Week 1 & 2: Standards of Scrutiny

Question 1

1st Amendment

Answer 1

Freedom of expression

Question 2

14th Amendment

Answer 2

can’t deny any person within its jurisdiction the equal protection of the laws w/o due process (Equal Protection and Due Process Clause)

Question 3

What is discrimination?

Answer 3

Unequal treatment of persons or groups on the basis of a legally protected category

Question 4

Disparate impact

Answer 4

When individuals are treated equally under rules that are constructed to favor one group over another

Question 5

Constitutional Law

Answer 5

Big, aspirational themes, some specifics, some seeming absolutes

Question 6

Statuary Law

Answer 6

More detailed, longer; Congress establishes a government agency to hammer out ongoing details

Question 7

Common Law

Answer 7

Body of law based on court decisions, not statutes or regulations

Question 8

Starre decisis

Answer 8

keep with precedent; ‘stand by things decided’

Question 9

What are the 4 types of discrimination?

Answer 9

Formal, Individual, Societal, Structural

Question 10

Formal discrimination

Answer 10

governing laws intentionally establish inequalities and denial of rights (ex. Chinese Exclusion Laws)

Question 11

Individual discrimination

Answer 11

people treating others differently, typically with intent to harm, on basis of classified category

Question 12

Societal discrimination

Answer 12

ideas of difference and hierarchy so deeply embedded in society that they flourish somewhat independently from laws

Question 13

Structural discrimination

Answer 13

neutral in intent, but with negative effects

Question 14

Lochner Era

Answer 14

Courts aggressively overturned laws passed by Congress to regulate the economy; Argument was that such laws violated one’s right to pursue economic opportunity

Question 15

What gives Congress power to pass antidiscrimination laws?

Answer 15

Article 1, Section 8, Clause 3: Congress has power to regulate Commerce with foreign nations, among the states and with Indian tribes. The argument was that people needed economic opportunity.

Question 16

Gibbons v Ogden

Answer 16

How far does federal authority extend under Commerce clause? Ended up concluding that interstate rivers/highways are federal property

Question 17

NLRB v. Jones and Laughlin Steel

Answer 17

Court ends Lochner Era – interprets the Commerce Clause expansively, Supreme Court says its for Congress to deal with economy; was a moment of large public majorities pushing for economic regulation, and the Supreme Court efforts to stop “counter-majorities”

Question 18

US v. Caroline Products

Answer 18

(1938); Congress can also decide when a law is constitutional; Supreme Court steps away from economic regulation… They also realize majoritarianism is bad.. FOOTNOTE FOUR

Question 19

Footnote Four

Answer 19

narrower scope of laws where presumption of constitutionality isn’t given; there is a smaller area under which they will pay attention; higher scrutiny; also includes the protection of “discrete and insular” minorities

Question 20

Discrete (in footnote four)

Answer 20

category is unchangeable (race, sex, origin)

Question 21

Insular (in footnote four)

Answer 21

supposed to mean geographical and politically separated from the rest of society so that politics aren’t interactive

Question 22

Rational basis scrutiny

Answer 22

legislators have wide range of discretion. The law must have some rational basis to a legitimate government issue. Burden is on the plaintiff to show that the law has no rational relationship to government’s purpose.

Question 23

Heightened scrutiny

Answer 23

When there is a protected category or burdens a fundamental right, courts demand that government demonstrate that the law is necessaryy to achieve compelling state interest

Question 24

Strict scrutiny

Answer 24

if government passes a law involving race, it must be a “compelling interest” and the law must be “narrowly tailored” to that interest

Question 25

Intermediate scrutiny

Answer 25

typically sex, “substantially related” to that interest

Question 26

Korematsu v. US

Answer 26

US passed a series of laws that took away civil liberties from mainly Japanese citizens, but also German and Italian citizens. They established military zones, where the military has control and can establish curfew, force people to leave, and sell their homes
Majority opinion: war powers, imminent danger, is a compelling interest
Legally, this case has been overturned. It is still a precedent though.

Question 27

What was Frankfurter concurrence in Korematsu?

Answer 27

Rational basis is the test for him

Question 28

What was Murphy’s dissent in Korematsu?

Answer 28

This is the legalization of racism

Question 29

What was Robert’s dissent in Korematsu?

Answer 29

Described the order as a case of convicting a citizen

Question 30

What was Jackson’s dissent in Korematsu?

Answer 30

Believed that military order should normally get deference from courts, but worried that once the court authorizes such power under emergency conditions, it risks greater danger.