Politics and the Supreme Court:From Roe v. Wade to 'Bong Hits 4 Jesus'

Nick WiebeJan. 25, 2008

What is the Supreme Court?

The only court specifically mandated by the constitution

Made up of 9 Judges Highest court in the land Decide on cases by

voting The group of Judges in

the majority write the binding decision of the court

What is the Supreme Court?

t h ese i m ag es ar e i n t h e p u b l i c d om ai n

The Weakest Branch?

So why are people pissed off?

“Judicial Activism” now a major political issue

Justice Sunday Attended by

thousands Nationally telecast

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The Warren Court (1953-1969)

Led by Chief Justice Earl Warren

Decided a series of controversial cases: Brown v. Board of

Education, Griswold v. Connecticut, Engel v. Vital, and others

“I n c i v i l i z ed l i f e, l aw f l o at s i n a sea o f et h i c s.” -- E ar l W ar r en

1965: Griswold v. Connecticut Connecticut Law prohibited the use of any contraceptive drug

(but was rarely enforced) The Court found the law unconstitutional on the basis that it

violates the right the right to privacy Problem: the right to privacy is not mentioned in the

Constitution. Warren Court rational: right to privacy is part of the

“penumbras” of other rights protected by the constitution

“I th i n k t h i s i s an u n c om m o n l y si l l y l aw .” -- Ju st i c e Po t t er S t ew ar t

14th Amendment

These lines are know as the due process clause and the equal protection clause

Substantive due process: concept of liberty protects an implicit set of rights source of a number of 'penumbra' rights (along with

the Bill of Rights)

“...n o r sh al l an y S tate d ep r i v e an y p er so n o f l i f e, l i b er t y , o r p r o p er t y , w i th o u t d u e p r o cess o f l aw ; n o r d en y to an y p er so n w i th i n i t s j u r i sd i c t i o n th e equ al p r o tec t i o n o f th e l aw s.” -- T h e F o u r t een t h A m en dm en t

1973: Roe v. Wade Texas law banned abortion in all cases Supreme Court overturned this law, and deemed abortion to be

a fundamental right, included in the right to privacy But:

States do have an legitimate interest in protecting fetuses, though they don't count as persons under the 14th amendment

Court therefore set up a system of trimesters: 1st trimester: no State restriction on abortion 2nd trimester: State can regulate abortion in ways related

to mother's health 3rd trimester: State can restrict abortion

i m ag e so u r c e: h t t p ://ev o l v ef i sh .c o m /Sh i r t I m ag es/S h i r t I m ag esSm al l /C o atH an g er S l ash -Sm al l .g i f

Where does R v. W stand now?

Some members of the current court seem inclined to overturn Roe v. Wade

But are there five? Judges hold life term, and usually don't retire To change the make-up of the Supreme Court,

you need people to die (at the right time)

Antonin Scalia

Appointed by Ronald Regan, 1986

Conservative Roman Catholic

Death Watch: Age 71 drinks the blood of orphans

to keep fit

L aw st u d en t : “H e's j u st i r r i t a t i n g . H e's l i k e o n e o f th o se p eo p l e w h o m astu r b ates to S c al i a d ec i si o n s.” -- O v er h ear d i n N ew Y o r k .c om

Clarence Thomas

Appointed by H.W. Bush, 1991

Angry, angry man Death Watch: Age 59

But happy people live longer

John Roberts Appointed by George

W. Bush, 2005 Current Chief Justice Handsomest Supreme

Court Judge? Death Watch: Age 52

Had a seizure last year

“I w o u l d p r ef er to d i sc u ss Sh ak esp ear e 's d o u b l e en ten d r e an d th e l atu s r ec t u m o f c o n i c sec t i o n s w i th o u t a b l o n d e g i g g l i n g an d b l u sh i n g b eh i n d m e.”-- Jo h n R o b er t s, ag e 1 7

Samuel Alito

Appointed by George W. Bush, 2006

Scalito? very conservative Death Watch: Age 57

If only...

Conservative Legal Philosophies

Textualism Looks at the meaning

of the words in a piece of legislation

Originalism Looks to the intent of

the legislators Judicial restraint

2007: Morse v. Frederick

High School students were suspended for displaying this banner outside the school grounds during a school event

Court ruled this not a violation of 1st amendment right to free speech since the sign advocated illegal drug use (which the school has an interest in discouraging)

Decision based (partially) on originalist reasoning

Ruth Bader Ginsburg

Appointed by Bill Clinton, 1993

Perhaps the most liberal

Silliest Glasses? Death Watch: Age 74

Cancer survivor

Steven Breyer

Appointed by Bill Clinton, 1994

? Death Watch: Age 69

John Paul Stevens

Appointed by Gerald Ford, 1975

Old So Old Death Watch: Age 87

Very Old

David Souter

Appointed by George H.W. Bush, 1990

Proved less conservative than expected

Death Watch: Age 68 revenge killing by G.H.W

Bush?

“S o u ter 's st y l e i s n o t i c eab l y n o n -l eg al ”-- C o n ser v ap ed i a

Anthony Kennedy

Appointed by Ronald Regan, 1988

Swing voter Hard to predict Death Watch: Age 71

worn out from both sides perpetually sucking up to him?

2003: Lawrence v. Texas

Texas law criminalized homosexual sodomy The Court ruled overturned this law (and all

similar laws in other states) Legal basis: Substantive due process

Ruled that state had no legitimate interest in banning gay sex

However, did not extend suspect classification to sexual orientation

“T o d ay ’s o p i n i o n i s t h e p r o d u c t o f a C o u r t ... t h at h as l arg e l y si g n ed o n to th e so -c al l ed h om o sex u al ag en d a” -- Ju st i c e A n to n i n S c a l i a

Suspect Classification and Strict Scrutiny

Legislation often singles out a group of citizens (e.g. the unemployed)

Equal protection clause guarantees all people equal protection under the law

How to resolve this? For most cases, rational-basis test: Gov't action a

rational means to a legitimate end For cases involving Suspect Classifications (e.g.

Race): Strict Scrutiny: compelling gov't interest, narrowly

tailored, least restrictive means

2000: United States v. Morrison

Virginia Tech student raped by Antonio Morrison She filed suit against him under Violence Against

Women Act allows victim of gender-motivated violence to sue their

attacker in civil court

Commerce Clause

Narrow vs. Broad View of the Commerce Clause Strict limits on what Congress is allowed to legislate

on?

“T h e C on g r ess sh al l h av e p ow er . . . T o r eg u l ate com m er ce w i th f o r ei g n nat i o n s, an d am ong th e sev er al states, an d w i th th e I n d i an t r i b es;” -- A r t i c l e I , Sec t i o n 8, C l au se 3 o f U .S . C o n st i t u t i o n

2000: United States v. Morrison

is Violence Against Women Act an overreach of Congressional power?

Court ruled that it was, and struck down the act.

2007: Ledbetter v. Goodyear

Lily Ledbetter worked as a manager for Goodyear Tire for 19 years. For all that time, she was paid less than her male colleagues

She sued under Civil Rights Act, prohibits discrimination by employers on basis of

race, religion, gender, etc.

2007: Ledbetter v. Goodyear

Basic issue: Does the Statute of Limitations apply? She sued 19 years after initial pay was set Claims must be filed not more than 180 days after

discrimination took place Court ruled that continued effect of an act of

discrimination does not reset Statute of Limitations