NPM 1

Constitutional Law II: Individual Rights Outline

Fall 2009
Professor Maxwell L. Stearns

Topic 1:

1. RACE, THE CONSTITUTION, AND THE CHANGING CONCEPTIONS OF EQUALITY

Case: State v. Post (1845) NJ Sup Ct
• Pre –Reconstruction Case
• Does not make mention of Fed arguments because Pre-Reconstruction Const - prior to 13, 14th and 15th
amendment - rested in the intuition that it was the job of the states rather than the Fed govt to protect
individual rights and liberties
• Post reconstruction Const we see fed govt as a protection against difficulties posed by states laws regarding
race.
• They fully anticipated that it would be congress and not the Sup Ct that would be the protector (14th
amendment – 5th article)

Case: Prigg v. Pennsylvania (1842) SCOTUS

• Court strikes down a PA statute that made it a crime to forcible remove blacks from the state for the
purpose of causing them to be enslaved
• Reasoning: Constitution - Article IV, Section 2 gives an owner a right to own his slave - no state law can
interrupt that right. This part of Const also gave Congress right to assist owners with the return of escaped
slaves. Congress instituted Fugitive Slave Act of 1793. So states couldn't go against this. National power
was exclusive, any law going against this was unconstitutional

Case: Dred v. Scott (1857) SCOTUS

• Diversity
• State can give state citizenship but can't give him Fed citizenship (unless subject to a federal
statute)
• Diversity is lacking here - what should happen next? It should be dismissed - what benefit would
that have brought?
• Due Process
• Missouri Compromise was prohibiting slavery/property rights and this was this unconstitutional
***This is the second time that the CT exercised its right to strike Fed Statutes – judicial review - by striking down
the Missouri Compromise as “void”
• In this era it was rare for the Ct to do and that’s why it was believed this should have been left in
the purview of Congress
*** 14th Amendment overrules Dred Scott - by saying whether by birth or naturalization, you are a citizen of the
country and your state
• Start of Economic Substantial Due Process (Lochner, etc…)

2. RECONSTRUCTION AND RETREAT

Case: Slaughter House Cases (1873)
• Court rejects 13th and 14th Amendment attack on Louisiana Statute granting to a single company the right
to engage in the slaughterhouse business within the area including the city of New Orleans
• Court stressed that these amendments were made specifically to deal with the freeing of slaves and their
freedom NOT transfer general responsibility for protection of civil rights to the fed govt. Although 14th
amend doesn't mention race - that's what it was enacted for
• Start of scrutiny tiers: Binary division of which cases it will look at closely and which cases it won't:
• Scrict scrutiny - usually race
• Rational basis - general others
 NPM 2

Case: Strauder v. West Virginia (1879)

• Court relied on the 14th Amendment to reverse the murder conviction of a black man tried before a jury
from which members of his race were excluded by law
• Violation of EP b/c members of one’s own race is kept from serving on a jury
• Narrow holding – doesn’t say that AA’s have to be in jury – simply everyone has to be in the pool

Case: United States v. Reese (1875)

• KT election officials were keeping black men from voting - Court said 15th Amendment was not
specifically limited to racially motivated
• Even though part actions were racially motivated the statute is overbroad because it covers non-racially
motivated actions so over breadth lets you get away

Case: United States v. Cruikshank (1875)

• Massacre in LA by KKK
• Enforcement act has to be linked to Federal action (come back to state action issue here)

Case: United States v. Harris (1882)

• KKK members lynch prisoner that was seized from sheriff custody. Court said 14th amendment did not
reach purely private conduct

***If you are suing under the 14th and 15th amendment – it must be state action. 13th amendment deals with private
but very narrow – badger incidence of slavery

Cases: Ex Parte Yarbrough & Logan v. United States (1884-1892)

• Someone voting in Fed election can’t be withheld b/c The ct says that convictions stand because it
interferes with federal rights

Case: Plessy v. Ferguson (1896)

• Louisiana Statute says "separate but equal" in railway cars
• Challenge on equal protection grounds

Ct Opinion by Brown says:

• Plessy says segregated quarters suggest inferiority on blacks
• Plessy’s Argument is that you shouldn’t pass a law to make it harder for us to even get together
• Ct says whites don't feel inferior and they are segragated as well
• Ct says you can have these "separate" laws as long as they do not harass and are reasonable
Harlan dissent says:
• C'mon - this is really to protect whites from having blacks in their cars - its racist
• Whether they like each other now is beside the point - no one is leaving
• Our Const is colorblind
*Colorblind const - is this the way we see the Const in 2009
At the time that Plessy, Harlan doesn't see race conscious laws that could benefit. He only sees bad or good
Anti-subordination - liberal vision of race may be colorblind in 1890s but race conscious in the 2000s
If we make laws race neutral they can be fine.
Liberal then wanted race neutral (b/c laws were directly hurting blacks) but Liberal today want race conscious to
help minorities i.e. affirmative action

Cummings Case (1899)

• Problematic Harlan Opinion
 NPM 3

• Doesn’t choose to level down and close the white schools that black parents are being taxed for when their
children can’t attend it
• He doesn’t want to take the risk of taking ANY school away from ANY children

McCabe (1914)
• Reaffirms separate but equal saying railways sleeping cars not provided for Blacks b/c there is no market is
wrong – if there is one for whites there should be one for blacks
• Ct says that constitutional right is an individualistic one – not based on the number of people who need it
How can we reconcile this with Cummings & Plessy?

Case: Berea College v. Kentucky (1908)

• Conviction of Private school for mixing the races – affirmed
• The College was a corp and didn’t have all the rights of an individual

Policy: Intent of Reconstruction Amendments

Historians have long debated whether the framers of Reconstruction amendments envisioned them as:
• Empowering congress to take legislative efforts to break down Jim Crow
OR
• Source of judicial authority when these laws were challenged legally
General Consensus
• Framers were distrustful of Court because the Courts that they were familiar with were not thinking about
minority rights but the Congress was - Congress was the one that pushed the Reconstruction rights
252 of 13th, 14th and 15th
• Look at structure of amendments itself - they confer Congress to enforce the substantive provisions of these
amendments - no mention of judicial enforcements (not that we need it) but it does give you a sense of
where they wanted to go with things - they expressly put it in there

3. THE ATTACK ON JIM CROW; FULFILLING BROWN’S PROMISE; RACE CONTINUED

Garland Fund: NAACP strategy leading up to Brown I
• Deliberate strategy was not for a full on frontal attack - That was not pursued because it would have failed
(a lawsuit in every state on this issue but denied would have been denied based on Plessy)
• Start with the cases that rep the most egregious examples of deprivation for AAs - those claims are likely to
be met with greater sympathy - deprivation is sharper and parents are less likely to feel threatened by
graduate school stir-ups rather than elementary schools.
• Start where you have the sharpest claims with least political sensitivity and work your way down to the
elementary schhols - this will chip away at Plessy until a hollow shell is left them you go after elementary
schools - that is Brown!
ORDER WHICH YOU PRESENT CASES MATTER - NO ABSENCE OF CAREFUL STRATEGY HERE

Case: Missouri ex el. Gaines (1938)

Facts: Arrange for black students to attend schools in neighboring states
• Can’t give your money to go to another school in another state since you won't take AAs in
• So they create a fly-by-night school but Gaines disappeared

Case: Sipuel (1948)

Facts: Only law school in state – applicant denied b/c of race
• Gaines reaffirmed
• Must create an opportunity
• And can't just create a fly-by-night school and put them there

Case: Sweatt (Law School) (1950)

Facts: Ct orders admission of black student to white school – U of TX Law
 NPM 4

• TX tried to created other/ “parallel” law school but the Court focused not on aesthetical physical facilities -
but on more profound fact of the qualitative difference - prestige, nature of students - harder to measure
factors that influence a quality legal education
• Strategy - They chose to preach to the choir

Case: McLaurin (graduate school) (1950)

• AA admitted to program but they set up separate seats, rooms for him
• BUT this is about interaction.
• The fact that he is present but cloistered takes away from the “Total experience”

Case: Mendez (???)

• Mexican students assigned to another school
• If you are in a school where everyone is speaking another language - then it makes the claim a little
different
• District Ct found this to be a violation still

Case: Brown I (1954)

• Warren’s Orginalist view
• We can’t even look at framer’s intent
• There was no public Education at the time
• We have to take the principles of the 14th and apply it to public education now
• Now public education is important/fundamental – state’s most important job
• Look at Sweat – the intangibles are important
• Social Science Data used to show how blacks are inferior through 40s and 50s studies
• Good science becomes bad science overtime
Bork arguments:

Case: Bolling v. Sharpe (Equal Protection against the Fed) (1954)

• Segregation in DC public schools.
(There are 2 due process (5th and 14th) and 1 equal protection (14th))
• Equal Protection is applied to state - DC is not a state - so they use 5th amendment: due process (Bolling v.
Sharpe establishes that the is a equal protection component to the 5th amendment)
• The ct says its morally unthinkable (but doctrinally possible) that DC should be able to stay segregation just
because they are not a state

Case: Brown II – (1955)

• Brown I - now on remedy
• As long as you do it with "all deliberate speed" you're ok!
• A reversion to a group view of equal protection with the justification that otherwise the risk is too high
because the source is not political but judicial
Facts:
1964 - 10yrs post Brown I, only 2.3% of Black students attending white schools
1965 - 7.5
1966 - 12.5

Case: Cooper v. Aaron (1958)

Facts: Gov insights riots and claims integration shouldn’t take place b/c of the dangerous riots it will lead to
• Little Rock, Arkansas: you cannot insight a riot to oppose segregation and then use the riot as a justification
to not segregate
• What must you do? Pg. 485 - Law and order are not here to be preserved by depriving the Negro children
of their constitutional rights

1964 Civil Rights Acts - Public Accommodations Provision and Provision that AG can bring desegregation suits
 NPM 5

• At this time, if you were the names plaintiff in these suits, it was a lot of stress -
• Now you can speak in terms of standing - don't need to find a factual plaintiff or the difficulty of finding
someone that will be willing/able to take the stand
• Title 6 - linked the obligations to adhere to public decrees to getting federal funds - powerful

Case: Green v. County School Board (Freedom of Choice case) (1968)

Facts: Pupils given freedom to choose b/w going to white or black schools
• The Supt Ct held that this plan was not acceptable - not a sufficient step towards a unitary school system
• SB - this is 11 yrs after Brown I - see pg 486 - last line quote – we need a plan that will work now - "show me
the money"
• At this point the ct is beginning to insist on results and give Fed district ct the equitable powers to bring about
these results

Case: Swann v. Charlotte-Mecklenburg BOE (1971)

Facts: Although geo zoning and free transfer plans, schools still don’t integrate SO new plan to zone by race
and use busing
• School district a plan that would not have brought about meaningful desegregation - finger plan involving
four uses of judicial equitable powers:
1. Mathematical ratios as starting points to find out where the numbers should lie
2. Busing - Important esp. when talking about grade school children - less aggressive the
younger the children are
3. Burden shifting - school not consistent demographic then you have to shift the burden to
the school board to prove that school is not the product of racial segregation
• Always possible to prove a negative - whoever holds the burden of proof here loses
• Until your numbers are better - you lose
4. (Cross reference Shaw v. Reno - radical things happening here - so lifting constraints of
having to be contiguous and compact) Dist Ct has authority to develop attendance zones that are
non-compact (splattered) and non-contiguous (doesn't have to be connected)
• You need to have a const violation that has yet to be remedied - then the Distcrict Ct can
go to town
• Therefore school districts, if you don't want to dist ct judge doing all this, draw the lines
in a way that mirrors the demographics - that will make it more pleasing, logical
• You make it work, or we will make it work
South becomes the most desegregated school systems in the country (Swann being the model )

4. MODERN LIMITS ON DUTY TO DESEGREGATE

Case: Seattle School Board District I

o That ct closes the chapter on the uses of harsh methods to bring about desegregation of schools

Case: Keyes v. School District (1973)

Facts: Denever school district was not de jure segregated (not by statute) but de facto segregated -school
board deliberately segregated one portion (park heights) of the school district
o Can the ct order desegregation of the entire district because of this?
o 3 opinions
• Brennan - Keep the standard: Proof of intentional segregation in part of the school dist,
shifts the burden to the state to defend other single race schools as not the product of segregative
intent - if you have to prove a negative you lose.
Exception - some credible reason to believe that the damage is limited; you can get away with
whatever else happens
• Powell - De jure/De facto distinction has outlived its useful and should be abolished. The
southern schools that were dejure are far more integrated. (you have fed district ct judges
holding on to these southern schools when they are working fine and not dealing with the North
 NPM 6

that still has a problem) Serious problem with shifting the burden with proof of subjective
intent.
Look at objective factors that lead us to think that this was a deliberative segregation
You can say he is trying to quicken the pace of desegregation in the North - or allow the folks
up North to feel the brunt of exactly what they are doing in their own communities and slow the
harsh effect
• Renhquist - a plague on both your houses - equal protection demands proof of intent. So
whether you have proof in one part or the whole it doesn't matter. You have to prove by intent.
Whoever is suing has the burden
o 3 opinions w/ 3 different schools on the obligation of the state to defend - when, whether and how
you can shift the burden from the person challenging to the state having to defend what it has done
o Even today the ct looks at these 3 opinions - none of them have gained traction

Nixon election in 1968 - sweeping change of dominant view in DC

DOJ sides w/ Southern Schools first time since Brown - Concerns that deseg policy is making matters worse
• Desegregation leads to
o White flight
o Tipping Point Phenomenom - you see white parents moving out and do not want their children to be
the minority race - it happens more geometrically - creates a push for more parents to make a move
Case: Monroe (1968)
o Free transfer plan to prevent the negative effects described above.
o The ct says no, you can't do that

Case: Milleken I (1974)

Facts: Trial Ct tries to uses suburban districts around Detroit to fix the segregation problem in Detroit
• Can the district Ct fashion inter-district remedy that brings white kids in black schools and vice versa - NO
o If it is a separate district and that district doesn't have a violation you can’t use that district to make
yours better

Case: Milleken II (1977)

o Can the Ct structure inter-district remedy - Pump Money for better programming for the kids that remain so
that you can lure whites in
o Dist Ct judge says you can't order the development of the school (pump money in) to draw in voluntary
moves from white parents
o Thomas: the problem is state-mandated single race schools and all you can do remedy that prob.
You can't assume that a predominantly black school is inferior because it is black - white kids in
the building won't make it better

Resegregation and Unitary Status (pg. 495)

o Receivership should end once the districts start getting themselves together(no more holding by the District
Ct)
o Spangler Case - you can't keep coming back every year to check the numbers
o Dowell – Once unitary status is acquired, stop the supervision
o Freedman v. Pitts - you don't have to wait for the entire school district is unitary to withdraw the
troops - do a gradual removal
 NPM 7

Topic 2

1. EQUAL PROTECTION METHODOLOGY: RATIONAL BASIS REVIEW; THE MEANS-ENDS

NEXUS;

Every law discriminates!

• You have to be 16 to drive
• You have to 6ft tall to be a fireman
When therefore is it permissible to have those criteria to distinguish groups of people?
• Circular quality to that question? When equal Protection applies- When does it apply whenever you can't
distinguish between the 2 groups of people

Tiers of scrutiny - Sup Ct rules to evaluate equal protection

Rational Basis - absence in justification for a stricter rule - Baseline rule -
• Is the law rationally related to a legitimate government interest; low level scrutiny must be related to a
legitimate govt purpose
o Means - method by which law distinguishes between the groups of people
o End - legitimate govt purpose – goal
o Fit - are the means connected to the end in a meaningful way
To strike a law down show absence of legitimate purpose or means that further that
Strict Scrutiny – Strict Rule used for Race
• A law is deemed unconstitutional unless the Govt demonstrates that it has a compelling interest that
justifies the classification at issue
o Must be w/in suspect class
o Shifts the burden of proof to the govt to show 2 elements:
 Compelling govt interest
 Tight fit btw legislative classification and that compelling govt interest
o Failure to show either of those things are fatal to govt case
Intermediary Standard - Used in gender

Case: Village of Willowbrook v. Olech (2000)****

o There can be a class of one

Case: New York City Transit Authority v. Beazer (1979)

Facts: Transit Authority makes rules that anyone using methadone can't work for them. They are sued under equal
protection
• Ct Opinion by Stevens:
o This is not race so there is no blanket approach
o It is not arbitrary but serves an objective of safety and efficiency from possibly unreliable EEs
• White Dissent:
o You can demand the 1 yr to get any job but once you have had the 1 yr, you can't distinguish that
group from another group (no scarlet letter for life) because there are risks with any employee -
methadone user or not
o Efficiency rational: There are administrative costs in determining those who complete and those
you don't
o White picks up on a lot of cases on whether the court infers that the purpose of the law wants to
infer an animus against a certain group of people

Case: Heckler v. Matthews (1984) (p. 505)

• Congress amended SSA to give a certain benefit to women and not to men.
• Wrote in leveling down provision
o Women get it and men don’t
o BUT if gets invalidated no one gets it
NOT A VIOLATION OF EQUAL PROTECTION B/C EVERYONE GETS SAME TREATMENT
 NPM 8

*** Legislative classifications/goals don’t have to be based on efficiency – legislature can choose from a number of
options in the Constitutional basket

Moreno and Cleburne and Romer (Trilogy) Hippies, retards and gays
Using rational basis to forgo erasing the level of scrutiny

Case: US Dept of Agriculture v. Moreno (1973) (p. 507)

Facts: Food Stamp Act says we don't give benefits to household that within them have unrelated family members.
Plaintiff had a daughter that was deaf and had to go to a special school and so therefore she had to move in with a
woman (that she was unerelated to) so that she could be nearer to the school
Outcome: Law struck down
• Brennan Opinion says what is the interest of the legislation?
o Raise the level of nutrition? NO.
o It was really raised to prevent hippies from getting Fed Aid for food - picking on an unpopular
group so you need to strike the rule down
• Reinhquist Dissent says purpose of the law is to minimize the chances of welfare fraud (people grouping
together just for welfare).
• This is rational and should not have been struck down BUT ct WANTS to strike down w/o making all these
cases SS

Case: City of Cleburne (1985)

Facts: Zoning ordinance that permits certain types of buildings [hospitals, sanitariums, nursing homes] but not
homes for insane, drug addicts, etc. They refuse license for a home for mentally retarded adults
Outcome: The law is struck down
• Opinion by White applied: Rational basis scrutiny
o Mentally retarded are indeed different from general population and you could raise the level of
scrutiny but we don't WANT to do that
o Negative attitude of neighbors can't form a rational basis for zoning regulations.
o We have an end problem here - can't simply exhibit animus feeling against a particular group
Potential Problem: Homeowner in neighborhood says that approval may have negative impact on the home values
and the zoning board may take into account the financial well being of individuals of the community but the ct
disregards any rational argument that may affect the law b/c it wants to strike down here

Case: Romer v. Evans (1996)

Facts: Law prohibiting local govts from enacting antidiscrimination measure protecting homosexuals
o Law is struck down despite legitimate govt purpose of democratic process that enacted law

*** SO, if you really want to strike down, use rational basis and ignore valid govt reasons/policy goals like Moreno,
Cleburne and Romer

Case: McGawan v. Maryland (1961)

Facts: Law enacted to further a religious purpose; Runs afoul the 1st amendment (through the 14th to apply to MD)
but is allowed because it will justify a secular purpose
• State is given wide scope of discretion. The will be laws that affect people differently BUT the Const
safeguard is offended only if a “classification rests on grounds wholly irrelevant to the achievement of the
state’s objective. If you have any set of facts that can reasonably justify you are ok
o McGawan represent the general rule and the trilogy cases represent an exception to the rule bc they
disregard facts that could be used to sustain and deliberately say only let me look here and say that there
is no legitimate purpose
 NPM 9

Case: Railroad Retirement Board (1980)

Facts: Law designed to prevent retired RR EEs from getting double benefits
• “The ct has never insisted that a legislative body articulate the reasons for enacting a statute”
• Any state of facts that can be articulated that could justify the law is sufficient.
• Rehnquist says for strict scrutiny you have to prove intent but not for rational basis
***When you have facially discriminatory like in Brown you don't need intent but like in Keyes, if it is facially
neutral, then you need intent

Case: Minnesota v. Clover Leaf Creamery (1981)

Facts: Ban on plastic milk containers, changing to paperboard, saying that its environmental. Paperboard industry
pushing this environmental lie that paper is better.
• Brennan Opinion
o It doesn’t' matter that the legislature is wrong - if they could conceivably had thought that they
were right – then it is ok (even if they are dead wrong)
o Law is sustained

Cases: Nordlinger VS Allegheny (513-514)

Case: Railway Express (1949)

Facts: Cars on road just for advertising as opposed to delivery cars w/ advertising on them
Ct upholds law that prohibited operation of an advertising vehicle w/ an exception for business notices on delivery
trucks
Douglas Opinion
• It is not requirement of equal protection that all evils of the same genus be eradicated or none at all
• Legislature can regulate processes piecemeal style
• Legit govt purpose – traffic safety
Concurrence by Justice Jackson
• There's a difference in doing for self interest and doing for hire
*** Traditional police powers were found in public safety, health or morals

Case: Williamson v. Lee Optical (1955)

Facts: Optometrist vs. Optician vs. Optomologist. Can't get fitted for frames without being fitted by an optomologist
(medical doctor - treats diseases of eye) OR optometrist (not gone to medical school but does have a doctorate in eye
care - does not treat diseases of eyes). Opticians get short end of stick. Lobbyists were able to get this passed for
Optomologist and Optometrist. Ct upholds the law.
Douglas Opinion
• Showing again that equal protection rational basis not particularly piercing
• It’s low level - can get away with a straight face we are good to go

Case: Bowen v. Owens (1986) p. 522

Facts: Denying benefits to remarried widowed spouses
• Congress can elect to move incremental - weigh competing policy considerations
• The Ct determines that these remarried spouses are less dependent than unmarried widowed spouses and
should not get benefits
Marshall Dissent says
• Sweeping or incrementally, there must be a reasoning to articulate what is going on (doesn't have to be true:
Williamson is not about getting people to go to eye doctors - it is about the great lobbyists that these
doctors had BUT they were able to article a reasoning with a straight face and so they were able to pass)
 NPM 10

2. HEIGHTENED SCRUTINY AND THE PROBLEM OF RACE

Case: Strauder v. West VA (1879)

Facts: Black man convincted by all white jury. He brings suit regarding the fairness of keeping AAs off of a jury.
Ct strikes down – heightened scrutiny
Strong Opinion
• Court looks to historical context of 14th amendment legislation in assessing their meaning and decides that
14th disallows discrimination simply by race
• Ct can prescribe qualifications for jurors BUT not simply on race
*** CT does not require you to have AAs on jury – just that they are not withheld from process
Also doesn’t require overturning of conviction b/c of all white jury convicted

Case: Korematsu v. United States (1944) p. 525

Facts: United States establishes Japanese detention camps. Koretmasu - a US citizen - challenges after being tried
and convicted for not leaving his home
Law is NOT struck down BUT only b/c of military necessity – otherwise SS would have applied
Black Opinion
• What test does Black say should be applied?
o The "most rigid" - strict scrutiny. Why? Because any case that involves classifications based on
race triggers the most rigid scrutiny
o BUT he says here there is a military necessity that a court can second guess in this circumstance
****Yes hardships are part of war but that doesn't mean we turn weaponry inside towards our own people
and start being racist
Murphy Dissents - says that rational basis test should be used BUT says that the exclusion order fails rational basis
scrutiny (But any argument that you can make w/ a straight face should hold up)
• Murphy is saying that this is irrational bc we can't say all Japanese are prone to committing espionage
o But if during war we group the whole as a category based on the urgency of war? Where are the
limits
o Rational doesn't mean good they are different words
o It may be unfortunate to say that treating a group based on race is something that we would do
rationally but the very fact that it is rational shows why when it comes to race we don't leave it at
that - when it comes to groups and race we insists on something more
o Murphy's reasoning is wrong - doesn't hold up!!! BUT he still ends with the right decision
Jackson Dissent drives it home
• We may not be able to make the Const comport with military necessity
BUT
• We can't let military necessity rewrite the constitution
• We should have stayed out of this all together

Case: Loving v. Virginia (1967)

Facts: VA statute that says interracial couples can't marry: anti-miscegenation statute. AAs can't marry whites but
can marry other racial minorities
Warren Opinion
• The state says that it is applied equally to both - criminalizing the conduct of a black and white at the same
time
BUT
• Race is involved – we do analysis different
o Must determine if the classification in the law is arbitrary and invidious discrimination
o Here there is no legitimate purpose in keeping the white race pure
 NPM 11

Case: Carolene Products Footnote 4 (1938)

Facts: Federal law that prohibited filled milk from being shipped in interstate commerce. Law Upheld
• The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but
proposed a new level of review for certain other types of cases.
• Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other
types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections
of the political process, should be an exception to the presumption of constitutionality, and a
heightened standard of judicial review should be applied.

How to Apply Tiers of Scrutiny

STEARNS SAYS: What is the set of functions that tiers of scrutiny are met to serve? How good a job they do? Is
there a system that would do it better?
Mission: Fairly admin system for lower cts to deal with cases
1. Rough categorization
 Tiers are admin sorting mechanism –
 Decide which presumptive boxes to place cases on clearly identifiable factors.
2. Refinement
Admin Equilibrium
 Admin Equilibrium provides stability of the 2 tier system - works the best to communicate to a lot of
judges in all the states
***When we get to the intermediate tiers - we will see that that is not a stable equilibrium - some cases push to one
extreme and others push to the other

Stevens VS Marshall Debate on Tiers of Scrutiny

o Stevens says let's just 1 tier of scrutiny – many tiers confuse the basis
o Marshall says we should have many tiers of scrutiny – b/c groups can’t be limited to 2 groups
 If we go with Stevens and have just one tier - we are replicating tiers with different words
 If we go with Marshall and have a bunch of tiers - which categories go into the problem which don't -
and then we replicate the 2 tier system again (we simply push up or down)
****EITRHER WAY THEY WILL TRY TO PUT THEM IN PRESUMPTIVE PROBLEM CASES AND
PRESUMPTIVE NON PROBLEM CASES - BACK TO 2-TIER SYSTEM, JUST WITH DIFFERENT WORDS

Case: Palmore (1984)

Facts: white couple gets divorce, mom gets custody, mom marries AA, custody is changed
o Ct says we will not allow this (Lower Ct says society is the problem). The ct says the mother is not unfit
and that's what would make her lose custody
o The insensitivity of society not compelling justification

Case: McLaughlin v. Florida (1964) p. 546

Facts: Race based anti-cohabitation Case. State claims trying to prevent premarital sex
Law struck down
o State offered no justification as to why race neutral law could not be used to serve its purposes of punishing
premarital sexual relations

Case: Johnson v. California (2005)

Facts: CA policy of housing inmates by race is challenged.
 NPM 12

O'Connor writes an opinion striking law down looking a 2 line of cases

(1) Recent cases on affirmative Action’s - benign race based classifications of govt contracting, schools, etc…
Designed to help minorities - strict scrutiny is used here even if they are benign - any race based policy whether
intended to help or not is SS
(2) Turner v. Saffley - when it comes to matters of prison admin and discipline - we leave it to prison administrator
to decide what the rule should be (whether a reg that burdens an inmate’s fundamental rights is reasonably related to
a legit penological interest)
o Here we have a race based prison administration /disciplinary policy - O'connor says the AA cases control
here instead of Turner b/c race is involved (even though Turner showed a legit purpose)

Case: James v. Valtiera (1971)

Facts: Provision prohibiting state entities from constructing housing for low renters unless approved by a
majority of those voting
Ct Upholds the provision
• Race neutral - expressed neutrally – requires approval for any low rent public housing, not only those that
will be occupied by a specific minority

Case: Hunter v. Erickson (1969)

Facts: Policy in Akron Ohio enacted through referendum - ordinances that regulate Real Estate on the basis
of race have to be approved by the voters before they take effect.
Attempt to override the fair housing act that prohibited racial discrimination in real estate transactions.
• Ct strikes this down and says the following: here there is an explicit racial classifications treating racial
housing matters differently from other racial and housing matters
• This is race neutral so the ct is struggling with this problem - doesn't distinguish on the basis of race - just
implicates the subject matter of race
• But here we know it will effect racial minorities

Case: Hernandez v. Texas

***Race isn't just black and white***
 NPM 13

Topic 3
1. HEIGHTENED SCRUTINY AND THE PROBLEM OF RACE CONTINUED; TREATMENT OF
RACE SPECIFIC CLASSIFICATIONS, EVOLVING STRICT SCRUTINY REVIEW;

Case: Washington v. Davis (1976)

Facts - DC police department implements test to get on the police force - verbal ability, vocabulary, reading
comprehension. It is discovered that incidents of failure rates is significant in a bad way for Blacks. Claimants says
this is a violation of Equal Protection. The rule is neutral on its face.
White Opinion says:
o School Cases: There mere fact of representation in schools that is one race or another - that doesn't
establish a discrimination case - that datum has to follow with intent (old cases already had evidence of
equal protection violation so we could just look at the numbers - new cases can't just rely on numbers
(Keyes))
o Strauder: just because the jury doesn't meet the racial discrimination doesn’t mean there is a problem with
the conviction - the problem was that they was an explicit ban on blacks
o Jefferson v. Hackney: it wasn't just the numbers - there had to be intent
o Mere disproportionate impact doesn't create an EP violation
o There are other aspects of the program that are actually trying to get Blacks (no intent to discriminate) on
the force so the benign objective of this policy is higher level of verbal skills
Stevens Concurrence says:
o People intend the natural consequences of their actions - it's hard to know what people are motivated by
o Conduct often provides objective indicator of what people intended to do
o Intent often shown by results

BLACK LETTER RULE - 2 ways to get to Strict Scrutiny

1. When you have a racial classifications in law (de jure) meaning: Expressly racial = blacks here whites there
2. Conversely if you have facially race neutral law that has disproportionate effect with respect to race
coupled with intent – you have SS.
Disproportionate effect alone will not get SS - it will get rational basis (With the probable result of sustaining
the law against the EP challenger Cleborne, Romer, Moreno (initial sort is not necessarily fatal to a claim)

Case: Oregon v. Mitchell

Case: Mass v. Feeney (1979)

Facts: Mass law that says all veterans that qualify for Civil service positions are 1st in line over other qualifiers than
civil service jobs. Veterans are more likely to be men so is there man/woman discrimination
Law Upheld.
o Defining discriminatory purpose: Not mere aware awareness BUT desire to bring about the consequences
o They had a desire to help vets NOT hurt women

Case: Village of Arlington Heights v. Metro Housing Development (1977)

Facts: Housing Development seeks rezoning to add low-income homes. (Looking for evidence of illicit intent in a
mixed motive case.) Law is upheld
• Can’t say that race was the primary motivation
• Mixed Motive to the part that the govt could have come out the same way (possible racial harmless error)
• You have to be able to prove intent in this situation and w/o intent that you can’t strike
• Burden of proof shifts to state to show that it would have come up the same way if race wasn’t considered
 NPM 14

Case: Rogers v. Lodge (1982)

Facts: Black citizens challenge state’s at large voting scheme as intentionally designed to dilute minority voting
power
Ct Strikes down voting scheme
White Opinion
o More for analytics than black letter law.
o There is a disproportionate impact here couple with a history of excluding blacks from the political process
Stevens Dissent says 2 things are problematic
We see this all across the country
There is nothing objectively peculiar about this scheme

Case: Yick Wo v. Hopkins (1886)

Facts: Laundromats permits only granted for brick buildings - works against Chinese people
So overwhelmingly clear that this is discrimination that we can infer intent - objective factors can demonstrate the
requisite intent

Case: Gomillion v. Lightfoot (1960)

Facts: AL statute alters the shape of city from square to weird shape
If you can show that we've gone from a square to some crazy shape with all but 4 black families outside the shape
then this can allow you to prove intent to discriminate

Case: Hunter v. Underwood (1985)

Facts: Law trying to disenfranchise people committing misdemeanors mostly blacks
This is the opposite of Arlington (mixed motive – not enough to prove based on race) where we find the requisite
disproportionate effect and large motivation to disenfranchise blacks based on type of offenses selected
(misdemeanors)
Struck down - even though neutral there is evidence that purpose of the law is to disenfranchise blacks

Case: Hernandez v. NY (1991)

Facts: Trial with a Latino - drawing the jury and it turns out that the state uniformly strikes individuals who are
bilingual and native language it Spanish.
Law Upheld
• Governed by Davis (cop case – must show intent) There is NO INTENT here
• This is a compelling govt interest (benign objective) to make sure that translations don’t interfere with trial
conclusions

Case: Rice v. Cayetano (2000)

Facts: Hawaii ancestor requirement for voting. Law struck down
Kennedy Opinion says:
o Ancestry is used here as a (weak) proxy for race
Compare this with results under the limited purpose doctrine (772-773 - 6th edition)

Case: Palmer v. Thompson (1971)

Facts: Allowing closing of a city swimming pool following court ordered integration
o Here there are neutral effects – the pool is closed and no one can use it
o Motivation of men can be reasoning for striking down a law (Need BOTH discriminatory impact
and intent as your basis for equal protection case)
o Hard to figure out motivation when it is not expressed
o Leveling down ok? Not schools – no fundamental rights w/ swimming pools

Case: Mayor of Philadelphia (1974)

Facts: Judicial oversight of discretionary appts may interfere with the ability of of an elected official to
respond to the mandate of his constituency
 NPM 15

o Discretionary appointments aren't subject to peircing scrutiny

o Discretionary is just that discretionary - it is an authority that ct's shouldn't mess with systematic
issue
o Separation of powers argument

Case: Mt Healthy City School District v. Doyle (1977)

Facts: Teacher fired from job b/c he engaged in 1st amend protected right
o Not race or EP but applying the Arlington “mixed-motivations” test

Case: Castadena v. Partida (1977)

Facts: Challenge to jury selection of Spanish people
3 elements needed for EP violation
o Distinct class singled out for distinct treatment under the law
o Substantial underrepresentation of the class - Compare the underrep class against the general pop see if
they are proportionality rep here
o The system in place is susceptible to abuse on the basis of race
Coupled w/ adverse effect

Case: Batson v. Kentucky (1986)

Facts: Overrule of Swain v. Alabama that said you could use peremptory for anything
o Batson introduces change in the rule
• If you are challenged on the basis of race you can be asked to make a convincing race neutral
proffer
o Dissents
• Berger writes a dissent - peremptory means peremptory - any reason
• Rehnquist says this is fair - all races are being struck when their person is on trial

Case: Powers v. Ohio (1991)

Facts: White crim def and disproportionate striking of Blacks by Prosecutor. Crim Defense lawyer challenges on
Batson. Does a white crim def have standing to raise Batson on behalf of black jurors?
o When a case involves crim procedure - the ct usually bends over backward to find standing where
it would have otherwise not found it

Case: Edmundson (1991)

Batson can apply in civil context

Georgia v. McCollum (1992)

Defense is also allowed to challenge using Batson

Case: Miller-El v. Dretke (2005)

Facts: Case of Miller-El overturned when it is determined that jurors were struck along racial lines
o Breyer Concurrence says perhaps the day of the peremptory is over - Doesn't occur to get rid of Batson but
he goes directly to the peremptory. Why is this troubling?
o Peremptories operate on the basis that lawyers have an instinct/intuition that can't necessarily be honed as a
"For Cause" - getting rid of peremptories will take this away from us as lawyers
o For Cause + peremptories allows you to cut off the tails of the distributions

Case: McCleskey v. Kemp (1987)

Facts: Black Defendant kills white officer and is sentenced to death. Brings habeas corpus case (using Soc Sci data –
Baldus Study) saying death penalty is disproportionately used with blacks; black def with a white victim is more
likely to get death penalty. Race of victim: if whites are killed you are more likely to get death penalty.
 NPM 16

Powell rejects the use Baldus study here

o Agrees stats are significant and studies like this are sufficient prima facie evidence for establishing cases
like this BUT not here -why?
• Relationship b/w statistical numbers and proof of proffer: Purpose doesn't mean awareness of
consequences it is doing something b/c of the consequences
• Proof of effects here is without proof of intent
o DEFEENDANT MUST PROVE THAT IN THIS HERE CASE THERE IS DISCRIMINATORY
PURPOSE
o Discretion - Jury has the job to make these decision and that shouldn't be interrupted
• Juries can use the discretion for leniency as opposed to just detrimental usage of the discretion
• Discretion should be allowed for both usage - is that correct?
o Brenan says we don't have to accept the bad to accept the good.
o Powell's premise is not inevitable - that system "with the good comes the bad" is rotten
and until it's fixed we shouldn't use it

Case: United States v. Armstrong (1996)

Facts: Black charged with crack cocaine possession and distribution. Seeks discovery from prosecution about the
number of convictions/prosecutions for others similarly situated.
o Rehnquist Opinion – upholds convinctions b/c def failed to show that similarly situated individuals of a
different race were NOT prosecuted for the same crimes (not just that blacks are the only ones getting
charged for this BUT whites who do the same thing are NOT getting charged) – this would show
discriminatory purpose/effect in the facially race neutral law
o Rehnquist points out that there are numbers showing that some crimes more likely to be done by certain.
Are different treatment applied to those crimes because of that?
• Yes we do - sentencing guidelines show this
• The supreme ct didn't play a role in changing sentencing guidelines - it was done
politically

2. BENIGN RACE-SPECIFIC CLASSIFICATIONS (AFFIRMATIVE ACTION)

Case: University of CA v. Bakke (1978)

Facts: University of CA has AA program that reserves 16/100 seats for minorities.
• Standing opportunity to compete
• Narrowest grounds analysis:
o 4 Liberals would uphold the law (Brennan, White, Marshall & Blackmun)- it is permissible to use
race – using intermediate scrutiny b/c strict is still fatal in fact at that point
o 4 Conservatives would strike down (Burger, Stewart, Rehnquist & Stevens) –
Opinion strikes down (Narrowest Ground: Powell) – You can use race BUT you can't use it the way it was done
here (should have been used as a plus factor instead)

Case: Fullilove v. Klutznick (1980)

Facts: Federal law requiring that 10% of Fed pub works contracts be set aside for minority companies
o Dissenters say you can't use race (Stevens, Rehnquist, Stewart)
o Marshall/Brennan/Blackmun – intermediate
o Powell – Strict Scrutiny - Concurrence
o Berger, White, Powell - higher than intermediate/some kind of heightened scrutiny
Berger or Powell control rather than Justice Marshall's opinion
Fullilove upholds the fed law requiring fed money to local govt for minority businesses - ok with race based
regulation from Congress – adopted by Congress to remedy past discriminations

Case: City of Richmond v. Croson (1989)

Facts: City of Richmond mimics Fed program (in Fullilove) of allotting % of contracts for minority companies
found in Fullilove
 NPM 17

o O'Connor strikes down:

• Reconstruction amendments (14th amend Section 1 & 5) redefined relationships b/w fed govt and
state govt on race
o Sec 5 gives Congress power for this race regulation
o Sec 1 restricts the ability of states to act
***Congress has greater authority to regulate on race (see Fullilove) as opposed to states (now see Croson)
• Strict scrutiny should still be applied
o Richmond's program was skeptical anyway since most of the city council is black

Case: Metro Broadcasting (1990)

Facts: Sup Ct held that the FCC could use race as one factor in licensing decisions to increase the number of
minority owned stations
o Unlike Fullilove where the ct couldn’t get the majority that Fed race based are subject to a lesser
intermediate scrutiny - they found it here
o Brennan gets a majority for Fed set-aside race based benign programs - No strict scrutiny here but
intermediate scrutiny
• Standard used in sex based equal protection cases

Case: Adarand Constructors, Inc. v. Pena (1995)

Facts: Adarand doesn't get a contract b/c special compensations are reserved for govt jobs/companies who take on
minority contractors. Gonzales company gets a job instead of him. Adarand sues.
o O’Connor Majority says “strict is not necessarily fatal in fact” (leaving the door open for AA)
o If Justice Scalia doesn't agree to what he is signing off one, why is he signing off on it?
• Scalia makes it a majority so that this case can override Metro
• Here we are striking down benign and race based - what is motivating O'Connor and why
does Scalia matter?
 O'Connor is leaving the door open so that if Bakke has to be revisited it can get through -
sustaining AA in education. Scalia wants to make sure that door is closed. So they
fundamentally disagree on the theory.
 So Scalia can write his own opinion in concurrence and tell us what he thinks or join and
make this a majority
• If Justice Scalia writes a concurrence and O'Connor writes an opinion w/o him -
we have to figure out which opinions control through the narrowest ground and
then his opinion would not control the outcome and O'Connor doesn't get the vote
she needs to overrule Metro. The point is to advance the doctrinal ball
***Scalia makes a strategic move here***
o O'Connor says there are 3 general propositions with respect to govt race classifications
• Skepticism – Be skeptical of any race classification cases
• Consistency - same standard whether the law benefits or burdens minorities
• Congruence - Same scrutiny for 5th and the 14th amendment (Croson VS. Metro)
o Dissent: Why does Stevens think that it is so wrong headed?
• People know b/w good and the bad. We can tell the difference b/w a welcome mat and
"No Trespassing" sign (benign VS discriminatory case)
• This blanket rule will just prevent us from having laws to help minorities
 If you apply Strict Scrutiny in the context of race, Intermediate Scrutiny in the context of
gender - it is easier to get affirmative action for women than for blacks even though 14th
amendment was really made for blacks. That means now that states have a freer hand to
benefit anyone BUT blacks
 Profound difference b/w fed and state with regard to race. It is true what O' Connor said
in Croson that the Reconstruction amendments delegated Feds authority with regard to
race and took some authority from the states (state action). So congruence goes against
our established history
o Thomas Opinion
 NPM 18

• Holds the view that benign is detrimental to the interests of African Americans
• Frederick Douglass - Leave Us Alone
• He thinks that the programs are to stigmatize blacks
 NPM 19

Topic 4

(1) AFFIRMATIVE ACTION CONTINUED;

Case: Grutter v. Bollinger (2003)

Facts: Remix of Bakke. (Gratz, BA comes at the same time of Grutter, JD)
o Grutter involves policies that didn't articulate what weight would be given to minorities but would increase
numbers of minorities in the schools. But when you look at the number they look very quota like. The
problem is worsened by the reliance of the law school at daily reports and calibrated future acceptances
based on what has happened in past
o Gratz awards set number of points for minority status (lesser points given to academics)
Ct strikes down Gratz as too much of quota but sustains Grutter as being more holistic saying that this follows the
recs from the Bakke
o O’Connor gets her opened from Adarand
• Program designed to ensure "critical mass" of minority students: we want to be sure if there is a
Black in the room, he is part of a critical mass and not a lone soldier
• Diverse student is a compelling state interests that can justify the use of race in admissions
• It is as narrowly tailored as it can be (Like Powell said in Bakke – a holistic review as opposed to
points)
Rehnquist Dissent says
Precise correlation is like a quota – Look at the numbers
Look at Native American numbers
Thomas Dissent
No compelling state interest to have an elite school
And not narrowly tailored (other ways to do this)

Note: Cases demonstrates a value to a lack of candor

o Look at stats in Renquist dissent - incredible tight correlation b/w minority applicants to accepted
minorities - so how different is this from just giving the 20 points in Gratz; Grutter looks very formulaic.
o Gratz/Grutter Rule = You can have something close to a formula as long as you don't let us know what the
formula is - even though we can figure it out
How strict is strict scrutiny?
o Thomas – there are so many other techniques
o O’Connor – you don’t have to exhaust all of the race neutral procedures/techniques – you can be deferential
to the institution
BUT
o Inconsistent w/ Croson – Ct wasn’t deferential there with VA city council (which O’Connor wrote)

25 yr sunset:
1978: Bakke – 2003 Grutter – 25 yrs from now we won’t Affirmative Action laws

Sander Article (2004)

o The problem with AA is a mismatch b/w the credentials of those admitted through AA and the rest of the
class - If you eliminated AA you would create a better match - no mismatch and ability to compete would
be leveled
o Yale went back and did a study of these students entered through AA- turns out they did better
_____________________________________________________________________________________
 NPM 20

Voting
• Voting rights acts go beyond the requirement of the 15 amendment/ equal protection
o For covered jurisdictions there is a non retro-regression principles - when you redistrict make sure
you are not moving in a direction that is taking away the representation that minorities had - that
may have already existed

Case: Gomillion v. Lightfoot (1960)

Facts: AL statute alters the shape of city from square to weird shape
If you can show that we've gone from a square to some crazy shape with all but 4 black families outside the shape
then this can allow you to prove intent to discriminate

Case: Shaw v. Reno (1993) (should also consider Miller v. Johnson, UJO v Carrie & Shaw v. Reno Cases)
Facts: Dramatically bizarre redistricting of NC District 1 - creates majority/minority district
Issue - there is no allegation as to the race of the individuals that are challenging the bizarre district - but the district
is sufficiently bizarre on it shape as to be explainable on no other grounds but race so apply strict scrutiny
o We can't prove intent but it has to be race so you should use strict scrutiny - no other explanation
*** if a district is drawn in this way you use SS and it presumptively gets struck down****
o Justice O'Connor writes an opinion claiming the 3 ways to evaluate districts to see whether they
are discriminatory
• Is it compact
• Contiguous - no piece that is not attached
• Respect traditional districting principles
o See O'Connor quote on 615 - 616: Reapportionment is one area where appearance does matter

Case: Miller v. Johnson (1995) (Anomalie in the aftermath of Shaw v. Reno)

Facts: Challenge to districting scheme - 2 allegations (1) district is offly darn weird - shape wise - BUT
insufficiently bizarre to articulate a shaw v. reno claim (not so bizarre to be on no grounds but race). (2) It is
stipulated that the strange shape is b/c of race
• Ct states that shape was not only factor that could be considered – if the district admits that race is a factor
then strict scrutiny should be applied

Case: UJO v. Carrie (1979)

Facts: In NY you had a phenomenon - an area largely black but in the middle of the area there is the HJ community -
Crown Heights. There is a decision to redistrict the area and it would split in half the Hassidic Jewish community -
that would make them minority members of two other black districts. United Jewish Org files a suit
• Plurality by Justice White
o Purpose of plan is not to harm the Jews - it is to benefit the Black community
o So if the purpose is not to harm them. The fact that they suffer an adverse consequence doesn't
warrant an equal protection claim
• Seems to stand for the purpose even the purpose was clearly race -- if its benign and the purpose is not to
harm other groups - the race conscious districting is ok

Along comes Shaw v. Reno (1993) - truly bizarre district - that can only be explained by race
o Justice O'Connor says appearances matter and when you have a district like this it allows a prima facie
equal protection challenge
o What O'Connor just did was say that the objective proxy for the reliance on race has a status that is more
important than the actual reliance on race

Miller v. Johnson (1995) tests the credibility of Shaw v. Reno O'Connor's decision
o We are allowed to use race b/c it doesn't look like we are and O'Connor says that you just care about
appearances
o But the CT can't live with this - caring about appearances more than actuality
 NPM 21

o Miller v. Johnson doesn't overrule UJO

Case: Bush v. Vera

Facts: Strange district - one of the purpose is race BUT is it the predominant factor
Issue: is it permissble to redistrict in a way to preserve function incumbancy if that's also in the mix w/ race?
o Functional incumbancy - Census allows state to get one more district - you have to remap. Someone that is
already elected won't be representing some of the people that elected him - not answerable to the same
constituency. So, it is ok to draw the lines in a way to preserve the ability of person who is already elected
to be safe when the remapping occurs
o This is probably permissible b/c its not a racial consideration
o O'Connor opinion of the ct says that this is a mixed motive case - yes race is a factor BUT other goals are
listed.
Stevens concurrence says (when the perfect square becomes the weird shape)
If you say that to sustain these districts you have to push them in the direction of not looking weird - but your white
districts you can draw anyway that you want for all other reasons - you may end up with a perfect square (black
district) in a sea of chaos which one is weird now

Case: Rice v. Cayetano (ancestry as weak proxy for race)

Facts: Hawaii case - invalidates election rule that allows only Hawaiians to participate in a election for a certain area
Kennedy for the CT says:
o Morton case says although you can give special benefits it doesn't mean that you can restrict
voting of the nonHawaiians in Hawaii
o Hawaii is still part of the US and should follow US law
Stevens in the Dissent says:
o They are protected but b/c it doesn’t come with a separate sovereign status (that is to protect their
interest) they are not allowed to get this limited protection
o B/c they don't have a greater protection - they can't get a lesser one? That's ironic

Case: Parents Involved in Community Schools v. Seattle School District

Facts: Seattle and Jefferson County, Kentucky. KT had de jure segregated schools but were regulated for many years
and had reached compliance and had produced for EP purposes a unitary school district. Seattle had single race
schools but never had dejure segregation
o In Seattle - tie breaker that school uses is race
o In KT - schools assign w/ racial guidelines (tie breaker)
To come w/in some acceptable boundary of black to white population, in a crunch, they are willing to uses race -
fairly small percentage in both cases.
Opinion by Roberts:
• Roberts uses strict scrutiny and thinks there is no compelling interest.
• Strict scrutiny makes it difficult to have race conscious policy - the state has to show compelling interest
and the means are narrowly tailored in furtherance of that
1. Remedying the present effects can't be a compelling state interests
i. KT fixed the problem - they came to compliance; Seattle never had de jure segregation
and so there was nothing to fix
ii. Grutter doesn't apply here - Grutter was holistic and in higher education - the same details
don't apply here
But even if there was a compelling interest you still loose b/c
i. Race is used in such a minor way that the program could be accomplished w/o reliance
on race (is he saying the only way to make it narrower is to use race more and consequently
make the plan broader? IRONY)
What this case is really about?
• The history of desegregation in the minds of various factions in the Sup Ct. Roberts vs. Stevens vs. Breyer -
what is the difference of opinion?
Breyer says Brown & Swann is a license that empowers localities/school boards to do certain things
 NPM 22

Roberts reads the cases and sees an opposite view - Robert says that Brown says that you cant use race to determine
who goes to which schools (Period)
Thomas says that the dissent are basically siding w/ segregationists (this is outrageous)
• Both views have support in the historical record - so who is right?
***One of the major lessons of this opinion recognize that language never speaks for itself - there is always a
context - why was it used in the context of an opinion?
o Unwillingness in the part of the majority to see this point!!
 NPM 23

Topic: Heightened Scrutiny and the Problem of Sex-Based Classifications; Gender continued; Archaic and
Overbroad Generalizations versus “Real Differences, “The Irrelevant Constitution

Case: Reed v. Reed (1971)

Facts - strikes down law picking men over women in administration of estates (when everything is equal b/w them)
• Ct applies rational basis scrutiny (Unanimous Opinion by Berger) to strike down
• Some people call it rational basis + (aka rational basis with teeth)

Case: Frontiero v. Richardson (1973)

Facts: Male member of Military can auto claim wife but not vice versa. Struck down.
• Brennan writes for plurality
o Elevated standard to something like Strict
o Ct agrees to strike it down under this elevated rational basis test

Case: Stanley v. Illinois (1972)

Facts: Ct strikes down rule that says: Children of unwed parents whose mothers die automatically become wards of
the state
• No Presumption that men are unfit fathers
• Due Process claim

Case: Cleveland BOE v. LaFleur (1974)

Facts: Pregnant women are forced to take maternity leave early. Ct strikes down
• No presumption that pregnant women are unfit to teach
• EP Claim

Case: Taylor v. Louisiana (1975)

Facts: Exemption of women from juries - Ct strikes down
• Deprives the def of 6th amendment – the right to a proper jury can’t be overcome on rational grounds
• EP Claim

Case: Weinberger v. Weisnfeld (1975) see Califano latter

Facts: Widowed men are not allowed to benefits based on earnings of their wives - while widowed women are
allowed to benefit of their husband’s earnings. Stuck down
• EP Claim - Used Frontiero as standing that gender classifications based on archaic and overbroad
generalization are unconstitutional

Case: Stanton v. Stanton (1975)

Facts: Utah statute requires that parents support boys until 21 (so that they can go to school) but girls until 18 (so
that they can get married). Struck down.
• EP Claim – archaic and overbroad: no longer is the female destined to the home and the make to the
marketplace

Unsuccessful Challenges
Case: Schlesinger v. Ballard (1975) *** real differences case???***
Facts - women are given differential clock to achieve certain thresholds in the navy (since women are withheld from
doing certain jobs). Ct sustains
• Not based on archaic generalizations rather the fact that male and female officers are not similarly situated
(women are not allowed to fight in combat and go on sea duty so they wouldn’t have those credits)
• EP Claim

Case: Geduldig v. Aiello (1974) ***not gender based??? Pregnant people case***
Facts: Prevents disability benefits for not women but pregnant persons
 NPM 24

*** Distinction here is b/w pregnant persons and not pregnant people – not a gender status distinction
• Analytical point - the class of non-pregnant people is not limited to women - women who have careers
where they won't become pregnant are in the position to save - just as men would - the savings that are
distributed by this program
Brennan Dissent - Is disability the framework to treat pregnancy?
• If we include disabilities for male - male specific disabilities - and the comparables for women are include
but the ones for men are not then it looks gender based distinction

Case: Craig v. Boren (1976)

Facts: The case involves an OK statute that prohibits the sale of alcoholic 3.2% drinks to males under 21 and
females under 18. Involves just the purchase - NOT consumption. Differential Statute
Majority Opinion by Brennan
• Brennan is trying to get strict scrutiny but he gets intermediate scrutiny
o Important govt interest?
 YES - Traffic Safety
o Substantially related to achieve state objective?
 Arrests statistics support in a substantial way
BUT if fails the test
 It doesn't form a basis for using gender as the classifying line - 98% of males in this
group are not doing it
 Administrative ease and convenience not sufficient to meet the substantially related test
Dissent
• This is not an EP case but a failed due process case
• If we take the argument that 2% is inadequate - then have a law that says no one can buy 3.2 beer until 21
then it would survive a due process challenge - so the tenuousness fails due process
o There are not enough persons in the category who drive while drunk to justify a bar against
purchases by all members of the group

Case: United States v. Virginia (1996) ***Heightens the IS test BUT only lasts for this case*
Facts: Virginia has a public all male school/military college that is challenged by women. VMI uses the adversative
model: breakdown and rebuild - from individual to strong group cohesion. VA creates an alternative program -
VWIL - substantively different - based on cooperative model that builds self-esteem
o The Ct compares to Sweatt v. Painter - schools are not comparable - and tears down VWIL
Opinion of the Ct by Ginsburg using intermediate scrutiny – new IS test used:
1. Exceeding persuasive justification (sounds like compelling govt interest in SS - instead of
“Important govt interest”)
2. Burden is on the state (much like strict scrutiny)
3. Rational can't be an interest that you identify in litigation - it has to have already existed at the
time the challenge was made (this requirement makes it fatal)
****Ginsburg transformed intermediate from Craig v. Boren into a test that more closely resembles strict scrutiny
Rehnquist doesn’t join
• Says this tier is fake

Case: JEB v. Alabama (1994)

Facts: Def being tried for child support. State uses peremptories to strike men and defense uses theirs to strike
women. Peremptory based on gender struck down
Blackman Opinion
o No exceptionally persuasive justification (Ginsburg adopts this language in VMI) for the challenges
o Batson applies to gender
o Sex can be a proxy for race
o If you want to render your peremptories from Batson for gender (now JEB) challenges, make sure they are
representative in some way
 NPM 25

• The ct should just recognize that race is different but since they don't you should play by the rules

Justice O'Connor
o To pretend that the sexes are the same is wrong; to pretend that you can't make generalizations by sex is
wrong
o Something is lost here BUT it is necessary - sex many play an important part in some cases and the fact that
a litigant can't play on that intuition is a limitation but it is needed to make things fair
Justice Kennedy (STEARNS THIS IS THE BEST ANSWER)
o Juror should sit as an individual citizen and not a rep of a race or sexual group

Permissible application of gender differences

Case: Rostker v. Goldberg (1981)
Facts: Statute requiring men but not women to register for the draft. Upheld.
o Rehnquist says: Draft registration is just for women b/c its about combat and women (as a group) are not
eligible for
o Dissent says there are a boatload of jobs that women can do in pertinent war time - check m or f and then
determine what their job will be

Case: Michael M. v. Sonoma County Sup Ct (1981)

Facts: Statutory Rape case - under age sexual conduct - male is punished but not men. Ct upholds.
o Rehnquist says that the purpose of the law is to equalize the deterrence of the sexes
• Women have a natural deterrence - pregnancy
***What these cases are about is that grey-zone he-said, she-said case of rape cases- statutory rape cases is a catch
all to get around proof difficulty - rare Strict Liability crim offense

Case: Nguyen v. INS (2001) *** Majority rewrites back the Equal Protection standard -Back to "Important Govt
interest and mean substantially in furtherance of that interest in Craig v. Boren***
Facts: Child born to Viet mother and US Father - father has to make affirmative steps to prove that he is the father
while mothers are not required to do that
***Justice Kennedy doesn't apply VMI cause he couldn't get away with it - this is a real differences case
• Ct accepts the “stereotypes” as real differences
• Govt is asking for clear and convincing evidence of parentage/ proof of meaningful child-parent
relationship BUT
• Aren't you resting on assumptions of gender rules BUT those assumptions are legitimate
o Women gets an irrebutable presumption b/c they have to carry the child for 9 months and have no
choice but to be present at child birth
• The differential treatment is inherent in a sensible statutory scheme – given the mother’s unique
relationship with the child

Case: Nevada Dept of Human Resources v. Hibbs (2003)

Facts: Private suits for damages against state govts under the Family and Medical Leave Act. Upheld
Rehnquist Opinion
o This law is about inequality b/w men and women – most people know/assume that women will be the ones
taking this leave
o Make is gender neutral then you don't have to demand states to grant the need for those who need it.
o There would be a pull back of the opportunity alltogether - fewer people would be given the opportunity to
care take
o Risks from leveling down

Case: Califano v. Goldfarb (1977) ***Ct applies Weinberger***

 NPM 26

Facts: Old-Age Survivors and Disability Insurance Benefits Program. Widows = automatic/widowers = show
evidence that you used her for at least 1/2 of support. EP Claim. Program struck down.
o Brennan Ct Opinion
• Law based on stereotypes that women are not breadwinners. Not able to justify a gender based
discrimination
o Rehnquist Dissent
• The numbers show most women are not bread winners so for admin convenience we should just
look to the men as breadwinners
• Ct rejects and treats as a contract case but not a public benefit case

Case: Wengler v. Druggists (1980)

Facts: Wife widow automatically eligible; Husband widower must make affirmative showing for worker's
compensation benefits
Ct's Analysis:
o If the distinction is a gender discrimination claim - it is incoherent to say that this is discrimination against
both sexes. One group is favored another is disfavored
o This is Loving v. Virginia all over again
• Anti-differentiation principle - statute that draws a line b/w 2 people based on a certain clear
criteria & Anti-subordination principle - although the statute is technically neutral the consequence
of the statute works in the subordination or detriment of one party
• Anti-subordination: forces ct to prove what’s really going and who is really being
discriminated against

Policy: Affirmative Action for women

o What impact does it have on gender cases?
• Post Adarand - blacks get Strict Scrutiny for Affirmative Action cases
• Gender only needs intermediate scrutiny
• So now it is easier for gender to get AA thru EP rather than for blacks when EP was
created for blacks
 NPM 27

Topic 6:
Topics: Equal Protection and the Problem of Sexual Orientation;

Case: Romer v. Evans

Facts: CO amended its Const (Dem legislative process) to prohibit and nullify all laws that protect gays from
discrimination b/c of their sexual orientation (no special treatment for gays)
Kennedy Opinion
o This is about pure animus against this group. Discrimination can’t be based on that
• This is a redux or Moreno and Cleburne - This is motivated to harm a particular government group
Scalia Dissent
o His main argument is that this is not animus
Point 1
• Look at the support that Gays receive
• There is an influx of gays in the area with political power - b/c they have a greater stake in the
outcome of issues affecting them - there is a tendency to push really hard for favorable change in
the law at any level
• The gays come together in some areas and act as a majority while the majority of the state is
actually against the prop. This should not be allowed
Pont 2
• In a multi-level demo it is not uncommon to change the issue at hand to go to the highest possible
level
• Those challenging amendment 2 have gone to a higher level to challenge that
• When we have cultural differences should we elevate the level at which the argument takes place?
o There is a danger when the US Sup Ct tinkers with state legislation b/c that messes with
the democratic processes at the state level. That is plausible.
o Allow this to be dealt with at the state level
o Scalia says Safe Harbor of anti-discrimination status can protects
***Colorado Amendment 2 isn't the end game - this is a proxy war for the next case same sex marriage. If it ratchets
up the scrutiny now, then it will remove the chance for the issue of same sex marriage that comes up in 2003
 NPM 28

Topic: Implied Fundamental Rights; Methods of Interpretation: Originalism versus the “Living”
Constitution; The Privileges or Immunities Clause; The Incorporation Controversy

Case: The Slaughter House Cases (1873)

Facts: A Louisiana law that granted a monopoly for one corp to maintain slaughterhouses in and around New
Orleans is challenged by out of work butchers as a violation of the 13th and 14th amendments
• Ct decides that 13th and 14th amendment is created to protect former slaves
• Privs or ammunities killed by this case
Bradley Dissent
o Any law that establishes a sheer monopoly, depriving citizens of the privilege of pursuing lawful
employment, does abridge the privs of those citizens and does deprive them of liberty and property w/o due
process of law
** Dissent here is later followed by Lochner 30 years later

Incorporation - Anomaly on whether the adoption of the 14th amendment was in fact intended to take substantive
provisions set out in the Bill of rights to be applied against state law
• Late 1800 - early 1900 - strong need not to leave individuals at the mercy of the marketplace bc
marketplace looks pretty bleak
o One view Increase pressure on the part of state legislature and Congress to deal with crisis of
working conditions and market problems for individuals
o Opposing view is that the cure is worse than the disease - regulations harms more than it helps the
market evolve naturally
• Sup Ct develops a series of doctrines that make regulatory intervention in private markets difficult
o Fairly restrictive commerce clause jurisprudence running up against the 10th amendments
o Non-delegation doctrine - legislative power is vested in legielature and that is vested in agencies.
There must be cause to strike down
o Economic substantive due process
• Due process clause protects (among other things) against state and fed laws that infringe
prospectively upon free market relationships

Case: Barron v. Baltimore (1833)

Holding: The bill of rights doesn't apply to the states
• When the Const was ratified and the first amends/BOR was added- there is a clear understanding that they
were protections not against states but against the newly constituted stronger Fed govt

Case: Twinning v. New Jersey (1905)

Facts: State prosecution--jury told count against D that he didn’t testify
o It would be going far to say that this is an immutable principle of justice to have 5th amend self-incrimination
right
o Key passage--Top 736--some of things in BoR (first 8 Amend) can also fall under Due Process Umbrella
• So, these may also be safeguarded agst state govt--not b/c they are in BoR, but b/c a denial of them
may be a denial of DP
• In this particular case, the right agst self-incrim was not fundy in DP or an essential part of DP (but of
course left the door open for incorporating a provision on DP grounds)

Case: Palko v. Conn (1937)) ***overturned***

Facts: Conn statute--state can appeal criminal case. Does this violate double jeopardy?
• Same analysis as Twinning--even if interpret DJ to stop state from appealing acquittal, it isnt so
fundamental you cant imagine ordered liberty w/o it
• Ct says that process of absorption has its source in thought that liberty nor justice could exist if this
particular provision is sacrificed.
o Example used--freedom of speech--indispensible to nearly every other form of freedom
 NPM 29

Case: Adamson (1947)

• Black says that 14th Amend framers wanted to overturn Barron--by applying BoR to states
• Black thinks that the fundy rights formula is not grounded in anything, subjective to the
particular judge
o Frankfurter says read the text--the 14th ASMend DPC is same words as 5th Amendment DPC
(which predates BoR)
• 14th Amend DPC is about making sure states cant deny DPC of 5th to residents
 So 5th cant apply BoR and 14th DPC cant mean to apply BoR
• He also says there are longstanding legal tradition that will constrain DPC to a box--the
current system of ascertaining whether a practice offends the canon of decency and fairness
expressed in English justice system
 SO the natural rights thingie is squishy but not too squishy

Duncan v Lousiana (1968)--Ct finds that 6th amend right to jury trial is applicable to state--ALSO changes
Ct's analysis of "Incorporation" debate
• Given our system, can we imagine this process/rule not being involved
• Creates model for future decisions that uses BoR as a starting point
o Also applies incorporated BoR provisions in same manner they are applied to Fed--Jot for Jot

Not incorporated: analysis on p 740--2nd (to be decided this term), 3rd, 5th grand jury, 7th Amend--jury trial
for small amount
• Black sorta kinda wins, most of BoR has been incorporated
 NPM 30

Topics: Substantive Due Process and Economic Liberties;

Subst DP--Limitation on what reg authorities can do to limit ability to K, or exercise rights respecting
property
K clause--a lot of ppl confuse ESDP w/ K clause
o K Clause means states cannot not retroactively interfere w/ existing k obligations, "except when it
can" (last part added by Stearns)
o Except when it can
• Blaisdell--state adjusting foreclosures--modified terms of K to allow those to stay in
home longer
• Exactly what framers didn’t want, benefit to debtor over creditors
o ESDP--ability of state to retroactively adjust K AND ability of state to prospectively limit of what
you can K for

Case: In Mund v Ill - 1877 (govt regulation of warehouse pricing) and RR Commision – 1886 (govt regulation of
rail ticket prices)
• Ct articulated that DP was limit on govt regulatory power--though Ct in both cases sustained the subject
govt regulation

Case: Santa Clara County (1886)

• Corporation is a person--opens door for corps to directly challenge regulations

Case: Allegyer (1897)--Most significant pre-Lochner case--followed for next 40 yrs

• Prohibits restrictions on contracts b/w out of state residents
• Court says there is fundamental right to K and exercise property rights w/o undue regulatory interference

Case: Lochner (1905)

Facts: NY State Statute--limits days and hours bakers allowed to work. Ct strikes down
• Court says that police powers regs cool, but this is not a police power for health
o Police Power--protect public health, public safety, or public morals
• Ct says 14th Amend DPC grants right to make a contract in relation to one's business…and the right to
purchase or sell labor is part of liberty protected by 14th.
• Ct must carefully scrutinize legislation to ensure that it served police purpose
• Harlan—dissent--Judiciary is not to get into specifics of legislation--deference is due--BUT despite
that fact, there is a valid health (for baker's) basis to the legislation p.748
• Holmes—dissent--we don’t get into specifics of legislation, AND the Const doesn’t not embrace a
particular economic theory (he thinks they are embracing laissez-faire econ)
o The people decide what economic theory wins UNLESS they exceed their const limitations

History of Lochner--not what it seems.

• It was actually labor bakers beating up on non-labor bakers. Group of immigrant bakers had no union and
worked crazy hours, labor bakers (who already had good hours) wanted competition out--so they pushed
the for regulations
• Something stricter than RBS was applied in this case
• Justice Peckham keeps talking about motive but doesn’t explain deeply--he knows law was about
protecting certain bakers

Alleged Vices of Lochner p751

• Undemocratic--unelected judges were subbing their values over those of elected legislature. The values that
the judiciary protected were not even expressly stated in the Constitution.
• Judges don’t have the ability to be extensive fact-finders (like legislature) AND unelected judges do not
have the accountability (like legislature) p 752
 NPM 31

Lochner era 1905-34

• Following Lochner, RBS is applied to ESDP--will the current Court bring Lochner back?
Case: Muller (1908)
Facts: Law limited hours women could work is upheld. Brandeis (lawyer at time) writes detailed brief on how the
law protected women's health

Case: Bunting v. Oregon (1917)

Facts: Explicitly overturns Lochner--upholds law setting 10-hr workdays for manufacturing laborers

Case: Adkins-(1923)
Facts: strikes down min wage law for women--Court says we can’t treat the sexes differently
• Progressive??--No, max hour case was cool (Mueller--women are weak) but min wage is impermissible
(interfered w/ freedom of K)

Case: New State Ice CO (1932)

Facts: Court struck down barrier to entry--said this was state conferred monopoly p 757

Case: Nebbia v. NY (1934)--shift in Ct DP jurisprudence--no longer sole rationale of police powers needed to
justify regulation
Facts: Price of milk fell way below cost of production--put pressures on producers that legislature found would
threaten a relaxation of vigilence w/ contamination (investments). State established Milk control board to fix rates/
Guy undercuts price—convicted. Ct upholds convinction.
• "Property rights or K rights not absolute, govt cant exist if citizens can use property to detriment of fellows
or exercise freedom of K to work fellows harm"--drastically diff understanding of property rights
• 5/14 don’t prohibit protective of public welfare, just says make sure laws consistent w/ Due Process
 DP about insuring that laws arent unreasonable or arbitrary AND that means have substantial relation
to the ends sought
 So Ct doesn’t get into merits of legislation--bottom p 758--if policy is to curb unrestrained
competition, it is not w/ Ct to determine wisdom of rule

Case: West Coast Hotel v Parrish (1937)--Ct overturned Lochner-era cases—

Facts: Ct upheld state law requiring minimum wage for women
• No longer protect freedom of K as fundy right, govt could regulate to serve ANY legit purpose, and
judiciary would defer to reasonable legislative choices
• Most interesting statement--Hughes--"What is freedom of K--not in Const".
o "Const speaks of liberty and prohibits deprivation of liberty w/o due process of law. Regulations
reasonable in relation to subject and adopted in interest of community is due process" p 759
o Explicitly follows Nebbia--regulations can be beyond Lochner "police powers of public
safety/health/morals"
o What the workers lose in wages, the taxpayers pay--public shouldn’t subsidize unconscious
employers
o "Real reason"--diminishing competition (much like Lochner)
 Raise women's wage beyond what they could actually demand on the market
 Lets protect the women out of jobs to compete with us. Women less educated
and couldn’t command as much.

***Carolene Products Footnote Four (1938) ** *"Discrete or insular minorities"***--continues post-Lochner

change w/ RBS for economic legislation AND ALSO lays groundwork for SS racial classification cases
• Stone saying Court wont police state or Fed political processes based on claim that interest group affected
outcome
o Economic regulations should be upheld if there is conceivable basis EVEN IF IT CANNOT BE
PROVED TO BE LEGISLATURE'S ACTUAL INTENT
o BUT if we think majoritarian process disadvantages "Discrete and Insular Minorities"--we
may be more cautious in our willingness to assume benign purpose
 NPM 32

o Court may be more willing to infer a political market failure

o The DIM--Blacks--when we see laws that adversely affect them, we may be cautious about any
claimed benign purpose, unlike this case where we will wink and nod and getting rid of
"adulterated product"
 "If you take Marbury out then you replace it w/ Carolene Products Footnote 4"-Graber

Case: Williamson v. Lee Optical (1955) ***stressing need for judicial deference, RBS***
Facts: Statute prohibiting Optician from making lenses w/o prescription from optometrists and ophthalmologists
• Possible public health rationale--ppl need to see eye doctors regularly. This law encourages eye health
• Wasteful law likely pushed by optometrists and ophthalmologists (ppl w/ broken glasses don’t have to see
Dr and get new prescription)
• Ct says doesn’t matter--"the day is gone when this Ct strikes down regulation b/c it is unwise,
improvident, or out of harmony w/ a particular school of thought

Case: Ferguson v Skrupa (1963)

Facts: Law puts "debt adjusters" out of business--benefits lawyers by getting rid of comp
• No more freedom of K or right to practice a trade under Due Process
• Ct says that is w/in perview of legislature and Ct doesn’t have specific Const right to show violated

Topic: Fundamental Interests and Equal Protection;

History
• There has been push since Calder v Bull to find in Const fundy rights--checks against Fed and State law
• We cant imagine Const would actually allow this--"Const cant permit things that bother him"
• Use EP to protect something linked to fundamental rights
• But this too starts to lose it luster and Court closes the door, BUT the pressure doesn’t go away--we still
have stuff that bothers us
• The new thing that comes in is "Privacy" (which is basically due process)

EQUAL PROTECTION/ FUNDAMENTAL RIGHTS: Usually EP is used to analyze govt action that draw a
distinction b/t ppl based on specific characterizations (race, gender, age, etc) BUT HERE EP is used when govt
discriminates among ppl as to the exercise of a fundy right

Case: Skinner v. Oklahoma (1942)--Fundy right--the right to procreate

Facts: Commit three felonies--you were habitual criminal and you would be sterilized--But the statute excluded
white collar crimes
o Fundy right--right to reproduce, it cant be taken away--Hang this on Equal Protection
o Equal Protection/ Fundamental Rights operate particular trick
• Take 2 losing arguments
 The distinction drawn on the statute (on its own terms is terms)
 The illegality of the penalty under the constitution (on its own terms)
• Put them together and you can't attach the penalty based on the distinction
 This is architecture of EVERY single case in this section--court doesn’t want to look like
it is doing Lochner again
 Find something is fundy right--then use SS under EP to analyze govt discrimination as to
the exercise (Kh)
 But some rights arent fundy and only get RBS (Washington v. Glucksberg – right to die)

o This is an early form of SS--but predates the Tiers of Scrutiny

 NPM 33

Topic: The Right to Vote

Const does not make right to vote--It has a series of amendments that limit ability to deny right to vote based on
certain criteria
• No right to vote, but Right not to have vote denied
 14th doesn’t talk about voting, but becomes vehicle for protection (also says that it would
reduce representation in house based on number of males denied vote)
 15th says based on race (1870)
 19th sex (1922)
 24th poll tax ('65)
 26th age 18 + ('71)
• Ex. Take job as employee at will, you have no right to the job but you have right not to be fired
w/o cause, or an illicit cause
• Is there something that protects right to vote more generally? Court flirts with that.

Case: Lassiter (1959)

Facts: Court sustained literacy rule this was Ct's usual approach--extreme deference (later K prevents lit test through
VRA and Ct sustained in Katzenbach v. Morgan--§5 XIV)--
*** BUT Deference changes few years later

Reynoldsv. Sims (1964) – the right to suffrage is a fundamental matter in a free and democratic society
Ct said dilution of right to vote implicated EPC and thusly Ct opened door to specific challenges to state laws
that limit right to vote

Case: Harper v. Va State Bd of Elections (1966)--deprivation of right to vote must pass SS

Facts: VA law for poll tax--cant vote unless you pay $1.50. Struck down
Opinion of Ct by Douglass
• voting is fundy right, when fundy right is affected there can be a type of SS (my words)
• Intelligence and wealth are unrelated, a poor person can be informed enough to vote
Black Dissent—
• States have power to decide on qualifications for voting, states can levy taxes AND Const doesn’t seem to
limit this power (pursuant to this issue)
• Calls out Douglass for using the natural law-due-process formula
Harlan Dissent—
• RBS should have been applied and a rational basis is that ppl w/ property have a bigger stake in the
community
o Difficulty "There is a race correlation to wealth, even though some poor whites wont vote and
some rich Blacks may"—Stearns
o Consider poll tax as a way to show policy makers that these voters are very interested (also
newspaper example)
*** Back to Douglass--bottom of 774--"We agree w/ Holmes dissent in Lochner that DPC of 14th does not enact
Mr. Herbert Spencer's social statistics. EPC not shackled to any political theory of a particular era."
o This is NOT a fair analogy, NOT like Holmes in Lochner. NO, Holmes was using it to stop Court
from finding something not specifically in Const. Douglass does opposite--finds fundy right that
doesn’t exist in Const. (this WILL be on the test)

Afterword--Voting is a fundy right b/c it is preservative of all rights--voters pick the ppl that run govt, govt
safeguards citizen's libeties
 NPM 34

Case: Bush v. Gore (2000)--Flip side of Marbury. Bush v Gore significant historically not significant
doctrinally
Facts: (for reference, go to facts in the class notes)
Per curium opinion says that manual recount of undervotes were not being done subject to uniform standards
(one corner is a vote, a pregnant chad is good, etc)
• When you have arbitrary methods for choosing whose votes count, you are violating EP rights of
those whose votes didn’t count
• Funny result—Conservs use EP as check against state election law. Libs defending the state law
Concurrence by Rehn, Scalia, Thomas--not related to EPC
• Art II US Const--grant to state legis to determine rules to selecting electors for Pres election (an
aboriginal power given to state legislation--reverse of strip and grant model)
• Const delegates to states legis the responsibly to do election law, usually SC doesn’t second guess its
interpretation of state law (Some exceptions--civil rights legislation with lunch counter sit-ins)
• Fla SC we interpret statute and therefore get to play w/ calendar
o Rehn, Sc, Th--we don’t believe you are basing this on statute. Art II violation. Also you
want to benefit from safe harbor so. Reverse, remand.
Stevens and Ginsburg
No EPC violation--a neutral magistrate is looking at each ballot
Don’t get same outcome with each crim case, if the process is fair then it squares w/ EP

Bush v. Gore "Potential" Narrowest Grounds Analysis—DID NOT actually happen

o Stearns believes Rehnquist, Scalia, Thomas joined the EP-based reasoning to avoid controversy. If
Rehquist, Scalia, Thomas didn’t join w/ O'Connor and Kennedy, then:
o Marks analysis would not have worked in this case--3 for Art II basis for strike down, 2 for EPC
as basis for strike down
o Would've had majority saying no Art II basis for strike, majority against strike on EPC basis. But
would've had a majority overturning Fla SC (giving Bush election) w/o a majority rationale
o Look at Scalia in Adarand--judges are VERY strategic

Case: Kramer v. Union Free School District (1969)

Facts: Only ppl who could vote in school district election were ppl that had a child in local school or own taxable
real property in that district ("Ignored the potential guy living in parent's basement does care deeply about
schools"—Stearns)
o Ct applied SS and overturned--State said compelling state interest was limiting election to "those
primarily interested in the election"-- Ct said statute not narrowly tailored to that goal
How is this like INS v Chada?
o Statute that didn’t have bicameralism and presentment actually was product of bicameralism and
presentment (INS v. Chada)--HERE the ppl that are being excluded from voting actually voted for the
ppl that set this restraint

Voting cases always get SS BUT some cases pass--special elections w/ add'l criteria (p. 779) Look for whether
effect of entity's operation is disproportionately greater than the effect of those excluded from voting
• Salyer Land--Ct upheld Cali statute--water storage district elections limited only to
property owners and votes were apportioned according to property value
 Ct said that property owners bore the entire burden of the district's cost, non-
property owners bore no cost AND therefore state could say that property owners should
have sole responsibility of operation.
• Ball v James--water district election--vote restricted to property owners and apportioned
by acreage. Even though district sold water to lots of non-property owners (and they would be
affected), since cost bourne by property owners, vote could be restricted to just property owners.
 NPM 35

• Dun n & Marston--You can condition right to vote on residnecy (but in this case 1yr
residency didn’t serve compelling ineterest, Ct changed rule to 50 day residnecy) p 780
• Richardson v Ramiez--disenfranchising felons--Ct says fine b/c 14th explicitly allowed
for disenfranchisement of criminals (§2)
• Rosario v. Rockafeller--law required person register party 30 days before general
election in order to vote in the next PRIMARY election of party (which could be as much as 11
mos later) Ct said fine--furthered important state interest--stopping raiding of parties--didn't
disenfranchise, just set a time deadline.
• Kusper v. Pontikes--(also 1973)--Statute prohibited one from voting in primary of one
party if she voted in primary of another party w/in previous 23 mos. Ct said not fine b/c this
would cause one to NOT vote in an election in order to switch primaries in a subsequent
primary election P 781

Dilution of Right to Vote

Baker v. Carr (1962)--Ct said EP challenges to malapprotionment of voting districts were justiciable

Case: Reynolds v Sims (1964) ***one man – one vote***

Facts: Five companion cases challenging the system of apportionment w/in their states. Specifically in AL for 60
yrs the apportionment has not been revised - the urban (Huntsville, Montgomery)voters are being discriminated
again b/c the rural centers are being favored. Rural areas get more political power after demographic shifts--my
rural votes closer to picking rep than a city voter would . Ratio of constituent to representative--They can control
legislative outcomes even though they are a minority
• Holding: Ct said that population is the only permissible basis for drawing districts
• CJ Warren--"Legislators represent ppl not trees or acres"

Afterthoughts to Reynolds
Benefit of Reynolds is judicial administrability
o One man one vote applies even if majority votes to have it not apply (Lucas v. Forty-Fourth
General Assembly)--Colo referendum voters rejected plan to apportion districts solely by population--
one's Const right to cast an equally valid vote cannot be denied simply because a majority of people
choose for it to be. (Can tie w/ Caroline Products FN4)

Case: City of Mobile v. Bolden (1980)--compare to Keys

Facts: Ct says at-large district allowed, even if proof of discrimatory impact, as long as there is no proof of
discriminatory INTENT (intent--prove scheme conceived or operated as a purposeful device to further racial
discrimination)
o Stewart Opinion--only way to overturn this is to show that reason for the system is to prevent AA's
from picking candidate of its choosing (subjective intent--similar to Keys)
o Stevens concurrence--
• A challenged scheme would be invalidated IF
 not product of routine or traditional political decision
 disparate impact
 irrational on any grounds(subjective intent tough to get a hold of--so go w/ rule)
• At large is so commonplace that it cant be weird
• Similar to Keys--proof of illicit effect shifts burden to state (Brennan), Powell--you need
something objective, we cant go on subjective intent, Rehn--you have to show actual intent to
discrim
o Marshall--there has never been AA rep--there are lots of AA's in Ala--correlates to Brennan in
Keys

Rogers v. Lodge (1982) ***Claims facts larger on factor of intent --hard to distinguish***
Civil Rights Act of 1982 made this distinction irrelevant as it prohibited election system that dilutes the voting
power of a racial minority
 NPM 36

Facts: Black citizens challenge state’s at large voting scheme as intentionally designed to dilute minority voting
power Ct Strikes down voting scheme

Bottom line with Davis v. Badamer--Superseeded by Veith v. Jubeiller (technology case)

Facts of Davis--Indiana 51% of vote went to Dems but through gerrymandering, they only got 43% of legislature
seats. Ct said no right to proportional party representation, BUT there could be an EP challenge to the
gerrymandering if party can identifyIntentional discrimination agst identifiable political group AND actual
discriminatory effect.
Veith ALMOST overturned Davis--Scalia plurality said gerrymandering was non-justiciable political question BUT
Kennedy concurrance in judgment said that gerrymandering is not justiciable now, but there may be some way in the
future (technology) to make it justiciable
o Kennedy has narrowest grounds and has the holding--BUT Scalia tried to corral Kennedy as fifth
vote by saying Kennedy's position was legally unavailable (didn’t work)
o So although Conservations say let's get rid & liberals say let's keep it - Politcal party
gerrymandering claims are alive as long as Kennedy holds the median justice on this matter
 NPM 37

Topic 8:
Topics: Dilution of the Right to Vote; Access to the Judicial Process; Travel; Welfare; Education

Denial of access to ballot p 803

Case:Williams v. Rhodes (1968)--to get on ballot, get 10% of vote in last election OR get signatures amounting to
15% of ballots cast in last election AND elaborate party structure
• State says it helps promote stable two party system--No threat to two major parties from
the small parties
• Ct invalidates, says doesn’t pass SS--bolstering two-party system of Dem v. GOP not
a compelling state interest
o Progeny of Williams v. Rhodes
• Jenness--get 20% of vote OR 5% of eligible voters to sign petition--Court upholds
 Court says not just less signatures but no requirement for elaborate structure--Court says
lower threshold is fine--GA not freezing status quo
• American Party of Texas v. White--1% signature rule and requirement of nominating
convention--Ct upholds
o Stearns--"what these cases about is compelling concern w/ maintaining 2 party system"
• Push compromise--look at Umass-Amherst President example given by Jake

Filing fees
Case: Lubin v. Panish (1974) --Ct invalidated requirement of filing fee of 2% of salary of office being sought--
Wealth not tied to ability (p804)

Party loyalty-- ** * we don’t want people sabotaging parties***

Case: Storer v Brown (1974)--Ct upheld Cali rule bars candidates from leaving party and becoming independent
candidate (need at least on yr unaffiliated w/ other party)
 Minimize short sightedness--political switch based on quarrel
Case: Tashjian v. Republican Party (1986)--Ct strikes state statute requiring voters in primary be registered
members of that party--GOP wanted to open to primary to Indys
• Marshall--Storer applies to protect parties from effect of unsuccessful candidate from one party running a
putative campaign--protect party from disruption from outside, HERE party wants to "disrupt" primary--
they should be allowed

Disqualification of public officials –

Clements v. Fashing (1982)--Candidacy is not a fundamental right
o TX law--pub official cant run until term over or resigned--Court (plurality) says that is cool--Discourages
ppl from shirking responsibility

Takeaway -- If there is a substantial barrier to entry, then SS is used, if it is not substantial SS is not used
With access to ballot: Substantial interest case will be “Williams V. Rhodes”

Judicial Process--806
Case: Griffin v Illinois (1956)
o State law says free transcript only to capital cases, SEPERATELY you need transcript to appeal--D must
pay for it (this D couldn’t pay and therefore couldnt appeal conviction)
• There is no right to appeal, so State says "how do we have obligation to give a free transcript if we
aren't even obliged to give them the appeal?"
o Ct says --When state gives of itself it cant do it in arbitrary way--THIS IS AN EPC ISSUE. When State
gives it largess--it must give fairly OR give nothing p 808 note 3
 NPM 38

Case: Douglas v. CA (1963) (Strikes down CA rule from investigating records and appointing counsel in appeal
only if the CT feels its necessary)
o Opinion says:
• This can't be done
• Distinction the ct is drawing here - b/w the ability of a wealthy crim def to spend
substantial on his defense (appeal) vs. imporverish def to spend on his defense (appeal)

Case: Ross v. Moffit (1974)

o Leveling down - No one gets anything - that is a fair distribution across the board

Case: Fuller v. Oregon (1974)

o Def gets state appointed counsel - would have to repay the state if he became available to do so
o Chilling arguments doesn't really stand

Case:Williams v Ill (1970)

Facts: Guy cant pay off fine and stat says you stay in jail at $5/day pay-off--ends up staying longer than his sentence
• Ct said no substantial state interest justified this regime and there were "numerous
alternatives"

Outside crim law realm

Case: Boddie v Conn--Ct struck $60 filing fee for divorce preceedings
o State monopoly--usually in contract one can negotiate her way out, but in marriage she needs
judiciary to get out--Cant be forced to stay in marriage b/c of lack of money
• So this raises EPC concern b/c filing fee is preempting the right to dissolve legal
relationship w/o affording all citizens the right to do so
o Black Dissent
o This is civil matter – no in constitution
(Person with alternatives will not be saved)

Case: US v Kras--Ct upheld filing fee for those trying to discharge debt
Distinguished from Boddie--divorce based on const right to marry—no Const right for bankruptcy.
Also no state monopoly --person has alternate ways of discharging debt
Stewart dissent--Ct saying some ppl are too poor to go bankrupt

Case: Ortwein v Schwab--CT upheld filing fee for judicial review of adverse welfare decisions--no implication of
Const right
*** These are bond rules--person filing posts a bond--a way to distinguish ppl who believe they have legit
claims. From judicial administrability this is an important filter--the benefit of a challenge will overwhelm the
bond requirement
Bonds – put your money where your mouth is – you believe in the claim, you will find the money to place up

RIGHT TO TRAVEL
Case: Shapiro v Thompson--Ct struck law requiring 1 yr residency to get welfare benefits--touches on fundy right
of interstate movement and thusly it had to pass SS (and did not)
o The rationale proffered by state didn’t pass muster--inhibiting travel to state by poor ppl

Case: Saenz v. Roe

Facts: Benefits limiting welfare to residents that have not resided in the state for at least a yr
RE-AFFIRMS SHAPIRO BUT USING Priv OR Ammunities - protects the rights of new residents to be treated the
same as long-time residents
Ct strikes the law down
o References 14th amendment Privileges OR Ammunities Clause
 NPM 39

• Right to travel - right to enter and leave a state at will

• Right to be treated as a welcome visitor
• Right to be treated as if the state is your own - the same as other citizens of that state
***Slaughter House Cases seemed to kill the 14th amend Priv Or Ammunties Clause - is the ct accepting this clause
here?
Rehnquist Dissent
o Right to become citizen isn't the same as the right to travel
• Travel has come to an end
 (But you have to travel to get there )
 So let's call it right to travel and relocate OR Not to travel and keep moving OR right to
also stop and stay there
• Becoming a citizen is about being in the state and establishing residency

Genesis of right to travel—

Crandell v Nevada 1868--Ct strikes law charging for each passenger vehicle company takes out of state (or just
passing through) Ct said We are one ppl, one country

Edwards 1941--Ct strikes Cali law making it illegal to bring indigent person into state
Opinion based on Dormant Commerce Clause BUT concurrances declared that right to travel was a fundy right and
protected under Privileges OR Immunities Clause in XIV

Zobel v Williams--Statute distributes income to ppl based on time they have been Alaska resident--so diminishing
(vice totally eliminating) benefits based on duration of residency is also impermissible
• SC says you cant distribute state resources like this
• "Inequality conflicts w/ purpose of union--vs a league of states (like EU)"--OC
• Alaska didn’t prove that new residents were a peculiar source of evil AND a substantial
relationship b/t the evil and the discrimination practiced against non-citizens
• Candid in acknowledgement that there may not be a Const hook for this but tries Art IV
Priv and Imm

Hooper--Ct strikes down tax exemption for Vietnam Vets that were resident by certain day--"newcomers by
accepting states are part of state and cant be discriminated against based on arbitrary selected date"

Atty General v. Soto-Lopez--Ct strikes law pegging benefits to Vets on whether Vet joined service while in state
o The right to migrate protects residents from being disadvantaged as compared to similarly
situated individuals simply b/c of the timing of their migration

Dunn v Blumstein--Residency time requirement for voting--Ct struck b/c it reach out to bona fide citizens who
have recently exercised a Const right, and punished them for it
Later cases allowed small residency requirement 30-50 days in order to counter fraud
* Because they had just moved this was seen as a punishment of the right to travel as well

Memorial Hospital v. Maricopa Cty--same analysis as Shapiro--medical care is necessity of life don't deprive one
of this based on him exercising a fundy right--the right to travel

Justifocation found in Sosna

***Sosna v Iowa--Ct upheld Iowa law that one must be resident for a year in order to get a divorce--Ct says
marriage affects SO MANY issues (disposition of children, property, etc) that Iowa should be able to ensure those
getting divorce (and potentially forcing state to deal with the aformentioned issues) have a robust connection to the
state. ALSO Iowa doesn’t want to encourage forum shopping

Vlandis v Klein--"irrebuttable presumption" of Conn residency

1 yr residency for reduced tuition at state university First yr student (not Conn resident) marries Conn resident - She
 NPM 40

hasn’t been in Conn long, husband has--they planned on staying

Narrow holding that she had irrebuttable presumption of Conn residency
Sometimes a bona fide residency requirement is actually a durational residency requirement
*Durational residency requirements are seen as potentially inhibiting the interstate travel, they must meet
strict scrutiny
You can treat non-citizens different from citizens but not bonafide from durational citizens

Durational residency requirements versus residency requirements--

o DRR treat citizens differently based on time-in state AND must pass SS b/c Ct sees it as
inhibiting interstate travel.
o RR treats non-citizens differently from citizens so not an infringment on interstate travel--
challenged by PoI (for disrcim agst out-of-staters) or EP
• Usually upheld by Ct (McCarty--fire fighters, Martinez v. Bynum--kids in public
school)

Welfare
Case: Dandridge v. Williams
Facts: Uphold MD state laws placing a cap on AFDC welfare to $250. Challenge is
o Ct upholds this because
• Administrative issue
• Limited resources
• State can't track in that way - welfare distribution is not perfect - we have to set limit and
allocate resources accordingly
Marshall Dissent says:
o Rational basis is used for business regulations
o Here we are dealling with a more personal/fundamental issue so rational basis doesn't seem
appropriate here

Case: Lindsey v. Normet

Facts: Right to shelter doesn't cover the right to a legal eviction following non-payment of rent
*** Is there a Const right to shelter? No
Does the landlord have a right to provide that to you? NO
o If there was a right it would be a societal/state one and not the landlord's obligation to supply
***FDR 2nd bill of rights - not rights that he thought would be in Const - just an overall societal obligation

Case: Collins v. TX
Issue: Const right not to be subject to dangerous working conditions
Ct says this is not a right
o Unless there was some coercion by the state placing the citizen/employee in dangerous condition

Education
Case: San Antonio Independent School District v. Rodriguez
Facts: Funding differential per student due to taxes in different localities. Differential rate of taxation one
considerably lower because their prop taxes are much higher and make up the difference
Challenge from the students in poorer district - does it violate EP rights
Opinion by Powell
o Reverses the finding of discrimination
• Suspect Class and fundamental right must be there to elevate to high level scrutiny -
neither is found here
• Not specifically guaranteed by the Constitution
• Localities should be allowed to deal with fiscal funding for schools
 But this seems problematic - poor kids get less than rich kids which is not fault of their
own
 NPM 41

• We want localities engaged in their school system - make them responsible for
their schools
• Education is connected to the right to vote so its needed
 BUT you get basic min skills
 We don't guaranteed the most effective speech or most informed electroral choice
• You are not deprived of education
Ct is retreating from equal protection/fundamental rights framing
****Note Griffin and Douglas cases: there you are completely deprived of transcript and right to counsel so
that is different from here where you are not completely deprived of an education – what scrutiny is being
used here?
Dissent: Justice White Dissent
o Linkage to prop value the poor can't compete so its unfair
Dissent: Justice Marshall Dissent
o This should be a fundamental right because of the correlation of a Constitutional right and a non-
constituational interest
o Tiers of scrutiny - very good argument for multiple tiers
• Education is really important & Linked to other rights so the 2-tier standard doesn't give
education a chance when it should have gotten it
o What about the local experimentation business
• Due to the tightly centered control of public schools cirruculum there can't be that much
experimentation
(See Marshall in Clover Leaf(milk), Dandrige (AFDC) and here)

Case: Plyler v. Doe

Facts: Illegal alien children are not entitled to free education unless they pay a fee
Opinion by Brennan:
o Issue - Does Brennan says that we have suspect class and fundamental right? NO
o But we are talking about (Framing similar to Rodriguez) people that could be a suspect class and
these children may not even be getting minimum basis - still he doesn't find suspect class or
fundamental right
o Is there a legitimate govt interest in favor of the law? YES
• Protecting the state from illegal aliens - financial and resource distribution
• Discourage illegal aliens from coming
o So this could pass the rational basis test according to this logic that would work with Rodriguez
BUT BRENNAN DOESN'T FOLLOW THE LOGIC ABOVE
o Brennan heigtens the test
• Why? B/c if he used rational basis the law would have been sustained
• Brennan says that this is a substantial interest
 Children are innocent
 We are threatening to give them no education at all
 In the long run that might burden the state more - creating permanent underclass of
illeterate citizens
• So alittle bit more of a showing is needed
o Powell is on board b/c there is some law about illegal aliens that might make them somewhat of a
suspect classs
o The arguments of keeping the money in state when most of the citizens move out of states anyway
doesn't stand
Dissent: Burger argues the rational basis arguments and says this laws should be sustained.

*****Plyler keeps the door of Equal Protection for Fundamental rights cracked open
 NPM 42

Topics: Modern Substantive Due Process: The Right of Privacy; Abortion; Family and other Privacy
Interests; the Limits of Privacy

Case: Griswold v. Connecticut (1965)

Facts: Conn statute that prohibits any person to use any drug, medicinal article or instrument for the purposes of
preventing conception.
o Doesn't prevent contraceptives for use of preventing diseases
o Across the board - for married and single persons
Opinion by Douglas:
There is a discussion of Lochner v. NY - what is the point of that?
o They are rejecting the due process argument
o They find this right of Privacy instead - links it to the 1st, 3rd, 4th, 5th & 9th amendment
The right of privacy is no where in the Const
o Law Review Article suggests the creation of innovative tort for the invasion of privacy.
o This case takes intuition from the Law Review article and gives it Constitutional weight
Sketch out the architecture of the right to privacy argument?
o Different amendments in the constitution that provide specific rights
o The right of privacy is in the penumbra of those rights (Penumbra: the shadow cast by an eclipse)
• We know there are specific provisions - but what do penumbras have to do with this?
 Certain specified rights would be rendered worthless if they weren't tied to the
inferred rights i.e.
 BOR articulates limits on the govt's intrusion on our lives
Douglas Theory: We have gen govt power (limited by BOR) Those protections have eminations - beyond the
wording and motivation of statute - sphere of private conduct on which the govt shouldn't intrude. There are aspects
of privacy that go beyond the BOR rights
o Marital intimacy is beyond the reach of the "Conn Marital Sex Police"

Concurrence by Harlan:
o He wants strict scrutiny according to due process clause claiming that privacy is a fundamental
right
o Not formulaic but we have to see what is implicit in the concept of ordered liberty
What is it about this case that makes the connection so close to Justice Harlan? How does he draw his line?
o If you are going to recognize the right to get married and be intimate you can't regulate the
intimacy
o You can regulate the people that can and can't get married but ability to police the intimacy
of that marriage is foreclosed once you allow it

Concurrence by Justice Goldberg:

o He has a 9th amendment theory that supports privacy
BUT
o He doesn't believe 9th amendment applies to states - rejects incorporation BUT
o It does suggests with 14th amend that there are limits

Dissent by Black:
o Right to privacy doesn't exist
o Douglass v. Black
• Black says: these spec protections may include aspects of privacy but that are limited to
the aspects of those provisions. Specific aspects of privacy limited to a specific right does not
guarantee a general right of privacy
 BOR rights were framers intuition of where a specific right of privacy would be needed
Dissent by Stewart:
o Law is stupid but does it violate Const - NO

Key feature of Griswold:

 NPM 43

o Now the Ct is trying to find a justification for this CONN law, but there isn't a clause in the Const
that speaks to it - so Douglass is trying to come up with a justification that is not "DP - Lochner" or
"EP" - so he latches on to new privacy theory
o This is literally a physical boundary into which the state cannot intrude

Case: Eisensatdt v. Baird (1972)

Court held that a MASS statute withholding contraceptives from unmarried people for the purposes of contraception
is unconstitutional
Distinguishing b/w married and unmarried persons and they are both free to live their sexual lives as they please

Case: Roe v. Wade (1973)

Facts: TX statute making abortions a crime except for the medical purpose of saving the life of the mother
Ct Holds: 14th amendment supplies a broad right of privacy and personal autonomy entitling a pregnant women to
terminate her pregnancy but also enabling the state to regulate at some stages
Opinion by Blackmun
o "Opinion should be free of emotion and predilection… emphasis on medical and medical-legal
history"
• No mention of using the constitution to resolve this issue
• Historical use of abortion procedures - earlier history provided broader availability
o Justifications for this law
1. Discourage illicit sexual conduct - DROPPED BY STATE
2. State interests in health and well being of mother
 B/c of technological advances the mortality rate of mothers is not so much. Historically
can could have been a risk but now they are safer and the danger flips - if you have an
early termination it is sometimes safer than the risks of childbirth that could be quite
dangerous
3. States interest in protecting the fetus
 State talks about the fetus as a person from the time of conception. Meaning that the fetus
has constitution rights - the right of life w/o due process of law
 If a fetus is awarded 14th amendment right from conception STILL the state is not
undertaking the abortion - the woman is - and 14th amendment claim must be against the
state not a private individual
 Theories by religious, philosophical and historical views BUT there is not consensus and
since they can't agree it is not our job to do so...those "trained" can come to agreement
• Is this a question that is coming around the corner? We don't have the right info
so we can't resolve - is that a logical way to deal with the issue?
• Metaphysical question that will never have one answer
• Rather we should be considering "For the purpose of the abortion right when
should we consider fetus as a life?"
o How does the Ct weight the competing interests of the mother's health and the woman's interest in
terminating the pregnancy?
• During the 1st trimester the state can't prohibit given the fact that the risks run in the
opposite direction
 After that point state may regulate the abortion procedure to the extent that the regulation
reasonably relates to the preservation and protection of maternal health
• With respect to the fetus - it is viability - the fetus is capable of meaningful life outside
the mother's womb
 But this is just the definition of viability but not an argument for viability - circular
argument
3 trimester Framework
o 1st trimester - free reign - women and doctors
o 2nd trimester - under state regulation to protect mother's health
o 3rd trimester - fetus life is compelling
 NPM 44

Dissent by White:
o This is an exercise of raw judicial power
Dissent by Reinhquist:
o This is not a private issue
o Concept of privacy is fixed to physical like Griswold but this court's decision is not based on that
concept - instead to a decisional notion of privacy
Should this have been an EP issue? Thomson p. 867 & Regan p. 868 think so...
o The gen world in which we live is the jerk rule: you can be a jerk and not be tried for it
• Tort exceptions to jerk rule: When you create a duty by endangering OR to family
members Or if you voluntarily undertake a rescue you have to follow through with reasonable
care (other observer is most likely dettered when they see you)
BUT GENERALLY
• No obligation to help someone even if they are in dire need BUT
Exception - state laws that prevent women from declining to offer life support to their fetus
when they don't want to
Most obvious objections: The women voluntarily undertook in activity to create a relationship that she needs
to carry through BUT this relationship is too extensive to say that a duty is created (Might have been created
by this mere act of passion or contraceptive failure)

In Brown v. Board, Robert Bork argument major/minor arguments- go back to framing of 14th
• Major - AAs equal justice
• Minor - Facilities that have segregation are not inconsistent
Reconstruction Era - Southern Black Codes - limiting AAs ability to do alot . Major motivation of 14th is to get rid
of these black codes

So another way to look at 14th in Roe

• Major: Assist the primary bread winners to of families in partcipating in market economies
• Minor: women are not primary breadwinners so they don't have to be protected
Fast forward "x" years and the roles have changed. Unless women have the chance to control procreate and continue
to advance their careers. 14th allowed you to draw gender distrinctions in the past due to the role of women - but
now that has changed

***Casey relies very heavily on the role of women in society as opposed to the original argument in Roe v. Wade
b/c of the degree of discomfort in the theory that Roe v. Wade rested

Case: Planned Parenthood v. Casey (1992)

Facts: PA control acts placing limitations on abortions (1) Informed Consent forms (2) 24hr waiting period (3)
parental consent for minors (4) married women have to disclose to husbands (5) reporting for health care research.
Medical emergency exception for 2, 3 & 4
• This case keeps the essential holding of Roe – after viability state still has compelling interests but anytime
before that it is the undue burden standard.
• Drops 3-trimester framework - not part of essential holding and can be replaced with undue burden test.
The call is to overrule Roe v. Wade.
• Justices say: It's not our job to defend the wrongness or rightness of Roe - narrower job of removing the
doubt on a case that affects lives
Stare Decisis Factors
1. The workability of Roe
a. Since Pregnancy is 9 month - the trimester division seems workable
2. Reliance on Roe
a. Plurality
i. There is a broad reliance by men and women that in the event of contraceptive
failure they can obtain legally an abortion
 NPM 45

ii. Specifically women have used this to plan their lives/careers - Broad societal
reliance on this right
b. Rehnquist disagrees and sees reliance this way
i. Says plurality is defining the reliance in a narrow – tied to specific instances of
sexual activity
ii. Pre-Roe women didn’t have the right and thus couldn’t rely but Post-Roe they had
the right and could then rely
iii. If the Ct overturns Roe (which he wants them to do) then women will change the
calculus in their mind to engage in specific sexual acts
3. Legal erosion: Has the body of law eroded
a. Different lines of cases but none of those framings result in an understanding that the doctrine
has eroded
4. Factual premises have changed as to render the opinion less relevant
a. The flip side of the same coin (reliance argument)

• After we get through the Stare Decisis (Brown OVER Plessy & West Coast OVER Lochner), has plurality
defined the parameters of when we should rely and adhere to a precedent?
***only 4 cases have been overruled by Const amendment - very rare; Precedent plays a big part
o The understanding of the factual predicate has changed - judicial and societal understanding
i. At the time of Plessy - there was a gen understanding that segregation facilities was not
inconsistent with equal justice but by the time we get to Brown we look back at that history and
realize that inferior segregated facilities are not great - is very harmful
ii. At the time of Lochner society thought markets are wonderful and there are only winner
(1905). - Fast forward to 1937 after great depression we realize that there are losers in market
economies too so allowing the state to regulate and provide benefits for those that are
disadvantaged by markets is actually the right thing to do
• Our understanding of the factual predicate of abortion has NOT changed

Rehnquist
• Calls for outright overruling - Abortion is not fundamental right
Scalia

TOPICS: ABORTION CONTINUED; SEXUAL PREFERENCE

Case: Gonzales v. Carhart

(see print out)

Case: Bowers v. Hardwick (1986) OVERRULLED

Facts: Prohibited act is neutral as to the sex of the actors. Same sex or opposite sex couple.
o GA was only willing to defend the statute as applied to same sex couples
White Opinion
o Sustains the statute
o Is there a fund right for gays to engage in acts of sodomy?
• Not when history bans it
Burger Concurrence
o Moral argument
Powell Concurrence
o 8th amendment concerns
Blackmun Dissent
o The Ct is misconstruing broad line of privacy cases - which is about the right to be left alone by
the state
Stevens Dissent
o If you look at these privacy cases it protects married couples in intamacy and the same should
follow for non married same sex or opposite
 NPM 46

Case: Lawrence v. Texas (2003)

Facts: Statute makes it a crime for two persons of the same sex to engage in deviant sexual intercourse: sodomy

Kennedy Opinion
o His primary issue is: whether Bowers should be overturned and he says yes
o Kennedy's premise - you can't get to strike down this statute unless you overturn Bowers
• But that's not true b/c O'Connor says that if you have a law that is purely based on animus
(like this TX statute then you can strike down the law - other animus cases: Clevalnd, Moreno,
Romer…) you can strike down the law under EP scrutiny SO you can strike down here w/o
striking down Bowers (BUT Bowers only goes after same-sex couples with their law)
o How does Kenney go about explaining striking down Bowers
• This isn't about the right to engage in sexual activity - put to make personal decisions that
define who one is - all parts (sexual activity one part of that)
• Probitory laws on which Bowers relied you discover that these prohobitions were about
restricting sexual activity that was nonprocreative
• Foundations of Bowers are eroding
 Casey and Romer Cases
 International Cts: European Ct of Human Rights,
 MPC - decriminalization movement - sodomy laws removed from MPC
o Why is this a "due process case"?
o Why do the changes in the foundational materials- legal realm quoted by Kennedy matter?
• But the material that Kennedy is relying on happened pre-Bowers so that couldn't erode
the case

Kennedys says this is Due Process as opposed to Equal Protection b/c we don't want state to Equalize down and not
up to make things equal
 NPM 47

TOPICS: THE RIGHT TO DIE; ASSISTED SUICIDE

Major Cases: Cruzan v. Director, MO Dept. of Health, WA v. Glucksberg

Case: Cruzan v. Director, Missouri Dept Of Health

Facts: Cruzan has accident. Is in vegetative state - no prospect of meaningful cognitive recovery BUT not brain
dead. She has once stated that she would not want to live in vegetative state. Her parents seek out to take her off
feeding that will lead to her death
Trial Ct agrees that parents can take her off
Missouri Supt Ct elevates/requires clear and convincing evidence (as opposed to proponderance of the evidence -
maybe 51%)
o The choice of the standard of proof controls the outcome of the case - is dispositive
o Prevents the parents from relying on oral statements to demonstrate what Nancy Cruzan would
want in these circumstances
What is Cruzan's const claim? What are the state's competing interests for the state's elevation of the standard in
respone to Cruzan's claim?
o Cruzan's Claim - the right to refuse treatment
• What is the origin of this right?
 CL law doctrine of battery - unlawful toucing of another - so..
 The right to informed consent is where this comes from
• Does the Ct say that Cruzan has lost informed consent?
 No but its just that she has not done it what must the state do - someone must exercise of
her behalf
 Absent on clear info, how do you make the decision
• Statements made out of ct were hearsay and imprecise (clear + convincing
evidence to safeguard against error
• So what is the Cruzan's Const Claim?
 Right to refuse medical treatment - right to die (imbedded in 14th amendment)
• Does Cruzan right override the State's interests?
o State's interest
• Protecting human life
• Preventing suicide
• Accuracy of the decision
 In re Quinlan - Committee like way to determine what is best for the patient
 In re Sekowits - Substituted judgment model:
o Main theme in Cruzan is the notion that there are other ways of safeguarding the patient - other
methods that Ct can use
• The ct says the fact that those models are available does not mean that they are compelled
• Const law does not work that way
• MI is allowed to elevate scrutiny as their safeguard to protect Cruzan
*** A person does have a right to refuse medical treatment BUT state can decide to heighten standard of evidence to
protect its citizens in the event the person can’t clearly communicate this right
O'Connor Opinion
o ???

Scalia Opinion
o Nothing in the Const about this so the states can do what they want
o Hugo Black sentiment expressed here

Brennan & Stevens

o Not some abstract state interest - but interest in Nancy Cruzan's life and it doesn't seem that she
would want to be in this state
 NPM 48

Idea here is that the Ct doesn't endorse the methodology as a matter of policy just acknowledging that there is a
menu of policies and the Const doesn't dictate one over the other
Case: Washington v. Glucksberg (think about narrowest grounds twist on this case)
Facts: Doctors and terminally ill patients bring suit against ban on assisted suicide. Long history of criminalization
of assisted suicide
Holding: The right to commit suicide is NOT a fundy right (look at history & there are legit govt interests to protect
– see below)
What is the nature of the Const Claim? How is this case unlike Cruzan?
o Facial challenge - dealing with statutory claim saying it is unconstitutional on its face. You are
saying this is a law that can't be Const applied
o Cruzan is dealing with judicial challenge
Rehnquist Opinion
o Ground the analysis in historical legal precedent
• Talking about substantive due process - this is a new claim - not listed in the Const -
should we add this to the list of protections?
• Is there a long-standing history in allowing this process?
 States have banned this for a long time
 There has been some relaxation (people are not losing assets b/c of fam's suicide) BUT
 The fact that the state has relaxed suicide sanction does not diminish the collective
negative on the act of suicide itself - its just that they see the sanction is targeted against
the wrong people
o Sunstantive Due Process Analysis
• Suicide is not a deeply rooted right
• Degree of specificity of the articulation of the Const claim
 State interests
• Protecting human life
• Vulnerable populations
• Protecting the integrity of the medical profession
• Danger of moving in the direction of euthanasia
O'Connor vs. Rehnquist
o (Rehnquist??) leaves open an as applied challenge
o O'Connor says that the Medical system works along the lines of the Double effects doctrine and it
is not considered murder or assisted suicide
The Double effects doctrine - if a dc prescribes palliative care that helps care for the patient it is not
murder even if the care hastens its death
Souter and Stevens say
o As applied challneges may come out the other way

O'Connor joined and was the critical 5th vote

o Which opinion, Rehnquist or O'Connor expresses the holding of the Ct?

When you have a majority and a marginal member, you get the majority and you get to express your opinion