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Conlaw > Conlaw > Flashcards

Conlaw Flashcards

1
Q

Strict scrutiny

A

Compelling state interest / least restrictive means, narrowly tailored, necessary

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2
Q

Intermediate scrutiny

A

Important, substantial, significant / substantially related, closely serves, narrowly tailored

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3
Q

Rational basis scrutiny

A

Legitimate / rationally related

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4
Q

Criteria for ID suspect / protected classes

A

Irrelevant to ability to perform or contribute
History of discrimination (often based on stereotypes)
Immutable characteristic (intrinsic, inherent, not within control)
Diminished political power

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5
Q

Suspect class

A

Strict scrutiny - race, national origin, alienage

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6
Q

Quasi suspect

A

Intermediate scrutiny , sex, illegitimacy

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7
Q

Not suspect

A

Rational basis. Wealth, age, disability

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8
Q

TBD whether suspect

A

Sexual orientation / gender

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9
Q

Orientation / gender; paths to heightened scrutiny

A
  1. Sex discrimination - triggers int scrutiny ‘ exceedingly persuasive review (Bostock- Title VII - some lower courts
  2. Recognition as suspect or quasi - int scrutiny - implicit for sex orientation in Obergefell - some lower courts
  3. Animus ‘ moral disapproval - rational basis w bite - Windsor - Romer
  4. Fundamental rights - eg marriage in Obergefell
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10
Q

Due Process path to heightened scrutiny in due process / equal protection cases

A

Deprivation of a fundamental rights / protected liberty interest
-bans infringe on fundamental right to marriage protected by DPC

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11
Q

Equal protection path to heightened scrutiny in due process / equal protection cases

A

Discrimination based on a suspect or quasi suspect classification
Race / sex
-bans discriminate on basis of sex which is quasi under the EPC / bans discriminate based on sexual orientation, which court COULD deem to be suspect / quasi

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12
Q

Equal protection path to heightened scrutiny in due process / equal protection cases

A

Gov acts w animus or moral disapproval and court applies ‘rational basis w bite’
Irrational prejudice
cleburne
Bans animated by animus and should be subject to heightened scrutiny under EPC
Cleburne / Romer / Windsor

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13
Q

Equal protection path to heightened scrutiny in due process / equal protection cases

A

Discrimination w respect to the exercise of ‘fundamental right’ - 2d order fund. rights
Marriage?
Access to judicial process
Voting
Ban discriminates w respect to the exercise of the fundamental right to marriage as protected by EPC

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14
Q

Methods of discrimination - sex

A

Facial - heightened int scrutiny
Not facial but purposeful/intent - heightened int scrutiny
Not facial, disparate impact without disc purpose - rational basis

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15
Q

Methods of discrimination - race

A

Facial - strict scrutiny
Not facial but purpose/intent - strict scrutiny
Not facial disparate impact without disc purpose - rational basis

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16
Q

State justifications for using race in affirmative action

A

Remedy past disc by that state entity
Reducing hx deficit of traditionally disfavored minorities (X)
Remedying past societal disc (X)
Educating those who will serve underserved communities (X) … but)
Achieving the educational benefits of diversity (X … but)

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17
Q

‘Opinions in affirmative action cases - receptive to skeptical

A

Brennan/White/Marshall/Blackmun in Bakke; Ginsburg in Gratz
O’Connor in Grutter; Kennedy in Fisher II
Rehnquist in Grutter (Kennedy joined ); Alito in Fisher II
Thomas in Grutter and Fisher I and Fisher II

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18
Q

Note on courts sex/gender EPC cases

A

Sex./gender = interchangeable
Explicitly Assume binary
Implicitly assume everyone is cis
Haven’t dealt w gender Identity issues (except trans - statutory)

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19
Q

Anti-classification

A

Concerned w gov use of suspect classifications (race, sex)

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20
Q

Anti subordination

A

Concerned w gov treatment of protected classes - racial minorities, women

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21
Q

Facial discrimination

A

Distinction made on face of law

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22
Q

Not facially but

A

Law found intentionally or purposefully discriminate

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23
Q

Not facial

A

Not intentional or purposeful , disparate impact

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24
Q

Griswold rights/test

A

Majority; within penumbra of BoR
Goldberg; deeply rooted in tradition
Harlan; basic values implicit in the concept of ordered liberty
White; realm of family life

Strict scrutiny - invoked by Goldberg and White

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25
Q

Roe rights/test

A

Broad description of right “privacy”
‘;personal rights’ that are fundamental or implicit in concept of ordered liberty

Strict scrutiny

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26
Q

Bowers rights/test

A

Narrowly describes the right claimed
Asks if the right is implicit in concept of ordered liberty and deeply rooted in history no tradition

Strict (but court applied rational because it found no right existed)

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27
Q

Casey rights/test

A

Rejects narrow framing and 1868 as sole reference point 405
‘Matters so fundamentally affecting a person … matters’ involving the most intimate and personal choices … central to personal dignity and autonomy 406

Undue burden (unique to abortion)

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28
Q

Glucksberg rights/test

A

Narrowly describe the right claimed
Ask if the right is deeply rooted in history and tradition AND implicit in the concept of ordered liberty 409

Strict but court applied rational because no right

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29
Q

Lawrence rights/test

A

Rejects narrow framing 416-417
History and tradition a ‘starting point’ not ‘ending point’ 419
Casey autonomy language

Not sure - seems like more that]n deferential rational basis - applying some level of heightened scrutiny

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30
Q

Obergefell rights/test

A

‘History and tradition .. do not set … outer boundaries / no formula / new insight 431
Reject glucksberg approach 432
Better informed understanding 433
Self-determination / autonomy 430-431

? Seems like more than rational - some kind of heightened scrutiny

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31
Q

Dobbs rights/test

A

The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions 444
Rejects effort to use broader right of autonomy to protect 445-446

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32
Q

Traditional public forums

A

Street/sidewalk/park
General approach

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33
Q

Designated public forum

A

State fair closed to public at other times of year
General approach

34
Q

Limited public forums

A

Univ meeting rooms school board meetings
Caveat fn 7

35
Q

No public Forums

A

Reasonable and viewpoint neutral

36
Q

Substantive rights under DPC

A

Incorporating enumerated rights
McDonald, Timbs

37
Q

Ask in unenumerated rights cases

A

Does the claimed right exist?
What are the limits of the right?

38
Q

Provisions that might protect unenumerated rights

A

Original privileges and immunities clause - art 4 sec 2
Original DPC -5th
9th
14th privileges and immunities
14th due process

39
Q

Disagreements in Heller

A

Is there a right to keep and bear arms disconnected from militia service?
-majority says yes; stevens says no

If there is such a right, can DC justify the limits on it here?
-majority says no; Breyer says yes

40
Q

Different results in Jaycee’s and Dale

A
  1. Significant interference w group’s message
    -women already included in jaycees
    -deference in Boy Scouts
  2. Expressive v commercial
  3. Balancing - dale focuses less on state interest
  4. Compelling state interest
    -sex = yes; s.o. = no
41
Q

Commercial

A

Non expresssive

42
Q

Non commercial

A

Expressive

43
Q

How to distinguish Hurley from FAIR in wedding vendor context

A

-should it turn on how ‘creative’ the vendor’s expression is?
-should it turn on whether the service provided by the vendor is ‘inherently expressive’?
-should it turn on whether the vendor’s provision of service is deemed to be sending their ‘own’ message? If so, enough that vendor subjectively intends to send message? Or would objective observer have to perceive vendor to be sending message?
-if an objective test applies, looks to creativity? Inherent expressiveness? Selectivity? Commercial context?

44
Q

Special categories of speech; unprotected

A

Incitement
Other clear and present danger
Fighting words
True threats
Some defamation
Obscenity
Child porn
Speech integral to criminal conduct
Fraud
RAV caveat

45
Q

Special categories of speech; less protected

A

Commercial speech (may be subject to ‘general approach’ in future

46
Q

General approach; content-based; strict scrutiny

A

Subject matter Regulations
Viewpoint regulations
Regulations of offenseive speech
-Offensive ideas
-Offensive modes or manners of speech
Some speaker identity regulations

47
Q

Establishment Clause

A

Justice Thomas questions whether the EC applies to states through the 14th

48
Q

Content Neutral; Intermediate Scrutiny

A

Conduct regulations that incidentally impact speech
O’Brien
Time, Place, Manner Regs

49
Q

Special Contexts

A

Prison
Military
Public employment
Public schools
Broadcast

50
Q

O’Brien test

A

Government regulation sufficiently justified if it:
Within constitutional power
Furthers an important or substantial government interest
The government interest is unrelated to suppression of free expression
The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

51
Q

O’Brien case 1968

A

Destroyed draft card. Law against destroying draft cards was found ok because gov needs them to track people etc.

Intermediate scrutiny test

52
Q

Sherbert 1963

A

Wouldn’t work Saturdays. State wouldn’t give her unemployment benefits. Test: “Any incidental burden on the free exercise of religion must be justified by a compelling state interest and it’s incumbent on state to show there is not alternative form of regulation.”
Must carve out an exception unless state can satisfy strict scrutiny

53
Q

Strict scrutiny

A

Least restrictive means of achieving some compelling state interest

54
Q

Smith 1990

A

Peyote in Oregon - distinguished from Sherbert because it’s criminal activity , breaking a law.
Oregon law was constitutional
“If prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First has not been offended”
O’Connor: concur but would use strict scrutiny test.

55
Q

RFRA Religious Freedom Restoration Act

A

Designed to overturn Smith and restore Sherbert/Yoder. Requires an exemption whenever the gov “substantially burdens” a person’s religious exercise and cannot show that the imposition of such a burden is “the least restrictive means of furthering” a “compelling state interest”
Doesn’t apply to states

56
Q

Most favored nation

A

Heightened scrutiny any time a religious exemption is denied from a law containing ANY secular exemptions, even if they’re categorical in nature. Fulton/Tandon

57
Q

Tandon v. Newsom 2021

A

Most favored nation. CA Covid - small gatherings. If people can gather in grocery stores we can gather to worship in homes.

58
Q

Lukumi 1993

A

City ordinance banning animal sacrifice were targeted at the Church of Santeria. Not neutral

59
Q

Establishment Clause v. Free Exercise Clause Court split

A

Every member of Court agrees intentional DISFAVORING of religion violates the Free Exercise Clause, Court is split on when intentional ENDORSEMENT of religion will violate the Establishment Clause

60
Q

Everson 1947

A

Gov bussing program in NJ - adopted broad interpretations of the establishment clause

61
Q

Lemon test 1971

A
  1. Statute must have a secular legislative purpose
  2. It’s principle or primary effect must be one that neither advances nor inhibits religion
  3. Statute must not foster “an excessive government entanglement with religion.
62
Q

Wallace v. Jeffrey 1985 Renquist dissent

A

Nothing in the establishment clause requires gov to be strictly neutral between religion and irreligious, nor does that clause prohibit congress or the states from pursuing legitimate secular ends through non discriminatory sectarian means.

Entanglement prong is an “insoluble paradox”

63
Q

American Legion

A

Bladensburg Peace Cross.
Symbol has secular meaning
Rational basis review
Presumption of constitutional of longstanding symbols
Lemon test problematic

64
Q

Endorsement test - O’Connor

A

Lynch, Allegheny, McCreary
-whether gov intends to convey endorsement of religion and message of endorsement
-whether a display has the effect of endorsing religion based on whether a reasonable observer would assume that it conveys a message that a particular religion or belief is preferred, given pertinent facts and circumstances

65
Q

Kavanaugh coercion test

A

A gov practice isn’t coercive if it’s rooted in history or tradition OR
Treats religious people and orgs and speech equally to secular equivalents
Represents a permissible legislative accommodation / exemption from a generally applicable law

66
Q

Modern incitement test brandenburg

A

Intended to and likely to incite imminent lawless action

In order to punish the speaker:
-intended to incite or produce imminent lawless action
-likely to incite such action

67
Q

O’Brien

A

Within const power of gov
Furthers an important or substantial gov interest
If gov interest unrelated to suppression of free speech
If the incidental restriction on alleged First freedoms is not great than is essential to the furtherance of that interest

68
Q

Citizens United

A

Money is speech not just expressive conduct
Restrictions are content-based and SS, not O’Brien applies
Contribution and expenditure limits are content-based and subject to SS

69
Q

Contribution limits

A

Buckley / Valeo - court upheld contribution limits
-reason: contribution is largely symbolic
-could argue low limits are bigger burden
-could argue contribution not merely symbolic - it’s speech, using money to fund speech he supports
-IF it’s a higher burden, THEN, it’s SS
-compelling interest = anti-corruption
-narrowly tailored because people can donate in other ways - under limit ‘ volunteer

70
Q

More thoughts on campaign finance

A

Improper influence
Quid pro quo
Is the reg narrowly tailored?

71
Q

Expenditure limits

A

Citizens United, Buckley
-expenditure limits more burdensome than contribution limits
-not just symbolic, speech
-less risk of corruption because group isn’t working directly with candidate - no compelling interest in anti-corruption
-no compelling interest in anti-distortion because const not concerned w equalizing voices
-no compelling interest in shareholder protection (shareholders upholding message without consent)
-media orgs

72
Q

Compelled Speech

A

-West VA v. Board of Ed - students req to say pledge of allegiance
-Hurley: St Patrick parade - didn’t have to let the gays w their banner - would make parade share a message it didn’t want to adopt
-Rumsfeld v. FAIR - don’t asl don’t tell - allow military recruiters because it didn’t force school to adopt their position, esp because they allowed other recruiters on campus

73
Q

Bakke - 1978 Powell

A

White guy, med school,-
16/100 spots for minorities
Strict
Violate equal protection clause
Everyone must have same protection or it’s not equal

dissent: Brennan 4 - intermediate scrutiny
Racial classification is benign - not invidious

74
Q

Grutter 2003 O’Connor

A

Diversity is a compelling state interest justifying use of race in admissions
-must be narrowly tailored
Strict scrutiny

75
Q

Bakke 1978 Brennan

A

Brennan Four
-university’s affirmative action plan should only be subject to intermediate scrutiny
Racial classification benign not invidious

76
Q

Grutter dissent 2003

A

No compelling interest it’s racial balancing / disingenuous
Rehnquist/Scalia/Kennedy*/Thomas
*but see Fisher II

77
Q

Gratz 2003 - Grutter companion

A

Undergrad admissions policy violates Equal Protection Clause - added points for racial/minority status

Not narrowly tailored enough to achieve the interest in educational diversity that respondents claim justifies their program
Rehnquist/OConnor/Scalia/Kennedy/Thomas

78
Q

Gratz 2003 - Ginsburg

A

Generations of racial oppression mean schools need plans to maintain minority enrollment

79
Q

Fisher

A
  1. Race can’t be considered by univ unless the admissions process passes strict scrutiny
  2. Decision to pursue edu benefits from diversity deserves some deference. reasoned, principled explanation
  3. No deference owed when determining whether use of race is narrowly tailored to achieve permissible goals. University must show that race-neutral alternatives don’t suffice
80
Q

Fisher dissent

A

Alito/CJ/Thomas
Benefits too nebulous
Affirmative action will negatively affect minorities because they’ll be looked down on when people assume they were only admitted because of their minority status

Conlaw (1 decks)

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