Tuesday / Wednesday 3/4 December

Class discussed teh 9th Amendment and the Framers' strategy to grant the broadest possible rights to individuals.

The class then continued by analyzing the 14th Amendment.

Next the class divided into teams in order to study the following Supreme Court Cases that were based on the Equal Protections Clause of section 1 of the 14th Amendment.

Roe v. Wade (1973)

Roe v. Wade (1973) ruled unconstitutional a state law that banned abortions except to save the life of the mother. The Court ruled that the states were forbidden from outlawing or regulating any aspect of abortion performed during the first trimester of pregnancy, could only enact abortion regulations reasonably related to maternal health in the second and third trimesters, and could enact abortion laws protecting the life of the fetus only in the third trimester. Even then, an exception had to be made to protect the life of the mother. Controversial from the moment it was released, Roe v. Wade politically divided the nation more than any other recent case and continues to inspire heated debates, politics, and even violence today ("the culture wars"). Though by no means the Supreme Court's most important decision, Roe v. Wade remains its most recognized.

At the time Roe was decided, most states severely restricted or banned the practice of abortion. However, these restrictions were challenged amid the sexual revolution and feminist movements of the 1960s. In 1970, two recent graduates of the University of Texas Law School, Linda Coffee and Sarah Weddington, brought a lawsuit on behalf of a pregnant woman, Dallas area resident Norma L. McCorvey ("Jane Roe"), claiming a Texas law criminalizing most abortions violated Roe's constitutional rights. The Texas law banned all abortions except those necessary to save the life of the mother. Roe claimed that while her life was not endangered, she could not afford to travel out of state and had a right to terminate her pregnancy in a safe medical environment. The lawsuit was filed against Henry Wade, Dallas Country District Attorney, in a Texas federal court. The Texas court ruled that the law violated the Constitution. Wade appealed to the U.S. Supreme Court, which reviewed the case throughout 1971 and 1972.

In a 7-2 decision written by Justice Harry Blackmun (who was chosen because of his prior experience as counsel to the Mayo Clinic), the Court ruled that the Texas statute violated Jane Roe's constitutional right to privacy. The Court argued that the Constitution's First, Fourth, Ninth, and Fourteenth Amendments protect an individual's "zone of privacy" against state laws and cited past cases ruling that marriage, contraception, and child rearing are activities covered in this "zone of privacy." The Court then argued that the "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This decision involved myriad physical, psychological, and economic stresses a pregnant woman must face. 

Because abortions lie within a pregnant woman's "zone of privacy," the abortion decision "and its effectuation" are fundamental rights that are protected by the Constitution from regulation by the states, so laws regulating abortion must be sufficiently "important." Was Texas's law sufficiently important to pass constitutional muster? The Court reviewed the history of abortion laws, from ancient Greece to contemporary America, and therein found three justifications for banning abortions: "a Victorian social concern to discourage illicit sexual conduct"; protecting the health of women; and protecting prenatal life. The Court rejected the first two justifications as irrelevant given modern gender roles and medical technology. As for the third justification, the Court argued that prenatal life was not within the definition of "persons" as used and protected in the U.S. Constitution and that America's criminal and civil laws only sometimes regard fetuses as persons deserving protection. Culturally, while some groups regard fetuses as people deserving full rights, no consensus exists. The Court ruled that Texas was thus taking one "view" of many. Protecting all fetuses under this contentious "view" of prenatal life was not sufficiently important to justify the state's banning of almost all abortions. 

However, the Court ruled that narrower state laws regulating abortion might be sufficiently important to be constitutional. For example, because the medical community finds that the human fetus might be "viable" ("capable of meaningful life") outside the mother's womb after six months of growth, a state might constitutionally protect a fetus from abortions in the third trimester of pregnancy, as long as it permitted an exception to save the life of the mother. Additionally, because second- and third-trimester abortions present more health risks to the mother, the state might regulate certain aspects of abortions related to maternal health after three months of pregnancy. In the first trimester, however, a state's interests in regulating abortions can never be found "important" enough. Such abortions are thus exclusively for the patient and her doctor to govern. 

Roe v. Wade, controversial when released in January 1973, remains one of the most intensely debated Supreme Court decision today. In no other case has the Court entertained so many disputes around ethics, religion, and biology, and then so definitively ruled on them all. To the political Right, critics accuse the Court in Roe of legalizing the murder of human life with flimsy constitutional justifications. To the Left, critics maintain that Roe was poorly reasoned and caused an unnecessary political backlash against abortion rights. Defenders of the decision, however, argue that Roe v. Wade was a disinterested, pragmatic, and ultimately principled decision defending the most basic rights of personal liberty and privacy. 

Brown v. Board of Education  (1954)
Brown v. Board of Education (1954), now acknowledged as one of the greatest Supreme Court decisions of the 20th century, unanimously held that the racial segregation of children in public schools violated the Equal Protection Clause of the Fourteenth Amendment. Although the decision did not succeed in fully desegregating public education in the United States, it put the Constitution on the side of racial equality and galvanized the nascent civil rights movement into a full revolution. 

In 1954, large portions of the United States had racially segregated schools, made legal by Plessy v. Ferguson (1896), which held that segregated public facilities were constitutional so long as the black and white facilities were equal to each other. However, by the mid-twentieth century, civil rights groups set up legal and political, challenges to racial segregation. In the early 1950s, NAACP lawyers brought class action lawsuits on behalf of black schoolchildren and their families in Kansas, South Carolina, Virginia, and Delaware, seeking court orders to compel school districts to let black students attend white public schools. 

One of these class actions, Brown v. Board of Education was filed against the Topeka, Kansas school board by representative-plaintiff Oliver Brown, parent of one of the children denied access to Topeka's white schools. Brown claimed that Topeka's racial segregation violated the Constitution's Equal Protection Clause because the city's black and white schools were not equal to each other and never could be. The federal district court dismissed his claim, ruling that the segregated public schools were "substantially" equal enough to be constitutional under the Plessy doctrine. Brown appealed to the Supreme Court, which consolidated and then reviewed all the school segregation actions together. Thurgood Marshall, who would in 1967 be appointed the first black justice of the Court, was chief counsel for the plaintiffs. 

Thanks to the astute leadership of Chief Justice Earl Warren, the Court spoke in a unanimous decision written by Warren himself. The decision held that racial segregation of children in public schools violated the Equal Protection Clause of the Fourteenth Amendment, which states that "no state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." The Court noted that Congress, when drafting the Fourteenth Amendment in the 1860s, did not expressly intend to require integration of public schools. On the other hand, that Amendment did not prohibit integration. In any case, the Court asserted that the Fourteenth Amendment guarantees equal education today. Public education in the 20th century, said the Court, had become an essential component of a citizen's public life, forming the basis of democratic citizenship, normal socialization, and professional training. In this context, any child denied a good education would be unlikely to succeed in life. Where a state, therefore, has undertaken to provide universal education, such education becomes a right that must be afforded equally to both blacks and whites.

Were the black and white schools "substantially" equal to each other, as the lower courts had found? After reviewing psychological studies showing black girls in segregated schools had low racial self-esteem, the Court concluded that separating children on the basis of race creates dangerous inferiority complexes that may adversely affect black children's ability to learn. The Court concluded that, even if the tangible facilities were equal between the black and white schools, racial segregation in schools is "inherently unequal" and is thus always unconstitutional. At least in the context of public schools, Plessy v. Ferguson was overruled. In the Brown II case a decided year later, the Court ordered the states to integrate their schools "with all deliberate speed." 

Opposition to Brown I and II reached an apex in Cooper v. Aaron (1958), when the Court ruled that states were constitutionally required to implement the Supreme Court's integration orders. Widespread racial integration of the South was achieved by the late 1960s and 1970s. In the meantime, the equal protection ruling in Brown spilled over into other areas of the law and into the political arena as well. Scholars now point out that Brown v. Board was not the beginning of the modern civil rights movement, but there is no doubt that it constituted a watershed moment in the struggle for racial equality in America. 

Bush v. Gore (2000)

In Bush v. Gore (2000), a divided Supreme Court ruled that the state of Florida's court-ordered manual recount of vote ballots in the 2000 presidential election was unconstitutional. The case proved to be the climax of the contentious presidential race between Vice President Al Gore and Texas Governor George W. Bush. The outcome of the election hinged on Florida, where Governor Bush led Vice President Gore by about 1,800 votes the morning after Election Day. Because the returns were so close, Florida law called for an automatic machine recount of ballots. The recount resulted in a dramatic tightening of the race, leaving Bush with a bare 327-vote lead out of almost 6 million ballots cast. With the race so close, Florida law allowed Gore the option of "manual vote recounts" in the counties of his choosing. Gore opted for manual recounts in four counties with widespread complaints of voting machine malfunction: Broward, Miami-Dade, Volusia, and Palm Beach. However, Florida law also required that the state's election results be certified by the Secretary of State, Katherine Harris, within seven days of the election (by November 14, 2000). Three of the four counties, frantically laboring through the tedious manual recount, were unable to complete the process by the deadline.

On November 14, however, a Florida circuit court ruled that while Secretary Harris must respect the deadline, she could legally amend the certified results, at her own discretion, to reflect any late returns from the outstanding counties. Harris promptly announced that she would entertain late returns only if their tardiness was justified by each county in writing by 2 p.m. the following day (November 15). The three outstanding counties-Miami-Dade, Palm Beach, and Broward-immediately sent an explanation for the delay. Secretary Harris, however, rejected their explanations and announced that the final Florida vote count would be announced Saturday, November 18, 2000. On November 16, both Vice President Gore and Palm Beach County filed for an injunction against Secretary Harris to prevent her from certifying the election until the three counties could finish their recounts. The Florida Supreme Court issued the injunction on November 17, and on November 21 ruled that Secretary Harris must allow the counties until November 26 to finish their recounts.

Meanwhile, Miami-Dade stopped manually counting ballots, allegedly certain that it could not complete its recount by the November 26 deadline. Gore sought but failed to obtain a court order for Miami-Dade to continue counting. On November 26, with, at this point, just 537 votes separating Bush and Gore, Secretary Harris certified the election for Bush. The next day, Gore sued the secretary, alleging that the certified results were illegitimate because the recount process was not yet complete. After a local court dismissed the suit, Gore appealed to the Florida Supreme Court, which ruled on December 8 that all Florida ballots cast but not counted by voting machines ("undervotes") must be manually recounted if they had not been already. The court noted that in many counties, machines did not register votes because of defects in punch-card ballots ("hanging chads"). Governor Bush appealed this decision to the U.S. Supreme Court, which expeditiously reviewed the case on December 9. 

On December 12, 2000, the Supreme Court, in a 5-4 "per curiam" (non-specially authored) decision, ruled that the Florida Supreme Court's recount order was unconstitutional because it granted more protection to some ballots than to others, violating the Fourteenth Amendment's Equal Protection Clause. This clause forbids states from denying "to any person within their jurisdiction the equal protection of the laws." The Court argued that voting for a president constituted a "fundamental right" strictly guarded by the Equal Protection Clause, and that the Florida Supreme Court's order violated this right because it was "arbitrary." The Court alleged that the order contained standardless and unequal processes to divine the "intent of the voter" that were above and beyond the settled processes required by Florida election law.

December 12, 2000, the day Bush v. Gore was decided, was also the state deadline for selecting electors to formally submit Florida's choice for president to Congress. Thus, with no time left to recount votes consistent with the Court's ruling, George W. Bush became the de facto winner. While some celebrated the Court's firm stance on equal rights in the face of political controversy, others criticized the decision as hypocritical and even politically opportunistic. For example, the five justices of the majority had previously and conversely granted great deference to state court decisions, and all were Republican appointees. Yet perhaps the harshest criticism came from the Court itself. In the concluding lines of his dissent, Justice John Paul Stevens proclaimed that "one thing ... is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Plessy v. Ferguson (1896)

In Plessy v. Ferguson (1896), the Supreme Court considered the constitutionality of a Louisiana law passed in 1890 "providing for separate railway carriages for the white and colored races." The law, which required that all passenger railways provide separate cars for blacks and whites, stipulated that the cars be equal in facilities, banned whites from sitting in black cars and blacks in white cars (with exception to "nurses attending children of the other race"), and penalized passengers or railway employees for violating its terms. 

Homer Plessy, the plaintiff in the case, was seven-eighths white and one-eighth black, and had the appearance of a white man. On June 7, 1892, he purchased a first-class ticket for a trip between New Orleans and Covington, La., and took possession of a vacant seat in a white-only car. Duly arrested and imprisoned, Plessy was brought to trial in a New Orleans court and convicted of violating the 1890 law. He then filed a petition against the judge in that trial, Hon. John H. Ferguson, at the Louisiana Supreme Court, arguing that the segregation law violated the Equal Protection Clause of the Fourteenth Amendment, which forbids states from denying "to any person within their jurisdiction the equal protection of the laws," as well as the Thirteenth Amendment, which banned slavery. 

The Court ruled that, while the object of the Fourteenth Amendment was to create "absolute equality of the two races before the law," such equality extended only so far as political and civil rights (e.g., voting and serving on juries), not "social rights" (e.g., sitting in a railway car one chooses). As Justice Henry Brown's opinion put it, "if one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane." Furthermore, the Court held that the Thirteenth Amendment applied only to the imposition of slavery itself. 

The Court expressly rejected Plessy's arguments that the law stigmatized blacks "with a badge of inferiority," pointing out that both blacks and whites were given equal facilities under the law and were equally punished for violating the law. "We consider the underlying fallacy of [Plessy's] argument" contended the Court, "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." 

Justice John Marshall Harlan entered a powerful -- and lone -- dissent, noting that "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." 

Until the mid-twentieth century, Plessy v. Ferguson gave a "constitutional nod" to racial segregation in public places, foreclosing legal challenges against increasingly-segregated institutions throughout the South. The railcars in Plessy notwithstanding, the black facilities in these institutions were decidedly inferior to white ones, creating a kind of racial caste society. However, in the landmark decision Brown v. Board of Education (1954), the "separate but equal" doctrine was abruptly overturned when a unanimous Supreme Court ruled that segregating children by race in public schools was "inherently unequal" and violated the Fourteenth Amendment. Brown provided a major catalyst for the civil rights movement (1955-68), which won social, not just political and civil, racial equality before the law. After four decades, Justice Harlan's dissent became the law of the land. Following Brown, the Supreme Court has consistently ruled racial segregation in public settings to be unconstitutional. 

Regents of University of California v. Bakke (1978)

In Regents of University of California v. Bakke (1978), the Supreme Court ruled that a university's use of racial "quotas" in its admissions process was unconstitutional, but a school's use of "affirmative action" to accept more minority applicants was constitutional in some circumstances. The case involved the admissions practices of the Medical School of the University of California at Davis. The medical school reserved 16 out of 100 seats in its entering class for minorities, including "Blacks," "Chicanos," "Asians," and "American Indians." The rigid admissions quota was administered by a special school committee. Allan Bakke, a white applicant, was twice denied admission to the medical school even though his MCAT scores, GPA, and benchmark scores were "significantly higher" than those of some minority applicants recently admitted. 

Bakke sued the University of California in a state court, alleging that the medical school's admission policy violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment's Equal Protection Clause. The California Supreme Court agreed, finding that the quota system explicitly discriminated against racial groups and holding that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race." The medical school, ordered to shut down its quota system, appealed to the U.S. Supreme Court, which reviewed the case in 1978.

The Supreme Court, in a 5-4 decision written by Justice Lewis Franklin Powell, ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis. California's use of racial quotas in this case, however, did not meet those requirements and violated the Constitution's Equal Protection Clause, which forbids a state from denying "to any person within its jurisdiction the equal protection of the laws." The Court held that the medical school racially discriminated against whites because it excluded them from 16 out of 100 spots solely by virtue of their race. The fact that blacks have historically had been discriminated against more than whites was irrelevant to this case, because racial quota systems, whether applied against whites or blacks, are always "odious to a free people whose institutions are founded upon the doctrine of equality." Indeed, because the school's quota was designed to redress past discrimination against racial minorities, the Court stated, it was intended to prefer "one group for no other reason other than race or ethnic origin." Thus, the Court ruled that the school's quota system "must be rejected ... as racially invalid" under the Equal Protection Clause. 

The Court also ruled, however, that the state "has a legitimate and substantial interest in ... eliminating ... the disabling effects of identified discrimination." Yet to prosecute those rights within the Constitution's limits, a state must first make judicial, administrative, or legislative findings that document illegal and specific discrimination against racial groups. An admissions department may then attempt to "redress" these findings of past discrimination by considering an applicant's race as a "plus" factor among many in its admissions decisions. Such a race-conscious consideration, however, may only be one of many factors used in assessing each applicant, and the race of each applicant may never be a preclusive factor in granting admission. 

Regents of University of California v. Bakke established a pragmatic means of reconciling well-intentioned quota and affirmative action programs with the Constitution's zealous protection of equality. In sum, racial quotas are always unconstitutional, but affirmative action programs may be constitutional if race is considered as one of many admission factors and used to remedy past findings of discrimination and to promote diversity. In the 30 years since this ruling, public and private universities have crafted affirmative action programs consistent with Bakke's requirements. In Grutter v. Bollinger (2003), for example, the Supreme Court reaffirmed Bakke's basic approach and ruled that University of Michigan Law School's policy of giving significant but non-determinative weight to its applicants' race was "neutral" enough, and Michigan's interest in a diverse student body was "compelling" enough, to meet constitutionally standards of equality. In a related but separate decision -- Gratz v. Bollinger -- issued on the same day, however, the Court struck Michigan's undergraduate affirmative action program, which employed a points system to rate applicants and which awarded automatic points to minority applicants.