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
i m ag e so u r c e: h t t p ://w w w .p er r sp ec t i v es.c o m /i m ag es/u n j u st d ay _ 081 005.j p g
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