish a Bank of the United States. McCulloch was
convicted by a Maryland court of violating the tax statute and was fined $2,500.McCulloch
appealed the decision to the Maryland Court of Appeals. His attorneys, who included Daniel
Webster, asserted that the establishment of a national bank was a "necessary and proper"
function of the Congress. Webster stated that many powers of the government are implied
rather than specifically stated in the Constitution. Furthermore, he argued, Maryland did not
have the authority to levy the tax, because doing so interfered with the workings of the
federal government. After the Maryland Court of Appeals upheld the original decision
against McCulloch, he appealed again. The case was heard by the Supreme Court of the
United States, then headed by Chief Justice John Marshall
Gibbons v. Ogden
Under the Articles of Confederation, the national government was virtually powerless to enact policies to
rationalize the actions of states. One problem that emerged during this time was the way in which state policies
tended to restrict commerce within and beyond their borders, making market exchanges inefficient and costly.
In the Constitution, the framers included the Commerce Clause in Article I, Section 8 to address this issue. The
Commerce Clause states that Congress has the power "[t]o regulate Commerce with foreign Nations, and
among the several States. . . ." The hope was that giving Congress such a power would help to unify commerce
policies thereby making market exchanges more efficient and less costly. Though the clause clearly gave
Congress some power over commerce, it was unclear just how much. It was also unclear what constituted
commerce. The Gibbons case clarified some of these issues under a decision issued by Chief Justice John
Marshall, who had nationalist intentions. In 1808, Robert Fulton and Robert Livingston acquired a monopoly
from the New York state legislature to operate steamboats on the state's waters. This monopoly extended to
interstate waterways, those areas of water that stretch between states. Aaron Ogden held a Fulton-Livingston
license to operate steamboats under this monopoly. However, Thomas Gibbons held a federal coasting license,
granted under a 1793 Act of Congress, and operated steamboats between New Jersey and New York that
competed with Ogden’s. Ogden filed a complaint in the Court of Chancery of New York asking the court to
restrain Gibbons from operating his boats. Ogden's lawyer contended that states often passed laws on issues
regarding interstate matters and that states should have fully concurrent power with Congress on matters
concerning interstate commerce. The monopoly, therefore, should be upheld. Gibbons' lawyer, Daniel Webster,
argued that Congress had exclusive national power over interstate commerce according to Article I, Section 8 of
the Constitution and that to argue otherwise would result in confusing and contradictory local regulatory
policies. The Court of Chancery of New York found in favor of Ogden and issued an injunction to restrict
Gibbons from operating his boats. Gibbons appealed the case to the Court of Errors of New York, which
affirmed the decision. Gibbons appealed the case to the Supreme Court of the United States.
Plessy v. Ferguson
In 1890, Louisiana passed a statute called the Separate Car Act, which stated "that all
railway companies carrying passengers in their coaches in this state, shall provide
equal but separate accommodations for the white, and colored races, by providing
two or more passenger coaches for each passenger train, or by dividing the
passenger coaches by a partition so as to secure separate accommodations. . . . "
The penalty for sitting in the wrong compartment was a fine of $25 or 20 days in
jail. The Plessy case was carefully orchestrated by both the Citizens' Committee to
Test the Constitutionality of the Separate Car Act, a group of blacks who raised
$3000 to challenge the Act, and the East Louisiana Railroad Company, which
sought to terminate the Act largely for monetary reasons. They chose a 30-yearold shoemaker named Homer Plessy, a citizen of the United States who was oneeighth black and a resident of the state of Louisiana. On June 7, 1892, Plessy
purchased a first-class passage from New Orleans to Covington, Louisiana and sat
in the railroad car designated for whites only. The railroad officials, following
through on the arrangement, arrested Plessy and charged him with violating the
Separate Car Act. Well known advocate for black rights Albion Tourgee, a white
lawyer, agreed to argue the case without compensation. In the criminal district
court for the parish of Orleans, Plessy argued that the Separate Car Act violated
the Thirteenth and Fourteenth Amendments to the Constitution.
Plessy v. Ferguson
John Howard Ferguson was the judge presiding over Plessy's criminal
case in the district court. He had previously declared the Separate
Car Act "unconstitutional on trains that traveled through several
states." However, in Plessy's case he decided that the state could
choose to regulate railroad companies that operated solely within
the state of Louisiana. Therefore, Ferguson found Plessy guilty and
declared the Separate Car Act constitutional. Plessy appealed the
case to the Louisiana State Supreme Court, which affirmed the
decision that the Louisiana law as constitutional. Plessy petitioned
for a writ of error from the Supreme Court of the United States.
Judge John Howard Ferguson was named in the case brought
before the United States Supreme Court (Plessy v. Ferguson)
because he had been named in the petition to the Louisiana
Supreme Court and not because he was a party to the initial lawsuit.
Brown v. Board of Education
In the early 1950s, Linda Brown was a young African American student in the Topeka, Kansas school
district. Every day she and her sister, Terry Lynn, had to walk through the Rock Island Railroad
Switchyard to get to the bus stop for the ride to the all-black Monroe School. Linda Brown tried to
gain admission to the Sumner School, which was closer to her house, but her application was
denied by the Board of Education of Topeka because of her race. The Sumner School was for white
children only. At the time of the Brown case, a Kansas statute permitted, but did not require, cities
of more than 15,000 people to maintain separate school facilities for black and white students. On
that basis, the Board of Education of Topeka elected to establish segregated elementary schools.
Other public schools in the community were operated on a non-segregated, or unitary, basis. The
Browns felt that the decision of the Board violated the Constitution. They sued the Board of
Education of Topeka, alleging that the segregated school system deprived Linda Brown of the equal
protection of the laws required under the Fourteenth Amendment. Thurgood Marshall, an
attorney for the National Association for the Advancement of Colored People (NAACP), argued the
Brown's case. Marshall would later become a Supreme Court justice. The three-judge federal
district court found that segregation in public education had a detrimental effect upon black
children, but the court denied that there was any violation of Brown's rights because of the
"separate but equal" doctrine established in the Supreme Court's 1896 Plessy decision. The court
found that the schools were substantially equal with respect to buildings, transportation, curricula,
and educational qualifications of teachers. The Browns appealed their case to the Supreme Court
of the United States, claiming that the segregated schools were not equal and could never be
made equal. The Court combined the case with several similar cases from South Carolina, Virginia,
and Delaware. The ruling in the Brown v. Board of Education case came in 1954.
Dred Scott v. Sandford
Had he filed his lawsuit a few years earlier, Dred Scott probably never would have become a giant figure in U.S.
history. Many people in Scott's position had won their lawsuits in state trial courts. However, by the time
Scott's case made it to trial, U.S. political sentiments had changed and it took 11 years for his case to reach
the Supreme Court of the United States. The Court's decision in Dred Scott v. Sandford remains among its
most controversial. Slavery was at the root of Dred Scott's case. He sued his master to obtain freedom for
himself and his family. The argument he used was that because he had lived in a territory where slavery was
illegal, he could never again be enslaved. This was a doctrine that was recognized in common law for
centuries in Europe. In the state where he filed his suit, Missouri, many people in his situation had sued their
masters for their freedom and won. Dred Scott was born a slave in Virginia around 1799. In 1834, Dr. John
Emerson, a surgeon in the U.S. army, bought Scott in Missouri and moved him to Illinois. Illinois was a free
state. In 1836, Scott and Emerson moved to Fort Snelling, in present-day Minnesota. In the Missouri
Compromise of 1820, Congress had prohibited slavery in the area that included Fort Snelling. Emerson
bought a slave named Harriet and Scott married her in 1836. In 1838, Emerson and the Scotts moved back
to Missouri. The Scotts had two daughters, Eliza, born around 1843, and Lizzie, born around 1850.Emerson
died in 1843 and he left his possessions, including the Scotts, to his widow, Irene. They lived in St. Louis,
Missouri. In 1846, Dred Scott asked Mrs. Emerson if he could work for money. If he could earn and save
money, he could buy his freedom from Mrs. Emerson. According to Scott, she refused. Scott sued Mrs.
Emerson for "false imprisonment" and for battery. It was common for slaves who had been taken to free
land to sue their masters and win their freedom. Scott sued Mrs. Emerson, claiming that Emerson held him
illegally. Scott claimed that he had become a free man as soon as he lived in a free territory or state and
then was taken against his will to a slave territory or state. In 1847, Emerson was able to win in Missouri
Circuit court on a technicality; Scott's lawyers failed to prove to the jury that Emerson was holding Scott as a
slave. Scott's lawyers successfully argued for a retrial with additional witnesses that could prove Emerson's
ownership of Scott.
Dred Scott v. Sandford
By the time the case went to trial in 1850, Mrs. Emerson had moved to Massachusetts and left John F.A. Sanford,
her brother, in charge of her financial matters, including the Scott case. The jury agreed that Scott and his
family should be free because of the doctrine "once free, always free." Sanford, acting for his sister, appealed to
the Missouri Supreme Court. In 1852, two of the three judges found in favor of Mrs. Emerson and John Sanford.
The decision consciously reversed earlier precedent. The newly elected proslavery justice, William Scott, wrote
the decision, arguing that states like Missouri must have the power to refuse to enforce the laws of other
states. Thus, regardless of wherever else Scott had been with his master, slavery was legal in Missouri. Dred
Scott's lawyers could have appealed the decision to the Supreme Court of the United States, but they feared
that a majority of the justices would simply endorse the state court decision without considering its merits. By
1853, John Sanford was legally recognized as the owner of the Scotts. Sanford had moved to New York, leaving
the Scotts in Missouri. Since federal courts settle the dispute between citizens of different states, Scott was able
to sue Sanford in federal court in a new case. A clerk mistakenly added a letter to Sanford's name, so the case
permanently became Dred Scott v. John F. A. Sandford.In 1854, the U. S. Court for the District of Missouri heard
the case. Judge Robert W. Wells rejected Sanford's assertion that Scott could not sue because he was not a
citizen. However, the judge instructed the jury that, as the Missouri Supreme Court had said, Scott was subject
only to the laws of Missouri. The jury found for Sanford. Scott then appealed to the Supreme Court of the United
States. Unfortunately for Scott, the political divisions over slavery worsened from the time that his case first
came to trial in 1847 through 1857 when the Supreme Court of the United States finally announced its decision.
Events of this period that increased conflicts included the passage of the Fugitive Slave Act (1850), publication
of Uncle Tom's Cabin (1852), enactment of The Kansas-Nebraska Act (1854), violence in "bleeding Kansas"
(1856), and Representative Brooks's beating of Senator Sumner in the U.S. Senate (1856). Like almost all people
of their time, the justices had strong personal views about slavery. One justice, Peter V. Daniel of Virginia,
supported slavery so much that he even refused to travel north of the Mason-Dixon line into a free state. Some
historians believe that Chief Justice Taney hoped that his decision in the Dred Scott case would help prevent, not
create future disputes over slavery.
Gideon v. Wainwright
Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama
City, Florida. Someone broke a window, smashed the cigarette machine and jukebox, and stole money from
both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around
5:30 that morning. When Gideon was found nearby with a pint of wine and some change in his pockets, the
police arrested him and charged him with breaking and entering. Gideon was a semi-literate drifter who
could not afford a lawyer, so at the trial, he asked the judge to appoint one for him. Gideon argued that the
Court should do so because the Sixth Amendment says that everyone is entitled to a lawyer. The judge
denied his request, ruling that the state did not have to pay a poor person's legal defense unless he was
charged with a capital crime or "special circumstances" existed. Gideon was left to represent himself. As
might be expected, Gideon did a poor job of defending himself. He had done no preparation work before his
trial; his choice of witnesses was unusual—for instance, he called police officers who arrested him to testify
on his behalf, not having any reason to believe they would help his case. He had no experience in crossexamining a witness in order to impeach that person's credibility, so his line of questioning was not as
productive as a lawyer's would have been. Gideon was found guilty of breaking and entering and petty
larceny, which was a felony. He was sentenced to five years in a Florida state prison, partly because of his
prior criminal record. While in prison, he began studying law in the prison library, believing that his Sixth
Amendment rights had been violated when he was denied a defense lawyer paid for by the State. His study
of the law led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that he
be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected his petition,
he handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking that it hear
his case. The Court allowed him to file it in forma pauperis, which meant that the Court would waive the fees
generally associated with such a petition. Generally, the Court dismisses most of these petitions; Gideon's
was among those that it did not dismiss. In state criminal trials, are indigent defendants entitled to a lawyer,
even in noncapital cases? That was the question the Court agreed to decide when they accepted Gideon's
petition. It was not merely a question of whether Gideon had been treated fairly; the Court's ruling would
affect many other people who faced similar circumstances. In a previous decision, Betts v. Brady (1942), the
Court had held that in state criminal trials, an indigent defendant must be supplied with an attorney only in
special circumstances, which included complex charges and incompetence or illiteracy on the part of the
defendant. Since Gideon had not claimed special circumstances, the Court would have to overturn Betts in
order to rule in Gideon's favor. (Florida's state law provided indigent defendants with lawyers only in capital
cases; many other states had laws providing lawyers to most or all indigent defendants.)
Hazelwood v. Kuhlmeier
In May 1983, students in the Journalism II class at Hazelwood East High School in St. Louis, Missouri,
generated the final edition of their school paper, the Spectrum. As was customary, they submitted the
paper to their advisor, Howard Emerson, who was new to the job. He followed the procedures of the
recently departed previous advisor, giving the principal, Robert Reynolds, the opportunity to review
the paper prior to publication. When Reynolds reviewed the paper, he found two articles that
concerned him. The first article addressed the issue of teen pregnancy, including comments from
pregnant students at the school. Although names were not given, Reynolds thought there were
enough details in the article to make it easy for other students to determine the identities of the
pregnant teens. He was concerned about the privacy of those students. The second article was about
divorce and, like the first article, this one included personal articles. In this article, Reynolds was not
concerned so much about the students, but, rather, about what they said about their families. For
instance, one student whose parents were divorced made negative comments about her father,
claiming that her father was always out with the guys, that he didn't spend enough time with his
family, and that the father and mother were always arguing. Reynolds was troubled by the fact that
the father had not been given a chance to defend himself by responding to his daughter's comments.
He also noticed that the article mentioned sex and birth control. He did not think that students in
ninth grade should be reading about sex and birth control. Reynolds wanted the students to make
changes in their articles, but he was afraid that if they took the time to do so, they would miss the
deadline for publishing the Spectrum. He did not want that to happen, especially because it was the
last issue of the year and there would not be another chance to publish the paper. He felt like he had
to make a quick decision, so he told Emerson to delete the two pages with the questionable articles
and publish the remainder of the paper. He informed his superiors in the school system of this
decision; they supported him wholeheartedly.
Hazelwood v. Kuhlmeier
The students had invested a great deal of time and energy in producing the paper and felt that they had
followed proper journalism procedures. If they had been approached about the problems, they may
have been able to resolve them. They were upset to find out instead that two pages, which included a
number of non-offensive articles, had been deleted. They felt that this censorship was a direct
violation of their First Amendment rights, so they took their case to the U.S. District Court for the
Eastern District of Missouri. This court did not agree with the students; the judges said that school
officials might impose limits on students' speech in activities that are "an integral part of the school's
educational function" as long as their decision "has a substantial and reasonable basis." In other
words, the court felt that if the school has a good reason to do so, it could place limits on curricular
activities, such as the publication of the school newspaper. Unhappy with the outcome, the students
appealed their case to the Court of Appeals for the Eighth Circuit. This court reversed the decision of
the lower court, saying that the students' First Amendment rights were violated. In the opinion, the
court conceded that the newspaper was indeed a part of the school curriculum but noted that it was
also a "public forum." As a public forum, the newspaper was "intended to be and operated as a
conduit for student viewpoint." Because the paper was a forum for student discussion, the principal
or other officials could censor it only when "necessary to avoid material and substantial interference
with school work or discipline . . . or the rights of others.” The school appealed the decision of the
Court of Appeals and the Supreme Court of the United States agreed to hear the case. In determining
whether or not students' rights were violated, it would consider whether or not the student
newspaper was a public forum and whether the First Amendment "requires a school affirmatively to
promote particular student speech."
Korematsu v. United States
When the Japanese bombed Pearl Harbor on December 7, 1941, destroying much of the
American Pacific Fleet, the American military became concerned about the security of the
mainland United States, particularly along the West Coast. The Japanese military had
achieved significant and swift success throughout the Pacific. Many Americans turned their
fear and outrage over the actions of the Japanese government on people of Japanese
descent, both citizens and non-citizens, living lawfully in the United States. At the time,
approximately 112,000 people of Japanese descent lived on the West Coast; about 70,000 of
these were American citizens. Many Japanese Americans had close cultural ties with their
homeland, sending children home for schooling and even collecting tinfoil and money to
send to Japan during its war with China. At the time, however, there was no proven case of
espionage or sabotage on the part of Japanese or Japanese Americans in the United States.
Nonetheless, in February 1942, General DeWitt, the commanding officer of the Western
Defense Command, recommended that “Japanese and other subversive persons” be
evacuated from the Pacific Coast. He claimed, The Japanese race is an enemy race and while
many second and third generation Japanese born on United States soil, possessed of United
States citizenship, have become ‘Americanized,’ the racial strains are undiluted. To conclude
otherwise is to expect that children born of white parents on Japanese soil sever all racial
affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan
in a war against the nation of their parents. He also said that there was “no ground for
assuming that any Japanese, barred from assimilation by convention as he is, though born
and raised in the United States, will not turn against this nation when the final test of loyalty
comes.”
Korematsu v. United States
President Franklin D. Roosevelt acted on this recommendation by signing Executive Order 9066. This
authorized the Secretary of War or any designated commander, at their sole discretion, to limit and even
prohibit some people from being in certain areas. Soon after the order was enacted, Congress
sanctioned the executive order by passing a law that imposed penalties for those who violated the
restrictions that evolved from the order. The ensuing restrictions on people of Japanese origin included
curfews and forced removal to assembly and relocation centers much farther inland. Relocation to these
centers was called internment. Most were required to live in barracks, many of which did not having
running water or cooking facilities. They were only allowed to bring basic personal items. Thus, many
suffered heavy financial losses when they were forced to quickly sell their homes, vehicles, and other
belongings. Fred Korematsu was an American-born citizen of Japanese descent who grew up in Oakland,
California. He tried to serve in the United States military, but was rejected for poor health. He was able,
however, to get a job in a shipyard. When Japanese internment began in California, Korematsu evaded
the order and moved to a nearby town. He also had some facial surgery, changed his name and claimed
to be Mexican-American. He was later arrested and convicted of violating Exclusion Order No. 34 issued
by General DeWitt, which barred all persons of Japanese descent from the “military area” of San Leandro,
California. There was no question at the time of conviction that Korematsu had been loyal to the United
States and was not a threat to the war effort. Korematsu challenged his conviction on the grounds that
the relocation orders were beyond the powers of Congress, the military authorities and the President. He
also asserted that to apply these orders only to those of Japanese ancestry amounted to constitutionally
prohibited discrimination based on race. The government argued that the exclusion and internment of
Japanese Americans was justified because it was necessary to the war effort. They said there was
evidence that some Japanese Americans were involved in espionage, and argued that because there was
no way to tell the loyal from the disloyal, all people of Japanese descent had to be treated as though they
were disloyal. The federal appeals court ruled in favor of the United States, and Korematsu’s appeal
brought the issue before the U.S. Supreme Court.
Mapp v. Ohio
Ms. Dollree Mapp and her daughter lived in Cleveland, Ohio. After receiving information that an individual
wanted in connection with a recent bombing was hiding in Mapp's house, the Cleveland police knocked
on her door and demanded entrance. Mapp called her attorney and subsequently refused to let the
police in when they failed to produce a search warrant. After several hours of surveillance and the arrival
of more officers, the police again sought entrance to the house. Although Mapp did not allow them to
enter, they gained access by forcibly opening at least one door. Once the police were inside the house,
Mapp confronted them and demanded to see their warrant. One of the officers held up a piece of paper
claiming it was a search warrant. Mapp grabbed the paper but an officer recovered it and handcuffed
Mapp "because she had been belligerent". Dragging Mapp upstairs, officers proceeded to search not only
her room, but also her daughter's bedroom, the kitchen, dinette, living room, and basement. In the
course of the basement search, police found a trunk containing "lewd and lascivious" books, pictures, and
photographs. As a result, Mapp was arrested for violating Ohio's criminal law prohibiting the possession
of obscene materials. At trial, the court found her guilty of the violation based on the evidence presented
by the police. When Mapp's attorney questioned the officers about the alleged warrant and asked for it
to be produced, the police were unable or unwilling to do so. Nonetheless, Mapp was found guilty and
sentenced to 1 to 7 years in the Ohio Women's Reformatory. Upon her conviction, Mapp appealed her
case to the Supreme Court of Ohio. Her attorney argued that she should never have been brought to trial
because the material evidence resulted from an illegal, warrantless search. Because the search was
unlawful, he maintained, the evidence was illegally obtained and must also be excluded. In its ruling, the
Supreme Court of Ohio recognized that "a reasonable argument" could be made that the conviction
should be reversed "because the 'methods' employed to obtain the [evidence]. . . were such as to 'offend'
a sense of justice." But the Court also stated that the materials were admissible evidence. The Court
explained its ruling by differentiating between evidence that was peacefully seized from an inanimate
object (the trunk) rather than forcibly seized from an individual. Based on this decision, Mapp's appeal
was denied and her conviction upheld.
Mapp v. Ohio
Mapp appealed again to the Supreme Court of the United States. The case came down to this fundamental question:
may evidence obtained through a search in violation of the Fourth Amendment be admissible in state criminal
proceedings? The Fourth Amendment states "The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be
seized." The Fourth Amendment, however, does not define when a search or seizure is "unreasonable" nor does it
specify how evidence obtained from an "unreasonable" search should be treated. While never previously
addressing the specific question presented by Mapp's case, the Supreme Court of the United States had made
attempts to determine what constitutes a reasonable search and what evidence can be used in court. It first
wrestled with these issues in Boyd v. United States (1886) when the Court declared that "any forcible and
compulsory extortion of a man's own . . . private papers to be used as evidence to convict him of a crime . . . is
within the condemnation of . . . [the Fourth Amendment]. Later, in Weeks v. United States (1914), the Court ruled
that the Fourth Amendment "put the courts of the United States and federal officials . . . under limitations . . . and
forever secure[d] the people, their persons, houses, papers and effects against all unreasonable searches and
seizures. . . ." By including only United States and federal officials in its ruling, however, the Court still left open the
question of whether evidence unlawfully seized could be used in a state criminal court proceeding. In Wolf v.
Colorado (1949) the Court for the first time discussed the effect of the Fourth Amendment on the states. It
concluded that the Due Process Clause of the Fourteenth Amendment incorporated, or made applicable to the
states, the Fourth Amendment to the Constitution. However, the ruling in Wolf also made clear that "in a
prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence
obtained by an unreasonable search and seizure." In other words, the exclusionary rule did not apply to the states.
Some states, including Ohio, felt that they should be able to make their own determination regarding the
admissibility of illegally obtained evidence. Nevertheless, in 1960 the Supreme Court of the United States agreed to
hear Mapp's case and reconsider the decision it had reached in Wolf by determining whether the U.S. Constitution
prohibited state officials from using evidence obtained in violation of the Fourth Amendment. The decision in Mapp
v. Ohio was handed down in 1961.
Miranda v. Arizona
Ernesto Miranda was a poor Mexican immigrant living in Phoenix, Arizona, in 1963. Miranda was arrested after a
crime victim identified him in a police lineup. Miranda was charged with rape and kidnapping and
interrogated for two hours while in police custody. The police officers questioning him did not inform him of
his Fifth Amendment right against self-incrimination, or of his Sixth Amendment right to the assistance of
an attorney. As a result of the interrogation, he confessed in writing to the crimes with which he was
charged. His written statement also included an acknowledgement that he was aware of his right against
self-incrimination. During his trial, the prosecution used his confession to obtain a conviction, and he was
sentenced to 20 to 30 years in prison on each count. Miranda's defense attorney appealed to the Arizona
Supreme Court. His attorney argued that his confession should have been excluded from trial because he
had not been informed of his rights, nor had an attorney been present during his interrogation. The police
officers involved admitted that they had not given Miranda any explanation of his rights. They argued,
however, that because Miranda had been convicted of a crime in the past, he must have been aware of his
rights. The Arizona Supreme Court denied his appeal and upheld his conviction. The case comes down to
this fundamental question: What is the role of the police in protecting the rights of the accused, as
guaranteed by the Fifth and Sixth Amendments to the Constitution? The Fifth Amendment states that no
person "shall be compelled in any criminal case to be a witness against himself. . . ." The Sixth Amendment
states that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of
counsel for his defense." The Supreme Court of the United States had made previous attempts to deal with
these issues. In Brown v. Mississippi (1936), the Court had ruled that the Fifth Amendment protected
individuals from being forced to confess. In Gideon v. Wainwright (1963), the Court held that persons
accused of felonies have a fundamental right to an attorney, even if they cannot afford one. In 1964, after
Miranda's arrest, the Court ruled that when an accused person is denied the right to consult with his
attorney, his or her Sixth Amendment right to counsel is violated (Escobedo v. Illinois). But do the police have
an obligation to ensure that the accused person is aware of these rights? If so, at what point in the criminal
justice process must the defendant learn of these rights? In 1965, the Supreme Court of the United States
agreed to hear Miranda's case. At the same time, the Court agreed to hear three similar cases, Vignera v.
New York, Westover v. United States, and California v. Stewart. The Court combined the four cases. Since
Miranda was listed first among the four cases considered by the Court, the decision came to be known by
that name. The decision in Miranda v. Arizona was handed down in 1966.
New Jersey v. T.L.O.
In 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a
restroom. At the school, smoking in the restrooms was a violation of school rules; smoking
was allowed only in the designated smoking area. The teacher escorted the two girls to the
principal's office, where they met with an assistant vice principal, Theodore Choplick. One of
the girls was T.L.O., a freshman who was 14 years old. The girl who was with T.L.O. admitted
that she had been smoking; T.L.O., however, denied the allegation, and said that she did not,
in fact, smoke at all. Choplick took T.L.O. into his office and instructed her to turn over her
purse. He opened the purse and found a pack of cigarettes. He took the cigarettes out of the
purse and showed them to T.L.O., accusing her of having lied about smoking in the restroom.
As he removed the cigarettes, he noticed a package of cigarette rolling papers, which he
believed were an indicator of involvement with marijuana. Therefore, he proceeded with a
more thorough search of T.L.O.'s purse. This search yielded the following items: a small
amount of marijuana, a pipe, empty plastic bags, a significant amount of money in one-dollar
bills, a list of students who owed T.L.O. money, and letters implicating T.L.O. in dealing
marijuana. Choplick then called T.L.O.'s mother and the police. The mother came to the
school and, at the request of the police, took her daughter to the police station. Choplick
turned the evidence from the purse over to the police. At the police station, T.L.O. admitted
that she had been selling marijuana at school. As a result of T.L.O.'s confession and the
evidence from her purse, the State of New Jersey brought delinquency charges against T.L.O.
in the Juvenile and Domestic Relations Court of Middlesex County.
New Jersey v. T.L.O.
T.L.O. tried to have the evidence from her purse suppressed, contending that the search violated the Fourth
Amendment. She also claimed that her confession should be suppressed on the grounds that it was tainted
by the unlawful search. The juvenile court rejected her Fourth Amendment arguments, although it conceded
that the Fourth Amendment applies to searches by school officials. However, it held that a school official
may search a student if that official has a "reasonable suspicion that a crime has been or is in the process of
being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or
enforce school policies." This is a lower standard than the "probable cause" standard, which is required
when police conduct a search. The juvenile court concluded that Choplick's search was, therefore,
reasonable. Choplick was justified in searching the purse, the Court said, because of his reasonable suspicion
that T.L.O. had violated school rules by smoking in the restroom. When he opened the purse, evidence of
marijuana use was in plain view; this justified the further search of the purse. T.L.O. was found to be a
delinquent and, in January 1982, she was sentenced to one year of probation. T.L.O. appealed her conviction
to the appellate division, which found no violation of the Fourth Amendment, but returned the case to
juvenile court for determination of a possible Fifth Amendment problem with T.L.O.'s confession. T.L.O. then
appealed the appellate division's Fourth Amendment ruling to the Supreme Court of New Jersey. The
Supreme Court of New Jersey reversed the appellate division's ruling and ordered the evidence found in
T.L.O.'s purse suppressed. The New Jersey Court relied on Supreme Court of the United States precedent to
hold that whenever an "official" search violates constitutional rights, the evidence may not be used in a
criminal case. Furthermore, the Supreme Court of New Jersey found that Choplick's search was not
reasonable. Mere possession of cigarettes was not a violation of school rules; therefore, a desire for
evidence of smoking in the restroom did not justify the search. In addition, the further search of the purse
was not justified by the presence of cigarette rolling papers. In 1983, the Supreme Court of the United States
granted the State of New Jersey's petition for certiorari. In 1985, the Court handed down its decision.
Regents of the U. of California v.
Bakke
In the early 1970s, the medical school of the University of California at Davis devised a dual admissions
program to increase representation of "disadvantaged" students. Under the regular admissions
procedure, a screening process was used to evaluate candidates for further consideration. Candidates
whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were automatically
rejected. Of the remaining candidates, some were selected for interviews. Following an interview, the
admissions committee rated candidates who survived the screening process on a scale of 1 to 100.
The rating considered the interviewer's evaluation, the candidate's overall and science grade point
averages, scores on the Medical College Admissions Test (MCAT), letters of recommendation,
extracurricular activities, and other biographical data. The ratings were added together to arrive at
each candidate's "benchmark score.” On the application form, candidates could indicate that they
were members of a "minority group," which the medical school designated as "Blacks," "Chicanos,"
"American Indians," or "Asians." Candidates could also choose to be considered "economically and/or
educationally disadvantaged." The applications of those who did so were sent to the special
admissions committee, where applications were screened to determine whether the candidate met
the criteria established for disadvantaged and minority groups. These applicants did not have to meet
the 2.5 grade point average cut off used in the regular program, nor were the candidates in the
special admissions program compared to the candidates in the regular admissions program. Of the
100 spots in the medical school, 16 spaces were set aside for this program. From 1971 to 1974 the
special program resulted in the admission of 21 black students, 30 Mexican Americans, and 12 Asians,
for a total of 63 minority students.* During the same period, the regular admissions program
admitted 1 black student, 6 Mexican Americans, and 37 Asians, for a total of 44 minority students. No
disadvantaged white candidates received admission through the special program.
Regents of the U. of California v.
Bakke
Allan Bakke was a white male who applied to and was rejected from the regular admissions program in 1973 and
1974. During those same years, minority applicants with lower grade point averages, MCAT scores, and
benchmark scores were admitted to the medical school under the special program. After his second
rejection, Bakke filed suit in the Superior Court of Yolo County, California. He sought to compel the
University of California at Davis to admit him to the medical school. He also alleged that the special
admissions program violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the
Civil Rights Act of 1964 because it excluded him on the basis of race .The university argued that their system
of admission preferences served several important purposes. It helped counter the effects of discrimination
in society. Since historically, minors were discriminated against in medical school admissions and in the
medical profession, their special admission program could help reverse that. The university also said that
the special program increased the number of physicians who practice in underserved communities. Finally,
the university reasoned that there are educational benefits to all students when the student body is
ethnically and racially diverse. The Superior Court of Yolo County, California found that the special
admissions program did violate the federal and state constitutions, as well as Title VI, and was therefore
illegal. The Court declared that race could not be taken into account when making admissions decisions.
However the Court also ruled that Bakke should not be admitted to the medical school because he failed to
show that he would have been admitted in the absence of the special admissions program. The University of
California appealed the case to the Supreme Court of California, which also declared the special admissions
policy unconstitutional. Furthermore, the Supreme Court of California determined that Bakke should be
admitted to the school because the University failed to demonstrate that Bakke would not have been
admitted without the special admissions program. The Regents of the University of California then appealed
the case to the Supreme Court of the United States.
Roe v. Wade
In the latter part of the nineteenth century and the first half of the twentieth century,
most states adopted laws strictly regulating the availability of abortions. Many
states outlawed abortion except in cases where the mother’s life was in
jeopardy. Illegal abortions were widespread and often dangerous for women who
undertook them because they were performed in unsanitary conditions. The
sexual revolution that began in the second half of the twentieth century resulted
in public pressure to ease abortion laws. As some states began to relax abortion
restrictions, some women found it relatively easy to travel to a state where the
laws were less restrictive or where a doctor was willing to certify medical
necessity. However, poor women often could not travel outside their state to
receive treatment, raising questions of equality. Statutes were often vague, so
that doctors did not really know whether they were committing a felony by
providing an abortion. In addition, government interference in sexual matters was
beginning to be called into question by a changing conception of privacy. There is
no right to privacy explicitly guaranteed in the Constitution. However, the
Supreme Court has long acknowledged some right to privacy. In earlier rulings
about privacy, the Supreme Court seemed to connect the right to privacy to
location, with a particular emphasis on a person’s home. This association
stemmed from notions of property rights and centered on people’s personal
property.
Roe v. Wade
However, in the second half of the last century, the Court’s position on privacy came to be seen as a right
connected to a person, not to a location. The change in conceptions of privacy can be seen clearly in
the landmark decision of Griswold v. Connecticut (1965). The Supreme Court ruled that a Connecticut
statute outlawing access to contraception violated the U.S. Constitution because it invaded the
privacy of married couples to make decisions about their families. In that ruling, the Court identified
privacy as a transcendent value, fundamental to the American way of life, and to the other basic rights
outlined in the Bill of Rights. Though the decision focused on the fundamental nature of privacy
associated with marriage, the case set the stage for the Court to proceed further in its
protection. Seven years later, the Court decided a case that extended access to contraception to
unmarried persons, as well. While the word privacy does not appear in the Constitution, the
argument for protecting privacy is based on the Due Process Clause of the 14th Amendment. That
clause has been found to protect certain fundamental rights against government action. Jane Roe, a
pseudonym used to protect her identity, was an unmarried and pregnant Texas resident in 1970. She
wanted to have an abortion, but Texas abortion law made it a felony to abort a fetus unless “on
medical advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the
district attorney of Dallas County, Texas to challenge the statute outlawing abortion. Roe contested
the statute on the grounds that it violated the Fourteenth Amendment mandating equal protection of
the laws and the guarantee of personal liberty, and a mother’s right to privacy implicitly guaranteed in
the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The state argued that “the right to life of
the unborn child is superior to the right to privacy of the mother.” The state also argued that in
previous decisions where the Court protected individual or marital privacy, that right was not
absolute. The state argued that this is a policy matter best left to the legislature to decide. A threejudge federal district court ruled the Texas abortion law unconstitutional, and the case was then
appealed directly to the U.S. Supreme Court.
Texas v. Johnson
Gregory Lee Johnson participated in a political demonstration during the Republican National Convention in Dallas, Texas, in
1984. The purpose of the demonstration was to protest policies of the Reagan Administration and of certain
corporations based in Dallas. Demonstrators marched through the streets, chanted slogans, and held protests outside
the offices of several corporations. At one point, another demonstrator handed Johnson an American flag. When the
demonstrators reached Dallas City Hall, Johnson doused the flag with kerosene and set it on fire. During the burning of
the flag, the demonstrators shouted, "America, the red, white, and blue, we spit on you." No one was hurt or
threatened with injury, but some witnesses to the flag burning said they were seriously offended. One witness picked
up the flag's charred remains and buried them in his backyard. Johnson was charged with the desecration of a
venerated object, in violation of the Texas Penal Code. He was convicted, sentenced to one year in prison, and fined
$2,000. He appealed his conviction to the Court of Appeals for the Fifth District of Texas, which let his conviction stand.
He then appealed to the Texas Court of Criminal Appeals, which is the highest court in Texas that hears criminal cases.
That court overturned his conviction saying that the State, consistent with the First Amendment, could not punish
Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was
expressive conduct protected by the First Amendment. Therefore in order for a state to criminalize or regulate such
conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment.
The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national
unity was not a compelling enough interest to survive the constitutional challenge. It also held that while preventing
breaches of the peace qualified as a compelling state interest the statute was not drawn narrowly enough to only
punish those flag burnings that would likely result in a serious disturbance. Further, it stressed that another Texas
statute prohibited breaches of the peace and could serve the same purpose of preventing disturbances without
punishing this flag desecration. The court said, "Recognizing that the right to differ is the centerpiece of our First
Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very
same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with
that symbol. . . . " The court also concluded that the flag burning in this case did not cause or threaten to cause a
breach of the peace .The State of Texas filed a petition for a writ of certiorari and, in 1988, the Supreme Court of the
United States agreed to hear the case. In 1989, the Court handed down its decision.
Tinker v. Des Moines
John and Mary Beth Tinker were public school students in Des Moines, Iowa in December of
1965. As part of a group against American involvement in the Vietnam War, they decided to
publicize their opposition by wearing black armbands to school. Having heard of the
students' plans, the principals of the public schools in Des Moines adopted and informed
students of a new policy concerning armbands. This policy stated that any student who wore
an armband to school would be asked immediately to remove it. A student who refused to
take off his or her armband would be suspended until agreeing to return to school without
the band. Two days later and aware of the school policy, the Tinker children and a friend
decided to wear armbands to school. Upon arriving at school, the children were asked to
remove their armbands. They did not remove the armbands and were subsequently
suspended until they returned to school without their armbands. The children returned to
school without armbands after January 1, 1966, the date scheduled for the end of their
protest. However, their fathers filed suit in U.S. District Court. This suit asked the court for a
small amount of money for damages and an injunction to restrain school officials from
enforcing their armband policy. Although the District Court recognized the children's First
Amendment right to free speech, the court refused to issue an injunction, claiming that the
school officials' actions were reasonable in light of potential disruptions from the students'
protest. The Tinkers appealed their case to the U.S. Court of Appeals but were disappointed
when a tie vote in that court allowed the District Court's ruling stand. As a result they
decided to appeal the case to the Supreme Court of the United States.
Tinker v. Des Moines
The case came down to this fundamental question: Do the First Amendment rights of free speech extend to
symbolic speech by students in public schools? And, if so, in what circumstances is that symbolic speech
protected? The First Amendment states "Congress shall make no law . . . abridging the freedom of
speech." The Fourteenth Amendment extends this rule to state governments as well, of which school
systems are a part. The First Amendment, however, does not identify which kinds of speech are
protected. For example, it is not clear whether hate speech against an individual or group is protected.
Neither does the First Amendment specify what types of expressive actions should be considered as
speech. The Supreme Court of the United States has made many attempts to determine what types of
symbolic speech are protected under the First Amendment. In 1919, the Court decided in Schenck v.
United States that an individual could be punished for distributing anti-World War I pamphlets urging
non-compliance with the draft because the pamphlets "create[ed] a clear and present danger that they
will bring about [a] substantive evil[ . . .] Congress has a right to prevent"—draft obstruction. The Court
wrestled with the issue of the right to symbolic speech again in the case of Thornhill v. Alabama (1940)
when the Court ruled that picketing was a form of symbolic speech protected by the First Amendment
because no clear and present danger of destruction of life or property or of breach of the peace was
inherent in the action. Three years later in West Virginia v. Barnette (1943), the Court extended the First
Amendment protection of symbolic speech to students in public schools. In Barnette, the Court held "[i]f
there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ."In 1968 the
Supreme Court of the United States agreed to hear Tinker's case and consider the constitutionality of the
Des Moines principals' anti-armband policy. The Court's decision in Tinker v. Des Moines was handed
down in 1969.
United States v. Nixon
In 1972, five burglars were caught breaking into the Democratic National Committee Headquarters at the
Watergate Hotel and office complex in Washington, D.C. Media and government investigation of the break-in
revealed that the burglars were associated with the campaign to re-elect Nixon. The inquiries also revealed
that the president and his aides had probably abused their power in other ways as well. During the
congressional hearings on the break-in scandal, it was revealed that President Nixon had installed a taperecording device in the Oval Office. The special prosecutor in charge of the case wanted to get tapes of the
Oval Office discussions to help prove that President Nixon and his aides had abused their power and broken
the law. President Nixon tried to stop the special prosecutor from obtaining the tapes and even had him
removed from his job. However, a new special prosecutor, supported by the ruling of a federal district court
judge, again requested the tapes. The president responded to this demand by releasing edited transcripts
and shortened versions of the tapes. His incomplete compliance with the special prosecutor's demands was
challenged in another federal district court case. The court ordered the president to respond to all of the
special prosecutor's requests. When the president appealed this decision to the U.S. Circuit Court of
Appeals, the special prosecutor asked the Supreme Court of the United States to hear the case instead. In
front of the Supreme Court of the United States, President Nixon's lawyers argued that the case couldn't be
heard in the courts because it involved a dispute within the executive branch. In case the Supreme Court
disagreed, Nixon's lawyers also argued that the president's executive immunity and privilege should protect
the tapes. The concept of executive privilege, though not specifically detailed in the U.S. Constitution, is
based on the constitutional separation of powers. It provides a certain level of confidentiality of
communication between the president and his aides, especially where defense and national security are
concerned. President Nixon's lawyers argued for an absolute executive privilege based only on his
discretion.The special prosecutor, however, argued that executive privilege is not absolute and that in this
case the confidentiality normally accorded a president and his aides had to give way to the demands of the
legal system in a criminal case. To give the president absolute executive privilege, he claimed, would amount
to an unchecked power that could undermine the rule of law.
Morse v. Frederick
At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal,
saw students unfurl a banner stating "BONG HiTS 4 JESUS," which she regarded as promoting
illegal drug use. Consistent with established school policy prohibiting such messages at school
events, Morse directed the students to take down the banner. When one of the students who
had brought the banner to the event--respondent Frederick--refused, Morse confiscated the
banner and later suspended him. The school superintendent upheld the suspension,
explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate
illegal drug use in violation of school policy. Petitioner school board also upheld the
suspension. Frederick filed suit under 42 U. S. C. §1983, alleging that the school board and
Morse had violated his First Amendment rights. The District Court granted petitioners
summary judgment, ruling that they were entitled to qualified immunity and that they had
not infringed Frederick's speech rights. The Ninth Circuit reversed. Accepting that Frederick
acted during a school-authorized activity and that the banner expressed a positive sentiment
about marijuana use, the court nonetheless found a First Amendment violation because the
school punished Frederick without demonstrating that his speech threatened substantial
disruption. It also concluded that Morse was not entitled to qualified immunity because
Frederick's right to display the banner was so clearly established that a reasonable principal
in Morse's position would have understood that her actions were unconstitutional.
Buckley v. Valeo
In the wake of the Watergate affair, Congress attempted to ferret out corruption in
political campaigns by restricting financial contributions to candidates. Among
other things, the law set limits on the amount of money an individual could
contribute to a single campaign and it required reporting of contributions above a
certain threshold amount. The Federal Election Commission was created to
enforce the statute. The question presented was whether the limits placed on
electoral expenditures by the Federal Election Campaign Act of 1971, and related
provisions of the Internal Revenue Code of 1954, violate the First Amendment's
freedom of speech and association clauses. In this complicated case, the Court
arrived at two important conclusions. First, it held that restrictions on individual
contributions to political campaigns and candidates did not violate the First
Amendment since the limitations of the FECA enhance the "integrity of our system
of representative democracy" by guarding against unscrupulous practices. Second,
the Court found that governmental restriction of independent expenditures in
campaigns, the limitation on expenditures by candidates from their own personal
or family resources, and the limitation on total campaign expenditures did violate
the First Amendment. Since these practices do not necessarily enhance the
potential for corruption that individual contributions to candidates do, the Court
found that restricting them did not serve a government interest great enough to
warrant a curtailment on free speech and association.
Munn v. Illinois
(1877), a case in which the U.S. Supreme Court upheld the power of government to
regulate private industries. The case developed as a result of the Illinois
legislature’s responding in 1871 to pressure from the National Grange, an
association of farmers, by setting maximum rates that private companies could
charge for the storage and transport of agricultural products. The Chicago grain
warehouse firm of Munn and Scott was subsequently found guilty of violating the
law but appealed the conviction on the grounds that the Illinois regulation
represented an unconstitutional deprivation of property without due process of
law. The Supreme Court heard the appeal in 1877, Chief Justice Morrison Remick
Waite spoke for the majority when he said that state power to regulate extends to
private industries that affect the public interest. Because grain storage facilities
were devoted to public use, their rates were subject to public regulation.
Moreover, Waite declared that even though Congress alone is granted control over
interstate commerce, a state could take action in the public interest without
impairing that federal control. Munn v. Illinois, one of the Granger cases, was a
watershed in the struggle for public regulation of private enterprise. Later court
decisions, however, sharply curtailed the government’s power to regulate
business..