The Activist Supreme Court


by Diane Rufino

Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.

Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.  Liberals or progressives  take the “living document” approach  because they can’t effect societal change unless they erase or erode old norms.  They can’t make fundamental new law unless they destroy the old law.  Conservatives, on the other hand, want to ‘conserve’ our core values and foundational legal principles.

Today’s court, headed by John Roberts with seven justices appointed by Republican presidents, is generally considered more conservative than the Supreme Court of the 1950s, for example, when Earl Warren oversaw its unanimous decision in Brown v. Board of Education.  In fact, it is said that of all the courts of the 20th-21st centuries, our current court is the most conservative.

Beginning at the turn of the 20th century, activist judicial decisions initiated the start of a major transformation in American law.  Prior to that time, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. But in the 20th century, and probably beginning most especially with Brown v. Board of Education (the school desegregation case), we had era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote.

Before looking at some cases involving activism from the bench rather than pure interpretation and application of the Constitution, it might be helpful to understand the purpose of a Constitution in general and the background of the federal judiciary in particular.

The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy.  With a constitution, the purpose is to set up basic principles that are going to apply and which the legislature and the courts are supposed to faithfully abide by.

The powers of the Judiciary are found in Article III of the Constitution:

Article III.  Section 1.  The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold
their offices during good behavior, …….

Section 2.The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; …
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed.

Essentially, Article III gives an overview of the federal court system and the tenure of judges (although it doesn’t set out how they are to be selected to the bench).  Then it explains what types of cases the federal courts can hear and finally, what types of cases the Supreme Court must hear based upon “original” jurisdiction (meaning that the Court must hear it in the first instance, reviewing evidence and hearing testimony, and making findings of fact and conclusions of law) and what types it shall hear on appellate jurisdiction (where the Court reviews the judgment of a lower court).

Article III does not expressly give the courts the power of judicial review, which is the doctrine under which legislative and executive actions are subject to review and scrutiny, and possible invalidation, by the judiciary. Under this concept, courts exercising this power must invalidate laws and action when it finds them incompatible with a higher authority, such as the Constitution (which, as Article VI says, is the Supreme law of the land).  Judicial review is a carryover from British common law and was in use well before the United States had a Supreme Court (and thereafter, before the Marbury v. Madison case).  It has been an inherent power of the courts.

So, the question becomes whether the power of judicial review was intended for the federal courts by our framers and founders.  Just because it isn’t expressly listed in Article III, maybe our Founders understood it to be an implied power?  We don’t know what the delegates came to conclude at the Constitutional Convention, because, as according to the detailed notes that Madison made, only 11 of the 55 delegates expressed an opinion on whether the federal courts should have the power of judicial review.  Of those, 9 supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation.  However, it might also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Luckily, The Federalist Papers provide some guidance.  Federalist Papers No. 78-85 (all written by Alexander Hamilton) address the Judiciary.  Hamilton explained that there was intended to be one court of supreme and final jurisdiction. (That notion was not contested amongst the delegates.  See Federalist No. 81)   The purpose is for uniformity of interpretation. (Hamilton used the metaphor: “The “Whole” vs. the “Parts”;  See No. 80).  In The Federalist No. 78, Hamilton explained that the judiciary was intended to be beyond comparison the weakest of the three departments and that it could never attack with success either of the other two.  “Liberty will have nothing to fear from the judiciary alone, but will have everything to fear from its union with either of the other departments, which will destroy the checks that a true separation of powers provides,” he wrote. He continued: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.  The Executive not only dispenses the honors, but holds the sword of the community.  The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.  It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

And finally in The Federalist No. 78, Hamilton states that judicial review is an inherent and important power that the judiciary is obligated to exercise.   “It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.  A constitution is, in fact, and must be regarded by the judges, as a fundamental law.  It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute……   Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the formerThe prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority.”   With respect to the authority to declare acts of another branch which are contrary to the Constitution void, Hamilton explained: “This doctrine is of great importance and its principles are clear.  No legislative act, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers authorize, but also those they forbid.”

Nevertheless, the Supreme Court affirmatively granted itself that power in Marbury v. Madison in 1803.

The Original “Activist” Judicial Decision… Granting the Power of Judicial Review to the Courts

Marbury v. Madison (1803)

On his last day in office, President John Adams signed commissions for several circuit court justices and justices of the peace – in an attempt to stack the courts before Thomas Jefferson took office.  (At this point, Adams and Jefferson had had a falling out and were not even on speaking terms).  Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. Thomas Jefferson ran as a  ‘Democrat-Republican’

The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adams’s term.

William Marbury was an intended recipient of an appointment as justice of the peace. He applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1783 had granted the Supreme Court original jurisdiction to issue writs of mandamus. [A “writ of mandamus” is an order from a court to a lower court or office commanding that court or office to perform some action].

The real issue in this case is that although the Judiciary Act of 1783 granted the Supreme Court original jurisdiction to issue writs of mandamus, nowhere in Article III is such jurisdiction given.  Article III grants original jurisdiction in only a few limited cases.

The questions presented to the new Supreme Court were as follows:  (1)  Did Marbury have a right to the commission?   (2)  Was the Supreme Court required to deliver his commission?   (3)  Can Congress expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution?

The opinion was written by Chief Justice John Marshall.  He set out several principles:
(i)  Marbury’s right to the commission was vested when Adams’ signed the commission.

(ii)  The Supreme Court does not have original jurisdiction to issue writs of mandamus. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution.

(iii)  The Constitution is the supreme law of the land.  All laws that conflict with the Constitution are therefore null and void. An act repugnant to the Constitution must it be struck down and it is the duty of the federal courts to strike it down.  Marshall wrote: “If two laws conflict with each other, the courts must decide on the operation of each…..  If then the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the legislature; the Constitution, and not such ordinary act, must govern the case to which they both apply.

(iv)  It is the role of the federal courts to hold the Executive and Legislative branches to
their Constitutional limits with respect to power and conduct.

(v)  Justices and judges are bound their oaths to faithfully and strictly interpret the Constitution.  They are bound by the “particular phraseology” and meaning of the Constitution in their analyses.  “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government, if it is closed upon him, and cannot be inspected by him?  If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.”

The Marbury decision was a rationalization on the part of the Court for seizing a power not expressly granted to the court by the Constitution.  In fact, it might be considered to one of the first attempts by the Supreme Court to usurp States’ rights since, as the creators of the Constitution, the States are the logical arbiters of Constitutionality issues.

The question to ask is this: If the federal courts must hold the Executive and Legislative branches to their Constitutional limits, then isn’t it just as incumbent upon the Judiciary to hold itself to its own Constitutional limits?

Thomas Jefferson, our third President at the time, was so outraged at the Court’s decision in Marbury v. Madison and its seizure of power (power of judicial review)  that he attempted to remove all Federalists from the bench.  He even abolished all lower federal courts to get rid of them and their influence.  He then repealed the Judiciary Act. Finally, in 1804, he impeached Supreme Court justice Samuel Chase (appointed by Washington).

[Note:  The only Supreme Court judge ever to be impeached was Justice Samuel Chase. Chase criticized Jefferson’s actions and predicted it would lead to “mob rule.”  Jefferson had him impeached, calling Chase “seditious.”]

The next question becomes, as between our Founding Fathers, who should we believe –  Hamilton or Jefferson?   According to Hamilton, it seems that the federal courts have the power of judicial review.  According to Jefferson’s actions, however, it would seem that judicial review was not a power that was intended for the courts.

Currently, there are two schools of thought on how to interpret the Constitution:  Literal Interpretation (“Originalism”; Original Intent) and Liberal Interpretation (“Modernism”; the Constitution is a “Living Document”)
Originalists think that the best way to interpret the Constitution is to determine how the Framers intended the Constitution to be interpreted. They look to several primary sources to determine this intent, including the contemporary writings of the framers, letters to one another, the Federalist Papers, and the notes from the Constitutional Convention itself.

Originalists consider the original intent to be the most pure way of interpreting the Constitution.  If there needs some explanation and interpretation, who better to explain it than those who wrote it?  They believe the Constitution to be a ‘static’ document; it means today what it meant yesterday.  They understand that its principles are timeless. “Originalists” see the Constitution in terms of black and white and should be interpreted “literally.”  Those who oppose the “Original Intent” approach criticize the approach as being “Old school.”

A modernist approach to Constitutional interpretation looks at the Constitution as if it were ratified today and what meaning it would have today. They believe the Constitution is meant to evolve, as society evolves, that it is flexible and dynamic, able to change over time as the morals and beliefs of the population shift.  In other words, it is meant to ‘live’ and ‘breath.’  Hence, modernists believe judges can interpret as they wish.  They contend that the Constitution is essentially an outdated document that must be interpreted “liberally.”  Liberal judges see the Constitution in shades of gray.  Many law school professors adopt this “new school” approach.

Which is the correct approach?  If you believe our Founding Fathers, then you would follow their advice and take the “originalist” approach and look at the Constitution as a static document with a clear definition and purpose. And why wouldn’t you believe our Founding Fathers?  After all, they provided us all with the greatest grant of individual liberty with respect to government anywhere in the world.  If you don’t value freedom and liberty and feel government knows best, than you might follow the “living document” approach and take your chances with whatever viewpoint the particular judge has at any given moment.

You might also want to reflect on the purpose again of having a Constitution in the first place – to remove as best as possible and as much as possible the interpretation and application of the law from political controversy.  As Justice Hugo Black once wrote: “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.”  And as Edmund Burke, the 18th century English political theorist and author, wrote:  “It is the function of a judge not to make but to declare the law, according to the golden wand of the law and not by the crooked cord of discretion.”

Support for the “originalist” approach to constitutional interpretation can be found in the following:

(1). Contract law. The Constitution is essentially an agreement, signed by the States, on behalf of We the People.  What it meant in 1787 is what it means today.  Can you imagine a reasonable person entering into an agreement of significant consequence w/o knowing how that document/agreement will be changed or interpreted  in the future?  No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

(2).  Article V of the US Constitution. Article V explains the only way the Constitution can legally be altered – by the  amendment process.  The very fact that the Constitution has a provision for amending itself tells us that’s the way it’s supposed to be done.

The US Constitution has a method for dealing with political questions. It’s called the “Amendment process.”  (Article V). If it turns out that there are provisions of the Constitution that don’t adequately address issues and problems that we encounter today, then we go into that process. It requires a supermajority – 2/3 of both houses of Congress and then ratification by 3/4 of state legislatures. But that’s designed to make the process of changing the Constitution really responsive to the desires of the population. Changes to the Constitution should not be made lightly.  We really want to know what the whole country in essence believes should be done and not just what a simple majority of one legislature should be done.

(3).  Our Founding Fathers. The drafters themselves instructed us as to how the Constitution should be interpreted.  Thomas Jefferson said: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”

(4).  Limits on the Judiciary, as envisioned by our Founders.  “Originalist” interpretation limits the judiciary and prevents the courts from asserting its will and discretion.  It prevents the courts from legislating from the bench and making policy (without any accountability to the People).  See Federalist No. 78, written by Alexander Hamilton: “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

(5)  Marbury v. Madison (1803).  Chief Justice John Marshall delivered the
decision where he said that judges take an oath to uphold the Constitution and therefore are bound to adhere to what it says. Furthermore, he concluded that it would be “immoral” to require a judge to perform his judicial duties in a manner that would violate that judge’s oath.  He wrote: ’This oath certainly applies, in an especial manner, to their [judges’] conduct in their official character.  How immoral to impose it upon them, if they were to be used as knowing instruments, for violating what they swear to support?”  Why would the Constitution require a Supreme Court justice to swear an oath to support and adhere to the Constitution (“true faith and allegiance”) if he or she could simply turn around and give it different meaning?

Judicial activism is what results from a “liberal” interpretation of the Constitution and our laws. Essentially, judges “make law” by injecting their personal views into legal interpretation and analysis. This is dangerous because under the separation of powers doctrine, a doctrine so vitally important in maintaining the integrity of our government, only the legislative branch is supposed to “make” laws.  The landmark case, Marbury v. Madison (1803) stands for the rule that the judiciary is supposed to faithfully interpret the law and to declare any law which is repugnant to the Constitution null and void.

Although the Dred Scott decision was probably the most offensive Supreme Court case of all time, Chief Justice Taney wrote: “While the Constitution remains unaltered, it must be construed now as it was understood at the time of its adoption; that it is not only the same in words, but the same in meaning, and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.”   And in South Carolina v. United States, Justice Brewer wrote: “The Constitution is a written instrument. As such, its meaning does not alter. That which it met when adopted, it means now. . . . Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded.” [South Carolina v. United States, pp. 448-449]. A provision of the Constitution does not mean one thing at one time and an entirely different thing at another time. [ Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), pg. 398].

Courts are named after the reigning Chief Justice.  For example, there was the Warren Court (after Chief Justice Earl Warren, 1953-1969), the Burger Court (after Chief Justice Warren Burger, 1969-1986), the Rehnquist Court (after Chief Justice William Rehnquist, 1986-2005), and now the Roberts Court (after Chief Justice John Roberts, appointed by President Bush). The Warren Court was considered the most activist court.  The Burger Court was more conservative (thanks to Reagan’s appointees), the Rehnquist Court was even more conservative, and they say that the Roberts Court may be the most conservative yet (even though there is the same ratio of liberal-to-conservative judges).

The Warren Court played an activist role in advancing civil rights and rights for criminals, as will be discussed later.  The Burger Court continued that trend, including the use of affirmative action programs, bussing to establish racial quotas in schools that mirrored the school district, kicking God and prayer out of public schools, and establishing the right of a woman to have an abortion on demand.  In other words, in the 1950’s-70’s, the Warren and Burger Courts judicially created rights. The Rehnquist Court limited these rights – it limited the rights of criminal defendants and finally tended towards criminal control, restricted the use of affirmative action, and made it more difficult to get an abortion.

There is a long list of Supreme Court decisions that represent a progressive Supreme Court and which have redefined the Constitution.  There are also decisions which have basically created new rights (without using the Amendment process).

With the examples of activist Supreme Court decisions I will review below, I hope you will come to see how judges have strayed from the vision of our Founders and have taken the Judiciary to places it was never intended to go and have abused powers far exceeding any that our Founders expected they should have.  In our modern era, liberal-minded people and organizations have seized on this to change law and effect societal change without going through the legislative process where there is accountability with the people. They take their chances in the courts where they know judges aren’t necessarily confined by the letter or even the spirit of the law. It is said that liberals and progressives seek through judicial activism what they cannot achieve through legislatures and ballots.

How pervasive is judicial activism?  Kevin Gutzman, author of the book Who Killed the Constitution, summed it up this way: “This is how bad it is… if the people of virtually every state ban flag burning or regulate abortion, or use more aggressive police enforcement tactics to curb rising crime, or provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this……..  The people never consented to have the federal judges behave this way.”

Supreme Court ignores the words in the Declaration of Independence – “All Men are Created Equal” – and Helps set the Nation on a course for the Civil War –

Dred Scott v. Sandford (1857)

The Dred Scott decision was probably the most offensive and activist Supreme Court decision of all time. It helped hasten the arrival of the Civil War, primarily by further polarizing the already tense relations between northern abolitionists and southern pro-slavery factions. Anti-slavery states tried, through all efforts possible, including the Missouri Compromise, to gain enough representatives in Congress to outlaw slavery (the prohibition under Article I, Section 9 had expired – The migration or importation of slaves shall not be prohibited by the Congress prior to the year 1808).  The pro-slavery states tried, also through all efforts possible, to match the number of pro-slavery states entering the Union and therefore the number of representatives in Congress to block any such legislation. When the Dred Scott decision invalidated the Missouri Compromise, all hell broke loose. When the decision stripped all blacks of any rights protected by the Constitution, abolitionists were outraged.
Dred Scott, a slave, was born in Virginia. He moved to St. Louis, Missouri, with his owners in 1830 and then was sold to Dr. John Emerson sometime between 1831 and 1833. Emerson, as an Army doctor, traveled all over the country.  Scott’s travels with his owner took him for extended periods to places like Fort Armstrong, Illinois, Fort Snelling, in the Wisconsin Territory, Fort Jessup, Louisiana, and St. Louis.  During this time, Scott lived for a total of seven years in states or territories that did not permit slavery.  Illinois was a free state and the Missouri Compromise of 1820 had closed the Wisconsin Territory to slavery. Scott filed suit for his freedom on April 6, 1846, while living in St. Louis, as the property of Emerson’s widow.

The question presented to the court was whether a Negro, whose ancestors were imported into this country and sold as slaves, can become a citizen of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by the Constitution.

The opinion was written by a feeble, 80-year-old Chief Justice Roger B. Taney.  The Supreme Court that held that:
(1)  People of African descent imported into the United States and held as slaves (or their descendants, whether or not they were slaves) are not protected by the Constitution and could never be U.S. citizens. (There are no rights that Africans have under our Constitution)

(2)  Because slaves are not citizens, they cannot sue in court.  “Negroes, even free Negroes, are not citizens of the United States, and therefore, Scott, as a Negro, does not even have the privilege of being able to sue in a federal court.”

(3)  Slaves are property.  They are chattel or private property.  As such, they cannot be taken away from their owners without due process.  The Constitution makes no distinction between slaves and other types of property.

(4)  The Missouri Compromise is unconstitutional.  Congress has no authority to  prohibit slavery in new territories.   It is a decision for the people themselves in those territories. “…Just as Congress cannot deny citizens in new territories the right to free speech, it can’t deprive the citizens of the territory of ‘life, liberty, or property without due process of law,’ according to the Fifth Amendment.”).

Taney ruled that the case be dismissed for lack of jurisdiction and sent back to the lower court with instructions for that court to dismiss the case for the same reason, therefore upholding the Missouri Supreme Court’s ruling in favor of Sanford.

Abraham Lincoln said: “Slavery is founded on the selfishness of man’s nature and opposition to it on his love of justice. These principles are in eternal antagonism; and when brought into collision so fiercely as slavery extension brings them, shocks and throes and convulsions must ceaselessly follow.”

Supreme Court defines a NEW Standard for Education (The start of
the “Social Engineering” of the Education System) —

Brown v. Board of Education (1953)

[Overview:  In Brown v. Board of Education, in 1953, the Supreme Court identified a new standard for education – classes must be integrated. The “Separate but Equal” doctrine that the Court had previously held as sufficient under the Equal Protection Clause was thrown out for education because Chief Justice Earl Warren felt it didn’t sufficiently apply.  He felt that segregation by race inferred a sense of inferiority on black students which would affect their education. The decision was more about social reform than it was about following the letter of the law].

In Brown v. Board of Education, black children were denied admission to public schools that were attended by white children under laws requiring or permitting segregation according to race. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County.

For the previous 58 years, the Supreme Court had consistently held that separate (segregated) public facilities could be considered equal, if they met certain standards, and therefore met constitutional requirements. That is, this standard implied that there would be no inferior or unequal treatment and therefore, no Equal Protection violation.  Nevertheless, the question before the Court in Brown was whether the “separate but equal” doctrine should apply to education.  (The “separate-but-equal” doctrine had been upheld in an earlier decision, Plessy v. Ferguson, in 1896).  Does segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?

The Court held that segregated schools are inherently unequal. The decision was surprisingly brief and contained very little in the way of legal argument and legal analysis…. particularly for a case that was to overturn a half century of jurisprudence. The case called on the Court to look at the intent of the 14th Amendment when it was drafted and adopted. The Court noted that Congress, when drafting the Fourteenth Amendment in the 1860s, did not expressly intend to require integration of public schools. Nevertheless, Warren noted that the emphasis on education had increased over the years and had become an essential part of citizens’ lives. Any child denied a good education would not be likely to succeed in life.  He reasoned that when a state has undertaken to provide universal education, such education becomes a right that must be afforded equally to both blacks and whites – under the Equal Protection clause.

Were the black and white schools “substantially” equal to each other, as the lower courts had found?  In tangible factors, yes, the schools were substantially equal to one another.  However, 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 finding of inferiority came from a “doll test.  This test was designed by psychologists Kenneth Bancroft Clark and his wife, Mamie Phipps Clark in the 1940’s to study the psychological effects of segregation on black children. In the “doll test,” Kenneth and Mamie Clark used four plastic, diaper-clad dolls, identical in every way except for color. They showed the dolls to black children between the ages of three and seven and asked them questions designed to determine their racial perception and preference.  Although all of the children readily identified the race of the dolls, when asked which
they preferred, the majority selected the white doll and attributed positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” caused black children to develop a sense of inferiority.

The “doll test” was heavily referenced in the Brown decision.  Once the Justices accepted the results of the study, they concluded that the long-held ‘separate but equal’ doctrine did not address intangible factors that are important for education. 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.  As Justice Warren wrote: “The ‘separate but equal’ doctrine adopted in Plessy v. Ferguson, which applied to transportation, has no place in the field of public education.”  Warren reasoned that “separating black children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law tends to impede the educational and mental development of black children and deprives them of some of the benefits they would receive in an integrated school system.”

[Plessy v. Ferguson (1896) —   The Plessy case involved a Louisiana statute that required separate railway cars for blacks and whites.  In 1892, Homer Adolph Plessy, who was seven-eighths Caucasian, took a seat in a “whites only” car of a Louisiana train.  He refused to move to the car reserved for blacks and was arrested.  He challenged the statute, questioning whether it violated both the Equal Protection and the Privileges and Immunities Clauses of the 14th Amendment.  In a decision written by Justice Brown, the Court upheld state-imposed racial segregation on the following grounds:
(i)  Separate facilities for blacks and whites satisfies the Fourteenth Amendment so long as they are equal. (Note, however, that the exact phrase, “separate but equal” was not part of the opinion.)
(ii)  Segregation does not in and of itself constitute unlawful discrimination. Justice Brown conceded that the 14th amendment intended to establish absolute equality for the races before the law but noted that “in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either.”  (The 14th Amendment shouldn’t be read to mean forced commingling of the races when they might find it unsatisfactory)].

The unanimous opinion in Brown v. Board of Education signaled the end for all forms of state-maintained or intentional racial separation. The remedy was to require all intentionally segregated schools to be desegregated. (That is, those schools segregated by race pursuant to statute or state constitution).  In the Brown II case a decided year later, the Court ordered the states to integrate their schools “with all deliberate speed.”  More specifically, the court stated that admissions to schools must be based on a racially-nondiscriminatory basis and that schools must begin to do so with all deliberate speed.   Note that the case didn’t address geographical (or non-intentional) segregation. (But later cases would force a remedy on those situations as well).

Instead of relying on a discussion of the applicable law, or deciding exactly what the 14th Amendment means, the Warren Court appealed to sociological arguments about the adverse effects of segregation.  The Court placed sociological evidence, and limited evidence at that, ahead of established law and legal reasoning in order to achieve the morally desired result (not that the decision to strike down segregation laws wasn’t the right thing to do).  In order to blur distinctions based on race under the 14th Amendment, race itself had to be used as a criteria in the design of a remedy.

The Equal Protection Clause of the 14th Amendment had been construed by the Supreme Court as applying only to national citizenship, not state citizenship, as per the intent of the drafters at the time, and then affirmed in the Slaughterhouse Cases of 1873. In the majority opinion of that case, the Court also noted that the purpose of the Equal Protection Clause was to nullify laws that discriminated against blacks. The 14th Amendment guaranteed to blacks all the rights of national citizens, and prevented any state from passing a law that limited the rights of a national citizen. In Plessy, the Court reiterated the line of reasoning used in the Slaughterhouse Cases, adding: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”

Section 5 of the 14th Amendment reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  The 1883 “Civil Rights” cases explained Section 5.  These cases held that the 14th Amendment authorizes Congress to propose corrective legislation to penalize or counteract state legislatures that violate the Constitution with respect to the other sections, but does not allow Congress to pass general legislation on such matters.  With Brown, the Supreme Court assumed that power to “correct” and that power of enforcement that Congress was denied. Brown put the Constitution on the side of racial equality and set into motion a series of decisions that would require almost anything to achieve that goal, even at the expense of breaking our own laws to do so.  Brown ushered in an era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices sought to pursue in education.  This analysis has nothing to do with whether the decision was right or not at the time, but is simply one that looks at the process of getting to that decision.

Brown addressed “intentional” or “forced” segregation (statutorily-mandated segregation). Green v. County School Board of New Kent County in 1968 addressed a “school choice” plan – where families were given a choice as to which schools they wanted their children to be assigned. With Green, we see the court undertaking social engineering of the public school system.

Green v. County School Board of New Kent County (1968)

New Kent County, a rural county in Eastern Virginia, had divested local boards of education of the task of assigning children to particular schools. Under the Pupil Placement Act, the authority to assign children was placed in a State Pupil Placement Board. Under the Act, students seeking enrollment for the first time were assigned at the discretion of the State Board and furthermore, students were automatically reassigned each year to the school previously attended unless, upon their application, the State Board assigned them to another school. White families almost uniformly chose schools that mostly whites attended and blacks almost uniformly chose the schools that mostly blacks attended. There was no forced segregation. For years, no student had applied for admission to another school under this statute (that is, no child applied for re-assignment).

At the time of the lawsuit, about one-half of its population of some 4,500 were black. There was no residential (geographical) segregation in the county; persons of both races reside throughout. The school system had only two schools – the New Kent school on the east side of the county and the Watkins school on the west side. The school system served approximately 1,300 pupils, of which 740 are black and 550 are white.  There were no attendance zones. Each school served the entire County.  Nevertheless, the New Kent school, a combined elementary and high school was a “white” school (mostly whites), and the Watkins school, also a combined elementary and high school, was a “black” school (mostly blacks).  The segregated system was initially established and maintained under Virginia’s Constitution and under Virginia law mandating racial segregation in public education (Constitution; 1902 and statute; 1950).  Both provisions were held to violate Brown v. Board of Education, and the power to make school assignments was divested of the school boards. A “Freedom of Choice” plan was then set up.  Students would continue in the same school system until they made a choice to change. For years, no family or student applied to a school “of a different color.”

Although there was no forced segregation or mandated segregation, and no child was forced to feel “inferior,” the Supreme Court nonetheless held that the plan was ineffective at desegregation and therefore violated the Constitution. The Court was saying that there needs to be an affirmative plan to mix races in school districts. It was this case which prompted the Court to start looking for options on how to affirmatively and proactively integrate schools. That is, the Court was saying that race-based decisions would have to be made by school districts (to over-come prior race-based decisions). In order to blur distinctions based on race under the 14th Amendment, race itself would have to be used as a criteria in the design of a remedy. The remedy was legally dishonest. But how far was the Court willing to go to effect societal change in public school education? (See Swann v. Charlotte-Mecklenburg Board of Education)

Swann v. Charlotte-Mecklenburg Board of Education (1971)

By the time the Swann case was filed, the Supreme Court had already lost patience with the slow pace of school integration, especially in the South. After the Brown decision, little progress had been made in desegregating public schools in the South, and especially following the affirmative mandate of Green. One example was the Charlotte-Mecklenburg (NC) school district, where approximately 14,000 black students attended schools that were either totally black or more than 99% black. This was the result of a desegregation plan that was approved by the District Court in 1965 (which was the year the lawsuit commenced).  The judge upheld the desegregation plan because he understood the Brown decision as mandating that all “intentional “ segregation be ended. That is, he concluded that there was no requirement in the Constitution to act purposely to increase racial mixing.  But something happened shortly thereafter…  the Green decision. Swann therefore petitioned the Court for further relief based on the Greene decision which required school boards to come up with a desegregation plan that realistically works and erases any state-imposed segregation.  (For years, the South resisted Brown’s mandate to desegregate schools).

The question before the Court in Swann was whether federal courts were within their constitutional authority to come up with remedies to overcome state-imposed segregation. In a unanimous decision, the Supreme Court held that once violations of previous mandates directed at school desegregation had occurred, the scope of district courts’ equitable powers to remedy past wrongs were broad and flexible. The Court ruled that: (1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas (racial quotas) were legitimate “starting points” for solutions; (2) predominantly or exclusively black schools required close scrutiny by courts; (3) the creation of non-contiguous school districts, as interim corrective measures, was within the courts’ remedial powers; and (4) busing was an acceptable remedy to reach desegregation status in particular schools. The Supreme Court finally made it clear to what extent the federal government would go to remedy instances of intentional segregation. Once school districts had committed violations of previous mandates (bad faith) aimed at desegregating schools, they would be subject to the “broad and flexible” equitable powers of district courts to remedy those past wrongs. Such plans could include the use of mathematical ratios or racial quotas and could include busing.

Punishment, rather than simply setting aside bad law, seemed to be at the core of the Supreme Court’s decision. As we saw in Green, where students and families had a choice, and then in Swann, where children went to schools in their neighborhoods, even when there was no intentional segregation and no affirmative conduct to segregate using race-based decisions, the school plans were found to violate the 14th Amendment. Yet the courts remedies themselves involved race-based decisions.

In Swann, the Court endorsed forced bussing as an acceptable remedy to end desegregation in public schools. The school system may have violated the mandate of Green, but it didn’t break the law. There was no intentional, or statute-based, segregation based on race. But the Supreme Court’s remedy, on the other hand, violated the Constitution outright. It ordered the schools to make race-based decisions (exactly what segregation plans did in the first place). For every black student that was assigned to a different school, a white student had to be intentionally re-assigned. Its decision was to order discrimination against some to stop discrimination against others. The Court’s intentions were good, but it still broke its own law nonetheless. The goal was social engineering. The goal was forcible racial quotas.

[Note that Milliken v. Bradley, in 1974, a case dealing with the desegregation busing plan across district lines among 53 school districts in metropolitan Detroit, set important limitations on busing. Milliken held that forced remedies such as busing could extend across district lines only where there was actual evidence that multiple districts had deliberately engaged in a policy of segregation].

The Supreme Court Seeks to Remedy Past Discrimination
— Affirmative Action and Racial Preferences —

1978  –  Regents, University of California v. Bakke  –  In a 5-4 decision, the Supreme Court decided that a college may consider race as a factor in considering admissions.

1979 – United States Workers v. Weber  –  In a 5-4 decision, the Supreme Court upheld a voluntary affirmative action plan for crafts training at Kaiser Aluminum & Chemical Corp. plants.

1980  –  Fullilove v. Klutznick  –  In a 6-3 decision, the Supreme Court upheld Congress’ decision to set aside a portion of public works funds for minority

1983  –  Wygant v. Jackson Board of Education –  In a 5-4 decision, the Supreme Court held that Jackson, Michigan may not lay off white teachers who have more tenure over black teachers with less tenure. (Lay-offs must be equal and without regard to race).

1986 –  Local 93 v. City of Cleveland  –  In a 6-3 decision, the Supreme Court upheld a promotion plan for firefighters using a 1-to-1 ratio in order to increase the number of minorities in upper level positions.

1989  –  Richmond v. J.A. Croson Co.  –  In a 6-3 decision, the Supreme Court held that state and local government programs to help minority-owned businesses may not use rigid racial quotas and must be limited to correcting documented incidents of past discrimination.

2003  –  Grutter v. Bollinger;  Gratz v. Bollinger  –  In a 5-4 decision, the Supreme Court upheld “narrowly-tailored” racial preferences for admissions at the University of Michigan Law School but in a 6-3 decision, struck down a “points system” used by the University for undergraduate admissions.

2007 –  Parents Involved in Community Schools v. Seattle School Dist. No. 1  – In a 5-4 decision, the Supreme Court held that primary and secondary schools may not use race-based decisions in school assignments except for districts which have been ordered by courts to remedy past resistance to school segregation.

General Trends: 
— It is OK for colleges and law schools to use race as a factor in considering admissions, but use of “racial preferences” must be ‘narrowly-tailored.’
— It is NOT OK for primary or secondary schools to use race-based decisions in school assignments except in those districts which have been ordered by courts to remedy past resistance to school segregation.
— School districts may NOT lay off white teachers who have more tenure over black teachers with less tenure as a means for increasing the number of black teachers.. (Lay-offs must be equal and without regard to race).

The trend in Supreme Court decisions is to limit the scope of policies intended to address racial bias.

Title VII of the Civil Rights Act of 1964 – Assuring Equality or Institutional Reverse-Discrimination?

Ricci v. DeStefano (2009)

In 2003, the city of New Haven, CT, decided to fill 15 slots for lieutenants and captains in its fire department through a test. Of the 19 firefighters who passed the test and therefore qualified for promotion, none were black and two were Hispanic.  Because of the poor showing by minorities, the city refused to certify the test results.  It claimed the test had a “disparate impact” on blacks (that is, it is more difficult for blacks than whites), was therefore discriminatory, and therefore was justified in scrapping the results.  The city said it scrapped it because it didn’t want to be sued by the black firefighters or civil rights groups under Title VII of the Civil Rights Act of 1964.  The White and Hispanic firefighters who passed the test filed suit alleging that New Haven improperly violated their
rights by improperly placing too much emphasis on the Civil Rights Act.

The question presented to the Court was whether a municipality can reject results from an otherwise valid civil service exam when the results unintentionally prevent the promotion of minority candidates?

In a 5-4 decision, the Supreme Court ruled that New Haven wrongly discriminated against a group of mostly-white firefighters who lost out when a promotion exam was scrapped (not certified) because no blacks scored well enough to advance.  The city of New Haven claimed the test had a “disparate impact” on blacks (that is, it is more difficult for blacks than whites) and therefore was justified in scrapping the results.  The Court, however, found no credible evidence of such disparate impact.  The Court concluded that the exams were fair,  job-related, consistent with business necessity, and there was no evidence that an equally-valid, less-discriminatory alternative was available.  Justice Kennedy, writing for the court’s conservative majority, said the city violated Title VII of the 1964 Civil Rights Act.  He wrote: “Whatever the city’s ultimate aim — however well intentioned or benevolent it might have seemed — the city made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white.”   He said that an employer can’t negate an exam unless there is strong evidence the test was unfair to minorities. In New Haven’s case the evidence was quite the opposite, he wrote, as the city took specific steps to ensure that black and Hispanic firefighters were consulted in designing the questions.  As he explained: “Employers must show a ‘strong basis in evidence’ before ignoring results of employment-related tests — even if they worry the outcome was unfair — so as not to frustrate other applicants.”  Consequently, the Court concluded that New Haven violated the Civil Rights Act.

In a disturbing dissenting opinion, Justice Ruth Bader Ginsburg wrote: “The white firefighters who studied for the exam understandably attract the court’s empathy, but they had no vested right to the promotion.”

This case makes it clear that the Civil Rights Act “chills” the workplace because it makes employers feel overly vulnerable to Title VII challenges (either intentional discrimination or “disparate-impact” type discrimination) which burdens the rights and opportunities of whites.  It seems that Scalia would have liked the Court to address this.  He wrote: ” As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision-making is, as the Court explains, discriminatory.  The Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

I highlight this case because one of Obama’s appointees to the Supreme Court, Sonia Sotomayor, was a member of the Court of Appeals of the 2nd Circuit (a 3-member panel) which heard the case and upheld the city of New Haven’s decision to scrap exam scores. She agreed with the other 2 members and wrote: “New Haven, in refusing to validate the exams, was simply trying to fulfill its obligations under federal law after the outcome had a disproportionate impact on minorities.”   She got the decision wrong.  Yet she was still approved to the Supreme Court.  It appears that she was appointed not for her legal intuition or legal expertise, but rather for her activist position on social issues.

This case exemplifies the tight line that our Civil Rights laws force employees to walk and how vulnerable whites are subject to discrimination because of affirmative action and Title VII.  This decision is actually very troubling for all employers.  Although the decision was
in favor of the white petitioners, the language of the decision makes clear that employers must be extremely diligent in crafting tests which will not illegally screen out minorities or manipulate test results to boost minority scores.  Scalia believes that this scheme, forced on employers by the government (Title VII), violates the Equal Protection clause
and is inherently unconstitutional.

The Supreme Court takes Religion out of Public Life

Everson v. Board of Education (1947)

In Everson v. Board of Education, the Supreme Court declared that our nation, long-founded on Christian values for our government, for our laws, for our national character, and for notions of morality, would no longer tolerate religion in the school system….   the
very place students were expected to learn about their nation’s history and heritage.

In New Jersey, public education was (still is) funded through property taxes. A New Jersey law authorized reimbursements by local school boards to families with school-age
children for the costs of transportation to and from schools – including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools. In 1947, Mr. Arch Everson, a taxpayer and resident of Ewing Township, questioned whether these publicly-funded reimbursements could be used by parents to send their children to private religious schools.  He alleged that this practice violated the First Amendment and amounted to the township endorsing and supporting religion.

First Amendment:   “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The question that Everson presented to the Supreme Court was whether the practice of school reimbursements, which permits families to use them to send children to
sectarian schools, violates the Establishment Clause of the First Amendment?

In a 5-4 decision written by Justice Hugo Black, the Supreme Court held that the reimbursements did not violate the Constitution, because parents had a choice and were not forced to send their children to sectarian (religious) schools.  As Justice Hugo Black wrote: “The State contributes no money to the schools.  It does not support them.  The legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.”

But the decision didn’t end there.  In addressing the claims of Mr. Everson, the Court went into a discussion and analysis of Establishment Clause jurisprudence.

Justice Hugo Black wrote:  “In the words of Jefferson, the First Amendment clause against the establishment of religion by law was intended to erect ‘a wall of separation between church and State’……. That wall must be kept high and impregnable.  We could not approve the slightest breach.”

He further wrote:  “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'”  [Everson, 330 U.S. 1, 15-16].

Basically, the decision, written by Black (a former ranking member of the KKK appointed to the Court by FDR) declared that the First Amendment required a sharp and clear separation between government (of which public education is a function) and religion. Black wrote that there must be a “Wall of Separation” between Church and State.  Although it could be argued that Hugo Black lifted this phrase from the Klansman Creed which, after the KKK resurfaced again in the 1920’s, demanded a “Wall of Separation between Church and State” in order to prevent the growing Catholic population from inserting their views in politics, Black managed to cite a letter written by Thomas Jefferson in 1801 to the Danbury Baptist Association which included that phrase.

Yes, Hugo Black was a ranking member of the KKK in Alabama. He traveled around the state, explaining the Klan platform.  He was also in charge of administering the Klan oath, or Klansman Creed.  Besides hating blacks and Jews, the KKK came to hate Catholics as well.

Where did the metaphor “Wall of Separation” originally come from?   Roger Williams, who founded the first Baptist Church in America and founded the colony of Rhode Island, not only was an advocate of the separation between church and state but used the metaphor in his writings.  Williams originally settled in Massachusetts Bay Colony in 1631 but was expelled four years later for his outspoken belief that every man had the complete right to enjoy freedom of opinion regarding religion. He left Massachusetts, befriended several Indian tribes, and soon purchased the land that would become Rhode Island. He named his first colony “Providence,” for obvious reasons. He founded the colony as a pure democracy, where the will of the majority would govern.  Furthermore, no one was refused admittance because of religious convictions or practice. Rhode Island would become a haven for Quakers, Jews and others fleeing from persecution. In 1639 Roger Williams joined the Baptist faith and founded the first Baptist church in America.  In 1644, he wrote a book, The Bloody Tenent of Persecution, and in it he used the phrase “A hedge or wall of separation between the garden of the church and the wilderness of the world.”  Did Jefferson know about that book and about that phrase?  When writing to the Danbury Baptists, did Jefferson  purposely include a phrase from the founder of their church, knowing that it would help make his point about religious persecution?

The Danbury Baptists were a minority religion in Connecticut. The state was dominated by the Congregational church and the Baptists were experiencing a degree of religious persecution. In the letter they sent to President Jefferson in 1801, the Danbury Baptists wrote:  “…Religion is considered as the first object of legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen.”  Clearly the Danbury Baptists are concerned that their religious rights – their rights to free exercise – are not “inalienable rights” as they are supposed to be, but rather are mere “privileges” afforded them by the state.  They are also clearly concerned about the sufficiency of those rights.. “What (little) religious privileges we enjoy, we enjoy as favors granted to us.”  And still another concern is the fact that those “privileges” come at a price (quid pro quo) – “we receive them at the expense of degrading acknowledgements.”  They probably had to acknowledge the supremacy of the Congregational church. Finally, the Danbury Baptists appear to express hope that somehow Jefferson, as President, can have some influence on the situation.

In the letter he sent in response, in 1802, Jefferson sought to console the Danbury Baptists by assuring that the First Amendment would always prevent a formal establishment of one religion over another.  He wrote that the Establishment and Free Exercise Clauses built a “wall of separation between church and State.”  He explained:  “Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere
satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

To me, the letter seems very clear.  Jefferson directly connects two thoughts in one sentence…  the People spoke and declared that Congress should make no law respecting the establishment of religion, or prohibit the free exercise thereof, and ‘wall of separation.’  The “wall” refers only to government action that rises to the actual establishment of a national religion such that it burdens the free exercise of any religion that differs.

Roger Williams wrote about “the hedge or wall of separation between church and state” and Thomas Jefferson, in writing to a group of Baptists, used the same metaphor.  Both referred to the situation where a “wall” would prevent the establishment of a state-sponsored or national religion and would allow all persons of all faiths to practice freely and equally, without persecution or coercion. On the other hand, the metaphor “Wall of Separation” also just happened to be a major component of the Ku Klux Klan’s platform of “social engineering” (pretty much the way “religious neutrality” is on the platform of current social engineering organizations). In an article in The Heritage Foundation entitled “The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law, Policy, and Discourse,” Daniel Dreisbach wrote: “Black’s affinity for church-state separation and the metaphor was rooted in virulent anti-Catholicism.  In his book, Separation of Church and State, Philip Hamburger argues that Justice Black, as a former Alabama Ku Klux Klansman, was the product of a “confluence of Protestant [specifically Baptist], nativist, and progressive anti-Catholic forces.” He wrote: “Black’s association with the Klan has been much discussed in connection with his liberal views on race, but, in fact, his membership suggests more about his ideals of Americanism.”   Dreisbach believes his membership especially explains his support for the separation of church and state.  “Black had long before sworn, under the light of flaming crosses, to preserve ‘the sacred constitutional rights’ of ‘free public schools’ and ‘separation of church and state.'” Although he later distanced himself from the Klan, Hamburger wrote: “Black’s distaste for Catholicism did not diminish.”

Nevertheless, Justice Black wrote that infamous statement inEverson: “In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’……. That wall must be kept high and impregnable. We could not approve the slightest breach.”  It would become the new standard for Establishment Clause challenges. We may never really know Black’s true motivation, but his opinion does seem to be contrary to a common sense interpretation of the Establishment Clause and seems to establish a general hostility on the part of government towards religion.  (“We could not approve the slightest breach.”  The wall must be high and impregnable.”)

What does the Establishment Clause really mean?  It means exactly what it says: “Congress shall make no law respecting the establishment of religion.”  The only prohibition is against Congress and that particular prohibition is “an official and intentional act” – one that establishes a national religion.  We have to read it this way.  After all, the Constitution was written clearly for every American to read and understand.  If it were written cryptically, then our Founders wouldn’t have instructed that it was written for us to understand.  We have to remember that there is both an Establishment Clause and a Free Exercise Clause which comprise our individual religious rights.  If the courts go overboard with the Establishment Clause (as it has done), then it burdens the Free Exercise clause.  That is, it burdens individual religious free exercise.

[Note:  In Reynolds v. United States (1878), the Court wrote that Jefferson’s Danbury letter “may be accepted almost as an authoritative declaration of the scope and effect of the First Amendment.”  This was a case determining the constitutionality of an anti-polygamy statute in Utah. Reynolds, a member of the Church of Latter Day Saints, argued that as a Mormon, it was his religious duty as a male member of the church to practice polygamy if possible. The Court upheld the statute, stating that Utah was free to punish such (criminal) activity and that religious duty was not a suitable defense to a criminal indictment.  As Chief Justice Waite wrote: “The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy.  “Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.”

The Supreme Court recognized that under the Free Exercise Clause of the First Amendment, Congress could not pass a law that prohibits the free exercise of religion. However it argued that the law prohibiting polygamy did not fall under this.  Rather, it was a religiously-neutral statute. Such a law existed in England since the times of King James I (part of English common law) and the laws in the US were based on English common law from the time of our founding.  Although the US Constitution did not define religion, the Court looked into the history of religious freedom in the United States. That investigation led to Thomas Jefferson’s letter to the Danbury Baptists. In the Court’s ruling, Waite quoted from that letter in which Jefferson stated that there was a distinction between religious belief and action that flowed from religious belief. The former, he explained,
“lies solely between man and his God,” therefore “the legislative powers of the government reach actions only, and not opinions.” The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”  The Court believed the true spirit of the First Amendment was that Congress could not legislate against opinion, but could legislate against action.  (By the way, Jefferson’s letter stated “the legitimate powers of the government….. ” and not “legislative powers.”)]

“Wall of Separation”……  It can be easily argued that no metaphor in any American letter has had a more profound influence on law and on policy than this letter by Thomas Jefferson. It can be argued that the United States effectively became a secular society with the Everson decision and its subsequent related cases.  Can we imagine what the self-proclaimed “Founder of Religious Freedom” would say if he knew that a phrase in a single letter effectively removed religion from public life, for it was always his opinion that “Free Exercise” was the more important of the clauses?  His own conduct is a testament to his views.  He used government funding to establish a church in the Congress building which he attended every Sunday but would not establish national days of fasting, observations, etc because that would amount to a government establishment of one particular religion.

Everson’s strongly-worded opinion paved the way for a series of later Supreme Court decisions that, taken together, brought about profound changes in legislation, public education, and other policies involving matters of religion. Many believe the Everson case undertook a “new” interpretation of the First Amendment and such Chief Justices of the Supreme Court as William Rehnquist (1986-2005) and our current Chief Justice John Roberts (2005-) believe the decision was an exercise of judicial overreaching and should be overturned. This may actually indicate the new direction of the Supreme Court.

Engel v. Vitale (1962) —

The Supreme Court held that it is unconstitutional for teachers and other school officials to require an official school prayer in public schools, even if it is non-denominational.

The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.”

The question before the Court was whether the reading of a nondenominational prayer at the start of the school day violate the “establishment of religion” clause of the First Amendmen.

The Court answered YES. It concluded that neither the prayer’s nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans.

Justice Potter Stewart dissented, denouncing the reliance on the metaphor “Wall of Separation.” He criticized the Court’s analysis, noting that the Court’s task in resolving complex constitutional controversies “is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.”

Abington School District v. Schempp (1963)

This case concerned Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord’s Prayer. Students could be excluded from these exercises by a written note from their parents to the school. The statute was challenged by one of the parents – an atheist.

The question presented to the Court was whether the Pennsylvania law and Abington’s policy, requiring public school students to participate in classroom religious exercises, violates the religious freedom of students as protected by the First and Fourteenth Amendments.

The Court said that the law violates both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were “intended by the State to be so.” Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school’s actions from violating the Establishment Clause.

Wallace v. Jaffree (1985) —

This case concerned an Alabama law that allowed teachers to conduct a moment of silence/voluntary prayer in school classrooms during the school day.

As Attorney Baker stated in his oral arguments to the Court: “The question before the Court is whether the Alabama statute providing a minute of silence for meditation or voluntary prayer constitutes an establishment of religion or whether it constitutes a common sense accommodation of the religious diversity of a people which is consistent with the purposes of the religious clauses of the First Amendment.”

The Supreme Court decided that the statute amounted to an establishment of religion. In a 6-3 decision written by Justice John Paul Stevens, the Supreme Court struck down the law as violating the Establishment Clause. The Court applied the “Secular Purposes Test” or “Lemon” test {Lemon v. Kurtzman] and concluded that the purpose of the moment of silence was not secular and instead was an affirmative endorsement of religion.  The practice therefore violated the school’s duty to remain absolutely neutral with respect to religion. Justice Stevens referenced the “Wall of Separation” as the explanation for the government’s relationship with religion.

The Lemon test holds that to survive constitutional scrutiny, a statute or practice must: (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor
inhibits religion; and (3) not foster excessive governmental entanglement with religion.

Justice Rehnquist dissented, writing that that the ‘Wall of Separation’ “is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”  It should be noted that even a year after Hugo Black defined First Amendment jurisprudence using the “Wall” metaphor from Jefferson’s letter, Supreme Court justices have criticized use of that metaphor in subsequent religion cases. For example, in McCollum v. Board of Education (1948), a case involving religious instruction by religious teachers during the day in public schools, Justice Stanley Reed denounced the Court’s reliance on the metaphor. In his dissent, he wrote: “A rule of law should not be drawn from a figure of speech.”  And in Engel v. Vitale (1962), the school prayer case, Justice Potter Stewart opined that the Court’s task in resolving complex constitutional controversies “is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.”

The Supreme Court Declares NEW Fundamental Rights —

Roe v. Wade  (1973)    The Right to an Abortion on Demand

It was the Roe v. Wade decision which announced a new fundamental right… the right of a woman to determine matters respecting her fertility and reproduction and to have an abortion on demand.  This case legalized abortion and is seen as the landmark case for Women’s Rights movements.

Roe, a Texas resident, sought to terminate her pregnancy by abortion, but a Texas statute prohibited abortions except to save the pregnant woman’s life. The question before the Court was whether the Constitution embraces a woman’s right to terminate her pregnancy by abortion.

The Supreme Court held that it does. In a 7-2 decision written by Justice Blackmun, the Court decided that the Constitution in fact does protect this liberty right. The majority held that a woman’s right to an abortion fell within the right to privacy.  Privacy itself is not an express right enumerated in the US Constitution, but according to the Supreme Court in Griswold v. Connecticut (1965), many of the rights expressly granted and protected by the Bill of Rights are grounded or based in a fundamental right to privacy.  Indeed, as Justice Brandeis wrote in the 1928 case Olmstead v. US:  “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect… They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” In Griswold, a case asking whether a married couple has the right to use contraceptives, is the Court recognized that there are certain zones or “penumbras” of privacy” that the Constitution recognizes as underlying many of our fundamental rights and are therefore privacy itself is protected under the Constitution.  [The right to privacy can be found in the “penumbras” and “emanations” of other constitutional protections.  Griswold]

In Roe, the Court held that a right to privacy under the Due Process clause of the Fourteenth Amendment  extends to a woman’s decision to have an abortion, but that right is not absolute. That right must be balanced against the state’s legitimate interests in regulating abortions: (1) protecting prenatal life and (2) protecting the mother’s health.  According to the decision, a woman’s right to control matters involving her fertility and reproduction is strongest in the early months of pregnancy and the state’s interests become stronger as the pregnancy goes on.  The judges therefore used a balancing test and came up with a trimester approach to determine which party’s interests are most important at which time during the pregnancy.  In the first trimester, the woman’s rights trump.  In the second trimester, the state’s legitimate interests weigh strongly against the woman’s right and in the third trimester, the state’s interests outweigh the woman’s right.  If the woman can make a claim that the pregnancy poses a threat to her health, she essentially and for all intents and purposes can have an abortion at any point in the pregnancy.

In Roe, the Court also held that the fetus has no right of its own to claim protection because it is not a “person” within the meaning of the 14th Amendment. (“All persons born
or naturalized in the United States…”). Therefore, the Court redefined “life” to mean only babies who have been born.

Justice White dissented and wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” Justice William Rehnquist also dissented. He would later write: “The drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

Our nation was founded on a belief in God. For about 300 years we respected that.  All of a sudden, this bit of history has become an inconvenient truth. We believed what God told us.. that every human life is special and worthy of life and dignity.. from the unborn to the very old. We understood what the laws of science itself told us: that a fetus is indeed a living being. Every expectant mother who feels her baby move insider her can attest to life.  We don’t take lives.  And then the Roe decision came along.

In an interview with the NY Times Magazine in 2009, Justice Ruth Bader Ginsburg made the following statement: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”  So, instead of Roe being about a woman’s right to choose, Justice Ginsburg actually thought it was more about getting rid of unborn babies of an “undesirable” portion of our population, because after that, Medicare funding became available for abortions (which she saw as affecting predominantly one segment of the population. She came to question that perception when the Court decided Harris v. McCrae eight (8) years later in 1980, upholding the Hyde Amendment, which was passed in 1976 by Republicans and which forbids the use of public funding for abortion.  It has rarely been used or state funding has taken its place, since the ACLU and other groups have argued that the Amendment targets blacks and other low-income minorities.

In 2005, Ginsburg, a lifelong proponent of Women’s Rights, addressed NY University’s law school and said that if she were on the Court at the time, she would have secured the right of a woman to have an abortion even more firmly through the Equal Protection Clause.  She said she would have argued that women cannot participate in society equally with men without the ability to control their reproductive lives.  Perhaps Ginsburg took her cue from a comment in the majority opinion by Justices Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter in Casey v. Planned Parenthood (1992). In that opinion, O’Connor wrote: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
The Court continued its support of a woman’s right to control her reproductive capability with the case  – Casey v. Planned Parenthood (1992).

Planned Parenthood  v. Casey, Governor of Pennsylvania (1992)

Planned Parenthood v. Casey stands now as one of the most dangerous Supreme Court decisions of all time. Writing for the majority, Justices O’Connor, Souter and Kennedy said, “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”  With those words, the Court discarded its historic reliance on “a law beyond the law,” or a transcendent standard.

The Founding Fathers based the Constitution on the understanding that human affairs are governed by the moral law of the universe or what they termed “The Law of Nature and of Nature’s God.” That’s why the Declaration of Independence reads, “All men are endowed by their Creator with certain unalienable Rights … ” Human dignity and freedom are precious gifts from God, rather than from government or its leaders. The Creator is also the ultimate definer of right and wrong. But after the Casey decision, this understanding of the moral absolutes was supplanted by “the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”

Pennsylvania passed an Abortion Control Bill in 1988 and then added additional provisions in 1989. It presented a number of “reasonable” obstacles to a woman seeking an abortion, including:
1).  A 24-hour waiting period prior to the procedure.
2).  A minor seeking an abortion required the consent of one parent (although the law allowed for a judicial bypass procedure, in case of incest, for example).
3). A married woman seeking an abortion had sign a form stating that she notified her husband.

These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions

The question presented to the Supreme Court was whether a state could require a woman who wanted to have an abortion to abide by certain provisions first, such as obtaining informed consent, notifying her husband (if married), waiting 24 hours, and, if a minor, obtaining parental consent, without violating her right to an abortion as guaranteed by Roe v. Wade.

In a bitter, 5-to-4 decision, the Court again reaffirmed Roe.  It held that no state can provide an “undue burden” to a woman’s fundamental right to control her fertility, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  Applying that standard, it upheld all the provisions except for the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. [So where are the husband’s rights in procreation?]

Lawrence v. Texas (2003) — The Right of Homosexuals to Engage in Sodomy

This case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered Lawrence and his partner engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits “deviate sexual intercourse.” They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.

In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick controlling.

The question before the Court was whether the Texas “Homosexual Conduct” Law which criminalizes sodomy by homosexual couples, but not identical conduct by heterosexual couples, violates the 14th Amendment’s guarantee of equal protection and whether it violates homosexual’s vital and fundamental interests in liberty and privacy which are protected by the Due Process clause of the 14th Amendment. Finally, the Court was asked to overturn Bowers. [In a divided Court, Bowers held that there was no constitutional protection for acts of sodomy, and states were free to outlaw those practices].

In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. The Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government,” wrote Justice Kennedy. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” continued Justice Kennedy. Accordingly, the Court overruled Bowers.

Justice O’Connor, who had voted with the majority in Bowers, concurred in the judgment and said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Justice Scalia’s dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes.

Kennedy v. Louisiana (2008) The Right to Brutally Rape a Child and be Spared the Death Penalty

Patrick Kennedy, age 43, was found guilty of brutally raping his eight-year-old stepdaughter and sentenced to death. The rape was uncommonly brutal: it tore the victim’s perineum “from her vaginal opening to her anal opening. It tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina. Invasive emergency surgery was required to repair these injuries.”  Dr. Scott Benton, an expert in pediatric forensic medicine, testified that he had never seen a child with such severe sexual assault injuries. Kennedy maintained that the assault was committed by two neighborhood boys and refused to plead guilty when a deal was offered to spare him from a death sentence.  Nevertheless, he was convicted and sentenced under a 1995 Louisiana law that allows the death penalty for the rape of a child under the age of 12.

On appeal, Kennedy challenged the constitutionality of executing a person solely for child rape, claiming it was disproportionate to the crime (excessive punishment) and thus offended the Eighth Amendment’s ban against cruel and unusual punishment. The Louisiana Supreme Court rejected the challenge on the grounds that the death penalty was not too harsh for such a heinous offense. The court distinguished the U.S. Supreme Court’s plurality decision in Coker v. Georgia (1977), which held that the death penalty is a “grossly disproportionate” punishment for the crime of rape of an adult, and said it didn’t apply when the victim was a child. Instead, the Louisiana Supreme Court applied a balancing test set out by the U.S. Supreme Court in its more recent death penalty cases [see Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005)] which first looks to see if there is a national consensus on the punishment and then balances or considers whether the court would find the punishment excessive. The Louisiana Supreme Court concluded that the adoption of similar laws in five other states (the “consensus”) coupled with the unique vulnerability of children together with the particular brutality of Kennedy’s crime satisfied the Atkins and Roper balancing test. Kennedy sought direct review of the Louisiana Supreme Court’s decision in the Supreme Court of the United States, which agreed to hear the case in January 2008.

The question presented to the Court was whether a state violates the Eight Amendment’s ban on cruel and unusual punishment by imposing the death sentence for the crime of child rape?

The Supreme Court said YES. In a 5-4 decision the Court reversed the decision of the Louisiana Supreme Court.  The Court held that the Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the child’s death.  Writing for the majority, Justice Kennedy said that applying the death penalty in such a case would be an exercise of “cruel and unusual punishment” in violation of a national consensus on the issue.  By “consensus,” he referred to the statutory schemes of other states. How many have outlawed the death penalty?  How many allow it in cases that don’t result in death?  [Kennedy criticized the Louisiana Supreme Court on the information it relied on for a “consensus.” The Court noted that 5 states not form a national consensus and even more, legislation in those states was only “pending” – with 2 states already voting it down by the time the case was reviewed]

The opinion began: “Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”  Then the Court went on to invalidate the law that the people of Louisiana consented to which captures those feelings.

“It must be acknowledged that there are moral grounds to question a rule barring capital
punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. Life may not be nearly so happy as it was, but it is not beyond repair.  Rape has a permanent psychological, emotional, and sometimes physical impact on the child.  We cannot dismiss the years of long anguish that must be endured by the victim of child rape.  It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish ‘be exercised within the limits of civilized standards.’ [Trop v. Dulles, 356 U.S. 86 (1958)].”

In overturning the death penalty for the child rapist, Kennedy wrote: “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.  For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them the most deserving of execution.’  Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U.S. 153 (1976), the Court insists upon confining the instances in which the punishment can be imposed.”

In summarizing, he wrote:

          “We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim … . Short of homicide, it is the ‘ultimate violation of self.’ … But the murderer kills; the rapist, if no more than that, does not… . We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life. Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whetherthe death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability….In (death penalty) cases the Court has been guided by ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.’  [


          and C

oker v. Georgia

          , 543 U. S. 551 (2005) (both cases finding that both legislatures and juries had firmly rejected the penalty of death for the rape of an adult woman) and

Enmund v. Florida

          , 458 U. S. 782 (1982) (looking to “historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made”)].  The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose. [See




        ]. Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”

(i)  In this case, the Supreme Court created a new categorical right to rape a child without receiving the death penalty.
(ii)  Does anyone believe this decision has any grounding in the Constitution ? (pure activism)
(iii)  Since when does a national consensus enter into an analysis of the Constitution?
(iv) The dissenting justices said that the actual basis of the Kennedy decision was “the Court’s own judgment’ regarding ‘the acceptability of the death penalty.’”
(v)  The majority opinion made clear that the Court differed with the people’s representatives (the Louisiana legislators) on the question of how significant rape of a child is.
(vi)  Child’s rights’ groups praised the decision. They condemned Louisiana’s law because they were fearful that the if a child rapist knew he might face the death penalty he would have an incentive to kill his victim.
(vii)  The case pitted the Eighth Amendment definition of “cruel and unusual punishment” over states’ rights as defined in the Tenth Amendment (ie, the state’s right to impose punishment as it sees fit)

The Supreme Court Re-defines the Constitution —

Bolling v. Sharpe (1954)

In Bolling v. Sharpe, the Supreme Court held that the 5th Amendment Due Process Clause also includes an Equal Protection element.  Up until 1954, Due Process meant “due
process.”  There was no Equal Protection Clause in the Bill of Rights. There was no affirmative requirement by the federal government to apply laws equally.

Due process’ is a “procedural right,” meaning that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government takes any action to take away one’s life, liberty, or property. Also, “due process” includes a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Compare to the 14th Amendment: Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


The Supreme Court Weakens Individual’s Property Rights  —

Flemming v. Nestor (1960)

Probably every single worker in this country who has money mandatorily taken from their paychecks to be put into a special fund for Social Security benefits upon retirement would assume that those funds are property rights that have simply not ‘matured,’ in a sense.  Most would feel a sense of a contractual or property right to those funds. They see the government as ‘temporarily’ holding the money for the individual’s benefit.  After all, they already are “forced” to pay federal and state income tax and they understand that those amounts rightfully then become the property of the federal government, under the 16th Amendment, the Social Security Act, and other laws.  Social Security deductions are not property that rightfully belongs to the government.  But thanks to Flemming, those who think like this would be wrong.

Nestor worked for years in the United States. After he was deported for being a member of the Communist Party and denied Social Security payments, he challenged Section 1104 of the Social Security Act (1935). He argued that a contract existed between himself and the United States government, since he had paid into the system for 19 years.

The question presented to the Court was whethere there a contractual right or property right in Social Security amounts deducted from an individual’s paycheck.

The Supreme Court held that workers have no contractual right to their Social Security deductions and no right to Social Security in general.  It held that Social Security payments are not property rights and therefore if the government interferes with those payments, there is no 5th Amendment Due Process violation (taking of life, liberty, or property without ‘due process of law’).  The Court noted that to say that the Social Security system represents ‘accrued property rights” would deprive Congress of the flexibility it needs to adjust to ever-changing conditions.

Americans have lost a rightful entitlement – one that was founded on the very principles our country was established…..  the right to life, liberty and property, and the understanding that government’s job is to protect those rights. In fact, in reaching this decision, the Supreme Court ignored 300 years of jurisprudence which focused on those three most dearly-held rights of man. (see John Locke, Thomas Jefferson, and most of our Founding Fathers).


The Supreme Court Grants Greater Protections to Criminally
Accused and Prisoners  —

Miranda v. Arizona  (1966)

In the early morning hours of March 2, 1963, an 18 year old girl was on her way home from a movie near Phoenix when she was dragged into a car, tied up and raped. Police investigating the case eventually traced the car used during the attack to Miranda’s common-law spouse. Although the victim was unable to positively identify her attacker, police took Miranda into custody and began to question him about the crime.

A two hour interrogation followed after which Miranda admitted to the rape and kidnapping and even identified his victim. Miranda went on to give a written statement with his confession. The written confession contained a typed statement which indicated that Miranda was making the statement with “full knowledge of my legal rights” and that he was aware the statement could be used against him. The statement did not, however, contain any advisement that Miranda had the right to talk to a lawyer before making any statement. This was not surprising since at the time, no such requirement existed in any case law or statute. Based largely on this confession, Miranda was arrested and charged with kidnapping and rape.

At trial, Miranda’s criminal defense lawyer cross-examined one of the officers that interrogated Miranda and, seemingly as an afterthought, asked if the officer had advised the suspect of the right to have an attorney present during the questioning. The officer confirmed that he had not and the lawyer made a motion to exclude the confession which was promptly denied. Five hours after closing arguments, the jury returned a unanimous guilty verdict on both counts.

The question presented to the high Court was whether the police practice of interrogating
individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment.

The Court said YES. The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrate the use of procedural safeguards “effective to secure the privilege against self- incrimination.” The Court noted that “the modern practice of in-custody interrogation is more psychological than physical and hence, special safeguards are needed.  In the opinion, the Court specifically outlined the necessary aspects of police warnings to suspects in custodial interrogations, including warnings of the right to remain silent and the right to have counsel present during questioning.

“You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?”

The Miranda decision has been interpreted and applied to thousands of situations and cases. Although the cases address a number of issues and situations, two key points are worth noting. The first is that Miranda only applies when an accused is in police custody. That is the “custodial” requirement of Miranda. To trigger the requirement to give any rights advisement, the suspect must be in custody. A suspect is generally considered to be in custody when he or she is not free to leave. Obviously this is a fact-specific decision but consider the example of a police officer responding to the scene of a domestic disturbance. Imagine the officer is standing on the lawn talking with one of the parties to the incident and the party makes an incriminating statement. A court would most likely find that that individual was not in custody and therefore there was no requirement to give any Miranda advisement.

The second key point to remember is that Miranda only applies to police interrogations. It does not apply to spontaneous statements made to police not in response to any questioning. It also does not apply to routine booking questions or to other evidence considered non-testimonial in nature such as fingerprints, blood or breath sampling or handwriting examples.

[For those wondering if justice ever caught up with Ernesto, yes it did.  Although the Court reversed his conviction, the case was sent back for a re-trial, this time without the confession. At the re-trial, Miranda’s common-law spouse came forward and testified against him. He was again convicted and sentenced to 20-30 years in prison. He was released on parole in 1975. Not long after his release, Miranda was stabbed to death in a fight during a card game in a Phoenix bar. When the police arrested a suspect in the killing, they read him his rights off a preprinted card with the heading: “Miranda Rights.”

Note that Miranda warnings are NOT rights. They are merely procedural safeguards so that criminal defendants don’t feel coerced by the police into giving up evidence or making a confession. The Supreme Court had reason to revisit the decision to require Miranda rights for criminal defendants (meaning, when police take a person into custody) in 2000, in the Dickerson case.

Dickerson v. United States (2000)

Charles Dickerson was arrested for armed robbery and gave a statement implicating his guilt.  There was a dispute as to whether Miranda warnings were given before or after the statement was given.  The government argued that even if the Miranda warnings were not read, the statement was voluntary and therefore admissible under a federal statute – 18 USC Section 3501 – which provides that “a confession shall be admissible in evidence if it is voluntarily given.”

What happened was this: Two years after the Miranda decision, in 1968, Congress enacted 18 U.S.C. 3501 in an attempt to legislatively overturn Miranda.  The statute read, “the admissibility of suspect statements “made during custodial interrogation” would turn on whether or not the statements were made “voluntarily.”  Congress tried to replace Miranda warnings with a standard of “voluntariness.” Unfortunately, the statute was never enforced, or for that matter even widely known by most street officers.

The court of appeals held that even though he was read his Miranda warnings and didn’t sign a waiver, the statute was satisfied because the admission was voluntary.  It held that the intent of the statute was clear.

The question before the Court was whether Congress may legislatively overrule Miranda v. Arizona and its warnings that govern the admissibility of statements made during custodial interrogation.

The Court said NO.  In a decision by Chief Justice William Rehnquist, the Supreme Court reasoned that because “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” Congress may not legislate them away. (Think NYPD Blue, NCIS, Law & Order).  Justices Scalia and Thomas dissented. They blasted the Court’s ruling, writing that the majority opinion gave needless protection to confessions.

Brown v. Plata (May 23, 2011) – More Rights for Prisoners

In this case, the Supreme Court ordered the State of California to release 46,000 prisoners because of prison over-crowding, which burdened medical treatment (in that treatment waiting times were often increased). The Court claimed that this over-crowding amounted to a violation of prisoners’ Eighth Amendment right against Cruel and Unusual Treatment.

California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions were the subject of two federal class action suits. In the first class-action suit, Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to over-see remedial efforts reported 12 years later that the state of mental health care in California’s prisons was deteriorating due to increased overcrowding.  In the second class-action suit, Plata v. Brown, filed in 2001 on behalf of prisoners with serious medical conditions, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by over-crowding.  Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing over-crowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court.  [The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata district court judges and a third, a Ninth Circuit judge.  After hearing testimony and making extensive findings of fact, this three-judge court ordered California to reduce its prison population to 137.5% of design capacity and to do so within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval. The state of California (Governor Brown) appealed the decision to the Supreme Court, arguing that the three-judge panel had no jurisdiction to rule on the issue and that it didn’t give California a reasonable amount of time to comply with previous court orders directed at remedying the problem.  The high Court affirmed the three-judge court’s order.

The Prison Litigation Reform Act (PLRA) states that prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, and extend no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U. S. C. §3626(a)(1)(A).  This standard is what stands at the heart of this decision.

The plaintiffs alleged that “system-wide deficiencies in the provision of medical and mental health care, taken as a whole, subject sick and mentally ill prisoners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.”  The plaintiffs did not claim, and it would absurd to suggest, that every single one of those prisoners has personally experienced “torture or a lingering death.”

What are the deficiencies that caused the majority to conclude that 46,000 prisoners need to be released from prison for Eighth Amendment violations?  The deficiencies noted by the majority include the following:
(a)  exam tables and counter tops, where prisoners with communicable diseases are treated, are not routinely disinfected;
(b)  medical facilities “are in an abysmal state of disrepair”;
(c)  medications “are too often not available when needed”;
(d)  basic medical equipment is often not available or used;
(e)  sometimes there are long wait times to see a doctor (backlogs);
(f)  there is some over-crowding (prisoners may share just a few toilets and showers, which may be “‘breeding grounds for disease”);
(g)  Mentally ill prisoners are housed in administrative segregation;
(h)  prisons “would hire any doctor who had “a license, a pulse, and a pair of shoes”;
(i)  medical and mental health staff positions have high vacancy rates
(k)  rooms require repair and/or “prisoner-proofing
(for example, two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup-port a noose)

The question presented to the Court was whether a court order requiring the state of California to reduce its prison population by  46,000 prisoners an acceptable remedy to correct the violation of the prisoners’ 8th Amendment rights.

The Supreme Court said YES and upheld the 3-member court’s order to release the prisoners. In a decision written by Justice Kennedy, he affirmed that the court-mandated population limit and release of prisoners is a necessary remedy to correct theviolation of prisoners’ rights.

The Minority Opinion (Scalia, Thomas, Alito, and Roberts) Expressed Many Concerns with this Case:
(i)  The overwhelming majority of prisoners who will be released will not be the ones claiming constitutional violations. They will be the “buff” ones who have spent years pumping iron.
(ii)  The prisoners who will be released have not paid back their “debt” to society.  They
are benefitting from being in the “right place at the right time,” unlike their victims.
(iii)  Releasing prisoners poses a danger to communities and individuals.
(iv) The Supreme Court justices didn’t conduct any “balancing tests” like they did in Roe v. Wade to weigh the legitimate interests of respective parties. (prisoners v. innocent citizens)
(v) In the early 1990’s, Philadelphia released  thousands of prisoners because of over-crowding. During an 18-month period, these released prisoners committed 9,732 new crimes, including 79 murders, 90 rapes, and 1100 assaults.
(vi)  Approximately 20% of California’s prison population is comprised of illegal (Hispanic) immigrants.  The court-order upheld by the Supreme Court in this case represents a release back into society of approximately 30% convicted criminals.  Without an illegal immigration problem, California would not necessarily have a prison over-crowding problem (that is, one that requires drastic remedies) and the good citizens of the state would not have to face what the people of Philadelphia suffered.
(vii)  The remedy of the 3-member court in this case exceeded Constitutional authority under Article III and exceeded authority under the PLRA.

Justice Kennedy (joined by Ginsburg, Breyer, Sotomayor, and Kagan), agreed with the lower court’s description of the prison system as failing to deliver minimal care to prisoners with serious medical and mental health problems and producing “needless suffering and death.” The majority held that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.  The majority concluded that if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation.  In addressing the public safety issue that would result by releasing prisoners/criminals, the majority agreed with the three-judge court which concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits of a reduction in overcrowding.”

Kennedy wrote: “The medical and mental health care provided by California’s prison falls below the standard of decency,” and “this extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”  He seemed to state that the reduction in population need not be achieved solely by releasing prisoners early.  Among the other possibilities, he said, are new construction, out-of-state transfers and using county facilities. The ruling gives the state some flexibility when it comes to how it goes about reducing its prison population even suggesting that three judge panel that originally issued the order could extend a two-year compliance order if it felt the state was making progress in its efforts to reduce the inmate population to 137.5% of capacity.  Yet, citing the lower-court decision, he wrote:  “The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall.”

Justice Scalia called the order affirmed by the majority “perhaps the most radical injunction issued by a court in our nation’s history.” Justice Alito said “the majority is gambling with the safety of the people of California.”  Alito put the court’s remedy of prisoner release into perspective when he wrote: “The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.”

A scathing dissent was written by Justice Scalia, with whom Justice Thomas joined. Scalia wrote: “Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd… I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.”

He further wrote: “It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Alito asked: “Is it plausible that none of these deficiencies can be remedied without
releasing 46,000 prisoners?  Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected?  None of the system’s dilapidated facilities can be repaired?  Needed medications and equipment cannot be purchased and used?  Staff vacancies cannot be filled?  The qualifications of prison physicians cannot be improved?  A better records management system cannot be developed and implemented?”  Clearly, the most of the problems noted above could be addressed without releasing prisoners, putting innocent citizens at risk, and without incurring the costs associated with a large-scale prison construction program.  Wouldn’t the release of 46,000 prisoners back into California potentially burden health services that are already over-burdened?

In his dissent, Scalia expressed great objection to the use of structural injunctions, as the majority supported. As he states, they are not only radically different from the injunctions traditionally issued by courts of equity, but they also exceed the “judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’”  As Scalia wrote: “Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials…  they force judges to engage in a form of fact-finding-as-policymaking that is outside the traditional judicial role. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations.”

Scalia also noted that the majority failed to take sufficient notice of the PLRA requirement that, before granting “prospective relief in a civil action with respect to prison conditions,” a court “must give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U. S. C. §3626(a)(1)(A).  The majority simply accepted the opinion of the lower court which rejected testimony that inmates released early from prison would commit additional new crimes and instead claimed to find “clear evidence that prison overcrowding would “perpetuate a criminogenic prison system that itself would threaten public safety.”  The lower court  further volunteered its opinion that the prison population should be reduced even further with the reform of California’s antiquated sentencing policies. Scalia hinted that the District Judges did not make an objective decision and were bent on the remedy they proposed. As he wrote: “It is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments.”  And using structural injunctions only encourages judges to insert such policy judgments.

Justice Alito and Chief Justice Roberts agreed with Justices Scalia and Thomas that the lower court abused its discretion by improperly refusing to consider evidence of recidivism and impact to public safety, by refusing to entertain alternative remedies, and by refusing to accept updated information and data about the prison system (including evidence that many of the on-going prison violations had been addressed). For example, rather than prevent the release convicted criminals, the 3-judge panel refused to allow out-of-state transfers for prisoners who volunteered for such relocation. “The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. Common sense and experience counsel greater caution,” Alito wrote. Note that the Court could only reverse the findings of fact of the three-judge court if it held a “‘definite and firm conviction that a mistake has been committed (the standard for reversing a lower court’s finding of fact), but the conservative justices clearly felt that a mistake in judgment had been made.

The lower court recited statistics that were clearly out of date and the majority perpetuated them, even refusing to receive updated reports.  For example, the majority The Court took note that the lower court’s finding that as of 2005 “an inmate in one of California’s prisons needlessly dies every six to seven days.”  Yet by the date of the trial before the three-judge district court, the death rate had been trending downward for 10 quarters, and consequently, the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent. In fact, between 2001-2007, the California prison system had the 13th lowest average mortality rate of all 50 state systems.  The fact is that the population of the California prison system, which had 156,000 in-mates at the time of trial, is larger than that of many medium-sized cities, and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. I think most people can tell tales of family, friends, co-workers, classmates, or even anecdotal tales of people who waited in emergency rooms with serious health problems who we left untreated for far too long.

Finally, Scalia noted that the majority’s decision encroaches on a matter that traditionally belongs to a state under its sovereignty rights. Essentially, the majority upheld an order granting the functional equivalent of 46,000 writs of habeas corpus.  As a result, it “disturbs the State’s significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.”  As he wrote: “It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.”

Summing up his position, Scalia wrote:  “I do not believe this Court can affirm this injunction. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text of18 U. S. C. §3626(a)(1)(A): ‘Narrowly drawn” means that the relief applies only to the “particular prisoner or prisoners’ whose constitutional rights are violated; ‘extends no further than necessary’ means that prisoners whose rights are not violated will not obtain relief; and ‘least intrusive means necessary to correct the violation of the Federal right’ means that no other relief is available….  The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts.”

Alito wrote:  “In this case, a three-judge court exceeded its authority under the Constitution and the PLRA.” Before ordering the release of any prisoner, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A).  This provision unmistakably reflects Congress’ acknowledgement that prisoner release is inherently risky.  In fact, in creating the PLRA, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier (early 1990’s) in Philadelphia provided a good example and should have provided a good example to the Court’s majority. The federal courts enforced a cap on the number of inmates in the Philadelphia prison system and as a result, thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.  Members of Congress were well aware of these statistics. Yet despite these statistics and the records of other past prisoner release orders, the three-judge district court in this case concluded that releasing 46,000 criminals would not result in criminal activity like that seen in Philadelphia and would actually improve public safety. As Alito wrote: “This is a fundamental and dangerous error.”  He concluded that the three-judge court approved a population reduction plan that neither it nor the State of California found could assure that its implementation would be without unacceptable harm to public safety.

Scalia concluded that if the only viable constitutional claims consist of individual instances of mistreatment, as in this particular case, then a remedy reforming the system as a whole goes far beyond what the statute (PLRA) allows. Alito concluded as such.  “Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State’s failure to provide constitutionally adequate health care. This argument is implausible on its face and is not supported by the requisite clear and convincing evidence….  The majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong.  In a few years, we will see.”

With this brief over-view of activist Supreme Court decisions, I had hoped to show how cavalier our Justices have been over the years with our Constitution and laws to make new law and policy.  The Court is currently split equally (4-4) between those who are “originalist” in their approach to interpretation of our Constitution and those who interpret it liberally and often with reckless abandon. One Justice, Justice Kennedy, is often the deciding vote on matters of ideological differences.  He is often referred to as the most powerful man in America because whichever side he happens to come down on in any particular case will often be the deciding vote. In McDonald v. City of Chicago, he was the deciding vote on an important Second Amendment rights decision and yet in Plata, he was the deciding vote to open the prisons and send 30% of prisoners back into decent communities. When Obamacare comes before the high Court, Kennedy no doubt will be the Justice to look to.

Understanding judicial activism helps to explain the success of the Progressive Movement and explains why we are quickly losing our American identity and looking more like the countries of Europe.  The Progressive Movement seeks to remake society by destroying the old, or traditional, society.  And over the years, it has done so by destroying traditional social norms, traditional standards of morality, traditional and fundamental institutions, and common-sense laws that once defined a respectful, productive, hard-working, responsible and self-reliant people who were healthy in attitude and grounded in family and church.



IMMIGRATION:  United States v. Arizona (2010) and United States v. Georgia (2011) –  Federal judges bow to the dictates of foreign countries rather than the states suffering a hardship –

Under the command of Governor Jan Brewer, Arizona passed a broad immigration bill (S.B. 1070), a companion to the federal immigration laws.  As applied, it would have made the failure to carry immigration documents a crime and it would have given the police broad power to detain anyone suspected of being in the country illegally. The passage of the bill followed the cold-blooded shooting death of a local rancher by illegal drug smugglers.  In fact, Arizona’s illegal immigrant population nearly doubled in less than a decade, with a huge increase in associated illegal violence.  Governor Brewer accused the government of not enforcing federal immigration laws and frustrating local efforts.  To support her accusation, she noted that John Morton, Obama’s head of Immigration and
Customs Enforcement (under Homeland Security), said his agency would likely not
process suspected illegal immigrants referred to it under S.B.1070.  Right after S.B. 1070 passed, on April 23, 2010, US Attorney General Eric Holder quickly challenged the bill in the District Court for the District of Arizona, seeking to have it preliminarily, and then permanently enjoined from enforcement, on the grounds that federal immigration law is supreme and therefore pre-empts local efforts to regulate in that field.  District Judge Susan Bolton sided with the government and struck down the key elements (key enforcement elements) of S.B. 1070.  On April 16 of this year the federal Court of Appeals for the Ninth Circuit affirmed the decision.

In a decision by the most liberal of the federal appellate courts, the Ninth Circuit went as far as to cite the views of anti-American dictators as a justification for holding against S.B.1070.  Justice Richard Paez, who wrote the decision, argued that the law has “created actual foreign policy problems.” Among the “problems” he cited was the disapproval of the Mexican government, the United Nations Human Rights commissioners, the government of Bolivia, and the Organization of American States.

To appreciate the misplaced sense of loyalty here, consider two things: (1) Judges take an oath to support the US Constitution and its laws and not to serve the interests of foreign nations; and (2) Justice Paez put the concerns of hostile leaders over the legitimate concerns of States and American citizens – those on the front lines in the immigration battle.  The UN Commission on Human Rights just happens to include such dictatorships such as Cuba and Saudi Arabia.  And the Organization of American States includes such members as Cuba and the socialist dictatorships of Bolivia and Venezuela. The United States has not had diplomatic relations with Cuba for more than fifty years. In 2008, Bolivian President Evo Morales said that all Latin American nations should expel
American ambassadors and cheered on a mob who tried to burn down our embassy.
He said, “I don’t mind being a permanent nightmare for the United States.”  Venezuela’s dictator Hugo Chavez has spewed so much anti-American rhetoric that even Barack Obama expelled their ambassador just three months ago. Chavez had called Bush the
“devil” and Obama “Satan.”  So the mere suggestion by Justice Paez that the state law will create “foreign policy problems” is simply preposterous and disingenuous.  Plus, relying on such an argument amounts to judicial activism.

On May 13, Georgia passed its immigration law, House Bill 87 (H.B. 87) and Utah and
Indiana followed suit.   On June 9, Alabama passed its version of an immigration bill – H.B.65.  H.B. 87 and the measures passed by Utah and Indiana were drafted very similarly to Arizona’s S.B. 1070, but Alabama’s went further.  In fact, it has been called the
nation’s toughest immigration law.  (Instead of focusing mainly on transportation and employment, the bill would also require landlords to verify the immigration status of those they rent to  and would require schools to verify the citizenship status of students).  All of state laws have been challenged by the US Justice Department.

On June 27, a federal district court judge sided with the US government and blocked portions of Georgia’s law.  In his ruling, Judge Thrash asserted that the role of enforcing immigration laws should be left to the federal government.  The government had
challenged H.B. 87, as it challenged Arizona’s law, on the theory of federal pre-emption. Judge Thrash sided with civil rights groups and even with the government of Mexico, which filed a brief against the law.  The Anti-Defamation League, together with Mexico and the governments of several Central and South American countries, filed court papers in support of the government’s position to halt Georgia’s tough new immigration law.  Additionally, the American Civil Liberties Union (ACLU) of Georgia, the Southern Poverty Law Center, and several other civil and immigrant rights groups together filed a federal class-action lawsuit and requested a judge to halt the measure pending the outcome of their case. These groups alleged that H.B. 87 would establish a  ‘show-me-your-papers’ police state, encourage racial profiling, and would be contrary to traditional American
values. In its brief, Mexico argued that the court should halt the law because “H.B. 87 would substantially and inappropriately burden” relations between Mexico and the United States of America.”  As Jeanne DeAngelis wrote in her article, Mexico Sues Georgia Over Immigration Law:  “Apparently, Mexico believes that Georgia’s effort to help identify and
address illegal perpetrators, gun runners, drug cartels, and banditos who’ve been known to shoot and kill American citizens, border patrol agents, and ICE officials is what burdens country relations between Mexico and the US.”  Mexico said Georgia’s immigration law would interfere “with the strategic diplomatic interests of the two countries and is
encouraging an imminent threat of state-sanctioned bias or discrimination.”  Mexico also made the same argument that President Obama made in criticizing Arizona’s immigration
law.  He said that S.B.1070 was a “poorly conceived law” that would “try to make it really tough on people who look like illegal immigrants.”

As DeAngelis wrote: “Never before has a judge bowed to the dictates of foreign countries and the insane demands of liberal organizations that are oblivious to the safety and security concerns of America.”

HEALTHCARE  REFORM — Federal Judges are unclear as to the “Limited” nature of federal powers  

ISSUE:  Does the Healthcare Reform Bill (aka, the Patient Protection & Affordable Care Act (PPACA), or “Obamacare”) exceed the power reserved to Congress under the Commerce Act under the US Constitution?

Government –>   YES.  The Commerce Clause grants Congress broad powers.

States and Majority of Citizens –>  NO. The Commerce Clause was never intended to regulate human beings and inaction. If the government had power to enact regulations forcing citizens to engage in economic activity, its authority would be virtually unlimited. This is not what our Founders envisioned nor provided in the US Constitution.

QUESTION:  Given everything that you know about the ORIGINAL INTENT of the Constitution (government is to be small and limited; that its primary function is to protect the individual’s inalienable rights and liberties; that the Constitution is intended to restrain government and not People)  —

How would you think a federal court should decide on the constitutionality of the healthcare reform bill ?

3 Decisions –>  CONSTITUTIONAL

(Obviously our judges don’t know even the most fundamental principles of the Constitution)

(A)  2 Decisions – Obamacare is UNCONSTITUTIONAL

(i)  The State of Virginia v. Kathleen Sebelius (Virginia case, Dec. 13, 2010)
(ii)  The State of Florida v. Kathleen Sebelius (Florida,
Jan. 31, 2011) –  The multi-state (26 states) lawsuit against Obamacare

Summary of Cases:
1. Obamacare exceeds the reach of the Commerce Clause
2.  An appellate decision for both cases should be handed down any day (July – August 2011).
3.  The cases should consolidate and eventually reach the Supreme Court by Spring 2012 (in time for election)
4. Judge Vinson (FL case): “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America, would have set out to create a government with the power to force people to buy tea in the first place.“
5.  Judge Vinson cited James Madison in Federalist No. 51: “James Madison’s wrote in his
essay, Federalist No. 51:  “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
6.  On Aug. 12, the Court of Appeals for the Eleventh Ciruit upheld most of Judge Vinson’s decision.  The court ruled that Obamacare’s individual mandate is unconstitutional.  The decision by the Eleventh Circuit essentially says that if Congress can compel Americans to buy health insurance there is nothing that Congress cannot regulate.  In a 2-1 decision, the judges said the Individual Mandate is “unprecedented” and unlike any commercial regulation upheld in the past.  They wrote: “The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.”  As they noted, “Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel-efficient vehicle…..  While Congress may regulate those who buy insurance, it may not regulate those who have not entered the insurance market and have no intention of doing so.”  The ruling reaffirms that we have a federal government of limited and enumerated powers.  This decision is significant because it marks the first time a Democrat-appointed judge has ruled against ObamaCare.

(B)  3 Decisions – Obamacare is CONSTITUTIONAL

(i)  Thomas More Law Center v. Obama (Michigan case, Nov.7, 2010) – the first substantive ruling on Obamacare.
(ii)  Liberty University Inc., et al. v. Timothy Geithner, et al.  (Virginia case, Dec. 2010)
(iii)  Mead v. Holder, (DC case, Feb. 22, 2011)

Summary of Cases:
1). Judges ruled that not purchasing healthcare insurance represented an economic choice, and therefore could be regulated under the Commerce Clause of the Constitution.
2). Thomas More Law Center v. Obama – UPHELD on appeal (one siding with government, one siding with Thomas More Law Center, and one upholding District Court judge’s opinion on a technicality
3). Liberty University – arguments heard on appeal; decision expected any day
4). The Dean of Liberty University stated: “Such reach by the federal government is unprecedented and, if allowed, would leave no boundaries on the government’s power to regulate private decisions. The Founders would have been astounded. They thought they had left that kind of centralized government behind when they penned the Constitution.“
5). These cases will likely consolidate with the state cases and eventually reach the Supreme Court by Spring 2012 (in time for election)

GAY MARRIAGE  —   Federal courts are all over the place with Gay Marriage

1).  Perry v. Schwarzenegger (CA; federal court, 2010) –  Calif. Ballot referendum (Proposition 8) that was adopted by popular vote banning gay marriage was struck down in federal district court (San Francisco) by an openly gay judge.  Governor Schwarzenegger and State AG refused to defend the referendum in court.   Holding: Under the Equal Protection Clause, gays and lesbians have the right to marry.  Civil Unions are not equivalent.

2). Lewis v. Harris (N.J. State court; 2006) – The court refused to acknowledge a right to “marriage” while the equivalent avenue of civil unions is available to confer the same rights and legal responsibilities.

3). New York – legalized same-sex marriage (6th state to do so) – June 2011

4). DOMA (federal statute; Defense of Marriage Act – marriage defined as between man and woman). Obama administration will not defend it in court

5). Legal analyst Jeffrey Toobin says the issue will eventually be heard by the Supreme Court, but not yet. Predicts justices will put it off for 5-10 years. Why?   —  b/c even though the tide seems to be changing, the fact remains that every state that has had a referendum on this issue has voted it down, including liberal states like Maine and California, for the Supreme Court to say today, to every state in the union, you must allow same-sex marriage, that would offend notions of state sovereignty.

6).  What if Supreme Court pulls another decision like Brown v. Board of Ed?  (different institutions for different groups of people creates a sense of inferiority?)

Perry v. Schwarzenegger (California, 2010) — A judge’s personal bias clearly forms basis for decision

On August 4, 2010, a federal court in California struck down the gay marriage ban, popularly known as Proposition 8, and handed a victory to thousands of gays and lesbians who demanded they be entitled to “marry” their partners. Civil unions weren’t good enough, for in their eyes they are a “separate-but-equal” classification that made them feel like second class citizens. True equality was their desire. From plaintiffs’ standpoint, the title of marriage is an intangible right and California had no legitimate reason to deny it to them.  In Perry v. Schwarzenegger, the district court for the northern district of California found in favor of Kristen Perry and her partner Sandra Stier and Paul Katami and his partner Jeffrey Zarrillo, all plaintiffs in this litigation. The judge, Judge Vaughn R. Walker, was openly gay.

Judge Walker, who was appointed to the federal bench by Ronald Reagan in 1987 and then promoted by George H.W. Bush to sit on the U.S. District Court, declared that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Proposition 8 is the California state constitutional amendment voted upon by the majority of the people in the state to preserve the traditional definition of marriage. The constitutional amendment represented the will of the people themselves after the state legislature removed the words “between a man and a woman” from the definition of marriage in the California Family Code (which itself had also been a popular initiative). As Douglas Napier, an attorney with the Alliance Defense Fund who defended Proposition 8, commented: “The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters.”  He scolded the judge for making the case more about gay rights than about voters’ rights. Brian Brown, president of the National Organization for Marriage, said: “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman.”

Plaintiffs insisted that there is no meaningful distinction for purposes of marriage between a gay person in a “long-term committed relationship” and any other person, and that any effort to draw such a distinction would present an “intractable line-drawing problem.”  In their complaint, plaintiffs alleged that they “are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . .” They argued that Proposition 8 is unconstitutional because it prohibits them “from marrying the person with whom they are in a loving, committed, and long-term relationship . . . .”  Indeed, Plaintiffs insisted that they “are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships.”  They claimed that they were denied their due process rights under the Fourteenth Amendment (which provides that “State shall deprive any person of life, liberty, or property, without due process of law”) because their freedom to “marry” the person of their choice was violated by Proposition 8.  Plaintiffs claimed that the right to marry is a fundamental right, protected by their state constitution.  Specifically, plaintiffs alleged a due process violation because: (1) Proposition 8 prevents each plaintiff from marrying the person of his or her choice; (2) One’s choice of a marriage partner is protected by the Fourteenth Amendment from the state’s unwarranted regulation of that choice; and (3) California’s provision of a domestic partnership (a status giving same-sex couples the same rights and responsibilities of marriage without providing the actual ‘title’ of marriage) does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

On the other hand, proponents ( defended Proposition 8 on the grounds that it:
(1) Maintains California’s definition of marriage as excluding same-sex couples;
(2) It preserves the traditional meaning of marriage as it has always been defined in the English language;
(3) It preserves the traditional social and legal purposes, functions, and structure of marriage;
(4) It affirms the will of California citizens to exclude same-sex couples from marriage;
(5) It promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children;
(6) It promotes the optimal environment (that is, in households with a man and wife) for child-rearing; and
(7) It allows the state to proceed with caution when implementing social changes.

They argued that Proposition 8 should be evaluated in light of the “central purpose of marriage, in California and everywhere else,…. to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” As they explained: “responsible procreation is really at the heart of society’s interest in regulating marriage.” Furthermore, they asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate and equal (a parallel) institution under its domestic partnership statutes.

The judge criticized proponents for weak and bigoted arguments and commented that their case basically hinged on the argument that marriage should be protected because of procreation. The judge went so far as to paraphrase their argument as follows: “Proponents’ procreation argument, distilled to its essence, is as follows:  ‘the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households.’ The state therefore, according to their argument, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.”

It is interesting, in a disturbing way, to note in the Judge’s decision how he referred to and characterized proponents. Basically he viewed them as bigoted, morally righteous, and outwardly discriminatory.  He accused them of intentionally perpetuating invidious stereotypes to advance their agenda. As the judge described: “Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. The premises on which Proposition 8 was presented to the voters which gave him cause for concern were the ones as follows:
(1) Denial of marriage to same-sex couples preserves marriage; (he didn’t buy it. Didn’t think it was a compelling argument)
(2) Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples; (he found this insulting)
(3). Denial of marriage to same-sex couples protects children; (he claimed this allegation was based on cruel stereotyping)
(4). The ideal child-rearing environment requires one male parent and one female parent; (he didn’t buy this one either)
(5). Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; (he found this argument had no merit)

Judge Walker, throughout his decision, consistently equated marriage with “committed long-term relationships.” Indeed, he emphasized that “deep emotional bonds and strong commitments” are the key “characteristics relevant to the ability to form successful marital unions.”  In the end, Judge Walker was persuaded by the plaintiffs’ arguments that Proposition 8 is an intentionally discriminatory attempt by bigoted individuals to perpetuate invidious stereotypes in order to maintain marriage as an institution only for heterosexuals and that gays and lesbians are capable of forming stable long-term committed relationships just like heterosexuals. He was not persuaded by proponents’ arguments and testimony to show the benefits of a traditional nuclear family with traditional gender roles. Judge Walker found in favor of the gay and lesbian plaintiffs.

The decision was appealed to the United States Court of Appeals for the Ninth Circuit, and on June 13, 2011, a hearing was conducted before another district court judge regarding a motion to vacate Judge Walker’s decision because of his sexual orientation. As proponent’s (ProtectMarriage) filing states, “Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires.” (Judge Walker retired from the bench in February 2011).  On June 14, the federal District Court for the Northern District of California upheld Judge Walker’s decision.  Judge James Ware would not throw out Walker’s decision on the basis of bias.  Doing so, Judge Ware noted, would send a message that minority judges could not rule in civil rights cases. (Judge Ware took over the Perry case after Walker retired).  Judge Walker, who retired from the bench in February of this year, had remained silent about his homosexuality and status while on the bench.  He discussed it for the first time once he retired, sharing that he has been in a 10-year relationship with a physician. ProtectMarriage thought he should have disclosed the relationship; the group said that the judge’s relationship put him in the same shoes as the plaintiffs, and therefore should have been disclosed when he was assigned to the case. In response to that argument Ware wrote: “The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married and that rendered him incapable of making an impartial decision is warrantless.”

So that’s one challenge down already.

In every case, there are “findings of fact” and “questions of law.” The judge weighs the facts, evidence, and testimony and makes the determination as to which facts are to be given the most weight. These are the “findings of fact.”  Then he applies the law to those facts, which is the “questions of law” part of the decision.  Legally, the challenges in this case are 2-fold:  attacking the judge himself on the grounds of unreasonable bias (asking to have Judge Walker’s decision vacated, in district court) and challenging his application of the law (appeal to the Court of Appeals for the Ninth Circuit; San Francisco).  Much of the case boils down to “questions of law” to which appellate courts review de novo. (Again, that means they look at them completely fresh).  At the appellate level, Judge Walker’s determinations would essentially be given no deference there. However, Judge Walker also listed many “findings of fact.”  These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” There is a good chance that the “findings of fact” will be re-visited because Judge Walker essentially assigned no weight to any of the testimony, findings, and arguments of the proponents, shrugging them off as merely the views of a homophobic, morally-righteous, bigoted and outwardly discriminatory” group of people. People living in the real world would have concluded and weighed the facts very much differently.  There would have at least been meaningful, robust discussion.

At this point in the appellate process, however, the Court of Appeals for the Ninth Circuit  must determine whether or not ProtectMarriage in fact has “standing” to defend the law in court. The State of California has refused to enforce the law or defend it in court, and as a result, ProtectMarriage, a strong supporter of the law, has decided to step up to defend it.  “Standing” is a requirement that any plaintiff or challenger must show to bring a lawsuit. The party must demonstrate a sufficient connection to and harm from the law or action. The party must show that it has been “directly or indirectly harmed by a ruling or law.” The Court of Appeals ordered the California Supreme Court to determine the standing of ProtectMarriage and it is expected to make that determination in the early fall. The case would then go back to the Court of Appeals. Regardless of the outcome, it is expected to make it to the Supreme Court for the fall term (October 2011).

SCHOOL FUNDING FOR LOW-INCOME CHILDREN:  Abbott v. Burke (New Jersey, 2011) —  State court substitutes its judgment for the judgment of the legislature

This year, in Abbott v. Burke, the New Jersey state Supreme Court addressed the question of what is the constitutionally-required level of funding for schools. The particular issue before the court was whether the State’s failure to fund education at the level called for by the (NJ) School Funding Reform Act of 2008, N.J.S.A. 18A:7F-43 to -63 (“SFRA”), due to budgetary constraints, violated the New Jersey Constitution’s guarantee of a “thorough and efficient education.”

Up until 2008, when SFRA was enacted, New Jersey had two school systems – 580 conventional districts and 31 “Abbott districts.”  “Abbott” districts are school districts specifically in New Jersey that are covered by (and named after) a series of NJ Supreme Court rulings, that began in 1985. The 1985 case concluded that the education provided to school children in poor communities was inadequate and thus unconstitutional. The rulings mandated that schools in these districts had to be funded at the level enjoyed by children in the most affluent school districts. That is, the schools in Abbott districts must reach parity with the schools in the wealthier districts. There are 31 “Abbott” school districts in NJ. The purpose of SFRA was to eliminate the distinctions between “Abbott” and “non-Abbott” districts by providing supplemental money to at-risk children no matter where they were enrolled. The SFRA, the law at the center of the controversy, was the brainchild of the Corzine administration. Even though former Governor John Corzine’s policies nearly bankrupted the state, Governor Chris Christie was of course obliged to obey the laws he signed, including the SFRA. The problem was that when he signed the state budget, it didn’t include enough money to meet the mandates of that law.

The NJ constitution states that the “legislature shall provide for the maintenance and support of a thorough and efficient system” of free education from elementary school through high school.  Back in January, the NJ Supreme Court concluded that the record was insufficient to make a determination and then appointed Judge Peter E. Doyne as a Special Master to create a record on this issue and to make proposed findings of fact and conclusions of law.  The Order required Judge Doyne to provide his findings and conclusions by March 31, 2011. The court, on May 24, accepted the conclusions of Judge Doyne and ordered that the state spend an extra $500 million next year in public school education, for these “Abbott” school districts.  The question is why are they even still considered a ‘separate’ type of school district?  The purpose of the massive funding over the years was intended to “eliminate the distinctions” between the school districts.

Governor Chris Christie and state legislators are trying desperately to solve the state’s financial crisis.  The taxpayers in the state are overtaxed and overburdened and need relief.  Who do you think knows best how to deal with the crisis… elected legislators or judges who are appointed and not accountable to those taxpayers?   The NJ Supreme Court decided it was the court who knows best.  It decided it has the authority to determine what level of funding satisfies the constitution’s requirement and to order the state to spend more if the court is not satisfied. This case is an example of where the state’s highest court has court has taken on the role of judiciary, legislator, and chief executive and this particular court has a history of such decisions.

The state is seeking, by way of legislative power over appropriations, to diminish the “Abbott” districts’ pupils’ right to funding to receive a “thorough and efficient education” through SFRA and to achieve a release, if you will, from the “parity’ requirement.  State legislators are not seeking to use the appropriations power as a shield to the state’s responsibilities but rather, to be able to approach the matter in a reasonable and fiscally sensible way.

Brown v. Plata, 563 U.S. ___ (May 23, 2011).  Referenced at:    [No.09–1233. Argued November 30, 2010 and Decided May 23, 2011]

Adam Liptak, “Justices Order California to Shed 30,000 Prisoners,” NY Times, May 23, 2011.  Referenced at:

Dred Scott Decision – Case Summary. Referenced at:

The Slaughterhouse Cases, 83 U.S. 36 (1873), Oyez.  Referenced at:

Everson v. Board of Education, 33 U.S. 1 (1947), Cornell University Law School.
Referenced at:

“Brown v. Board of Education – Case Brief Summary,” LawNix.  Referenced at:

Daniel Costello, “Brown v. Board of Education Under Originalist Principles: Would Plessy Hold?,” Arcane Knowledge, 2007. Referenced at:

“With an Even Hand: Brown at Fifty, ” The Library of Congress.  Referenced at:

Milliken v. Bradley, 418 U.S. 717 (1974)

Thomas Jefferson to the Danbury Baptist Association, the Founders Constitution: Amendment 1 (Religion).  Referenced at:

Jefferson’s Letter to the Danbury Baptist Association,  Referenced at:

Roe v. Wade, 410 U.S. 113 (1973).  Referenced at:

Griswold v. Connecticut, 381 U.S. 479 (1965).

Christopher Neefus, ” Justice Ginsburg Says She Originally Thought Roe v. Wade Was
Designed to Limit ‘Populations That We Don’t Want to Have Too Many Of’,” CNS News, Aug. 9, 2009.  Referenced at:

Abington School District v. Schempp, 374 U.S. 203 (1963).  Referenced at:

Engel v. Vitale, 370 U.S. 421 (1962).  Referenced at:

Brown v. Board of Education, 347 U.S. 483 (1953-54).  Referenced at:

Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1 (1971).  Referenced at:

Green v. County School Board of New Kent County, 391 U.S. 430 (1968)

Ricci v. DeStefano, 557 U.S. ___ (2009)

Jess Bravin and Suzanne Sataline, “Ruling Upends Race’s Role in Hiring,” The Wall Street Journal, June 30, 2009.   Referenced at:

Emily Bazelon, “The Place of Women on the Court,” NY Times, July 7, 2009.  Referenced at:

Lawrence v. Texas, 539 U.S. 558 (2003), Oyez.  Referenced at:

Bowers v. Hardwick, 478 U.S. 186 (1986), Oyez.  Referenced at:

Adam Liptak, “Justices Order California to Shed 30,000 Prisoners,” NY Times, May 23, 2011.  Referenced at:

The “Civil Rights Cases”:  United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson v. Memphis & Charleston R. Co.

Abington School District v. Schempp, 374 U.S. 203 (1963).  Referenced at:

Engel v. Vitale, 370 U.S. 421 (1962).  Referenced at:

Eric Roper, “The Case of Ernesto Miranda,” March 15, 2011.  Referenced at:

Dickerson v. United States, 530 U.S. 428 (2000).  Referenced at:

Planned Parenthood v. Casey, 505 U.S. 833 (1992).   Referenced at:

Harris v. McRae, 448 U.S. 297 (1980).  Referenced at:

Olmstead v. U.S., 277 U.S. 438 (1928)

Carrie Severino, “New Jersey Supreme Court Usurps State Education Budget,” National Review Online, May 24, 2011.  Referenced at:

Bench Memos, National Review Online. Referenced at:

“Border States Deal With More Illegal Immigrant Crime Than Most, Data Suggest,”
Fox News, April 30, 2010.  Referenced at:

Bob Braun, ” Schools Case Decided, but Plenty Left Unanswered,” Star Ledger, May
26, 2010.  Referenced at:

Diane Rufino, “Perry v. Schwarzenegger: California Becomes the Latest Battleground for Gay Marriage Rights,” Aug. 17, 2010.

Zak Slayback, “Proposition 8: Long Path to the Supreme Court,” Daily American, May 11, 2011.  Referenced at:

Dan Levine and Peter Henderson, “Gay Judge’s California Same-Sex Marriage Ruling Upheld,” Yahoo News (Reuters), June 14, 2011.   Referenced at:

Jeanne DeAngelis, “Mexico Sues Georgia over Immigration Law,” Big Government.  Referenced

Zorach v. Clauson, 343 U.S. 306 (1952)

Reynolds v. United States, 98 U.S. 145 (1878)

Reynolds v. United States (1878), Bill of Rights Institute.  Referenced at:

Daniel Dreisbach, “The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law, Policy, and Discourse,” The Heritage Foundation, June 23, 2006.  Referenced at:

David Drumm, ” The Hedge of Separation?,” Jonathan Turley, April 9, 2011.  Referenced at:

Philip Hamburger (2002). Separation of Church and State, Harvard University Press.

Jefferson’s Letter to the Danbury Baptists. Referenced at:

Jefferson’s Wall of Separation Letter, US Constitution Online.  Referenced at:

Kennedy v. Louisiana, 554 U.S. 407 (2008)

Kevin R.C. Gutzman, “The Vision of our Founders:  Dead and Gone,” The Tenth Amendment
, Dec. 14, 2009.  Referenced at:

Plessy v. Ferguson, 163 U.S. 537 (1896)

Wallace v. Jaffree, 472 U.S. 38 (1985)

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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2 Responses to The Activist Supreme Court

  1. Thanks, Diane. Truly an excellent summary documented from many sources.

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