Supreme Court Seminar

25 January

• Handout:
  • E-mail addresses; the schedule
  • SCOTUSBlog, LawWeek, Preview, list of books on justices
• It isn't enough to know the law-- you also have to know the people. In this case, the justices.
• See also C-SPAN's archives on the justices (confirmation hearings, speeches, etc.).
• Three parts:
  1. Due process (procedural and substantive), fundamental rights
  2. Equal protection
  3. First amendment
• Con Law I is the structure of government, separation of powers, etc. Con Law II is substantive.
• So, then. Procedural due process. As always, start with the text: 5A. "Life, liberty, or property." Then 14A ("nor may any state").
• 5A is effectively part of the original constitution, like all of the bill of rights: there was no time when we didn't have it.
• What does "due process" mean? What kind of requirements are imposed on the states by 14A? For a long time, many federal constitutional protections were not granted at the state level. And then when we got 14A, the focus was on equal protection (for obvious historical reasons).

  But in 1925, in Gitlow, SCOTUS confronts whether a state can restrict free speech. This was the birth of incorporation: the first 10 amendments are applicable against the states. This is a big expansion of federal power, obviously. It still took a while to get things going: all the big criminal procedure cases (Miranda, e.g.) spring from this. It's hard to really challenge it, also, because the federal courts are the final arbiters of the doctrine.

  Irony: the federal courts are always complaining about being overloaded. But federal jurisdiction keeps expanding. Still, if they just renounce incorporation, and let states decide their own bills of rights, their dockets get a lot more manageable. Right now something like 85% of the cases in a standard crim pro casebook are federal courts deciding state law-- that's really clogging up the works.

  But anyway, the doctrine of incorporation is clear and settled at this point.

• The next big question is whether we're talking about procedural or substantive due process. The language of 5A sounds strictly procedural: "process." But maybe there are some things they can't do regardless of procedure, and that's substantive due process.
• There are still gray areas: the rights of people in military custody, for example-- they don't have the right to know the full evidence against them. Great mountains of litigation over procedural due process in this space.
• Hughes v. Mathews:
  A clear-cut murder case. Initial attempt at an insanity plea is dropped when state-appointed psychiatrists find him sane. The fall-back plan is to try to say that he has a mental condition short of insanity that prevents him from forming the requisite intent: he is incapable of 1^st-degree murder, even though he is guilty of 2^nd.

  Hughes argues that he has a federal constitutional right to present his case. Federal court (7 Cir) agrees: procedural due process.

  But then there's back-and-forth. And a different 7^th panel says WI is not constitutionally obliged to admit the testimony. Petition for cert: denied. So we are in limbo in that respect, to this day. We've got 2 7^th circuit panels disagreed with one another.

• Another area of contention is civil commitment (see KS v. Hendricks. If prevention is our policy, we want this guy put away, but when he has paid the penalty, he gets out. So can you incarcerate someone who is not insane, but who is mentally abnormal? And what about double jeopardy and ex post facto?
• Possibly the criminal justice system is ripe for revision. We tout our great procedural safeguards and rights, but it's so expensive and complex that most matters are resolved simply by bargaining. What kind of due process is that?
• Substantive due process, now. There are three areas we're concerned with:
  • States can't impair contracts. The impairments clause was a big strong thing for the first couple of decades. But there's a problem: if a state can't impair a contract, the state can't regulate private behavior at all (i.e., no minimum wage, etc.). So the court interprets the clause as meaning that every contract has an implicit clause contracts can be revised if the state's law changes. So even though there has been no amendment, this clause is deprived of meaning because it limited government too much. It may get some new attention in Obamacare litigation and potential state bankruptcies, but that is just speculation.
  • 14A (and 5A): life, liberty, and property are protected. What does "liberty" mean? Does that mean that there are some liberties that the government may not take regardless of what processes there are? Lochner: when NY tries to regulate the hours a baker can work, it's not an impairment of contracts issue-- it's denying liberty of contract. Of course, that went away with court-packing. Professional licensing (liberty of occupation) at some point, restrictions get unreasonably burdensome. Is there a due process right to occupation? Cert denied, for the time being. But as licensing expands further and requirements increase, at some point a court might say this is too much.
  • Housing: does a person have a constitutional right to decent housing? No. Likewise education and food. But there are lots of decisions that swim against that tide, they just don't implement a constitutional right.
  • Family rights: parents' relations with children.
  • The right to die. There are living wills most places, but it's a crime to commit suicide.
  • The death penalty. It seems to be allowed, just going by the text-- the constitution at least contemplates it. And it was routine at the time when the constitution was adopted.