Supreme Court Seminar

1 February

• Still with substantive due process and fundamental rights.
• Gun rights and 2A. Also the right to privacy and (with it) abortion.
• First, interpretation of 2A.
  This had never really been addressed by SCOTUS before 2008, which is perhaps unique in the Bill of Rights. The question was basically whether the militia clause made 2A obsolete (since nobody needs to bring their own guns to the Army any more). But in Heller the court decides (5-4) that 2A is a recognition of a pre-existing right. But the right is not unlimited: legislatures have significant latitude for regulation. Then NRA v. Chicago incorporates the right against the states.

  In Heller, Scalia's opinion is a textbook analysis: text, prior history, precedent, etc. The core of the individual right is self-defense, and being able to defend the family and home. The dissenters disagree about history, and say it should be left to the legislative branch (as it had been for 200 and some-odd years).

• Roe v. Wade
  This is a runaway winner for best-known substantive due process case. This was 1973, Rhenquist's first year.

  This sort of rode on Griswold. In that case, CT was the only state still to have a ban on prescription contraceptives. The idea is that the Bill of Rights creates zones of privacy: 1A association, 3A not quartering soldiers, 4A search and seizure, 5A self-incrimination, and 9A non-enumerated rights. Still, the court went beyond the text of the Bill of Rights and finds a new fundamental right, which kind of took on a life of its own. Interesting footnote: Douglass had just started his 4th marriage when this case came out-- possibly the discussion of the rights of married couples to govern their own affairs (as a right pre-existing the constitution, in an interesting parallel with Heller) was influenced by his relationship with his new bride, a recent law grad who was working in his office.

  Anyway, Roe finds a fundamental right to an abortion if the fetus is not viable: it's subject to strict scrutiny, so nearly any attempt to reign it in will be struck down.

• There are only two opinions identified as super-precedent (in Planned Parenthood v. Casey): Roe and Brown. But, conversely, maybe the court should be more willing to reconsider these cases, rather than less, because the only alternative is amendment, and that process is so difficult and burdensome, and these issues are controversial and defy easy resolution.
• And now, equal protection. Really the core of Con Law II. Principally, it means protection for racial minorities, but it also covers some other groups.
• Dredd Scott: the worst case in history. Not only is it full of shamefully racist language, but it also invalidates the Misourri Compromise (i.e., congress can't require that a new state be a non-slave state). It sets up, thereby, the Civil War, in which 600K people perished-- a pretty severe consequence. It's not as though Justice Tawny wanted the Civil War, probably, but it does represent an instance where the judicial branch thought it knew better how to avert the war than the other branches. Tawny, for example, was against slavery, and freed his slaves.
• Note that even Lincoln didn't abolish slavery until halfway through the war (13A memorializes it in the constitution), for fear of losing the border states.
• The Slaughterhouse cases: white butchers in New Orleans complained about a monopoly that kept them out of business. The court says that butchery was not covered by 14A, and in fact 14A is only about race, and really only protects African-Americans. Later on, the Chinese were added, which means people were starting to wonder what other races might be covered by 14A.
• Korematsu: the second worst case. Now Japanese-Americans were doing just fine, economically. So sayng 14A covers Japanese-Americans means that all races are covered. Ironically, that case expands 14A protections, and gives us "suspect category" and "strict scrutiny" and "compelling state interest." "Narrowly tailored" comes later.
• Suspect categories: race, religion, alienage. Quasi-suspect: sex. "Equal protection" will still get invoked if there is no "rational basis."
• Plessy v. Ferguson: 1896, separate but equal. States are allowed to implement petty apartheids. Note that these are not federal laws being upheld-- they're state ones. And the court did clobber residential segregation just 20 years later, but that was under Due Process, not Equal Protection.
• The Army was the first major US institution to completely ban segregation. After WWII, of course.
• And then we get Brown: separate is inherently unequal.
• Note that Brown covered only official discrimination. Then we got the 1964 Civil Rights act, et seq. These statutes, by the way, are grounded in the commerce clause, not 14A. Education (private or public), employment, etc., are all covered now.