Public Policy
Relates to any government policy that has an impact on society. This covers health, education, law and order, and economic policy. By delivering rulings, the SC could affect policy by:
overturning existing public policy, stating that it is unconstitutional
Upholding existing public policy as established by politicians
Effectively creating new public policy via judicial interpretation
Public policy is challenged on constitutional grounds e.g. constitutional rights, federalism or the extent of presidential power. Overturning or upholding an existing policy both have an impact. By overturning a law that forbids gay marriage, e.g., the court is effectively changing public policy by legalising gay marriage
Creating new public policy is closely associated with judicial activism. Led to claims that Supreme Court is a policymaker on a par with traditional policymakers e.g. president or congress. Based on idea that Constitution is so vague that justices can give rulings in every major aspect of public policy including health, education, environment, transport policy, law and order, and economy. Activist judges have shown a determination to use this power to achieve their own policy goals. Obergefell and Roe cases are cited as examples, as are the recent Roberts Court rulings protecting Christian religious values.
Health | Education | Law and Order | Economic Policy | Gay Rights | Guns | Abortion | |
Overturning existing public policy, stating that it is unconstitutional | National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (2022) Did the Occupational Safety & Health Administration exceed its authority in promulgating a rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing? CONC: The challengers to the OSHA rule requiring that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing are likely to succeed on the merits. In an unsigned opinion, the Court granted the application to stay the OSHA rule. Congress created OSHA to set workplace safety standards. The challenged rule goes well beyond that and is effectively a broad public health measure. Even the exceptional circumstances of the COVID-19 pandemic do not justify such an expansion in the agency's authority. | Students for fair admission v. President and Fellows of Harvard College (2022) Petitioner Students for Fair Admissions (SFFA) sued Harvard College over its admissions process, saying that it violates the Civil Rights Act of 1964 by discriminating against Asian American applicants in favour of white applicants. Harvard admits that it uses race as one of many factors in its admissions process but argues that its process adheres to the requirements for race-based admissions outlined in the Supreme Court’s decision in Grutter v. Bollinger. CONC: VIOLATES 14TH AMENDMENT | Biden v. Nebraska (2023) CONC: Secretary of Education does not have authority to establish a student loan forgiveness program that will cancel roughly $430 billion in debt principal and affect nearly all borrowers. Missouri has standing to challenge student-debt relief program HEROES act does not extend to cancelling- only to “modify” statutory provisions but only “moderately or in minor fashion” Court rejected argument that unprecedented nature of the COVID-19 pandemic justified the unprecedented nature of the the debt cancellation plan. | 303 Creative LLC v. Elenis (2022) CONC: Does the application of CADA violate Free Speech Clause of 1st Amendment? UNCONSTITUTION CADA LAW- SHE CAN SAY WHAT SHE WANTS | NY State Rifle and Pistol Association Inc. v. Bruen (2022) CONC: OVERTURNED | Dobbs v. Jackson Women’s Health Organisation (2021) 2018- Mississippi passed the “Gestational Age Act,” which prohibits all abortions after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, district court granted TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and encouraged Mississippi to not enforce the law, saying that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. CONC: Not unconstitutional to ban abortions as constitution does not confer a right to abortion | |
Upholding existing public policy as established by politicians | Twitter, Inc. v. Taamneh (2022) Nohemi Gonzalez, a U.S. citizen, was killed by a terrorist attack in Paris, France, in 2015—one of several terrorist attacks that same day. The day afterwards, the foreign terrorist organization ISIS claimed responsibility by issuing a written statement and releasing a YouTube video. Gonzalez’s father filed an action against Google, Twitter, and Facebook, claiming, among other things, all three platforms were liable for aiding and abetting international terrorism by failing to take meaningful or aggressive action to prevent terrorists from using its services, even though they did not play an active role in the specific act of international terrorism that actually injured Gonzalez. CONC: Twitter did not knowingly provide substantial assistance nd thus cannot be said to have aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey | Bostock v Clayton (2020) Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his 10-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.” CONC: Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation? An employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. | |||||
Effectively creating new public policy via judicial interpretation | Sebelius v. Auburn Regional Medical Center (2012) Hospitals receive compensation from the federal government based on the number of low-income patients they serve. The Center for Medicare & Medicaid Services (CMS) decides how much this payment will be. In an unrelated case, it came out that CMS miscalculated this payment between 1993 and 1996 so hospitals received less than they were due. In 2006, a group of hospitals filed claims with the Provider Reimbursement Review Board (PRRB) for full payment from the Department of Health and Human Services for years 1987-1994. Although the statute of limitations for such claims is 180 days, the hospitals argued that the limitations period should be tolled because CMS knowingly and unlawfully failed to disclose its error. | Obergefell v. Hodges (2015) Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states' bans on same-sex marriage and refusal to recognize marriages performed in other states did not violate the couples' Fourteenth Amendment rights to equal protection and due process. CONC: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? ANSWER: Yes, Yes | Roe v Wade (1973) Established that the right to choose was a constitutional right. This changed laws in a wide range of states, forcing them to allow abortion services |
Protection of Civil Liberties
Freedoms of individual that are protected, especially from restriction by powerful institutions.
Civil Rights- usually freedom from discrimination
Constitutional rights- civil liberties protected by the constitution. Usually first 10 amendments (Bill of Rights) and 14th Amendments, granted citizenship and equal civil and legal rights to African Americans and enslaved people
Amendment | Right | Court Cases | Outcome |
1st | Freedom of Expression | Kennedy v Bremerton (2022) | A football coach has the 1st Amendment right to lead prayers after a game |
1st | Freedom of Religion | Fulton v Philadelphia (2021) | Catholic groups are allowed to hold their religious views against homosexuality by continuing to provide state adoption services but refusing to support adoption by gay couples |
2nd | Right to bear arms | DC v Heller (2008): New York Pistol and Rifle v Bruen (2022) | Heller set a precedent that the 2nd Amendment refers to the individual right to carry a gun. The case overturned laws limiting possession of handguns in the home. New York Pistol extended this to the right to carry in public. |
4th | Right to privacy | Riley v California (2014) | Police cannot search the cell phone of an individual without a warrant |
8th | Freedom from cruel and unusual punishment | Panetti v Quarteman (2007) | Reaffirmed that a person who is mentally ill is entitled to 8th Amendment protection if they do not have a rational understanding of the reason for their execution |
10th | State rights- reserved power of states | Shelby v Holder (2010) | Many of the restrictions on state control of voting processes imposed by the Voting Rights Act 1965 were lifted by the court on the grounds of state rights |
14th | Due process clause; Equal treatment clause | Brown v Board (1954) | Declared racial segregation was unconstitutional |