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THE SUPREME COURT:

PAST AND PRESENT

Presented by

Professor Jerry Perry

Angelo State University

jerry.perry@angelo.edu


Yvonne Greenwood, Coordinator

Law-Related Education

State Bar of Texas

ygreenwood@texasbar.com

800-204-2222 ext. 1820



www.texaslre.org

SESSION AGENDA



  1. Supreme Court Historical Trivia



  1. Who Are They?

(A Supreme Court Trivia Activity)



  1. Cases


Marbury v. Madison (1803)
Scott v. Sandford (1896)
District of Columbia v. Heller (2008)
Baze v. Rees (2008)



  1. Strategies

Five-Part Case Study


A Case-at-a-Glance
How It Unfolded
Supreme Court Relay

UNITED STATES SUPREME COURT HISTORICAL TRIVIA



  1. When Justice Frankfurter attended his first Supreme Court conference, unaware of the custom of wearing a suit, he showed up in a sports jacket. What happened when the conference continued after lunch? (Frankfurter had changed into a suit, and Chief Justice Hughes returned from lunch wearing a sports jacket!)




  1. Which chief justice is known for having misplaced important papers, while at the same time wrote at least half of all decisions in his years on the Court? (John Marshall)




  1. Which former Supreme Court justice played tennis until age 83? (Justice Hugo Black. He once explained, “When I was forty, my doctor advised me that a man in his 40s shouldn’t play tennis. I heeded his advice carefully and could hardly wait until I reached 50 to start again!)




  1. Which former justice, after viewing a film that was alleged to be obscene, turned to Justice Blackmun and said, “Did you learn anything new from that one, Harry? I didn’t.” (Justice Thurgood Marshall, who also called the viewing “A fun assignment”)




  1. Which former justice, when asked whether he had any chance of being named to the Court, replied, “None at all because I’m not from the south, I’m not a woman and I’m not mediocre.” (Chief Justice William Rehnquist)




  1. Which former chief justice ran for the vice presidency on the Republican ticket with Thomas Dewey? (Earl Warren)




  1. Who was the only descendant of a justice to become one? (The second Justice John Marshall Harlan, the grandson of the justice with the same name)




  1. What justices have been known for wearing bow ties? (Justice Tom Clark and Justice John Paul Stevens)




  1. Who was the oldest serving justice? (Justice Oliver Wendell Holmes, who served until he retired in 1932 at age 90)




  1. Which justice was known for playing trivial Pursuit on the bench? (Justice William Rehnquist. When the Burger Court sat, one of Rehnquist’s clerks would every now and then pass notes to the justice. These were not legal memos but Trivial Pursuit-style questions. Justice Rehnquist would answer them and then hand them to Justice Blackmun for his try at answering.)




  1. Which justice was called by the president who appointed him the “dumbest man ... I’ve ever run across”? (President Harry Truman said this about Justice Tom C. Clark.)

  2. Which justice is known as the “Great Dissenter,” and did he actually deliver the most dissents? (Justice Oliver Wendell Holmes is known as the “Great Dissenter;” however, he is in eleventh place on the list of those who have written the greatest number of dissenting opinions. His total was seventy-two.)




  1. Which law school was attended by the largest number of justices? (Nineteen justices have studied at Harvard Law School, including fifteen who graduated.)




  1. Name two out of the three justices who were Rhodes Scholars. (The first Justice John Marshall Harlan, Justice David H. Souter and Justice Byron R. White)




  1. Which justice signed the Declaration of Independence? (Justice Samuel Chase)




  1. Which justices were members of the Constitutional Convention of 1787? (Chief Justices John Rutledge and Oliver Ellsworth and Justices James Wilson, John Blair and William Paterson)




  1. Who was the largest member of the Court? (Chief Justice William Howard Taft, who stood six feet 2 inches tall and weighed over 300 pounds.)




  1. Name one justice who served in World War II. (Justices Hugo L. Black, Harold H. Burton, Tom C. Clark, William O. Douglas, Sherman Minton, Frank Murphy, Stanley F. Reed and Chief Justice Earl Warren all served in World War II.)




  1. Who was the first Supreme Court appointee? (Chief Justice John Jay, whose commission of appointment was dated September 26, 1789)




  1. When and where did the Court hold its first session? (February 2, 1790, in the Royal Exchange in New York City)




  1. Who was the only justice to be impeached? (Justice Samuel Chase was impeached in 1805)




  1. What was the first case decided by the Supreme Court? (Chisholm v. Georgia, 1793. Although the first session of the Court was in 1790, the Court did not decide its first case until 1793 because it had practically no business to transact during its first three years.)




  1. What was the salary of the first justices? ($3,500; the chief justice received $4,000)




  1. How many chief justices have there been? (Seventeen)




  1. Who is the only person to serve as both chief justice and president? (Chief Justice William H. Taft, who was elected president in 1908 and became chief justice in 1921)

  2. Which president made the most appointments to the Supreme Court? (George Washington, who appointed three chief justices and eight associate justices)




  1. Who is the only president to serve a full four-year term and make no appointments to the Supreme Court? (Jimmy Carter)




  1. Which president appointed a tenth justice to the Supreme Court? (Abraham Lincoln)




  1. Who served as chief justice while he was still secretary of state? (John Marshall. He served as secretary of state during the last days of John Adams’ administration after he had been confirmed as chief justice.)




  1. Which two chief justices presided over impeachment trials? (Chief Justice Salmon P. Chase presided over the Senate impeachment trial of President Andrew Johnson, and Chief Justice William Rehnquist presided over the Senate impeachment trial of President William Jefferson Clinton.)




  1. How many people have served on the United States Supreme Court? (Justice Alito is the 110th member of the Court.)

Sources for Supreme Court Trivia include: Schwartz, Bernard, A Book of Legal Lists: The Best and Worst in American Law. Oxford University Press, 1997; Mauro, Tony, “Court’s Inaction Allows Confusion,” USA TODAY. December 23, 1998; Notes from The Supreme Court Institute, 1997.


WHO ARE THEY?

A Supreme Court Trivia Activity

Learning Objectives: The students will


1. Become familiar with little known facts about the current U.S. Supreme Court justices;
2. Understand that Supreme Court justices making decisions that impact many people are also individuals.
TEKS/TAKS: 5.5 B; U.S. Hist. 16 B; Gov. 3 A, C; TAKS 8.16 D, 8.19 B, 8.22 B, US17, US18 B
Materials Needed: Individual signs with the nine Supreme Court justices’ names and/or pictures; trivia strips
Vocabulary: Ideology
Teaching Strategy:
1. Hang signs around the room with the names and/or pictures of the current justices of the Supreme Court.
2. Pass out trivia strips to groups or individual students, according to the size of the class. Have students make an “educated guess” to which Supreme Court justice the trivia applies and tape it under the appropriate justice’s sign.
3. After all students have placed trivia cards under a justice sign, check for accuracy. Tell the class how many cards are placed incorrectly and allow the entire group to make corrections. After sufficient time for corrections, go over actual answers.
Trivia Strips
1. I rarely ask the lawyers questions during oral arguments before the Supreme Court. (Thomas)
2. I am the only current justice who obtained a law degree from Northwestern School of Law in Illinois. (Stevens)
3. Although I was nominated by a Republican president (Ford), I am often considered to be the most liberal on the bench today. (Stevens)
4. A few years ago in a case involving the words “under God” in the Pledge of Allegiance, I had to recuse myself because I had made my views about the issue and the man involved in the case very clear. (Scalia)
5. I have nine children. (Scalia)
6. A few years ago I was mugged while jogging in Washington, D.C. (Souter)
7. Over the past several terms, I have voted with the majority more often than any other justice. (Kennedy)
8. I have never been married and lived with my mother in New Hampshire until appointed to the Court. (Souter)
9. I am married to an attorney who claims to have been last in our law school class. (Ginsburg)
10. I am one of the two Jewish members of the Supreme Court. (Ginsburg and Breyer)
11. I served as a judge on a U.S. Court of Appeals before becoming a member of the Supreme Court. (All nine justices would be correct answers to this question.)
12. I have had to recuse myself from some cases because my younger brother presided over the cases in federal district court in California. (Breyer)
13. My trademark is bow ties (not clip-ons!). (Stevens)
14. I am the senior justice in terms of years on the Supreme Court bench and am also the oldest. (Stevens)
15. I am a Clinton appointee and a moderate liberal. (Breyer)
16. I am one of only two members of the present Supreme Court who was appointed by a Democratic president. (Breyer and Ginsburg)
17. Although I was traumatized by the fiasco surrounding my Senate confirmation hearings, I have formed many good friends on the Court and now feel very comfortable there. (Thomas)
18. I am considered to be the “least liberal of the liberal justices.” (Breyer)
19. I am the newest member of the Court, having been appointed by President George W. Bush. (Alito)
20. I am the Chief Justice of the United States and also the youngest member of the Court. (Roberts)
21. I am the only member of the Court with two young children. (Roberts)
22. I am one of the two Italian Americans on the present Court. (Alito and Scalia)
23. I am often considered to be the most conservative justice on the Court today. (Scalia)
24. I am sometimes called the “Stealth” nominee because the public knew very little about me prior to my nomination to the Court. (Souter)
25. As a lawyer, I argued six cases involving the rights of women before the Supreme Court and won five of them. (Ginsburg)
26. I was first nominated to the Court by President George W. Bush to be an associate justice replacing Justice Sandra Day O’Connor. (Roberts)
27. My father was an attorney for the San Francisco school district. (Breyer)
28. I was a member of the Concerned Alumni of Princeton, which was formed in October 1972 at least in part to oppose Princeton's decisions regarding affirmative action. (Alito)
29. It has been reported that I furnished my apartment at K-Mart when I moved to Washington, D.C. (Souter)
30. I am known for writing the most dissenting opinions each term. (Stevens)

Cases


WILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE

5 U.S. (1 Cranch) 137, 2 L.Ed. 60



1803

The election of 1800 proved to be a disaster for the Federalist Party. Their candidate for the presidency, John Adams, was defeated by Thomas Jefferson (a member of the anti-Federalist Republican Party), and control of both houses of Congress fell to the Jeffersonians (Republicans). In an effort to retain what political advantage they could, the Federalists sought to entrench themselves in the federal judiciary.


On February 3, 1801, the Federalist-controlled “lame duck” Congress passed the Circuit Court Act of 1801, creating federal circuit courts designed to relieve Supreme Court Justices from the burdensome task of “riding circuit” in their dual capacity as appellate judges. This act doubled the number of federal judges, and they filled the new judicial offices with Federalists. Oliver Ellsworth, then Chief Justice of the Supreme Court, conveniently resigned, which allowed President Adams to name a new Chief Justice. He appointed his Secretary of State, John Marshall, an arch political enemy though a cousin of the President-elect. Marshall also retained his post in the Adams administration until it went out of office in March 1801.
Two weeks after it had passed the circuit court legislation, Congress passed another act, which provided 42 justices of the peace for the District of Columbia. President Adams sent his nominations for these judgeships to the Senate, and they were confirmed on March 3. Republicans branded many of the new appointees “midnight judges,” claiming that Adams had stayed up until midnight of his last day in office signing the commissions for the prospective judges. The commissions were signed by the President, and the Seal of the United States was affixed by Marshall as Secretary of State late the same day. However, Adams’ term expired before all the commissions could be delivered, and four undelivered certificates were returned to the Secretary of State’s office.
When President Jefferson discovered that the four commissions had not been delivered, he ordered his new secretary of state, James Madison, not to deliver them. One of the undelivered commissions would have made William Marbury a justice of the peace in the District of Columbia. Marbury filed his suit directly with the Supreme Court to force Madison to deliver his commission, basing his petition on Section 13 of the Judiciary Act of 1789. This statute set up the federal judiciary, and Section 13 had given the Supreme Court power to issue writs of mandamus (judicial orders that direct government officers to perform specific acts that are ordinary duties of their offices).


As the political controversy grew over the case, Chief Justice Marshall knew that if he ordered Madison to deliver the commissions there would be problems. The decision would be unpopular, and there was a possibility that the executive branch would simply ignore the order. Even so, to refuse to grant Marbury’s request might show the powerlessness of the Supreme Court and indicate that the high executive officials were above the law. Marshall, the former secretary of state under Adams, knew that he must proceed carefully. President Jefferson and Congress had indicated a willingness to impeach Federalist judges, and the Congress had even passed a law canceling the 1802 term of the Supreme Court. Consequently, the Court did not hear this case until 1803, when it was clear that potentially serious confrontation had developed between the executive and judicial branches.

  • ISSUE: Does Marbury have the right to the commission as justice of peace? If he has that right, do the laws afford him a remedy? If so, is that remedy a writ of mandamus? Is Section 13 of the Judiciary Act of 1789, which gives the Supreme Court power to issue writs of mandamus, unconstitutional under Article III of the Constitution?

MARBURY v. MADISON (1803)

Decision


With a bare quorum of four of the six justices participating, Chief Justice John Marshall wrote for the Court. The first question answered was whether Marbury had the right to his judicial commission. The Court concluded that he did have this right. Marshall wrote:
Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power has been performed. This last act is the signature of the commission.

...

Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.
The next question brought up by the chief justice was, “If [Mr. Marbury] has a right, and that right has been violated, do the laws of his country afford him a remedy?” To this, Marshall wrote:
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right....
If Marbury was entitled to his office under the law, and if the United States government was bound to protect Marbury’s legal rights, then did the Supreme Court have the authority to deal with Marbury’s request? Marshall wrote:
This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, whether it can issue from this court?
The act to establish the judicial courts of the United States authorizes the supreme court, “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts, appointed or persons holding office, under the authority of the United States.” The secretary of state, being a person holding an office, under the authority of the United States, is precisely within the letter of this description. If this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore, absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.
The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
In the distribution of this power, it is declared, that “the supreme court shall have original jurisdiction, in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.” It has been insisted ... that as the original grant of jurisdiction to the supreme and inferior courts, is general, and the clause assigning original jurisdiction to the supreme court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court, in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
...If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance....
It cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it....
When an instrument organizing, fundamentally, a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court, by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seem to be, that in one class of cases, its jurisdiction is original and not appellate; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
... The authority, therefore, given to the supreme court by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire, whether a jurisdiction so conferred can be exercised.
Next, the Court considered the constitutionality of Section 13 of the Judicial Act of 1789. Marshall continued:
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy portioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established, to decide it....
This original and supreme will organizes the government, and assigns to different departments their respective powers.... The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act.
Between these alternatives, there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the constitution, is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, illimitable.

...

If an act of the legislature, repugnant to the constitution, is void, does it not, withstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow, in fact, what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on....
Therefore, Chief Justice Marshall said that Section 13 of the Judiciary Act of 1789, which gave the Supreme Court the power to issue writs of mandamus, was an unconstitutional extension of the Court’s original jurisdiction under Article III of the Constitution. The chief justice refused to accept a power that had been given to the Court by the legislature. In so doing, he announced that the Court would exercise a much greater power, that of judicial review. Marshall wrote:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
... The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power to say that in using it, the constitution should not be looked into? That a case arising under the constitution should be decided, without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?



... [T]he framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it?...
It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States, generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
Thus, Marshall declared the Supreme Court as the final judge of constitutionality, giving it the right of judicial review.


HOMER PLESSY

v.

JOHN H. FERGUSON

163 U.S. 527

Decided May 18, 1896

In 1890, the State of Louisiana passed a railroad transportation law "to provide equal but separate accommodations for the white and colored races." The law provided that:


... [A]ll railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.... No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to... [A]ny passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars in the parish prison.... [S]hould any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts in this state....
In 1892, a committee was formed by black and Creole leaders to test the constitutionality of the law. They chose Homer Plessy, who was one-eighth black, to make their test case. Plessy was a resident of the state of Louisiana and felt that he was entitled to every right, privilege and immunity due to citizens of the United States of the white race by its constitution and laws. On June 7, 1892, he bought a first-class ticket on the East Louisiana Railway that traveled from New Orleans to Covington, Louisiana. Plessy entered the train and walked past the car marked "for coloreds only," finding a seat in the coach marked "for whites only." When the train conductor, who was responsible for assigning seats according to race, asked Plessy to move to the other car, he refused. Plessy was then forcibly ejected by the train conductor and a police officer and placed under arrest. After being charged with violating the state law, he was found guilty and sentenced to jail.
Homer Plessy filed an appeal against John H. Ferguson, judge of the criminal district court for the parish of Orleans, in the Supreme Court of Louisiana. This court found the statute to be valid.
Plessy then appealed to the U. S. Supreme Court, where he argued that the Louisiana law denied him "equal protection of the laws" in violation of the Fourteenth Amendment. Louisiana argued that the Amendment was only intended to protect political rights, such as access to courts, voting, holding public office, and so forth, and that it was not intended to protect "social rights." The state also felt that since it was equally illegal for a white man to enter the black coach as it was for a black man to enter the white coach, this meant that each was furnished "equal protection of the laws."


  • ISSUE: Does a state law which requires separate facilities for black and white races violate the Thirteenth Amendment prohibition against slavery and the Fourteenth Amendment prohibition against state action that denies equal protection of the law?

PLESSY v. FERGUSON (1896)

Decision


Justice Brown wrote for a seven-to-one majority (Justice Brewer did not participate). The Court upheld the Louisiana law, stating that "a legal distinction between the white and colored races ... has no tendency to destroy the legal equality of the two races."
Brown concluded that the object of the Fourteenth Amendment was to:
... enforce the absolute equality of the two races before the law, but ... it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political, equality...."
... as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned....
The majority then examined what they considered to be a fallacy of the plaintiff’s argument:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if ... the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that ... equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals....
Justice Harlan, a former Kentucky slave-owner, alone dissented in this case. He stated:


In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.... Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom....
In examining legislative purpose for passing the statute, Justice Harlan stated:
... Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.... The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.... If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
Justice Harlan then made an argument for equal rights:
There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.... In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved....
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.
Justice Harlan warned that this decision would be used to segregate all aspects of life by races. This case created the doctrine of "separate but equal" that was followed in the United States until 1954.


DISTRICT OF COLUMBIA, ET AL.,

V.

DICK ANTHONY HELLER

No. 07-290

Argued March 18, 2008

Decided June 26, 2008

Long troubled by violence, in 1976 the District of Columbia banned residents from keeping handguns for private use. The ordinance not only banned ownership of handguns, but also required other guns that might be legally kept in the home, such as rifles and shotguns, to be disassembled or kept under a trigger lock. When the prohibition—one of the nation’s strictest—was enacted, officials pointed to the “particularly serious threat” handguns pose. They said handguns were used in 88 percent of armed robberies, 91 percent of armed assaults and more than 50 percent of murders.
The Supreme Court’s last major ruling on gun rights came in 1939 in United States v. Miller, when the Court held that a sawed-off shotgun was not one of the “arms” to which the Second Amendment referred. Robert A. Levy, a wealthy libertarian who was a senior fellow in constitutional studies at the Cato Institute, financed and recruited the plaintiffs in the lawsuit for the purpose of getting a Second Amendment case before the Supreme Court. Dick Heller, a security guard at the Federal Judicial Center, was one of six plaintiffs in the case.
Heller applied for and was denied a license to keep a gun at home for personal safety. Based on prior rulings, a trial court dismissed Heller’s case. The U.S. Court of Appeals for the District of Columbia first threw out the claim of the other five plaintiffs for lack of standing. It then reversed the trial court ruling in Heller’s case by a vote of two-to-one, emphasizing the Second Amendment “right of the people” phrase as an individual one that was not tied to membership in a state militia.


  • ISSUE: Does the District of Columbia ordinance forbidding individuals from keeping firearms in their homes violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

D.C. v. HELLER (2008)

Decision


By a five-to-four vote, the Supreme Court struck down the Washington, D.C. ban on handguns. The majority opinion, written by Justice Scalia, established for the first time in U.S. history that the Constitution’s Second Amendment gives individuals the right to keep guns at home for self-defense. The ruling was signed by the Court’s most conservative justices—Scalia, Chief Justice Roberts, Kennedy, Thomas and Alito—and vehemently protested by the Court’s more liberal members—Stevens, Souter, Ginsburg and Breyer.
Scalia suggested that the Second Amendment “could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’” He noted that “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
Scalia stated that an individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote. He went on to indicate that:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Scalia said this decision wasn’t providing the last word in the Second Amendment’s reach. “Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,” he said.
One key to his ruling was Scalia’s interpretation of a “militia,” which traditionally is a unit outside the regular army and that could today be compared with state National Guard units. He said:
The “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
The Court also said that the law’s requirement that lawful weapons be rendered essentially inoperable by trigger locks or disassembly was unconstitutional because that “makes it impossible for citizens to use them for the core lawful purpose of self-defense….”
Concluding his opinion, Justice Scalia wrote:
[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
The dissenting justices, led by Justice Stevens, scoffed at the majority’s historical analysis of the Second Amendment. “There is no indication that (the amendment’s drafters) intended to enshrine the common-law right of self-defense in the Constitution,” wrote Stevens. Justice Stevens read his dissent from the bench, an unmistakable signal that he disagreed deeply with the majority. He wrote:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia….
Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
In a footnote, Stevens said the majority opinion “calls to mind the parable of the six blind men and the elephant,” in which each of the sightless men had a different conception of the animal. “Each of them, of course, has fundamentally failed to grasp the nature of the creature,” Justice Stevens wrote.
Stevens warned the ruling would launch new judicial involvement in an issue he said should be left to legislators. “I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table,” he wrote.
In a separate dissent, Breyer indicated his agreement with Stevens’ arguments but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be “unreasonable or inappropriate” to violate the Second Amendment. In Breyer’s view, the D.C. laws at issue in this case were both reasonable and appropriate. He attacked the majority opinion for its lack of standards and its hurdles for officials trying to fight crime. Breyer noted that “handguns are involved in a majority of firearm deaths and injuries in the United States.” He continued:
[T]he District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative….
“I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in the city now facing a serious crime problem,” he wrote, criticizing the majority for casting uncertainty over what gun regulations would be permissible. He concluded, “In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
RALPH BAZE AND THOMAS C. BOWLING

v.

JOHN D. REES,

COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS

No. 07-5439

Argued January 7, 2008

Decided April 16, 2008

In the early to mid-twentieth century, states sought to implement a more humane execution method after the people learned how brutal a death by electrocution could be and how high the risk of error leading to agonizing pain was. A similar turn against hanging had earlier led to the development of the electric chair and the gas chamber.
Of the 36 death penalty states, 35 relied on lethal injection as their preferred method of execution at the time of this case (Nebraska was the exception). At least 30 of these states, including Kentucky, used the same combination of three drugs in their lethal injections. The states that provided the death penalty as a punishment for capital crimes adopted lethal injection at least in part because it was supposed to be more humane than other forms of the death penalty—less painful than the electric chair or the gas chamber. The federal government also used lethal injection.
Kentucky’s protocol was similar to that employed by other death penalty states: a combination of a short-acting anesthetic, a muscle paralyzer, and a heart-stopping drug. A physician was present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. By statute, however, the physician was prohibited from participating in the “conduct of an execution,” except to certify the cause of death. Since adopting the method in 1998, Kentucky had carried out only one execution and only two since the death penalty was reinstated by the Supreme Court in 1976.
Ralph Baze, who was convicted of murdering a sheriff and his deputy in 1992, and Thomas Bowling, convicted of shooting and killing a couple in 1990, were both given the death penalty in Kentucky. They appealed, not challenging the constitutionality of the death penalty itself, but because of the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error. They argued that an insufficient dose of the anesthetic could leave an inmate conscious during the procedure and the muscle-blocker would mask the suffering. Thus, improperly anesthetized inmates could appear peaceful to witnesses but suffer excruciating pain or conscious suffocation before death. The Kentucky Supreme Court held that the death penalty system did not amount to unconstitutional cruel and unusual punishment.


  • ISSUE: Does capital punishment by lethal injection violate the Eighth Amendment ban on cruel and unusual punishment?

BAZE v. REES (2008)

Decision


The Supreme Court upheld capital punishment by lethal injection by a vote of seven-to-two. Seven separate opinions were issued, and no more than three justices signed any one of the opinions. The controlling opinion, written by Chief Justice Roberts, was signed by only two others, Justices Kennedy and Alito.
Roberts observed that the Court had “never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” In 1879, the Supreme Court upheld the firing squad, and in 1890 and 1915 it turned down challenges to electrocution.
The chief justice wrote:
Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.
Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain. …
Roberts said that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk. “A slightly or marginally safer alternative” would not suffice, the chief justice said. He added:
Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual.” In Louisiana ex rel. Francis v. Resweber (1947), a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident,” with no suggestion of malevolence, did not give rise to an Eighth Amendment violation.
Justice Alito wrote a separate opinion suggesting that he regarded the chief justice’s opinion as insufficiently conclusive and therefore is open to “misinterpretation” by those who might see it as an invitation to “litigation gridlock.” Alito said. “The issue presented in this case—the constitutionality of a method of execution—should be kept separate from the controversial issue of the death penalty itself.”

In his concurring opinion, Justice Stevens declared that he has reached the conclusion that:


[T]he imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment…
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution.
Justice Scalia, joined by Justice Thomas, wrote in a concurrence:
It is simply not our place to choose one set of responsible empirical studies over another in interpreting the Constitution. Nor is it our place to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior. ...
Although he concurred with the chief justice, Justice Thomas, joined by Justice Scalia, said Robert’s standard in the plurality left the death penalty too vulnerable to challenge. He preferred giving legislatures more latitude to allow for a painful execution. Thomas continued:
It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. …
Justice Breyer concurred with the plurality, but he was obviously torn in his decision. He wrote:
In respect to how a court should review such a claim, I agree with Justice Ginsburg. She highlights the relevant question, whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering. … At the same time, I believe that the legal merits of this kind of claim presented must inevitably turn not so much upon the wording of an intermediate standard of review as upon facts and evidence. And I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the “significant and unnecessary risk of inflicting severe pain” that petitioners assert.
Dissenting Justice Ginsburg, joined by Justice Souter, wrote that Kentucky’s method lacked “basic safeguards used by other States to confirm that an inmate is unconscious” before the second and third drugs are injected. Ginsburg said the Court should send the case back to the state court, instructing it to consider whether the state’s omission of safeguards used by other states “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

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