US Government; The Judiciary - Amendment Rulings

Question 1

What amendment is free speech defended under?

Answer 1

• Spending money in the political context is considered speech according to the Supreme Court ruling
• First Amendment - public criticism of government is allowed, and protects the government from doing things that might impede your right to free speech
• Not all of the speech has the same level of protection
• It protects the government from taking action against you for your speech, but not private individuals
• First amendment protects us from an overarching government dictatorship

Question 2

Types of Free Speech

Answer 2

Political Speech:

• Has the strongest protection, given preferred position, and anything that limits this is struck down by courts; Brandenburg v Ohio (1968) was heavy KKK speech but because it was protected be the first amendment it was allowed despite it being hate speech because it was political
• U.S v Schenck 1917 - violation of espionage Act, SC decided that it was not protected speech as it obstructed current danger

Symbolic Speech:
- If it involves political content, it is protected, involves symbols / banners / armbands etc and burning of flags

Hate Speech:
- This is still protected speech despite the harm it causes

Commercial Speech:
- Not protected unless it is political

Fighting words:
- Only non-protected speech, which includes words that are not allowed as they cause violent

Question 3

Buckley v Valeo (1975)

Answer 3

• It was a landmark decision of the US Supreme Court on campaign finance.
• In a by the court opinion, they ruled that expenditure limits contravene the First Amendment provision on freedom of speech because a restriction on spending for political communication necessarily reduces the quantity of expression.
• Justice Byron White dissent in part and wrote that Congress had legitimately recognized unlimited election spending “as a mortal danger against which effective preventive and curative steps must be taken”.
• The Court upheld the constitutionality of certain provisions of the election law, including:
• The limitations on contributions to candidates for federal office and so on.
• However, the Court declared other provisions as unconstitutional such as the limitations on expenditures by candidates and their committees except for Presidential candidates who accept public funding and so on.

Question 4

McConnell v Federal Election Commission (2004)

Answer 4

• Supreme Court upheld the major provisions of the McCain-Feingold campaign finance law (officially known as the Bipartisan Campaign Reform Act (BCRA))

The key provision of the BCRA were;

• A ban on unrestricted (soft money) donations made directly to political parties (often by corporations, unions, or wealthy individuals)
• Limits on the advertising that unions, corporations, and non-profit organisations can engage in up to 60 days prior to an election
• Restrictions on political parties’ use of their funds for advertising on behalf of candidates

The BCRA went straight to an appeal at the Supreme Court

• Some of the bans on ‘soft money’ were repealed but restrictions on advertising were upheld which raised the issue of whether freedom of speech was upheld
• Because it dealt with soft money (not with campaign expenditures) it was ruled that restriction of free speech was minimal
• The Court found that regulation was necessary to prevent groups (ie corporations or unions) from circumventing the law
• The Court also rejected the argument that Congress has exceeded its authority under Article 1 Section 4 of the constitution

Question 5

Citizens United v Federal Election Commission (2010)

Answer 5

• January 2010 - Supreme Court issued a ruling which overruled an earlier decision in Austin v Michigan State Chamber of Commerce that allowed prohibitions on independent expenditures by corporations
• The Court also overruled McConnell v Federal Election Commission that held corporations could be banned from making electioneering communications
• The Court upheld the reporting and disclaimer requirements; the Court’s ruling did not affect the ban on corporate contributions
• The Federal Election Campaign Act prohibits corporations and labour unions from using general treasury funds to make electioneering communications or for speech that expressly advocates the election or defeat of a federal candidate (electioneering communication - any broadcast, satellite or cable communication that is publicly distributed and refers directly to a federal candidate made within 30 days of a primary election or 60 days of a general election)
• In 2008, Citizens United released a film about Senator Hilary Clinon, a candidate in the 2008 Democratic Presidential primary elections, and wanted to make the film freely distributed on demand and release it within 30 days of the election
• They sought declaratory and injunctive relief against the Commission in the U.S District Court for the District of Columbia, arguing a ban on corporate electioneering campaigns was unconstitutional
• The Supreme Court found resolving the question of whether the ban in $441b specifically applied to the film based on the narrow ground spit forward by Citizens United have the overall effect of chilling political speech central to the First Amendment
• The Court found that under its judicial responsibility, it was required to consider the facial validity of the Act’s ban on corporate expenditures and reconsider the effect of the type of speech prohibition that was upheld in Austin
• The Court noted that a ban on political speech or laws that burden political speech are subject to strict scrutiny which requires proof from the government that restriction furthers a compelling interest and is narrowly tailored to achieve that interest
• Before Austin, there was a precedent forbidding speech based on a speaker’s corporate identity and after Austin it was permitted
• The Court held that although disclaimer and disclosure requirements may burden the ability to speak, they impose no ceiling on campaign activities and do not prevent anyone from speaking - as a result, the disclaimer and disclosure requirements are constitutional as applied to both the broadcast of the film and the ads promoting the film itself, since the ads qualify as electioneering communications - the Citizens United V FEC film was upheld
• Debate - limits on political speech

Question 6

McCutcheon v Federal Election Commission (2014)

Answer 6

• Shaun McCutcheon is an Alabama resident who is eligible to vote.
• In the 2011-2012 election cycle, he donated to the Republican National Committee, other Republican committees, as well as individual candidates
• He wished to donate more in amounts that would be permissible under the base limit but would violate the aggregate limit
• McCutcheon and the other plaintiffs sued the Federal Election Commission, arguing that the aggregate limit violated the First Amendment by failing to serve a “cognizable government interest” and being prohibitively low
• The plurality held that the aggregate limit did little to address the concerns that the Bipartisan Campaign Reform Act was meant to address and at the same time limited participation in the democratic process
• Because the aggregate limit fails to meet the stated objective of preventing corruption, it does not survive the “rigorous” standard of review laid out by previous precedent
• The aggregate limit also prevents a donor from contributing beyond a specific amount to more than a certain number of candidates, which may force him to choose which interests he can seek to advance in a given election
• The decision held that Section 441 of the Federal Election Campaign Act of 1971, which imposed a limit on contributions an individual can make over a two-year period to all national party and federal candidate committees, is unconstitutional.

Question 7

The 8th Amendment

Answer 7

• The 8th Amendment - ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted’
• Has been selectively incorporated - SC takes the 14th amendment (equal protection) and apply some of the Bill of Rights to the States - 14th amendment due process clause is used to apply the Bill of Rights
• British Bill of Rights 1689 formed the basis of this amendment

Question 8

Debates over the 8th Amendment

Answer 8

• Bail -> cannot be used as punitive, but as a guarantee of trial, and has to be reasonably calculated and in light of the perceived evil
• Fines -> cannot be done without due process
• Cruel and unusual punishment -> death penalty, torture etc; 1972 Furman v Georgia came up with a test to define if this clause was being violated
  1) Cannot be humiliating
  2) Cannot be arbitrary
  3) Has to be totally rejected by society or completely unjustified / cannot target a group of people
  4) Ruled that the death penalty violated this clause
  1976 - reversed the decision, but the test still stands
• Harmelin v Michigan (1991) - sending a person for life for a drug punishment was not seen to violate this clause, but it is generally up to the states and circumstance to understand what violates this clause
• The vagueness of this clause allows a lot of contradicting ruling

Question 9

13th/14th Amendment - Plessy v Ferguson (1896)

Answer 9

• Louisiana enacted the Separate Car Act, which required separate railway cars for blacks and whites. In 1892, Homer Plessy, who was technically black under Louisiana law, sat in a white carriage. When Plessy was told to vacate the car, he refused and was arrested.
• At trial, Plessy’s lawyers argued that the Act violated the 13th and 14th Amendments.
• The court upheld the constitutionality of Separate Car Act as long as the segregated facilities were equal in quality. Set the precedent that segregation n was legal if facilities were “separate but equal”.

Question 10

14th Amendment - Brown v Board of Education 1953

Answer 10

• Cases were rising in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. relating to public school segregation. In each of the cases, African American students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the 14th Amendment.
• On May 17, 1954, the Court declared that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment, effectively overturning the 1896 Plessy v. Ferguson decision mandating “separate but equal.” The Brown ruling directly affected legally segregated schools in twenty-one states.

Question 11

1st Amendment - Mapp v Ohio 1961

Answer 11

• Dollree Mapp was convicted of possessing obscene materials, such as pornographic books, after an illegal police search of her home for a fugitive. She appealed her conviction on the basis of the 1st amendment’s freedom of expression.
• 20 June 1961, was a landmark court case originating in Cleveland, in which the U.S. Supreme Court ruled that under the 4th and 14th Constitutional amendments, illegally seized evidence could not be used in a state criminal trial.

Question 12

1st Amendment - Engel v Vitale 1962

Answer 12

• The New York State Board of Regents authorised a short, voluntary prayer for students to recite at the start of each school day. A group of organisations claimed that it violated the Establishment Clause of the 1st Amendment.
• In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court ruled that school-sponsored prayer in public schools violated the establishment clause of the First Amendment.

Question 13

Gideon v Wainwright (1963)

Answer 13

• Clarence Gideon was charged in Florida state court with breaking and entering. Gideon requested that the court appoint a lawyer for him when entering court without one. Florida state law stated, however, an attorney may only be appointed to a poor defendant in capital cases, so the trial court did not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon argued that the trial court’s decision violated his constitutional right to be represented by counsel.
• In 1963, the Supreme Court ruled unanimously in favor of Gideon, guaranteeing the right to legal counsel for criminal defendants in federal and state courts. Following the decision, Gideon was given another trial with an appointed lawyer and was acquitted of the charges.

Question 14

14th Amendment - Griswold v Connecticut (1965)

Answer 14

• In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument that furthered contraception. A gynaecologist at the Yale School of Medicine opened a birth control clinic in New Haven with the help of Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law. Their plan was to use the clinic to challenge the constitutionality of the statute under the 14th Amendment before the Supreme Court.
• Ruled that a state’s ban on contraception use violated the right to marital privacy.
• A right to privacy can be inferred from several amendments in the Bill of Rights

Question 15

5th Amendment - Miranda v Arizona (1966)

Answer 15

• On March 13th 1963, Ernesto Miranda was arrested in his house and questioned by police officers in connection with a kidnapping and rape. After two hours of interrogation, the police obtained a written confession from Miranda. The written confession was used as evidence at trial despite the objection of the defence attorney and the fact that the police officers were not advising Miranda of his right to be silent and have an attorney present during the interrogation. The jury found Miranda guilty.
• 5th Amendment requires that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations in custody.

Question 16

14th Amendment - Roe v Wade (1973)

Answer 16

• In 1970, Jane Roe (fake name) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas. She challenged a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were vague and did not regard her right of personal privacy, protected by the 1st, 4th, 5th, 9th, and 14th Amendments.
• 14th Amendment ‘right to privacy’ protects a women’s choice to have an abortion.

Question 17

1st Amendment - United States v Nixon (1974)

Answer 17

• This was during the Watergate affair. Audio tapes of conversations recorded by Nixon in the Oval Office were wanted but Nixon claimed that he was immune from the subpoena under “executive privilege,” -the right to withhold the executive’s information from other government branches to maintain confidential communications and secure the national interest.
• Court ruled that the tapes contained vital information and rejected his claim.
• There was a limited executive privilege in areas of military or diplomatic affairs

Question 18

14th Amendment - Planned Parenthood v Casey (1992)

Answer 18

• Pennsylvania state legislature amended its abortion laws in 1988 and 1989. The law now required informed consent and a 24-hour waiting period prior to the procedure. Minors seeking an abortion required the consent of one parent. Married women seeking an abortion had to prove her husband was aware of her intention to abort the foetus. These provisions were challenged by several abortion clinics and physicians.
• The SC affirmed the essential holding (basic principle) of Roe v Wade, which is that women have a right to obtain an abortion prior to viability. However, they rejected Roe’s trimester-based framework for allowing states to curb the availability of abortion in favour of a more flexible medical definition of viability. They restated the source of the privacy right from the due process clause of the 14th Amendment. The decision also revise the test the courts use to scrutinise laws relating to abortion. However, they upheld the provisions of the Pennsylvania statute under attack except for the requirement of spousal notification.

Question 19

Clinton v City of New York (1998)

Answer 19

• The City of New York, two hospital associations, a hospital and two health care unions challenged the Clinton’s cancellation of a provision in the Balanced Budget Act of 1997 - relinquishing the government’s ability to recoup nearly $2.6 billion in taxes.
• Struck down the Line Item Veto Act as it gave the executive branch the unilateral authority to amend a law without having to go through the legislative process.

Question 20

14th Amendment - Bush v Gore (2000)

Answer 20

• After a very tight election, the winner of the 2000 presidential was still unclear. The Florida Supreme Court ordered that count 9000 contested ballots from the Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all “under-votes” (ballots which did not indicate a vote for president) as there were enough contested ballots to doubt the outcome of the election.
• It was asserted that the Florida SC had exceeded its authority by ordering the manual recount of undervotes - perceived to be a violation of the equal protection clause of the 14th amendment, and was not counted to be under the state elective law that stated only legitimate challenges could be responded too

Question 21

National Federation of Independent Business v Sebelius 2012

Answer 21

• States, individuals, and the National Federation of Independent Business challenged the Affordable Care Act (ACA) on the basis that the law’s individual health insurance mandate exceeded Congress’ authority to regulate interstate commerce. The plaintiffs also argued that the Medicaid expansion violated the 10th Amendment by compelling states to follow federal regulations.
• It was unconstitutional for Congress to enact most of the elements of the ACA.
• Expansion of Medicaid was not a valid exercise of Congress’s spending power

Question 22

14th Amendment - Obergefell v Hodges 2015

Answer 22

• Groups of same-sex couples sued state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of bans on same-sex marriage and refusal to recognize legal same-sex marriages. The plaintiffs in each case argued that the states’ laws violated the Equal Protection Clause and Due Process Clause of the 14th Amendment.
• Hodges, legal case in which the U.S. Supreme Court ruled (5–4) on June 26, 2015, that state bans on same-sex marriage and on recognizing same-sex marriages duly performed in other jurisdictions are unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.

Question 23

Roe v Wade

Answer 23

• Roe v Wade - legalised abortion by ruling that the right to privacy and abortion was implied in the 9th and 14th amendment that no state could restrict abortion in the first 3 months or trimester of a pregnancy
• This invalidated the Texas Law by a 7-2 vote using the same reasoning as the Griswold v Connecticut decision; women’s groups argued that illegality led many women to seek black market abortions by unlicensed physicians or to perform the procedure on themselves
• The battle began in Texas, as it outlawed any type of abortion unless a doctor determined that the mother’s life was in danger - the anonymous Jane Roe challenged the Texas law, and the case made its way to the SC
• Opposition - Roman Catholic Church believed abortion was a form of infanticide, along with Protestant fundamentalists, and the National Right to Life Committee formed with goal of reversing Roe v Wade; ‘pro-life’
• The issue is difficult because it involves basic faith - those who believe life begins at conception eel unborn children deserve the same legal protections as an adult - those who believe life begins at birth argue that restriction of abortion interferes with the right of a woman to decide what is her own best interests; ‘pro-choice’

Question 24

Roe v Wade - parties and rulings

Answer 24

• Pro-life groups are lobbying Senators and Representatives to introduce a ‘Right-to-Life Amendment’ to the Constitution but has never received the necessary support
• Pro-choice groups fear a slow erosion of abortion rights has taken place since Roe v Wade, such as the National Abortion Rights Actions League
• Hyde Amendment 1976 - prohibits the use of federal Medicaid funds to be used for abortions - later court decisions like Planned Parenthood v Casey (1992) have upheld the right of the states to impose waiting periods and parental notification requirements
• George Bush imposed a ‘gag rule’ that prohibited federally funded clinic workers from mentioning abortion as a patient option - removed by Clinton in 1993
• Activists commonly demand a ‘litmus test’ for any justice named to the courts
• Democrats = pro-choice judges, Republicans = pro-life judges

Question 25

Roe v Wade - constitutional arguments

Answer 25

• Made abortion a private matter
• The SC had never before stated that restrictions on abortion were constitutionally suggested or an issue in fundamental rights, mainly due to how modern it was as a process
• It was criminalised but soon turned into a fundamental right
• Jane Roe - Texas had the strictest abortion law in the country, with no abortions under any circumstances - in her case, they had argued that she was not a victim and so was not entitled to an abortion
• The Texas judiciary ruled against the law, and the SC soon took the case after it was decided to be out of the jurisdiction of the District Court, and their job was defining a federal constitutional right
• A few justices retired between the acceptance of the case and the hearing, and the case was presented by a very young lawyer - it was reargued; Roe v Wade was the first abortion case to be heard at the Supreme Court amongst a time of many other abortion cases
• The idea that states could not restrict abortion and that it was a fundamental right for women was an odd idea at the time
• Griswold v Connecticut (1965) - right to extend contraception to married couples; first suggestion that there was a right to privacy
• Eisenstadt v Baird (1972)- contraceptive rights to single people
• This then leads to a legal justification for the right to have children, leading to a right to abortion in Roe v Wade
• 14th Amendment - due process clause; no state can deny life, liberty or property under due process of law; this was implied to be able to protect some rights from not being able to repealed by the legislature - included the right to privacy, and the right to privacy on decisional procedure and that the states could not interfere with that
• There was no constitutional statement about abortion, and it was only ever a suggestion through the 14th amendment - it was interpreted by states to meant they could regulate abortion, and under federalist principles it is a state decision, until it reaches a federal level and then it is the decision of the central government
• It is therefore seen to be the wrong decision as it is not seen as a central government decision
• The decision itself consisted of the idea that in the history of criminalising abortion, it was advocated as a doctor’s issue and it explained the science and history of abortion - the doctors wanted a controlled medical institution, but they were the only ones who faced prosecution on them performing medicine as they saw fit
• Doing what they saw as right for their patients was important to helping the Roe v Wade decision protect the rights of doctors without risks of prosecution
• The only way to balance the arguments about potential to life was to introduce the idea of trimesters to regulate abortion safety and restrictions to protect mothers - abortion was restricted apart from medical issues, but this was said to include psychological, physical and emotional factors
• Abortion can be heavily restricted, but never made illegal - abortion is not encouraged after viability is achieved and this is considered to be the recognition of foetal consciousness
• They were concerned about killing vulnerable life, and there is a concept of legal personhood in the law - the right to privacy does however expand to the right to have a child
• It overturned the laws of all 50 states, and many people argued the decision in itself is undemocratic because of its ignorance of the polarised side
• It as important that the decision created the basic right - however, the court can be considered wrong for making an act of ‘raw judicial power’, with no constitutional entitlement and only implied as a right; however, this is an issue of the structure of the constitution

Question 26

Judicial philosophies

Answer 26

• Judicial philosophy is the way in which a judge understands and interprets the law.
• Laws are universal, but they must be applied to particular cases with unique circumstances.
• To do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it.
• The main types of contrasting judicial philosophies include judicial activism versus judicial restraint, loose constructionism versus strict constructionism, and living document versus original intent

Judicial activism v Judicial Restraint:

• Some judges develop a philosophy of activism, using the bench to enact social and political change. Other judges practice a philosophy of restraint, believing that judges must interpret the law strictly rather than seek to make new laws.
• And all judges, regardless of their philosophies, develop their own methods of reading the Constitution. Some judicial philosophies tend to coincide with certain political views. Most strict constructionists, for example, are also advocates of judicial restraint, but not all. Similarly, many advocates of judicial restraint also follow the doctrine of original intent. These views, however, do not always overlap. As a result, judicial philosophies are not the same as political ideologies.

Question 27

Judicial Activism v Judicial Restraint - Key points

Answer 27

• One of the main powers of the judiciary is to be a check on the legislative and executive branch through judicial review to determine constitutionality
• Judicial activism - Arthur Schlesinger; personal views and has an implication of overarching and legislating from the bench
• Some argue this is necessary as they are interpreting an unmoving constitution in a moving world and this activism changes the constitution for the country and society
• Judicial restraint - limit their own power; Baker v Carr (1962) is an example of these two philosophies competing
• Argued that there was not equal protection on representation due to a lack of redrawing of Tennessee districts since the 1900 census - the population was no longer equal for the representatives being elected
• The issue for the court was whether they had jurisdiction in legislative redistricting - they voted in favour of the redistricting and set the precedent that they have control over the legislature in this way to enforce equal protection, and this is an example of judicial activism as it increased the power of the judiciary in accordance to checking the legislature
• Justice Douglas indicated that the court had a say on protecting voting rights, regardless of which branch’s power this impeded upon and they protect this right before it was protected by the legislature and so it is under their jurisdiction
• Judicial activism is needed to protect rights through precedent even if it has not been explicitly legislated as rights are unenumerated protections from amendment interpretations
• A dissenting opinion argued for judicial restraint, arguing that the Court had no jurisdiction on political forces or settlements and they should be completely detached and that their power relies on sustained public confidence in their moral sanction, and they should abstain from politicisation

Question 28

Constructionism in Action

Answer 28

• Privacy is not explicitly mentioned in the Constitution, so strict constructionists of the Constitution believe that the only privacy rights Americans have are those specifically outlined in the Constitution, such as protection against illegal searches. On the one hand, according to the strict constructionists, there is no general right to privacy. Loose constructionists, on the other hand, assert that a general right to privacy can be inferred from the rights that were explicitly listed by the framers.
• Privacy rights have taken centre stage in many court cases, including Roe v Wade.

Question 29

Judicial Activism

Answer 29

Beliefs - Courts should overturn bad laws and create new policies – living constitution approach

Example court - Warren Court (1953–1969)

Key decisions - Advanced civil rights and the rights of the accused

Politics - Tend to be liberal

Politics in action -

• Supreme Court overturns existing policy
• McCain-Feingold overturned under the first amendment.
• Grants certiorari (reviewing cases that were once heard in the Supreme Court)
• Defence of Marriage Act struck down legalising gay marriage.
• Overturns status quo
• Gratz v. Bollinger overturned affirmative action.

Question 30

Judicial Restraint

Answer 30

Beliefs - The refusal to exercise judicial review in deference to the process of ordinary politics. Interpret constitution as it was originally intended

Example Court - The Rehnquist Court (1986-2005)

Key decisions

• The right to burn flags under the protection of the 1st amendment’s protection of symbolic speech
• Voting rights for presidential elections
• Capital punishment was not banned

Politics - Tend to be conservative - more power to states than federal government

Politics in action

• Overturned a conviction in Texas v Johnston regarding a flag burning case
• Determined that the recount of votes by district Supreme Courts violated the Equal Protection Clause - encroached on protection laws
• Planned Parenthood v Casey - upheld Roe v Wade, first court to stare decisis

Question 31

Loose constructionism v Strict Constructionism

Answer 31

LC - Beliefs:

• Courts should read the Constitution expansively and should not limit themselves to what is explicitly stated
• Example - Warren Court (1953–1969)
• Key decisions - Exclusionary rule, right to a government-funded attorney for the poor
• Politics - Tend to be liberal

SC - Beliefs:

• The text of the Constitution is not open to interpretation and the words in the Constitution are literal
• Example - Roberts Court (2008 - present)
• Key Decisions - Bill of Rights, gun control, abortion, capital punishment, unlawful search and seizure, and criminal sentencing.
• Politics - Tend to be conservative

Question 32

Living document v Original intent

Answer 32

Living Document -

• The Constitution must grow and adapt to new circumstances.
• Warren Court (1953–1969)
• Expansion of use of interstate commerce clause
• Tend to be liberal

Original Intent -

• Should interpret the Constitution by the framers’ understanding
• Justices Amy Coney Barrett and Antonin Scalia
• Scalia wrote that the Constitution has nothing to say about abortion so states should be allowed to decide
• Tend to be conservative

Question 33

The first amendment - freedom of religion

Answer 33

• What religion it protects
• What religious expression is
• https://berkleycenter.georgetown.edu/responses/the-debates-over-religious-freedom-in-the-united-states-what-debates

Santa Fe Independent School District v Doe -

• A student elected as student council chaplain delivered a prayer described as overly Christian over the public address system before each football game - a Mormon and a Catholic family sued, challenging the practice and others under the Establishment Clause of the 1st amendment
• The school district introduced new rules which permitted student-led prayer at home games and authorised two student elections to determine whether or not they should be delivered at games and to elect the one to do it - after this, a nonsectarian prayer was permitted
• The Court of Appeals held that the policy was invalid, and the SC decided in a 6-3 decision that the policy violated the Establishment Clause as the policy was authorised by government policy and taking place on government property and so it involved government endorsement of prayer delivery in education as set by the precedent of Engel v Vitale

Wisconsin v Yoder -
- The interests of the parents to exercise free religion did not relate to the First Amendment Rights of the child - states cannot force individuals to attend school when it infringes on their First Amendment rights, and the state of Wisconsin had interfered with legitimate religious practice
- 3 parents were prosecuted after not sending their children to school after 8th grade as it conflicted with their religious beliefs - parents are responsible for religious decisions - schools cannot control religion
- Not all beliefs rise to the demands of the religious clause in the FA; needs to be evidence of true and objective religious practices instead of individual stands on such matters
Amish parents vindicate their own free exercise claims and those of their children, and the Court did not allow children the entitlement to be heard - Amish people were allowed to establish their own education outside the state education system

Question 34

The first amendment - dissent to Engel v Vitale

Answer 34

Town of Greece v Galloway -
A local pastor was able to deliver prayers as they were legislative, and they therefore did not coerce the public into religion

Wallace v Jaffree -
Alabama law allowed teachers to set aside a minute a day for a moment of silence or voluntary prayer, as it gave people the ability to pray in their own way

Yoga -
Some schools also advocate yoga as a way of relaxation, and despite its Buddhist routes it is a way to start the day

Question 35

Why is the court a crucial political actor in the US system of government despite being a judicial institution? (5 reasons)

Answer 35

• As De Tocqueville once remarked, there is rarely a political question that arises in the US that does not eventually become resolved in a judicial question, and in the most litigious (willingness to pass legislation to stop conflict) country in the world, the court is the most authoritative interpreter of the US Constitution
• While much of what the court decides is mundane and attracts little public attention, some rulings exert powerful and profound effects - decisions about racial desegregation (Brown v Board of Education 1954) reproductive rights (Roe v Wade 1973) and elections (Bush v Gore 2000) powerfully demonstrate the court’s far-reaching political and policy influence
• As an anti-majoritarian force, the court has a key role in protecting liberal values (respect for individual and minority rights) against majority abuse - so despite being unelected, the court is crucial to preserving limited government
• Membership of the court is prestigious - with only 9 members, nominations represent key political opportunities and a president’s nominee requires the ‘advice and consent’ of the Senate to be confirmed; while presidents of both parties seek to appoint justices who share their broad political philosophy, not all succeed (Robert Bork, 58-42 rejection the largest in history) and some presidents manage to appoint more justices than others
• The court itself possesses substantial autonomy - the justices are appointed for life and can only be removed by impeachment, so presidents cannot strongly influence, much less control the justices whom they succeed in getting on the court; moreover, the court independently chooses what outstanding or urgent cases require its adjudication

Question 36

The 2013-2014 term - the uniqueness of its politics

Answer 36

• This court was a prime example of the duality of the judicial and political nature of the institution, which can be seen through its rulings in 2013
• In this term, courts made decisions on freedom of speech, campaign finance, environmental regulation, healthcare, warrantless arrests, presidential power and affirmative action
• Whilst these were not landmark cases, they had important implications for the relationship between individual citizens and the state, for government authority over civil rights and the nature of the US democracy
• On some issues, the court perceives a desirability of unanimous decision, especially where questions of the powers of other branches of the federal government are concerned
• In several other instances, though, where the Roberts Court has been closely, deeply and bitterly divided for years between liberal and conservative blocs, the narrowest 5-4 rulings have decided what the Constitution allows or prohibits
• In the Burwell case (contraceptive coverage), Harris (public unions) McCutcheon (campaign finance) and Town of Greece (religious freedom) rulings, the 4 most conservative judges were joined by the swing justice Anthony Kennedy to prevail
• However, in Hall (capital punishment), Kennedy sided with the 4 liberal justices
• Although a proportionately large number of rulings were decided unanimously this term, when it comes to key decisions, the pattern of recent years was repeated, with a number of narrow majorities in which Kennedy’s vote is typically the one that decides the constitutionality of particular laws

Question 37

Conclusion of the political nature of the Supreme Court

Answer 37

• Justices have strong opinions of their own on how the Constitution should be interpreted, good public policy, politics and more is clear enough
• But acting as both judicial and political figures does not mean that justices are acting as partisan figures, as mere ‘politicians in black robes’
• Over an entire generation, since Nixon became president, a total of 16 SC justices have either retired from, or died in, office; of these, 12 were replaced by a justice nominated by a Republican president, and only 2 democratic presidents (Obama and Clinton) appointed 4 justices

Question 38

What did Richard Posner argue? - political nature of the court

Answer 38

• Throughout the 37 year period the Court has been moving rightward from the Warren Court, its decisions have become more conservative than they would have been had all the replacements been as liberal as the average member of the Warren Court
• However, most of the landmark Warren decisions such as criminal procedures, legislative appointments, freedom of religion and speech, racial discrimination, prisoner rights, substantive due process and constitutional rights, and the Warrenesque decisions of the Burger Court such as Roe v Wade have remained largely or entirely intact despite current courts being likely to have made a different choice
• The expansion of rights brought by the Warren Court and to a more limited extent by the Burger Court has ceased but there is no indication of wholesale rejection of precedents that most of the current Justices may wish to never been created
• In a common law system, precedent matters, and as such while politics inherently and intimately informs what the court chooses to look at, and how and why it rules as it does, and so the institution remains as much dominated by law as politics

Question 39

Cases under the 2013-2014 term ->

Answer 39

Burwell v Hobby Lobby (5-4)
- The court ruled that corporations controlled by religious families cannot be required to pay for contraceptive coverage for their female workers - this decision could affect many other kinds of religious objections from businesses

Harris v Quinn (5-4)
- Some government workers are not required to pay union duties, calling into question - but not overruling - a 1977 precedent that stated teachers who decided not to join a union could be forced to pay for its collective bargaining expenses

Riley v California (9-0)
- Having long allowed warrantless searches with arrests, the court ruled that the police require warrants to search the cell phones of individuals they arrest

McCullen v Coakley (9-0)
- The court ruled that buffer zones around abortion clinics violated the First Amendment, but left open the possibility that states may use other methods to address harassment and violence at clinics

Town of Greece v Galloway (5-4)
- The court ruled that two boards may start their meetings with sectarian prayers, rejecting the 1st amendment challenge from citizens arguing that the practice offended them

Question 40

Cases under the 2013-2014 term cont.

Answer 40

McCutcheon v Federal Election Commission (5-4)
- The court struck down overall limits or contributions from individuals to candidates and political parties, though it did not disturb base limits of $2,600 per election - the court had never previously struck down a federal contribution limit as unconstitutional

National Labour Relations Board v Noel Canning (9-0)
- The court limited but did not eliminate presidential recess appointment powers, ruling that these remain generally permissible during breaks in the Senate’s session of 10 days or more

Utility Air v EPA (7-2)
- The court largely upheld the Environmental Protection Agency’s authority to regulate greenhouse gases from stationary sources like power plants

Hall v Florida (5-4)
- The justices rejected Florida’s IQ cutoff as too rigid to decide which mentally disabled people must be exempt from the death penalty - the case refined a 2002 ruling that banned executing the mentally disabled but left the determination largely to the states; the ruling may spare the lives of up to 20 death row prisoners

Schuette v BAMN (6-2, Kagan recused)
- The court upheld a Michigan voter initiative that banned taking account of race in admissions to the state’s public universities