Combined Study Guide Part II: The US Supreme Court (copy)

4. Alternative Interpretation of the Fifth Amendment: Provide an alternative interpretation of the Fifth Amendment that would lead the court to side with Barron.

- Argument:

- The Fifth Amendment protects property rights from government seizure without fair compensation.

- This protection applies to state governments as well, not just the federal government.

- Interpretation:

- While not explicitly stated, the Fifth Amendment's broad principle should be universally applied to safeguard property rights.

- Context:

- The Fifth Amendment ensures fairness and limits government power, regardless of the level of government involved.

- Principle:

- Recognizing Fifth Amendment protections for state actions upholds individual rights and ensures equal treatment under the law.

Four Main Arguments By Plaintiff in The Slaughter-House Cases:

- Privileges and Immunities Clause (14th Amendment):

- Argued law violated their rights as citizens of the U.S.

- Claimed their right to work without state interference was protected.

- Due Process Clause (14th Amendment):

- Argued the law deprived them of their occupation without proper legal process.

- Claimed their property rights were violated without due process.

- Commerce Clause:

- Alleged the law interfered with trade between states.

- Said the monopoly created by the law affected interstate commerce.

- Takings Clause (Fifth Amendment):

- Asserted the law took away their businesses without fair compensation.

- Claimed the government deprived them of their property rights unfairly.

Explain Justice Field's Dissent in Slaughter-House:

- Disagrees with the majority's validation of a Louisiana law granting a monopoly to a single corporation.

- Argues that while states can regulate public health and safety, they cannot infringe upon citizens' fundamental rights, including the right to pursue lawful employment.

- The law unfairly stops people from working freely and breaks the equal rights promise of the Fourteenth Amendment.

- Emphasizes that the Fourteenth Amendment ensures equality for all citizens, preventing states from creating monopolies that infringe upon individuals' liberties and economic opportunities.

-  contended that the clause was intended to protect a broad range of rights associated with both state and federal citizenship, including economic liberties and protections against state interference.

• economic freedom and equal opportunity.

11. Textual Basis for Incorporation: Although the issue was not directly presented in The Slaughter-House Case, the majority’s interpretation of the Fourteenth Amendment excluded the possibility that the privileges and immunities of national citizenship include the protections of the Bill of Rights. Would this have been a more plausible textual basis for incorporation than the Due Process Clause?

• Yes because this clause explicitly prohibits states from abridging the privileges and immunities of U.S. citizens, potentially encompassing the rights enumerated in the Bill of Rights as fundamental aspects of national citizenship.

• While this approach aligns with the original intent of the Fourteenth Amendment and its historical context, The Slaughter-House Cases narrowed its interpretation, limiting its effectiveness in protecting individual rights against state infringement.

Majority Reasoning in Slaughter-House

• limited protected privileges to federal citizenship rights, fearing that broader interpretation would upset the balance between federal and state authority.

• Emphasizing original intent, they argued the amendment primarily aimed to protect freed slaves' rights and cautioned against expanding federal power at the expense of states' rights.

• This approach reflected their commitment to preserving federalism and state autonomy.

- Emphasis on state vs. federal citizenship distinction.

Constitutional Arguments:

- Thirteenth Amendment: No involuntary servitude.

- Fourteenth Amendment:

• Privileges and Immunities Clause: Protects federal citizenship rights.

• Equal Protection Clause: Ensures equal treatment.

• Due Process Clause: Protects against deprivation without due process.

Analysis:

- Limits Fourteenth Amendment to federal citizenship rights.

18. Public Functions and State Actors: Justice Harlan’s dissent argues that proprietors of public accommodations all exercise public functions. Why should this be true? Is it plausible to treat all these entities as state actors?

- Public accommodations play a significant role in public life, providing essential services and facilities.

- They facilitate public interactions and activities vital for individuals to participate fully in society.

- Treating them as state actors aligns with the principle of equality under the law, ensuring equal access to services.

- Classification as state actors depends on factors such as their interaction with government, level of regulation, and control over public accommodations.

- Entities providing essential public services may warrant classification as state actors to prevent discrimination and ensure equal protection.

20. Thirteenth Amendment Argument in Civil Rights Cases: Draft a Thirteenth Amendment argument for these cases. What would the Supreme Court answer?

Thirteenth Amendment Argument:

- The Civil Rights Act of 1875 prohibits discrimination in public accommodations.

- This Act is a valid exercise of Congress's authority under the Thirteenth Amendment.

- Discrimination in public accommodations effectively creates a form of involuntary servitude.

- By prohibiting such discrimination, Congress fulfills the Thirteenth Amendment's objective of eradicating the vestiges of slavery and ensuring freedom for all individuals.

Supreme Court Response:

- Acknowledges noble intentions but rejects the argument.

- The Thirteenth Amendment's scope doesn't extend to private acts of discrimination.

- Requires a clear connection between discrimination and the badges and incidents of slavery.

- Civil Rights Act of 1875 may exceed Thirteenth Amendment's authority.

- Enforcement may be left to state governments or other constitutional provisions.

Supreme Court’s Reasoning in Plessy v. Ferguson:

  1. Separate but Equal Doctrine:

     - The Court argued that segregation based on race did not inherently violate the Fourteenth Amendment's Equal Protection Clause if the facilities provided for each race were equal in quality.

     - This reasoning gave rise to the doctrine of "separate but equal," which allowed for racial segregation as long as the facilities provided for each race were deemed equal.

  2. States' Rights and Police Powers:

     - The decision emphasized states' rights and their authority to regulate public accommodations within their borders.

     - It argued that segregation laws fell within the states' police powers to regulate for the public welfare, order, and safety.

  3. Social Acceptance and Public Opinion:

     - The Court referenced societal norms and public opinion, suggesting that racial segregation was widely accepted and did not necessarily imply inferiority or discrimination.

     - This aspect of the decision reflected the prevailing attitudes of the time, particularly in the Southern states where segregation laws were common.

Explain the four arguments Justice Harlan Dissent in Plessy

1. Colorblind Constitution: meaning no discrimination based on race.

   - Segregation violates the principle of equal treatment under the law.

2. Social Equality and Citizenship:

   - Everyone deserves social equality and full citizenship rights.

   - Segregation creates inequality and undermines citizenship.

3. Constitutional Interpretation:

   - The Fourteenth Amendment protects against racial discrimination broadly.

   - The Court should interpret the Constitution with a focus on equality and justice.

4. Future Repercussions:

   - Upholding segregation will perpetuate racial division and inequality.

   - The Court's decision threatens America's commitment to equality for all citizens.

25. Limits and Standards of Review in Plessy: What limits is Justice Brown’s majority opinion willing to impose on segregation in Plessy? What is the standard of review for this sort of law? Where have you seen that standard before?

- Plessy v. Ferguson allows segregation if facilities are equal (separate but equal).

- This is akin to rational basis review, where a law is constitutional if it's rationally related to a valid government interest.

- Similar to cases involving economic or social policies, strict scrutiny isn't applied.

26. Justice Scalia on Brown v. Board of Education: How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the U.S. Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education?

Given Justice Antonin Scalia's staunch originalist stance, it's likely that he would have dissented from the Court's decision in Brown v. Board of Education. Scalia's originalism ideology suggests that he would interpret the Constitution based on its original meaning at the time it was adopted. Since the 14th Amendment, which guarantees equal protection under the law, was ratified in 1868, Scalia might have argued that it did not originally intend to abolish segregation in public schools. Instead, he might have viewed the issue as one that should be addressed through the democratic process rather than judicial intervention.

What was the primary legal argument used by the plaintiffs in Brown v. Board of Education?

- Primary Legal Argument:

  - Racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment.

  

- Plaintiffs' Position:

  - Separate educational facilities for black and white students were inherently unequal.

  - Segregation perpetuated feelings of inferiority among black children.

  - Segregation deprived black children of equal educational opportunities.

  - Segregation violated their constitutional rights to equal protection under the law.

28. True or False - Overturning of Plessy: True or False. Brown v. Board of Education overturned the precedent set by Plessy v. Ferguson that established the "separate but equal" doctrine.

• True

• Brown v. Board of Education ruled that racial segregation in public schools was inherently unequal.

• The decision in Brown declared segregation in education unconstitutional.

• This effectively overturned the legal foundation of the "separate but equal" doctrine.

29. Supreme Court's Phrase in Brown Decision: The Supreme Court's decision in Brown v. Board of Education stated that "separate educational facilities are inherently ________," which led to the desegregation of public schools across America.

unequal

30. Legal Precedents in Brown v. Board of Education: Examine a portion of the Supreme Court's opinion in Brown v. Board of Education. What legal precedents and arguments did the Court use to justify its decision? How did the Court argue the impact of segregation on children?

- Court relied on legal precedents and arguments to justify its decision.

- It overturned the "separate but equal" doctrine of Plessy v. Ferguson.

- The Court emphasized the unconstitutionality of segregation, citing the Fourteenth Amendment's Equal Protection Clause.

- It highlighted the psychological harm of segregation, particularly its negative impact on the self-esteem and educational opportunities of African American children.

- By linking segregation to unequal educational outcomes and societal stigmatization, the Court underscored the imperative to dismantle segregation in public schools.

31. Derrick Bell's Critique of Brown Decision: Derrick Bell, legal scholar and founder of critical race theory, rewrote the Brown opinion, where he critiqued the majority decision. He explained that the Court failed to consider three major components of racial segregation that had to be addressed to provide meaningful relief. What were they?

Societal Stability through Subordination:

  - Racial segregation subordinates African Americans.

  - It makes it easier for wealthy white Americans to dominate poor white Americans.

  - Segregation arose from compromises between white elites and poorer whites seeking to maintain social status.

- Conditionality of Black Rights:

  - Recognition and protection of Black individual's rights are contingent upon serving the nation's interests.

  - Past civil rights policies were implemented for broader national benefits, not just racial justice.

  - Relief for racial injustices is granted when policymakers perceive national benefits.

- Need for Realistic Relief:

  - Specific, judicially monitored plans are needed to promote educational equity in segregated schools.

  - Proposed phases of relief: equalization of resources, representation in decision-making, and judicial oversight.

  - Comprehensive solutions are required to address historical inequalities and power dynamics.

32. Consistency in Justices' Votes in Slaughterhouse and Bradwell: In The Slaughterhouse Cases, Justices Field, Swayne, and Bradley dissented, complaining that citizens in a “free government” must have the right to pursue happiness or exercise their liberty to participate in the profession of their choice. Are these Justices’ decisions to join the majority in Bradwell consistent with their Slaughterhouse Cases votes?

No, they aren't consistent. In The Slaughterhouse Cases, these Justices dissented, arguing for broader individual liberties. However, in Bradwell v. Illinois, they joined the majority, which upheld state laws restricting women's rights to practice law. This discrepancy suggests they applied different interpretations of liberty and government intervention in these cases.

33. Consistency of Justice Joseph P. Bradley’s Arguments: Analyze the consistency of Justice Joseph P. Bradley's arguments in both decisions. Was it consistent? If not, how could he have been consistent?

Justice Joseph P. Bradley's arguments in both decisions show a lack of consistency. In The Slaughterhouse Cases, he dissented, arguing for broader individual liberties. However, in Bradwell v. Illinois, he joined the majority, which upheld state laws restricting women's rights. To achieve consistency, Bradley could have applied a more principled approach to individual liberties, ensuring that his interpretation of constitutional rights remained consistent across cases, regardless of the specific circumstances or parties involved. This might involve advocating for a broader understanding of individual freedoms and equal rights under the law in both cases.

34. Scalia’s View on Bradwell Case: What would Scalia have said about the Bradwell case? Explain why using his understanding of originalism.

Justice Scalia, known for his originalist approach, would likely analyze the Bradwell case by scrutinizing the original intent behind the Equal Protection Clause of the Fourteenth Amendment. He might argue that the framers of the amendment did not envision it as prohibiting all forms of gender discrimination. Considering the societal norms of the time, where distinctions between men and women's roles were widely accepted, particularly in the legal profession, Scalia might conclude that the original understanding of equal protection did not extend to protecting women's rights to practice law. Given the historical context where the legal profession was traditionally viewed as a male domain, Scalia might uphold the state's right to deny Myra Bradwell admission to the bar. His approach would heavily emphasize respecting the historical context surrounding the adoption of the Fourteenth Amendment, shaping his interpretation of its application in the Bradwell case.

35. Ginsburg’s Dissent in Bradwell: What would Ginsburg have said about the Bradwell case? Write the main point of her dissent using the United States v. Virginia case.

• Equal Citizenship:

  • Justice Ginsburg would argue that the denial of Myra Bradwell's application to the Illinois bar based on her gender violates the principle of equal citizenship.

  • She would emphasize that the denial perpetuates stereotypes and restricts opportunities for women solely based on their gender.

• Exclusionary Practices:

  • Ginsburg would critique the exclusionary practices that discriminate against women, similar to the exclusion of women from the Virginia Military Institute (VMI) in United States v. Virginia.

  • She would argue that such practices deny women equal access to educational and professional opportunities.

• Constitutional Protections:

  • Ginsburg would assert that the denial of Bradwell's application violates the Equal Protection Clause of the Fourteenth Amendment, just as the exclusion of women from VMI violated the same clause.

  • She would stress that the government cannot uphold laws or practices that discriminate on the basis of gender.

• Social Progress:

  • Ginsburg would highlight the progress made towards gender equality since the Bradwell case, emphasizing the importance of challenging outdated notions of gender roles and capabilities.

  • She would argue that denying women the right to pursue careers in law undermines societal progress towards gender equality and perpetuates historical discrimination.

36. Facts, Holding, and Dissents in United States v. Virginia: What are the facts, holding, and dissents in the United States v. Virginia case? Explain the main arguments of the majority opinion. Explain the standard of evaluation used by the court.

Facts:

• Virginia Military Institute (VMI) was a state-supported, all-male military college.

• The United States brought suit against Virginia, alleging that VMI's male-only admissions policy violated the Equal Protection Clause of the Fourteenth Amendment.

Holding:

• The Supreme Court held that VMI's male-only admissions policy violated the Equal Protection Clause.

Dissents:

• Justice Scalia dissented, arguing that the Court's decision intruded upon state sovereignty and undermined the unique educational mission of VMI.

• Justice Thomas also dissented, contending that the Court's decision interfered with the democratic process and imposed its own view of gender equality on the states.

Main Arguments of the Majority Opinion:

• The majority emphasized that gender classifications are subject to heightened scrutiny under the Equal Protection Clause.

• The Court rejected Virginia's argument that the male-only admissions policy at VMI furthered its unique educational objectives, emphasizing that gender alone cannot justify differential treatment under the law.

• The majority found that the state had not demonstrated an exceedingly persuasive justification for the gender-based classification at VMI, concluding that the policy perpetuated stereotypes and denied women equal educational opportunities.

Standard of Evaluation:

• The Court applied intermediate scrutiny to evaluate the gender-based classification at VMI.

• Under this standard, the state must show that the classification serves important governmental objectives and is substantially related to those objectives.

• The Court determined that Virginia failed to provide an exceedingly persuasive justification for the gender-based classification, leading to the finding of a violation of the Equal Protection Clause.

37. Intermediate Standard of Review: What is the intermediate standard of review?

- Intermediate scrutiny: Legal standard for evaluating laws affecting certain rights.

- Stricter than rational basis, less strict than strict scrutiny.

- Requires the government to show a substantial relationship to an important interest.

- Used for cases involving gender discrimination or illegitimacy.

- Involves closer scrutiny than rational basis but less than strict scrutiny.

38. Scalia’s Dissent on VMI’s Sex-Based Classifications: Justice Scalia states in his dissent that the majority’s standard for evaluating the constitutionality of VMI’s exclusion of women “drastically revises our established standards for reviewing sex-based classifications.” Do you agree?

I disagree with Justice Scalia's assertion that the majority's standard for evaluating the constitutionality of VMI's exclusion of women drastically revises established standards for reviewing sex-based classifications. While Justice Scalia attempts to maintain consistency, his reliance on broad generalizations about women's abilities weakens his argument. Furthermore, his ideological commitment to originalism overlooks the need to adapt constitutional interpretation to contemporary social contexts. By creating a gender-based distinction rooted in biological abilities, Justice Scalia's dissent echoes the flaws seen in Bradley's dissent. This approach risks perpetuating outdated notions of gender roles and undermines efforts towards gender equality.

39. Role of Single-Sex Education in Society: Do you see any validity in VMI’s argument that single-sex education has an important role to play in society, particularly in the context of military-oriented education?

I understand that it may hold some validity, but it does not sufficiently justify the exclusion of women from educational opportunities.

40. Gender Discrimination Case Scenario: A state-supported nursing school, Women’s Nursing College (WNC), allows only women to earn nursing degrees, but allows men to audit classes. Other than only admitting women, WNC’s nursing program is unremarkable: It is similar to the other state nursing colleges. Chad, a man who lives near WNC, wishes to attend and earn a nursing degree. There are other nursing colleges he could attend but they are located farther away. WNC says its female-only admission policy is meant to make up for the lack of educational opportunities available to women in the past. Chad applies for admission to obtain a nursing degree, and he is denied because of his gender. He sues, alleging WNC violated the Equal Protection Clause of the Fourteenth Amendment. If you were Chad’s lawyer, how would you use the holding in United States v. Virginia to argue your client’s case? If you were WNC’s lawyer, what would you argue?

Chad's Lawyer Argument:

- Invoke United States v. Virginia precedent.

- Assert violation of Equal Protection Clause.

- Challenge the validity of WNC's gender-based admission policy.

- Highlight Chad's proximity to WNC and desire to pursue nursing degree.

WNC's Lawyer Argument:

- Justify female-only admission policy.

- Reference historical gender disparities in education.

- Align policy with affirmative action and diversity initiatives.

- Emphasize benefits of allowing men to audit classes.

41. Current Standard for Gender Discrimination: What is the current level of scrutiny appropriate to evaluate whether a law that discriminates on the basis of gender is constitutional? In addition to the name of the level of scrutiny, describe what questions that level of scrutiny requires a court to ask to evaluate the constitutionality of a law’s distinctions based on gender.

The current standard for evaluating laws that discriminate based on gender is "intermediate scrutiny." This level of scrutiny requires courts to ask whether the law serves an important government interest and whether the means chosen by the government are substantially related to that interest. In essence, the court evaluates whether the government's justification for the gender-based distinction is genuine and whether the law is reasonably tailored to achieve that interest without unnecessary discrimination.

42. Gender Discrimination Issue in United States v. Virginia: What was the gender discrimination problem at issue in United States v. Virginia? The Supreme Court ruled that the discrimination was unconstitutional. What were the Court’s reasons for that decision?

• The exclusion of women from the Virginia Military Institute's (VMI) educational program.

• Court's Reasons for Decision:

  • Intermediary Scrutiny Applied: The Court applied "intermediate scrutiny" to evaluate the gender-based distinction.

  • Lack of Substantial Government Interest: Found that Virginia failed to provide an exceedingly persuasive justification for excluding women.

  • Insufficient Tailoring of Means: Determined that the exclusion of women was not substantially related to the state's objectives, violating the Equal Protection Clause.

43. Potential Function of the Equal Rights Amendment Today: What would be the possible function of the Equal Rights Amendment today?

The possible function of the Equal Rights Amendment (ERA) today would be to constitutionally guarantee equal rights regardless of sex, ensuring that laws and policies cannot discriminate on the basis of gender. It would provide a stronger legal foundation for addressing gender-based discrimination in various areas such as employment, education, healthcare, and beyond. Additionally, the ERA could serve as a tool for promoting gender equality and addressing systemic inequalities that persist in society.

44. Arguments for and Against the Current Inclusion of the Equal Rights Amendment: What are the arguments for why the Equal Rights Amendment is currently poised to become part of the Constitution? What are the arguments for why the Equal Rights Amendment could not be included in the Constitution now?

Arguments for the Equal Rights Amendment (ERA) being included in the Constitution:

- ERA would provide explicit constitutional protection against sex-based discrimination.

- It aligns with contemporary values of gender equality and social justice.

- Majority support among the public and Congress.

- Ratification by the required number of states.

Arguments against the Equal Rights Amendment being included in the Constitution now:

- Legal challenges over the ratification deadline.

- The rescission of ratifications by some states.

- Interpretation issues regarding the ERA's scope and impact.

- Concerns about unintended consequences or conflicts with existing laws.

- Political opposition or lack of sufficient support in Congress.

45. Ginsburg’s Approach to Women’s Rights: What was Ginsburg’s approach to advance women’s rights as a litigator? Was her approach different when she became a judge or a Justice?

Ginsburg's Litigation Approach:

- Selectively pursued cases targeting gender discrimination to gradually dismantle legal barriers.

- Focused on incremental progress through challenging specific discriminatory laws and practices.

- Strategically used male plaintiffs to challenge gender stereotypes and highlight discrimination against both sexes.

Ginsburg's Judicial Approach:

- Advocated for gender equality within the confines of judicial impartiality and the rule of law.

- Shifted to interpreting and applying existing laws, including the Constitution and statutes.

- Emphasized principles of equal protection and anti-discrimination while considering legal precedent and broader implications.

46. Ginsburg’s Case Examples: Describe and comment on one of the cases Ginsburg uses in her book to describe her fight for women’s rights.

One case Ruth Bader Ginsburg discusses in her book to illustrate her fight for women’s rights is Weinberger v. Wiesenfeld (1975). In this case, Stephen Wiesenfeld challenged laws that denied widowed fathers child-in-care Social Security benefits. Ginsburg strategically chose cases like these, involving men experiencing gender discrimination, to emphasize the unequal treatment based on gender. The successful outcome of Weinberger v. Wiesenfeld, with a unanimous Supreme Court ruling in Wiesenfeld's favor, showcased Ginsburg's effective legal advocacy and contributed to advancing gender equality through strategic litigation.