Thursday March 20, 2014

1. Thursday March 20, 2014 • OBJ: SWBAT demonstrate their understanding of how the Supreme Court differs in their interpretation of the Constitution. • Drill: How involved in shaping policy do you think the Supreme Court should be? (think of some of the cases you have looked at already) • HW: Wilson pages 450-458, answer questions.

2. Homework • Thursday 3/20- Wilson questions • Friday 3/21- Certiorari reading-reading quiz Monday • Monday- Judiciary Vocab (due Wednesday)

3. Review Quiz #16 Name three factors that have helped decrease the power of political parties • Civil Service laws, ticket-splitting, rise of pollsters, candidate-centered campaigns, loss of patronage power, issue-oriented politcis, rise of technology, suburbanization, money Define/Explain critical elections/complete realignments • When one or more demographic groups switches political parties and does not switch back Define/explain a single-member district plurality system • Winner take all system; whichever candidate gets the most votes wins Define/explain what a coalition is: • A group of demographics that work together to help a political party win elections

4. Justices • When did Justices begin to serve longer terms on the Supreme Court

5. I, _______________do solemnly swear `that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Associate Justice of the United States Supreme Court under the Constitution and laws of the United States. So help me God and my fourth quarter grade.

7. Judicial Activism Judicial Restraint Judicial Restoration

8. Part 1: Equal Protection • We have been discussing the EPC under the 14th Amendment. • For each landmark case summarize the facts, list the outcome, and the precedent set along with reasoning from the court. • Then explain whether you believe the 14th Amendment was violated or not.

9. Griswold v. Connecticut (1965) A Connecticut statute of 1879 made it a crime for any person to use any drug, article, or instrument to prevent conception. In 1963, the executive director of Planned Parenthood in Connecticut was charged with providing medical advice to married couples on how to prevent conception. The case was found in favor of Connecticut in two lower federal courts, and was granted Certiorari in 1964. Precedent: On two previous occasions the Supreme Court had heard cases regarding the Connecticut statute. In both instances they upheld the statute because of technical facts relating to the plaintiffs in the case, not due to the statute. Other seemingly unrelated cases may hold possibilities. The court has ruled that privacy, though not enumerated in the Constitution may be implied and therefore protected. In Meyer v. Nebraska (1923) they ruled it was a family’s private decision to teach a child a foreign language; Pierce v. Society of Sisters (1925) they ruled it was constitutional to send one’s children to a private school; Skinner v. Oklahoma they ruled it was a private decision to procreate. In each of these cases they felt the implied right to privacy was protected by the Constitution. Relevant Amendments: 1st, 3rd, 4th, 5th, 9th, and 14th amendments Decision: 7-2, in favor of Griswold Majority Opinion: Although divided in justification, the court generally felt that the rights in the First, Third, Fourth, Fifth, and Ninth Amendments implied a general “zone of privacy” that form the basis for general privacy. It was argued that specific guarantees of rights in the Bill of Rights have “penumbras, formed by the emanations, from those guarantees that help to give them life and substance. In a concurring opinion, Justice’s Goldberg argued that the Ninth Amendment provided “strong support for judicial incorporation of additional rights” Dissenting Opinion: The dissenters argued that the Connecticut statute did not interfere with any fundamental constitutional right. The protection of such a right represents an arbitrary exercise of judicial power that threatened the American system of government. “Use of any such broad, unbounded judicial authority would make this court’s members a day-to-day constitutional convention; this would amount to an unconstitutional shift of power to the courts…which would be bad for the courts and worse for the country.”

11. Roe v. Wade (1973) Norma McCorvey (Roe) sought an abortion in the state of Texas. Although initially arguing that she was gang raped, McCorvey later admitted that the abortion was desired as a result of a failed relationship. Texas law only allowed an abortion if it endangered the mother and was authorized by a hospital committee of doctors. The question is whether the state has a compelling interest in restricting the access to an abortion. Precedent: Since the 1880’s most states had made abortion illegal as the direct result of the medical profession attempting to legitimize their powers. The Supreme Court ruled once on abortion-related issues, in 1971 when it ruled that abortions in the District of Columbia were legal if the mother’s life was in danger. Also, the court had begun to define the right to privacy very broadly as the result of Griswold v. Connecticut (1965). Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments Decision: 5-4 in favor of Roe Majority Opinion: After a failed attempt to persuade the court, Justice Blackmun argued that the Texas statute was unconstitutional because it violated the woman’s right to privacy which was located in the Due Process clause of the 14th Amendment. Despite this, Blackmun felt that states did have some valid interests in abortion. He divided the pregnancy into trimesters. In the first trimester the women had an unrestricted right to choose an abortion in consultation with her physician. In the second trimester, state could regulate the abortion to protect the health of the mother. Finally, it was only in the third trimester that the state had an interest in protecting the fetus. Dissenting Opinion: The dissenters argued that the court was enforcing a right that was not specified in the Constitution, and were overturning statutes that were no more restrictive then when the 14th Amendment was passed. Also, if a state felt it had an interest in protecting the potential life of the fetus, the interest then existed and was equally as strong throughout the pregnancy. The court’s attempt to lay out what doctors could or could not do in various circumstances resembled a statute, which is an unconstitutional authority of the court.

12. Bowers v. Hardwick (1986) The case evolved out of the arrest of Michael Hardwick, a gay Atlanta bartender, for engaging in illicit sexual relations with a man in his own bedroom. The two were discovered by a police officer that was coming to serve a warrant for Michael’s arrest on an unrelated charge. Charged with violating Georgia’s sodomy laws, Hardwick was not convicted, nor prosecuted, but the charges were never dropped. He sued and argued that the law was an unconstitutional violation of his right to privacy. Precedent: In the 1969 case of Stanley v. Georgia, the court ruled that a person was allowed to read obscene materials inside their own homes as part of the First Amendment. In addition, the court ruled in Griswold v. Connecticut that there was a Constitutional right to privacy as protected by the 14th Amendment. Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments Decision: In a 5-4 decision, they ruled in favor of Bowers. Majority Opinion: The court ruled that the constitutional right to privacy was not to be extended to protect acts of consensual homosexual sodomy performed in the privacy of one’s home. This case was different from others because it did not involve “family, marriage, or procreation.” The court felt that to protect this right violated the “fundamental principles of the nation’s history and tradition.” Dissenting Opinion: The dissenter Harry Blackmun argued that this case was not about sodomy, but about the “most comprehensive of rights and the right most valued by civilized men (sic), namely the right to be left alone.” In addition he felt that the court erred in not evaluating the case in light of the 8th, 9th, and 14th amendments.

13. Planned Parenthood v. Casey (1992) The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24-hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. The Court was asked to decide if a state can require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? Precedent: Roe v. Wade, Webster v. Reproductive Services Relevant Constitutional Provisions: 1st, 3rd, 4th, 5th, 9th, and 14th amendments Decision: 5-4 in favor of Pennsylvania Majority Opinion: The Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. Thus, states were free to regulate abortions placing restrictions such as 24 waiting periods, parental notification, and educational seminars before an abortion could be performed. Dissenting Opinion: The dissenters argued that Roe was wrongly decided. In addition, they argued that the concept of privacy is not within the original intent of the constitutional framers and therefore any extension of these rights is unconstitutional. Finally, the dissenters argued that the entire Pennsylvania decision should be overturned.

15. Webster v. Reproductive Health Service (1989) In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. The court was asked to determine if the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment? Precedent: Roe v. Wade (1973) Relevant Constitutional Provisions: 1st, 2nd, 3rd, 4th, 5th, 9th, and 14th Amendments Decision: 5-4 in favor of Missouri Majority Opinion: In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisions of the law. Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade. Dissenting Opinion: The dissenters argued that Roe was wrongly decided. In addition, they argued that the concept of privacy is not within the original intent of the Constitution and therefore any extension of these rights is unconstitutional. Finally, the dissenters argued that the entire Pennsylvania decision should be overturned.

16. Lawrence and Garner v. Texas (2003) Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling. Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples; violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? Precedent: Bowers v. Hardwick (1986) Relevant Constitutional Provisions: 1st, 2nd, 3rd, 4th, 5th, 9th, and 14th Amendments Decision: 6-3 in favor of Lawrence Majority Opinion: No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Dissenting Opinion: Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents. Arguing that the precedent had been set in Hardwick only 17 years prior and it was not only too early to overturn the precedent but that the choice to do so was inconsistent with other decisions regarding Roe and privacy where the court has consistently not chosen to overturn precedent.

20. Wrap Up • Did the court show more activism, restraint, or restoration? Explain.