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WEEK 5: SUPREME COURT
Lesson
Lesson 5: The Supreme Court
"A law embodies beliefs that have triumphed in the battle of
ideas.”
-Justice Oliver Wendell Holmes
Expected Outcomes
To understand the evolution of the Supreme Court in relation to
the other branches of power; to appreciate the difference
between the “original intent” and “judicial activist”
philosophies; and to critically evaluate the political and cultural
importance of major Supreme Court decisions.
Overview
I. The Legal Framework
Most American laws are based on the English legal system. The
body of judge-made law is referred to as common law. The U.S.
Constitution, State Constitutions and statutes - laws passed by
Congress or State Legislatures - are sources upon which
American law is founded. Common law countries around the
world include: United States; Britain, Australia, Canada, India,
and New Zealand.
The United States utilizes a dual court system which is
comprised of both State and Federal Courts. The rules and
principles which are the basis of court decisions are referred to
as Case Law. Case law has bearing on future cases that involve
similar facts and constitutional issues. The case law or court
rule from previous cases establishes the precedents on which
future cases will be relied upon in the decision making process.
The doctrine of stare decisis means to stand on the decided

cases.
A courts authority to hear and decide cases refers to the
jurisdiction of the court. According to the Constitution, the
accused must receive a fair trial in the jurisdiction in which the
crime was committed. Federal Courts have jurisdiction when
there is a federal question in the case, when there is diversity of
citizenship involved in the case (meaning citizens from
different states), and when there are two or more different states
or state boundaries involved. When a case is to be heard in
Federal Court, courts with limited jurisdiction include Tax and
Bankruptcy Courts. These are examples of courts that deal with
very specialized issues that do not deal with constitutional
issues, but other federal issues.
II. The Judicial Powers
According to Article III of the Constitution, the judicial power
of the United States would be vested in one Supreme Court. The
actual authority of the Supreme Court was described as:
· “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;
between a State and Citizens of another State; between Citizens
of different States; between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.”
[Note: This section was modified by Amendment XI which
states: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State."]
· “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; but when not
committed within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed.”
III. The Structure
As stated previously, the Constitution left it to the Congress to
determine the structure of the federal court system. What
emerged was a multi-layered system that includes:
District Courts
The states are divided into districts for the District Courts, each
state constituting one or more district. A single judge normally
presides over a District Court. Districts are further divided into
sections, and in each section, two or more sessions of court are
usually held by a district judge. Apart from the judge, the main
officers of a District Court are the U.S. Attorney and the
Marshal. The U.S. Attorney works as the government’s
prosecuting attorney. The U.S. Marshal functions as the "federal
sheriff" to summon jurors, hold persons accused of crime, and
execute orders of the court.
As they are the principal trial courts, the District Courts are
given original jurisdiction over several federal crimes like mail
fraud, counterfeiting, smuggling and bank robbery. The civil
jurisdiction of the District Courts is defined in Title 28 of the
United States Code, and may deal with civil cases pertaining to
water rights, interstate commerce and environmental issues.
Juries decide around half of the cases dealt with by District
Courts. State cases dealing with constitutional matters are first
heard in the District Courts.
Courts of Appeal
The Circuit Courts of Appeal are intermediate courts, between
the District Courts and the Supreme Court. These courts cover a
geographic area known as a circuit. The main function of the

circuit court is to relieve the Supreme Court of some of its
appellate work. Their decrees are regarded as final, unless the
Supreme Court reviews them. There should be at least three
judges in a Court of Appeals, of whom two constitute a quorum.
A Court of Appeals may hold its sessions in different cities
within its circuit. Thus for example, the Court of Appeals of the
Ninth Circuit including Alaska, Arizona, California, Idaho,
Montana, Nevada, Oregon, Washington and Hawaii, holds its
sessions in San Francisco, Los Angeles, Portland and Seattle. A
justice of the Supreme Court is assigned to each circuit. An
Appeals Court may call district judges to sit on a case.
Apart from its power to enforce, set aside or modify the orders
of several administrative agencies such as the Interstate
Commerce Commission, Civil Aeronautics Board, and the
National Labor Relations Board, the Court of Appeals has no
original jurisdiction.
Legislative and Special Courts
After the Supreme Court, the Circuit Courts of Appeals and the
District Courts are created under authority of Article III of the
Constitution, they are known as "constitutional courts." The
judges of these courts can hold office while maintaining a
desirable conduct, and are empowered to exercise only judicial
functions. The "legislative courts" are established under the
legislative power of the Congress in Article I. The judges of
these courts are appointed without life tenure in the territories.
Among the prominent special courts are the Court of Claims,
the Customs Court, the Court of Customs and Patent Appeals
and Territorial Courts. These courts are partly judicial and
partly administrative tribunals that merge the subject matter of
widely distinct fields.
The Supreme Court
At the apex of the federal judicial system is the Supreme Court.
It is housed in an imposing marble structure towards the east of
the national capitol. It enjoys great prestige and has exercised
great influence in the conduct of public affairs in America. Its
decisions constitute the highest law of the land. The Supreme

Court hears cases involving both appellate and original
jurisdiction. The Supreme Court’s original jurisdiction deals
with cases affecting ambassadors, other public ministers and
consuls, and also those involving the states. However, most
cases coming before the Supreme Court are cases of appeal from
the inferior federal courts or from the highest state courts. As
the Supreme Court is regarded as the guardian of the
Constitution and of national supremacy, it also deals with cases
in which the statutes are in conflict with the Constitution. The
Supreme Court receives thousands of requests for review - writ
of certiorari - based on particular issues in a case, every term.
When it comes to the cases that the Supreme Court will
consider, there are several factors that bear on the decision of
whether or not a case will be heard. These factors include:
· Whether a legal question has been decided differently by
various lower courts and needs resolution by the highest court.
· Whether there is a Constitutional issue involved.
· Whether the issue involves disputes between states or states
and the federal government.
· Whether a lower court’s decision conflicts with an existing
Supreme Court ruling.
· Whether the issue could have significance beyond the parties
of dispute.
· Whether the Solicitor General is pressuring the Supreme Court
to take the case.
According to the rule of four, four of the nine justices need to
agree to decide the cases that need to be reviewed. It is a
general practice of the Supreme Court to not consider over a
hundred cases in a year of the many thousands of cases
submitted. The unconsidered ones then are obliged to accept the
decisions of the lower courts.
When a case comes before the Supreme Court, counsel on each
side have to file a brief covering the arguments and relevant
material of the case. Unlike what it may seem, a brief can run
into a lengthy document, as it needs to take into account all the
sociological, historical and scientific evidence as well as the

legal arguments. An amicus curiae brief (meaning "friend of the
court") may be submitted by those who are interested, but not
directly involved in the case. Oral arguments may also be used
by counsel, to present their case to the Court. Each side is
allotted a limited time of thirty minutes. The justices meet in
conference, arranged around a conference table by seniority, in
order to reach a decision of cases. The chief justice presides
over a private discussion of cases that have been argued in
public. Opinions are then drafted and circulated among the
justices for revision or correction. The vote is taken and
recorded. At the succeeding conferences, the revisions are
further discussed and finally the writer announces the opinion,
as the opinion of the court, on the majority decision. However,
if a justice disagrees with the majority opinion, he can enter a
dissenting opinion in the record. If the justice agrees with the
majority decision, but disagrees with the line of legal reasoning,
he can write a concurring opinion. It is also possible that a
particular lower court ruling may be retained as it is. This is
known as the doctrine of stare decisis - "let the decision stand."
The Supreme Court opinions, both concurring and dissenting,
are published by the federal government in an edition entitled
“United States Reports.” Since each case deals with a different
set of legal issues, it has to be dealt with in the proper
perspective. The Court does not generally give decisions against
precedent or the existing body of law. Statutory construction
may be used to interpret laws. For this, the plain meaning of a
law, or the legislative history of a law may be referred to by the
Court for interpretation. Depending on their personal views,
justices may be liberal, moderate or conservative. Those
exercising judicial restraint try to interpret the law rather than
create new law. They conform to statutes and precedents very
severely. However, the justices who follow judicial activism
exercise a liberal interpretation of the Constitution to
accommodate changes in society since the Constitution was
adopted. The Supreme Court depends upon the Executive and
Legislative Branches to enforce its decisions, since it is not

empowered to enforce them itself.
IV. The Appointment of Judges
The Constitution makes provisions for the Supreme Court
justices to be appointed by the president with the advice and
consent of the Senate. It also provides that "the judges, both of
the Supreme and inferior courts, shall hold their offices during
good behavior, and shall, at stated times, receive for their
services a compensation which shall not be diminished during
their continuance in office."
Only 29 of 132 Supreme Court nominations have been rejected.
Unlike the president and members of Congress, there are no
requirements specified for justices. There is, for instance, no
requirement for law degree, but all justices have had them. Half
of them have been federal or state court judges. Most justices
have been in their fifties when nominated. Only four women and
two African-Americans have served on the Supreme Court. The
appointment of Supreme Court justices for life assumes great
importance, owing to the power of the highest court to
determine public policy. The Supreme Court dominates policy-
making in the following areas:
· Civil rights and the treatment of women and minorities
· The procedural rights of criminal defendants
· Freedom of speech, press and religion
The Supreme Court strikes down more state laws than federal
laws – only about 150 of 60,000 laws passed by Congress have
been found to be unconstitutional. There is a system - as with
the other two branches of government - of checks and balances
on the courts. As stated previously, Executive Branch carries
out judicial rulings because the Court has no enforcement
powers. Congress must authorize funding to implement court
decisions, and can pass new laws in response to court decisions.
Moreover, the Congress can, in some instances, determine the
jurisdiction of the Court. The constitutional amendment process
also provides a check on the Court when the Congress seeks to
reverse a Court decision. Lastly, justices and judges can be
impeached from office for malfeasance. The Supreme Court of

the United States has become the final arbiter in many
controversial situations. The Court exercises the power of
“judicial review,” which is the power to check the
constitutionality of a law or of a presidential action. Simply put,
the Supreme Court has the last word. It’s the only branch of
government empowered to render a final judgment on the
interpretation of the U.S. Constitution.
The Supreme Court is not democratically elected, its justices
being nominated by the president and confirmed by the Senate.
The number of justices was not set in the Constitution, but it
has evolved into nine (9), with appointments lasting the term of
a natural life. When Chief Justice William Rehnquist died,
Justice John Roberts moved into the position of Chief Justice.
Samuel Alito replaced Justice Sandra Day O’Connor, Sonia
Sotomayor replaced Justice David Souter, and Elena Kagan
replaced Justice Stevens.
Today, the current makeup of the Supreme Court is as follows,
and the (Liberal) or (Conservative) designation is widely but
not universally accepted for each justice.
Chief Justice John G. Roberts, Jr. (Conservative)
Justice Sonia Sotomayor (Liberal)
Justice Antonin Scalia (Conservative)
Justice Anthony Kennedy (Centrist/Conservative)
Justice Elena Kagan (Liberal)
Justice Clarence Thomas (Conservative)
Justice Ruth Bader Ginsburg (Liberal)
Justice Stephen Breyer (Liberal)
Justice Samuel Anthony Alito (Conservative)
To learn more about the current Supreme Court, visit its official
website here. The Supreme Court began its history with the
power granted to it by Article III, Section 2 of the U.S.
Constitution: inherent powers.
Article III, Section 2
The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States…
Still, the Supreme Court accrued power over time. Two cases -

Gibbons v. Ogden (1824) and McCulloch v. Maryland (1819)
were examined in Lesson 1, and they were important because
they added to the Court’s existing power of judicial review.
Another earlier 19th century case, Marbury v. Madison (1801)
was even more instrumental to the Court’s power of judicial
review. Basically, the decision of the case (over a federal
appointment) was that the Constitution is “the fundamental and
paramount law of the nation.” In other words, when the
Constitution conflicts with an act of the legislature, that act is
invalid. This case solidified the Supreme Court's power of
judicial review.
The Supreme Court consolidated its power of judicial review
over time, but how the Court should use that power remains
controversial – even among Supreme Court justices.
Original Intent and Judicial Activism
There are two basic philosophies regarding how the Supreme
Court should use its powers. The justices of the Supreme Court
who practice “judicial restraint” or “originalism” believe that
the U.S. Constitution should be considered: 1) as literally as
possible, and 2) with the “original intent” of the framers. This
tends to advance the concept of “states’ rights” and has been
historically compatible with conservatism. Such justices are
reluctant to look to the courts as a panacea for the nation’s
problems and prefer that legislatures address social ills.
The criticism often made against conservative or original intent
justices is that they have a reflexive tendency towards
authoritarianism; that the states’ rights argument is a thinly-
disguised excuse to permit racism; that such judges are in fact
“activist” when it comes to imposing conservative morality
(like prohibiting states from legalizing medical marijuana); and,
that the Founding Fathers never intended the Constitution to be
fossilized in the 18th century.
The justices who advocate or practice “judicial activism” or
“active liberty” believe that the Constitution should be a living
document, a flexible text that needs to adapt to the times. The
Constitution, they believe, needs to allow for the expansion and

growth of individual liberty and minority rights. This runs
parallel to liberalism.
The criticism often made against judicial activism, and against
liberal judges, is that they are trying to usurp the duties and
responsibilities of legislatures; that they seek to create a
government-knows-best “nanny state;” that they are soft on
crime and shift responsibility from the individual to society;
and, that they creatively and conveniently interpret the
Constitution to fit politically-correct agendas.
Perhaps the best way to examine the Supreme Court is by
analyzing its cases, in action, as they have been decided over
the years. Specific controversies that drive to the heart of the
Constitution reveal much about how the Court interprets that
document.
Criminal Procedure & Criminal Justice
In the United States, the Constitution attempts to balance
society’s need for “order” with the individual or suspect’s need
for “liberty.”
The American criminal system is an adversarial and accusatorial
model. Criminal procedure must balance the defendant’s rights
and the state's interests in a speedy and efficient trial with the
desire for justice. Therefore, the rules of criminal procedure are
designed to ensure that a defendant's rights are protected.
The Bill of Rights (the first 10 Amendments to the Constitution)
outlines the kinds of civil liberties to which criminal suspects
are entitled. Amendments 5, 6, 7 and 8 are specific to the issue
of criminal procedure.
· The Fifth Amendment emphasizes the legal procedure that
must be followed for a conviction, or “due process.”
· The Sixth Amendment emphasizes a “speedy and public trial”
and “counsel” for defense.
· The Seventh Amendment provides for a trial by a “jury.”
· And the Eight Amendment shields people from “cruel and
unusual punishment.”
The Top-25 Supreme Court Cases since 1824

Certainly, some of the Supreme Court cases already reviewed
here - Marbury v. Madison (1801), McCulloch v. Maryland
(1819) and Gibbons v. Ogden (1824) – would make anyone’s
“Top-25” list of most famous and important cases. Every
scholar of the Supreme Court will also have his or her own
special list of important Supreme Court cases, so the list below
is particular to this class.
1. Dred Scott v. Sanford (1857)
This case concerned Dred Scott, a slave who escaped from
Missouri to Illinois. After being away for 10 years he returned
to Missouri and claimed that residency in a free state made him
free, but his “master” claimed that he was not a true citizen of
the United States, having been a slave.
The Supreme Court sided with the master against the slave,
arguing that under Articles III and IV, no one but a citizen of
the United States could be a citizen of a state.
2. Plessy v. Ferguson (1896)
The second case concerned Homer Plessy, a light-skinned
African American. Homer sat down in the “whites only” car of a
Louisiana train, refused to move, and was arrested. His defense
rested on the unconstitutional infringement of the Equal
Protection clauses in the 14th Amendment. But the Supreme
Court disagreed. The Court, employing an “original intent” of
the Constitution argument, held that state law upholds racial
segregation, and it further said that separate facilities for races
satisfied the 14th Amendment so long as they were equal. (The
actual phrase “separate but equal” was not part of the opinion
but it was implied).
3. Brown v. Board of Education (1954)
This third case broke with the history (or precedent) of the
Supreme Court. In 1954, several cases regarding segregation
were on the Court’s docket. They all drove to the central
question: Does segregation in public schools violate the Equal
Protection of the 14th Amendment?
The Supreme Court said that it did. The Court found that
segregation in public education has a detrimental effect on

minority children, making them feel inferior. The Court focused
on the psychological impact of segregation. They also found
that the idea of “separate but equal” was inherently wrong
because, as Chief Justice Warren wrote: “Separate educational
facilities are inherently unequal.”
Separation of Powers and Federalism
Several Supreme Court decisions were instrumental in defining
the role of the federal government – and its three branches of
power – in society. These cases also spoke to the inherent
powers of the U.S. government, and to the extent these powers
would be absolute or limited.
4. Cherokee Nation v. Georgia (1831)
Here, the Court addressed the question of whether the Cherokee
Nation was a “foreign state” and, therefore, could sue the State
of Georgia in federal court under diversity jurisdiction. Chief
Justice Marshall ruled that federal courts had no jurisdiction
over such a case because Indian tribes were merely “domestic
dependent nations existing in a state of pupilage. Their relation
to the United States resembles that of a ward to his guardian.”
Of course, the decision runs against the grain of several hundred
“peace treaties” written and signed by the U.S. government,
many of which led to the relocation of native Americans to new
lands in exchange for recognizing their national sovereignty.
Under the Constitution, Congress has the power to regulate
commerce with the Indian tribes. The Indian Commerce Clause
(Article I, 8, clause 3) is the main source of federal power over
Indian tribes and has been used to define, however indirectly,
tribal sovereignty.
5. Ex Parte Milligan (1865)
This case involves “habeas corpus.” In legal terms, habeas
corpus obliges a government to account for a person’s
detention, and the term is Latin for “you have the body.” Kings
and queens in England enjoyed the power to lock someone up in
a dungeon and throw away the key, but not so easily after the
Magna Carta of 1215.

After the American Revolution of 1776, the principle of habeas
corpus was found in most state constitutions, and more
importantly, it is found in the 1787 United States Constitution:
Article I Section 9:
“The privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”
Congress suspends the writ of habeas corpus under the
conditions outlined in the Constitution. President Abraham
Lincoln, however, in his effort to crack down on dissidents and
rebels during the Civil War, suspended habeas corpus in rather
draconian fashion. The Supreme Court ruled against Lincoln in
Ex Parte Milligan (1865): “The necessity must be actual and
present; the invasion real, such as effectually closes the courts
and deposes the civil administration.”
Facts of the Case
Lambden P. Milligan was sentenced to death by a military
commission in Indiana during the Civil War; he had engaged in
acts of disloyalty. Milligan sought release through habeas
corpus from a federal court.
Question
Does a civil court have jurisdiction over a military tribunal?
Conclusion
Davis, speaking for the Court, held that trials of civilians by
presidentially created military commissions are
unconstitutional. Martial law cannot exist where the civil courts
are operating.
http://www.oyez.org/cases/1851-1900/1865/1865_0/
This case is significant because similar issues resurfaced after
9/11 with the detention camps in Guantanamo Bay.
The Bush administration insisted that the Guantanamo facility
housed the worst terror suspects; that there was no actual
torture taking place; that the detainees would be fairly
processed by military tribunals; and that “enemy combatants”
did not merit the same Geneva Convention protections as
uniformed prisoners of war.

Amnesty International and other groups claimed that torture was
occurring in Guantanamo; that innocents had been swept up in
the roundup; and that non-state actors (opium warlords)
delivered many of the detainees to the U.S. military, meaning
that the Guantanamo detainees could not have official enemy
combatant status.
The Supreme Court passed down decisions partly favorable and
partly unfavorable to the Bush administration.
In Hamdi v. Rumsfeld (2003), The Court recognized the power
of the government to detain unlawful combatants, but it also
ruled that detainees who are U.S. citizens must have the ability
to challenge their detention before an “impartial” judge.
In Hamdan v. Rumsfeld (2006), the Court held that military
commissions set up by the Bush administration to try detainees
at Guantanamo Bay “violate both the Uniform Code of Military
Justice and the four Geneva Conventions.”
In Rumsfeld v. Padilla (2004) and Rasul v. Bush (2004), the
Court sidestepped the central questions of habeas corpus citing
reasons of jurisdiction.
6. NLRB v. Jones & Laughlin Steel Corporation (1937)
This case revolved around the constitutionality of the Wagner-
Connery Act - signed into law on July 5, 1935 - which
established a federal agency, the National Labor Relations
Board (NLRB), with the power to investigate and decide on
charges of unfair labor practices and to conduct elections in
which workers would have the opportunity to decide whether
they wanted to be represented by a union.
It was not until the Supreme Court upheld the constitutionality
of the statute in 1937 in National Labor Relations Board v.
Jones & Laughlin Steel Corporation that the Wagner Act
became law in practical terms as well. Basically, this case
effectively legalized collective bargaining and unions.
7. Korematsu v. United States (1944)
After the Japanese attack on Pearl Harbor, FDR ordered the
roundup and detention of Japanese-Americans on the grounds
that they might be enemy spies or favor Japan.

Facts of the Case
During World War II, Presidential Executive Order 9066 and
congressional statutes gave the military authority to exclude
citizens of Japanese ancestry from areas deemed critical to
national defense and potentially vulnerable to espionage.
Korematsu remained in San Leandro, California and violated
Civilian Exclusion Order No. 34 of the U.S. Army.
Question
Did the President and Congress go beyond their war powers by
implementing exclusion and restricting the rights of Americans
of Japanese descent?
Conclusion
The Court sided with the government and held that the need to
protect against espionage outweighed Korematsu's rights.
Justice Black argued that compulsory exclusion, though
constitutionally suspect, is justified during circumstances of
"emergency and peril."
This case is interesting because although the Supreme Court
upheld FDR’s detention, Congress later recognized this as a
mistake and formally apologized to the Japanese-American
community. Other scholars and commentators have feared,
rightly or wrongly, that the Korematsu precedent would make it
easier in the future to roundup and detain Muslim-Americans or
American dissidents in the wake of another terror attack on U.S.
soil.
8. United States v. Nixon (1974)
This case, examined in detail in Unit 4, arose out of the
Watergate scandal, and it limited the president’s use of
“executive privilege.” Nixon lost in an 8 – 0 decision (William
Rehnquist, a close friend of Nixon and at that time, recently
appointed to the Court, abstained).
Facts of the Case
A grand jury returned indictments against seven of President
Richard Nixon's closest aides in the Watergate affair. The
special prosecutor appointed by Nixon and the defendants

sought audio tapes of conversations recorded by Nixon in the
Oval Office. Nixon asserted that he was immune from the
subpoena claiming "executive privilege," which is the right to
withhold information from other government branches to
preserve confidential communications within the executive
branch or to secure the national interest. Decided together with
Nixon v. United States.
Question
Is the President's right to safeguard certain information, using
his "executive privilege" confidentiality power, entirely immune
from judicial review?
Conclusion
No. The Court held that neither the doctrine of separation of
powers, nor the generalized need for confidentiality of high-
level communications, without more, can sustain an absolute,
unqualified, presidential privilege. The Court granted that there
was a limited executive privilege in areas of military or
diplomatic affairs, but gave preference to "the fundamental
demands of due process of law in the fair administration of
justice." Therefore, the president must obey the subpoena and
produce the tapes and documents. Nixon resigned shortly after
the release of the tapes.
http://www.oyez.org/cases/1970-1979/1974/1974_73_1766/
9. United States v. Lopez (1995)
This was Supreme Court case since the Great Depression to set
limits to Congress's power under the Commerce Clause of the
United States Constitution.
Facts of the Case
Alfonzo Lopez, a 12th grade high school student, carried a
concealed weapon into his San Antonio, Texas high school. He
was charged under Texas law with firearm possession on school
premises. The next day, the state charges were dismissed after
federal agents charged Lopez with violating a federal criminal
statute, the Gun-Free School Zones Act of 1990. The act forbids
"any individual knowingly to possess a firearm at a place that

[he] knows...is a school zone." Lopez was found guilty
following a bench trial and sentenced to six months'
imprisonment and two years' supervised release.
Question
Is the 1990 Gun-Free School Zones Act, forbidding individuals
from knowingly carrying a gun in a school zone,
unconstitutional because it exceeds the power of Congress to
legislate under the Commerce Clause?
Conclusion
Yes. The possession of a gun in a local school zone is not an
economic activity that might, through repetition elsewhere, have
a substantial effect on interstate commerce. The law is a
criminal statute that has nothing to do with "commerce" or any
sort of economic activity.
10. Gonzalez v. Raich (2005)
This case involves a Supreme Court ruling against the use of
medical marijuana. Conservative judges who favored states’
rights in other circumstances (like US v. Lopez) had to stake
out an odd position in order to rule against medical marijuana.
After all, the states had traditionally regulated and licensed the
practice of medicine, not the federal government.
The Court overturned California’s medical marijuana laws not
for moral reasons and not even because marijuana was a
“controlled substance,” but rather because medical marijuana
might impact the “interstate commerce” of regular marijuana (a
substance that was supposed to have no interstate commerce).
According to critics, under the same reasoning, consensual sex
among married couples could be banned because it might lower
the price of prostitution. This case is significant because it
turned the logic of U.S. v. Lopez upside down and exposed,
potentially, a degree of hypocrisy on the Court.
11. Bush v. Gore (2000)
Perhaps the most controversial presidential election – at least in
terms of the electoral process – was 2000. It was extremely
close. In fact, it was the closest in U.S. history, and it all came

down to the wire in Florida and was ultimately decided by the
U.S. Supreme Court. Florida, unfortunately, did not have a very
well organized election system. Local and county governments
varied widely on the kinds of ballots and technologies
employed.
The U.S. Supreme Court had to decide whether or not to let the
Florida Supreme Court ruling stand – a ruling that called for a
wider recount that probably (considering the large number of
African-American votes to be counted) would have placed Al
Gore in the lead.
Normally, conservative justices elevate the “states’ rights” of
the 10th Amendment over the “individual rights” of the 14th
Amendment. In Bush v. Gore, however, the conservative
justices moved away from their traditional philosophy of states’
rights. Infuriating democrats and liberals even further, the Court
then claimed that their opinion, (which can be considered
“activist” for overturning a state decision), should be restricted
to this case and should not set precedent: “Our consideration is
limited to the present circumstances…”
Per Curiam: The recount process, in its features here described,
is inconsistent with the minimum procedures necessary to
protect the fundamental right of each voter in the special
instance of a statewide recount under the authority of a single
state judicial officer. Our consideration is limited to the present
circumstances, for the problem of equal protection in election
processes generally presents many complexities…
None are more conscious of the vital limits on judicial authority
than are the members of this Court, and none stand more in
admiration of the Constitution’s design to leave the selection of
the President to the people, through their legislatures, and to the
political sphere. When contending parties invoke the process of
the courts, however, it becomes our unsought responsibility to
resolve the federal and constitutional issues the judicial system
has been forced to confront.
Justice Stevens wrote a dissent:
Time will one day heal the wound to that confidence that will

be inflicted by today’s decision. One thing, however, is certain.
Although we may never know with complete certainty the
identity of the winner of this year’s Presidential election, the
identity of the loser is perfectly clear. It is the Nation’s
confidence in the judge as an impartial guardian of the rule of
law.
After the Court’s 5-4 decision, George Bush emerged as the
winner of the 2000 election because he reached, with Florida,
the sufficient number of electoral votes. He did lose the total
number of popular votes, however, and he is the only president
to be reelected after having lost the popular vote in his first
election.
12. Kelo v. City of New London (2005)
This case re-interpreted the Fifth Amendment’s protection of
individual property so that, under the power of “eminent
domain,” a local government could take possession of a home
not just for “public use” but also, by implication, for private
gain – such as the build an apartment complex, for example, or
a shopping mall.
Liberal justices were largely responsible for this decision,
which has been widely criticized around the country, even
producing backlash legislation.
Facts of the Case
New London, a city in Connecticut, used its eminent domain
authority to seize private property to sell to private developers.
The city said developing the land would create jobs and
increase tax revenues. Kelo Susette and others whose property
was seized sued New London in state court. The property
owners argued the city violated the Fifth Amendment's takings
clause, which guaranteed the government will not take private
property for public use without just compensation. Specifically
the property owners argued taking private property to sell to
private developers was not public use. The Connecticut
Supreme Court ruled for New London.
Question
Does a city violate the Fifth Amendment's takings clause if the

city takes private property and sells it for private development,
with the hopes the development will help the city's bad
economy?
Conclusion
No. In a 5-4 opinion delivered by Justice John Paul Stevens, the
majority held that the city's taking of private property to sell for
private development qualified as a "public use" within the
meaning of the takings clause. The city was not taking the land
simply to benefit a certain group of private individuals, but was
following an economic development plan. Such justifications
for land takings, the majority argued, should be given
deference. The takings here qualified as "public use" despite the
fact that the land was not going to be used by the public. The
Fifth Amendment did not require "literal" public use, the
majority said, but the "broader and more natural interpretation
of public use as 'public purpose.'"
Judge Sandra Day O’Connor’s dissenting opinion:
http://www.law.cornell.edu/supct/html/04-108.ZD.html
13. Gideon v. Wainwright (1963)
One of the first cases to reach the Supreme Court as part of the
1960s reform movement was Gideon v. Wainwright (1963). The
case involved Gideon, a ne’r-do-well who lacked money for a
lawyer to defend himself against charges of breaking and
entering. The court refused to appoint him a lawyer, saying it
was obligated to do so only for capital cases. Gideon defended
himself in court, lost, and went to prison on a 5-year sentence.
He fought back from prison with a lead pencil and a paper pad,
reaching the Supreme Court.
Did Gideon receive full “due process” and a “fair trial?” The
Court, in a unanimous decision (of judicial activism) said that
Gideon had a right to a lawyer – and that anyone who cannot
afford it has a right to a lawyer. Justice Black called it an
“obvious truth” that a fair trial for a poor defendant could not
be guaranteed without the assistance of counsel. Those familiar
with the American system of justice, commented Black,

recognized that "lawyers in criminal courts are necessities, not
luxuries."
Justice Black delivered the opinion:
That government hires lawyers to prosecute and defendants who
have the money hire lawyers to defend are the strongest
indications of the widespread belief that lawyers in criminal
courts are necessities, not luxuries. The right of one charged
with crime to counsel may not be deemed fundamental and
essential to fair trials in some countries, but it is in ours. From
the very beginning, our state and national constitutions and laws
have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial
tribunals in which every defendant stands equal before the law.
This noble ideal cannot be realized if the poor man charged with
crime has to face his accusers without a lawyer to assist him….
14. Miranda v. Arizona (1967)
Another groundbreaking case was Miranda v. Arizona (1967).
Ernesto Miranda, arrested for kidnapping and rape was
questioned under intimidating (or at least dubious) conditions
without a lawyer. The Court ruled that citizens must be
informed of their rights prior to questioning, and, furthermore,
that any evidence obtained prior to a suspect being read his or
her rights is inadmissible.
For many observers, this case represents “judicial activism” and
the gradual expansion or extension of constitutional civil
liberties to areas not specifically defined in the U.S.
Constitution. Liberal observers, by contrast, countered that
some activism was required because the law, as it stood,
protected the privileged and thus ran counter to the principle of
equality also found in the Constitution.
These are the Miranda rights: “You have the right to remain
silent, anything you say can, and will be used against you in a
court of law. You have the right to an attorney. If you cannot
afford one, one will be appointed for you.”
15. Furman v. Georgia (1972)
This case is significant because it was the first Supreme Court

case that limited, if somewhat indirectly and briefly, the
application of the death penalty in the United States. This case
emerged after Furman, in the act of burglarizing a private home,
dropped his gun. It went off and killed a resident of the home.
He was convicted of murder and sentenced to death.
The Court found that the death penalty – in this and two other
cases before it – violated the Eighth Amendment’s protection
against cruel and unusual punishment (largely because the
killing appeared unintentional). The Court also said that the
death penalty in these cases violated the Fourteenth
Amendment’s Equal Protection Clause because there had been
racial bias.
The Electric Chair at Sing Sing, NY
Four years later, the Supreme Court reaffirmed the death
penalty after a four-year moratorium in a 7 to 2 decision, in
Gregg v. Georgia (1976). Gregg, found guilty of armed robbery
and murder, was sentenced to death. On appeal, the Georgia
Supreme Court affirmed the death sentence. Gregg took his case
to the Supreme Court, which found that the imposition of the
death sentence prohibited did not violate, in this case, his civil
rights under the Eighth and Fourteenth Amendments. This case
was a cue to the states that the careful and judicious use of the
death penalty may be appropriate – and only in cases of a
deliberate murder. States adapted, and they began to employ
more racially-mixed juries to avoid the charge of racism on
appeal.
Two other Supreme Court cases would restrict the use of the
death penalty. In the first, Atkins v. Virginia (2002), the Court
denied states the power to execute people suffering from mental
retardation (defined as an IQ of 70 – 75, IQ depending on the
state). In the second, Roper v. Simmons (2005), the Court
denied states the power to execute people who committed their
crimes when they were minors, that is, under the age of 18.
Today, the pendulum is swinging back in the other direction,
with certain states seeking to impose the death penalty for rape
(especially of children).

16. Hiibel v. Sixth Judicial District Court of Nevada (2004)
This case emerged when a Nevada cowboy refused to give
police his identification for no stated or apparent reason. In this
5-4 decision, in which conservative justices came out on top,
the Court said that people who refuse to give their names to
police can be arrested, even if they’ve done nothing wrong.
Nevada law enforcement officials claimed that identification
requests are a routine part of detective work, but civil
libertarians claimed that people who have done nothing wrong
have a right “to be left alone” and that granting the police that
much power effectively turns “citizens” into “subjects.”
This decision is widely seen among civil libertarians as
overturning portions of the Fourth Amendment, which is
supposed to guarantee the right to be “secure” in one’s “person”
absent “probable cause” of wrongdoing. For them, the decision
moves in the opposite direction of Miranda v. Arizona and
provides legal precedent for a more intrusive police surveillance
of civil society.
For law enforcement, the decision is widely seen as contributing
to their capacity to fight crime and the war on terror.
First Amendment: Political Speech
The Framers of the Constitution placed a high value of freedom
of speech and expression – above all on political speech. After
all, they had experienced the tyranny of the English monarchy,
and they understood that a democratic republic must have
freedom of speech. However, even political speech has been
constitutionally limited. The tendency to restrict political
speech is evident in the first two cases, and the move towards
more tolerance is evident in the third case.
Today, there is freedom of political speech in the United States,
and this even includes “hate speech” and “offensive speech,” so
long as such speech does not constitute “fighting words” which
can lead to an altercation.
However, the exercise of political speech (anti-war or anti-
government speech) can have consequences, as it can trigger
governmental surveillance of the person or group. Numerous

public documents obtained under the Freedom of Information
Act show that the Pentagon, for example, keeps tabs on non-
violent protesters, including Quakers and student groups, by
collecting information and storing it in a military anti-terrorism
database.
17. Schenck v. United States (1919)
In this case, the concept of political speech representing a
“Clear and Present Danger” to the state was established in this
case as an acceptable reason for its limitation.
Facts of the Case
During World War I, Schenck mailed circulars to draftees. The
circulars suggested that the draft was a monstrous wrong
motivated by the capitalist system. The circulars urged "Do not
submit to intimidation" but advised only peaceful action such as
petitioning to repeal the Conscription Act. Schenck was charged
with conspiracy to violate the Espionage Act by attempting to
cause insubordination in the military and to obstruct
recruitment.
Question
Are Schenck's actions (words, expression) protected by the free
speech clause of the First Amendment?
Conclusion
Holmes, speaking for a unanimous Court, concluded that
Schenck is not protected in this situation. The character of
every act depends on the circumstances. "The question in every
case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress
has a right to prevent." During wartime, utterances tolerable in
peacetime can be punished.
This decision was later amended, somewhat, in Gitlow v. New
York (1925). The case involved a socialist, Gitlow, arrested for
distributing a manifesto calling for the establishment of
socialism. The Court decided that a state may forbid both
speech and publication if they have a tendency to result in

action dangerous to public security, and this rationale has been
called the "dangerous tendency" test.
These precedents were modified somewhat by Tinker v. Des
Moines (1969). This case emerged out of a pair of students
(brother and sister) protesting the Vietnam War by wearing
armbands to school. The principal suspended them and the
family sued.
John and Mary Beth Tinker
The case went all the way to the Supreme Court, which decided
that the students did not shed their First Amendment rights upon
entering the school house – especially when their political
expression was not a clear distraction.
First Amendment: Church and State
Cases regarding the freedom of religious – and a countervailing
right, freedom from religion – drive to the core of the First
Amendment and are deeply emotional.
As mentioned in Unit 1, the United States is a complex society.
Christian spirituality imbued the values of the Declaration of
Independence, as it attributed out “inalienable rights” to a
“Creator.” Simultaneously, however, the same Declaration also
reflects the Enlightenment-era anti-clericalism and a rejection
of the Divine Rights of Kings.
The Supreme Court has struggled with issues of Church and
State throughout the centuries.
18. Reynolds v. United States (1878)
In this case, The Court ruled that while religious belief was
protected religious practice was not. The Court ruled against
polygamy (more than one wife) in Mormon Utah. A small group
of Mormons were claiming that they had a right to practice
polygamy on religious grounds, as an expression of their First
Amendment rights.
Following this decision, the Court has also restricted the
religious practice of ingesting certain hallucinogenic drugs (but
not others – depending on their status under the Controlled
Substances Act).
19. Engel v. Vitale (1962)

The clash between religiosity and secularism is evident in
several important issues regarding the degree to which religion
can be practiced in public or civic places. For example, in New
York state, a school board authorized a short, voluntary, non-
denominational prayer: "Almighty God, we acknowledge our
dependence upon Thee, and beg Thy blessings upon us, our
teachers, and our country."
The Supreme Court, in Engel v. Vitale (1962) had to decide
whether or not the school prayer violated the establishment
clause of the First Amendment. They decided that it did violate
the constitution – “even if the prayer is denominationally
neutral and pupils who wish to do so may remain silent or be
excused from the room while the prayer is being recited.” This
decision is still unpopular with most Americans, and the case
represents an example of a judicial “check” on the power of the
majority.
Justice Black delivered the opinion:
It is a matter of history that this very practice of establishing
governmentally composed prayers for religious services was one
of the reasons which caused many of our early colonists to leave
England and seek religious freedom in America. The Book of
Common Prayer, which was created under governmental
direction and which was approved by Acts of Parliament in
1548 and 1549, set out in minute detail the accepted form and
content of prayer and other religious ceremonies to be used in
the established, tax supported Church of England. The
controversies over the Book and what should be its content
repeatedly threatened to disrupt the peace of that country as the
accepted forms of prayer in the established church changed with
the views of the particular ruler that happened to be in control
at the time. Powerful groups representing some of the varying
religious views of the people struggled among themselves to
impress their particular views upon the Government and obtain
amendments of the Book more suitable to their respective
notions of how religious services should be conducted in order
that the official religious establishment would advance their

particular religious beliefs. Other groups, lacking the necessary
political power to influence the Government on the matter,
decided to leave England and its established church and seek
freedom in America from England's governmentally ordained
and supported religion…
Justice Stewart, dissenting:
With all respect, I think the Court has misapplied a great
constitutional principle. I cannot see how an "official religion"
is established by letting those who want to say a prayer say it.
On the contrary, I think that to deny the wish of these school
children to join in reciting this prayer is to deny them the
opportunity of sharing in the spiritual heritage of our Nation.
Since then, the issue of school prayer has made its way to the
Supreme Court numerous times, where it has always been struck
down as unconstitutional.
20. Lemon v. Kurtzman (1971)
The Supreme Court actually appeared frustrated by the endless
cases regarding religion coming to the docket and some justices
expressed interest in creating a kind of “litmus test” for the
establishment clause. In 1971, the Court wrote a ruling to
provide a kind standard for future cases. This litmus-style test
came to be known as the “Lemon Test.”
By way of background, Rhode Island and Pennsylvania had
made state financial aid available to church-related schools. Can
a state government give money to a religious-oriented school?
Did this violate the Establishment Clause?
The Supreme Court decided that states did not have this right.
Writing for the majority, Chief Justice Burger argued that the
government was becoming too entangled with religion in this
case. He articulated a three-part test for laws dealing with
religious establishment. This came to be known as the Lemon
Test, and largely it has held ever since.
To be constitutional, a statute must:
· Have a secular legislative purpose.
· Neither advance nor inhibit religion.
· Not foster an excessive government entanglement with

religion.
The Church-State debate lives on in today’s Supreme Court in
two recent cases. In the first case, Thomas Van Orden sued
Texas, in Van Orden v. Perry (2005), because a Ten
Commandments monument by the state capitol building
represented, for him, an unconstitutional government
endorsement of religion. He took his complaint to the Supreme
Court and lost.
In 5-4 decision, the Court held that the establishment clause did
not prohibit the monument on by the state capitol. The Court
decided that “… simply having religious content or promoting a
message consistent with a religious doctrine does not run afoul
of the establishment clause.” Besides, in this case the monument
was part of a larger historical context. The state was not
necessarily advancing one religion over another.
In the second case, McCreary County v. ACLU (2005), the
ACLU sued three Kentucky counties for displaying the Ten
Commandments in courthouses and public schools. The ACLU
claimed that the displays violated the First Amendment’s
establishment clause.
In a 5-4 opinion, the Court ruled for the ACLU because, in
these cases, the intent appeared to be an endorsement of
religion. The Ten Commandments, as displayed, were not set
into a larger educational or historical context. A reasonable
observer would have concluded that the display endorsed
religion, and so it was therefore ruled unconstitutional because
of its lack of historical or educational context. Here, the state
appeared to be advancing one religion over another.
And so the Lemon Test held in each case, but some observers of
the Supreme Court are predicting that Chief Justice John
Roberts, as well as Justice Samuel Alito, will be more receptive
to religious expression in public spaces, for better or for worse,
depending on one’s view.
Fourth Amendment: “Privacy,” Marriage and Sexuality
To what extent can or should individuals make personal choices
regarding marriage and sexuality? To what extent does society

has its own set of rights, justifying federal or state intervention
in such choices? This conflict between individual liberty and
social order drives to the core of the Fourth Amendment – and
often involves, by implication, the Fifth Amendment (Due
Process), the Fourteenth Amendment (Equal Protection) and
other sections of the Constitution.
21. Buck v. Bell (1927)
Historians often overlook the importance of this case, simply
citing it with amusement because Justice Oliver Wendell
Holmes ruled in favor of forced sterilization because “three
generations of imbeciles are enough.”
However, this case is supremely important because it
established the right (rightly or wrongly) of the state to situate
itself at the center of the reproductive process. The case reveals
the dilemma or paradox of the state involving itself in such
matters.
On the one hand, society arguably has a right to sterilize the
severely mentally deficient; on the other hand, once the state
does get involved, it has endorsed “eugenics” - a pseudo-
scientific project of racial hygiene that was taken to horrific
heights by the Nazis in the following decade. The eugenics
movement became a “slippery slope” in which new groups of
“undesirables” were steadily added to the sterilization rolls.
Facts of the Case
Carrie Buck was a feeble minded woman who was committed to
a state mental institution. Her condition had been present in her
family for the last three generations. A Virginia law allowed for
the sexual sterilization of inmates of institutions to promote the
"health of the patient and the welfare of society." Before the
procedure could be performed, however, a hearing was required
to determine whether or not the operation was a wise thing to
do.
Question
Did the Virginia statute which authorized sterilization deny
Buck the right to due process of the law and the equal
protection of the laws as protected by the Fourteenth

Amendment?
Conclusion
The Court found that the statute did not violate the
Constitution. Justice Holmes made clear that Buck's challenge
was not upon the medical procedure involved but on the process
of the substantive law. Since sterilization could not occur until
a proper hearing had occurred (at which the patient and a
guardian could be present) and after the Circuit Court of the
County and the Supreme Court of Appeals had reviewed the
case, if so requested by the patient. Only after "months of
observation" could the operation take place. That was enough to
satisfy the Court that there was no Constitutional violation.
Citing the best interests of the state, Justice Holmes affirmed
the value of a law like Virginia's in order to prevent the nation
from "being swamped with incompetence . . .
“Three generations of imbeciles are enough." (Justice Holmes)
This case, Buck v. Bell, has philosophical affinities with
another case, Diamond v. Chakrabarty (1980), in which the
Supreme Court placed the state at the center of a biological-
reproductive controversy, allowing companies to secure patents
on artificial life – on a genetically engineered bacterium
capable of breaking down crude oil. Should cloning ever reach
the Supreme Court as an issue, the Diamond case might become
a precedent for the pro-cloning side.
22. Griswold v. Connecticut (1965)
Here, the Supreme Court legalized contraception. Estelle
Griswold was a director Planned Parenthood League of
Connecticut. She had given medical advice about contraception
to married couples, and she was convicted under a Connecticut
law which made this a crime.
Estelle Griswold and Cornelia Jahncke
The case set the rights of the state to restrict contraception
against the rights of a couple to be counseled in contraceptives.
The Supreme Court recognized that although the Constitution
does not explicitly protect “privacy,” its various guarantees

within the Bill of Rights create “penumbras,” or implied zones
of privacy – especially the Fourth Amendment.
Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated…
The Supreme Court decided that sexuality – especially marital
sexuality - is one of those zones, and the Court ruled for
Griswold in a 7-2 decision. Two Justices - Hugo Black and
Potter Stewart - filed dissents. Justice Hugo Black argued that
the right to “privacy” is to be found nowhere in the
Constitution.
Interestingly, the interpretation of “privacy” in the Fourth
Amendment lives on in many current cases: euthanasia, medical
marihuana, same sex marriage, pornography, national ID cards,
etc…
23. Loving v. Virginia (1967)
In this case, a White man and an African American woman were
married in D.C. but moved to Virginia, which did not recognize
their marriage under an “anti-miscegenation” statute. Back then,
traditional conservatives and some Christians employed
arguments in defense of the Virginia ban that are somewhat
similar to the ones being used to day with same-sex marriages:
that such marriages are immoral.
The Supreme Court found that Virginia had to recognize the
marriage, because a ban against it served no “rational purpose”
and that people have a “right to choose” their marriage partners.
(Again, as in the Reynolds decision, no mention was made of
heterosexual or homosexual unions because the issue had still
not surfaced in society). But here, the Court’s reasoning might
apply to a future case regarding same-sex marriage. After all, it
might be difficult for opponents of same-sex marriage to
demonstrate than a ban against it serves any “rational purpose.”
24. Roe v. Wade (1974)
This case reached the Supreme Court when abortion was
becoming a political and social issue.

Pro-life advocates argue that the simple act of aborting a fetus,
at the minimum, runs counter to the idea of human dignity, and,
at the maximum, represents murder. Pro-choice advocates often
claim that criminalizing abortion leads to “back-alley” abortions
by quack doctors in which thousands of women (and their
fetuses) die of infection from botched abortions, as was the case
before 1974.
This case regarding abortion ranks among the most
controversial Supreme Court cases ever, and it remains a hot
topic of debate. The 7-2 decision allowed for a woman to have
an abortion within the first trimester of her pregnancy.
In Roe v. Wade, Roe, a 15-year old pregnant single woman,
challenged Articles 1191-1194 and 1196 of the Texas Penal
Code, which prevented her from obtaining an abortion. She
claimed that the Texas statutes were unconstitutionally vague
and that they abridged her right of personal privacy, protected
by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Justice Blackmun delivered the opinion of the Court:
This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon
state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment's reservation of rights to
the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy. The detriment that
the State would impose upon the pregnant woman by denying
this choice altogether is apparent. Specific and direct harm
medically diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may force upon the
woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child
care. There is also the distress, for all concerned, associated
with the unwanted child, and there is the problem of bringing a
child into a family already unable, psychologically and
otherwise, to care for it. In other cases, as in this one, the
additional difficulties and continuing stigma of unwed
motherhood may be involved. All these are factors the woman

and her responsible physician necessarily will consider in
consultation.
…
We, therefore, conclude that the right of personal privacy
includes the abortion decision, but that this right is not
unqualified, and must be considered against important state
interests in regulation.
Justice William Rehnquist (then not the Chief Justice) wrote a
vigorous dissent.
I have difficulty in concluding, as the Court does, that the right
of "privacy" is involved in this case. Texas, by the statute here
challenged, bars the performance of a medical abortion by a
licensed physician on a plaintiff such as Roe. A transaction
resulting in an operation such as this is not "private" in the
ordinary usage of that word. Nor is the "privacy" that the Court
finds here even a distant relative of the freedom from searches
and seizures protected by the Fourth Amendment to the
Constitution, which the Court has referred to as embodying a
right to privacy…
…
The fact that a majority of the States reflecting, after all, the
majority sentiment in those States, have had restrictions on
abortions for at least a century is a strong indication, it seems to
me, that the asserted right to an abortion is not "so rooted in the
traditions and conscience of our people as to be ranked as
fundamental,"…
Today, several states have restricted the practice of abortion,
and some of these have been declared unconstitutional because
they place an “undue burden” on women’s rights to abortion
under Roe (mandatory parental notification); and some have
been declared to be constitutional restrictions (late-term partial-
birth abortions).
25. Lawrence v. Texas (2003)
This case began when Houston police entered an apartment and
saw two men having sex, Lawrence and Garner. They were

convicted under Texas law, and their appeal made it to the
Supreme Court.
The Court ruled, 6 – 3, that no state has the right to prohibit any
sexual conduct between consenting adults. This Supreme Court
ruling is highly controversial because it ran counter to Christian
values and because it overturned precedent – it overturned the
Supreme Court’s earlier ruling in Bowers v. Hardwick (1986),
which upheld anti-sodomy laws at the state level, in Texas. If
individuals have the right to privacy in sexual matters, the
argument runs, the same logic might apply to marital matters.
Conclusion
As has been shown, the Supreme Court is the final arbiter
regarding the U.S. Constitution. It was imbued with the power
of judicial review from the beginning but consolidated that
power in a series of landmark decisions in the early 19th
century. Afterwards, the Court has played a central role in the
political history of the nation, making a deep impact on
American society and culture.
In the future, the Supreme Court will surely be required to rule
on cases that were never anticipated in the 18th century, during
the days when the Constitution was crafted: Is it constitutional
to clone humans? Does U.S. jurisdiction extend to outer space?
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