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PSC 314: Political theory and Constitutional Law

Supreme Court Opinions: Students' Briefs

Compiled (thanks) by Dr. Jeremy Lewis. Revised 18 Feb. 2015; with new brief.
Glossary of legal (and quasi legal) terms used in class
Definitions from a student
Commerce clause cases:
Gibbons V. Ogden (Steamboat Monopoly)
Racial segregation issues:
Plessy v. Ferguson, (1896)
Sweatt V. Painter (1950)
Brown v. Board of Education (1954)
Bolling v. Sharpe (1954)
Criminal defendants' rights issues:
Mapp v. Ohio, (1961)
Gideon v. Wainwright (1963)
Miranda v. Arizona (1966)
Rights of children of undocumented immigrants:
Plyler v. Doe (1982)
Privacy in contraception and abortion issues:
Griswold v. Connecticut, (1965)
Roe v. Wade and Doe v. Bolton (1973)
Webster v. Reproductive Health Services, (1989)
Rust v. Sullivan, 500 U.S. 173 (1991)
Planned Parenthood v. Casey, (1992)
Privacy in sodomy issues:
Bowers v. Hardwick (1986)
Lawrence v. Texas (2003)
Affirmative Action cases (separate page)
Oyez.org (search for case summaries and audio files)
Template for case notes

Glossary of legal (and quasi legal) terms used in class
(under construction, as terms come up in class)
by Jeremy Lewis

Definitions contributed by a student
Krista Leachman Spring 2003

Summary of Plessy v. Ferguson, 163 U.S. 537 (1896)
by Shannen O'Leary, Spring 2015 (another is below)
Homer Plessy (P) attempted to sit in an all-white railroad car. After refusing to sit in the black railway carriage car, Plessy was arrested for violating an 1890 Louisiana statute that provided for segregated “separate but equal” railroad accommodations. Those using facilities not designated for their race were criminally liable under the statute.
At trial with Justice John H. Ferguson (D) presiding, Plessy was found guilty on the grounds that the law was a reasonable exercise of the state’s police powers based upon custom, usage, and tradition in the state. Plessy filed a petition for writs of prohibition and certiorari in the Supreme Court of Louisiana against Ferguson, asserting that segregation stigmatized blacks and stamped them with a badge of inferiority in violation of the Thirteenth and Fourteenth amendments. The court found for Ferguson and the Supreme Court granted cert.
• Can the states constitutionally enact legislation requiring persons of different races to use “separate but equal” segregated facilities?
Holding and Rule (Brown)
• Yes. The states can constitutionally enact legislation requiring persons of different races to use “separate but equal” segregated facilities.
Thirteenth Amendment issue
The statute does not conflict with the Thirteenth Amendment. The Thirteenth Amendment abolished slavery and involuntary servitude, except as a punishment for crime. Slavery implies involuntary servitude and a state of bondage. The Thirteenth Amendment however was regarded as insufficient to protect former slaves from certain laws which had been enacted in the south which imposed upon them onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.
Fourteenth Amendment Issue
All persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
The proper construction of this amendment involves a question of exclusive privileges rather than race. Its main purpose was to establish the citizenship of former slaves, to give definitions of citizenship of the United States and of the States, and to protect the privileges and immunities of citizens of the United States from hostile legislation of the states.
It was intended to enforce the absolute equality of the two races before the law, but it was intended to abolish distinctions based upon color, or to enforce social equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race. Such laws have generally been recognized as within the scope of the states’ police powers. The most common instance involves the establishment of separate schools, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of blacks have been longest and most earnestly enforced.
Judgment for Ferguson (Plessy loses). This case marks the beginning of the “separate but equal” doctrine. It is later overturned by Brown v. Board of Ed decision.
This case is often cited incorrectly as Plessy v. Ferguson.
This case was later overruled by Summary of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
Plessy v. Ferguson, (1896)
Walker Garrett (2005)
Background: Why this case is so important: Plessy v Ferguson cemented the doctrine of "separate but equal."

Holding: This case approved of legal segregation in public facilities, and ruled that states could prohibit the use of public facilities by African Americans.

Gibbons V. Ogden (Steamboat Monopoly)
briefed by Trace Zarr, Jan. 2013

Case Facts
In 1815, Aaron Ogden obtained exclusive rights to begin operating a Steamboat line from New York to New Jersey. Soon after, Thomas Gibbons, in direct competition with Ogden, opened and operated a ferry along the same route. Aaron Ogden, in 1819, filed an injunction in New York state court against Gibbons for his ferry operations on the basis that the granting of exclusive privilege by the state of New York allows for his company to function as a legal monopoly.
The New York state court ruled in favor of Ogden, citing state laws overrule the Federal Government's Coastal Licensing Act of 1793.
The United States Supreme Court reversed the decision of New York's state court on two grounds: the monopoly was in direct conflict with a federal statute and, therefore, violated Article VI, Section 2 of the U.S. Constitution-the Supremacy Clause. Furthermore, the law violated Article 1, Section 8, Clause 3 of the United States Constitution-the Commerce Clause.
Supremacy Clause:
Developed under Chief Justice John Marshall in 1819 in the case of McCulloch V. Maryland
Establishes the U.S. Constitution, Federal Statutes, and U.S. Treaties as "the supreme law of the land."
Commerce Clause
Article 1, Section 8, Clause 3, of the Constitution empowers Congress "to regulate Commerce with foreign Nations, and among [the] several States, and with the Indian Tribes."
Many law scholars interpret the clause to empower the federal government with the power to regulate channels of interstate commerce, persons or things involved in interstate commerce, and things relating to or effecting interstate commerce.
A state has the inherent and reserved right to regulate its domestic commerce. However, that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce.

Sweatt V. Painter (1950)
Brief by Hunter Pattison, Spring 2013


-Herman Marion Sweatt was a black man who applied to the University of Texas Law School, and was denied solely on the basis of his race.
-Sweatt sued the President of the Law School, Theophilus Painter, to force his admission to the Law School
-A Texas trial court ruled that his denial was not allowed, as there was no Law School in Texas that would admit blacks
-The trial court refused mandamus, however, insisting that the state build a separate facility
-While Sweatt was preparing his appeal for the Supreme Court, the “Texas State University for Negroes” was created, and he was offered admission, which he refused
-Sweatt argued that the new law school was in no way equal to the one he applied to
-The new Law School had 23 students and one Alumni, whereas the University of Texas had 850 students
-The new law school had a library of 16,500 books (many of which were not there when Sweatt was granted admission) whereas the University of Texas had a library of 65,000 books
-The new law school had 5 full-time professors compared to the University of Texas’ 16
-The Supreme Court reversed the lower court’s decision, and granted Sweatt admission
-They ruled that, while there was a separate institution, it was not equal
-They ruled that in a profession like law, access to resources such as alumni were of great practical importance, and isolation would cause an inherent inequality
Top of page

Brown v Board of Education
By  Kristi Winstead, 2003
The case was filed in Topeka, Kansas during the 1950's
Linda Brown was a 3rd grade African American.
She walked approx. a mile to school everyday although a "white" school was located only seven blocks from her home.
Her father, Oliver Brown, attempted to enroll her in the "white" school.
However, she was not allowed to enroll at the facility.
Her father brought his concerns to the NAACP; the NAACP took a concern in the matter and filed action against the board of education.
Ruling of Lower Courts:
The court, however, ruled in favor of the board of education based on the ruling in Plessy v Ferguson.
Plessy v Ferguson:
Stated that separation. but equal was in fact legal as long as interstate commerce was not an issue.  In-state separation was legal and could in fact continue as long as equality was maintained.
The NAACP then brought the case before the Supreme Court.
Ruling of the Supreme Court:
The court heard the case on Dec. 9, 1952 but failed to reach a decision.
The case was reheard on Dec. 7th and 8th of 1953.
On May 17, 1954 Chief Justice Earl Warren read the decision of the unanimous court:
the court ruled in favor of Brown based on the idea that separation in a learning environment was not and could not be equal.

Bolling v Sharpe
[Spottswood Thomas Bolling, et al.,Petitioners, v. C. Melvin Sharpe, et al.]
By  Kristi Winstead, 2003 [edited by Jeremy Lewis, 2013, in square brackets]
In 1947 Gardner Bishop and the Consolidated Parents Group, Inc. [in the Anacostia neighborhood] began a crusade to end segregated schooling in Washington, D.C.

The "black schools" in D.C. were overcrowded. Many students had to attend schools in shifts such as from 8 AM till 12 PM and the next group would attend from 12:45 PM until 5:15 PM.

Students at the all black Browne Junior High School were attending in shifts during 1947 due to an over capacity by about 700 students.

A local all white school was operating in single shifts and had app. 150 open spaces.

In 1950 Bishop attempted to get eleven young African American students admitted to the new John Philip Sousa Junior High School, an all white school.

When the students were turned down, Charles Hamilton Houston, the special counsel to the NAACP, provided legal representation for the group.  Prof. James Nabrit,Jr. [of Howard University] soon replaced Houston after Houston dealt with medical issues.

The sole issue debated was not that black schools were inferior to the white schools [as in Brownv. Board], but simply that it was segregation itself that was wrong [unconstitutional].  This point had never been argued alone.
The court dismissed the case on the basis of a recent ruling by the Court of Appeals in Carr v. Corning that segregated schools were constitutional in the District of Columbia.

The U.S. Supreme Court rendered a separate opinion on Bolling v Sharpe because the 14th Amendment to the U.S. Constitution was not applicable in the District of Columbia.

[School segregation was unconstitutional under the Due Process Clause of the Fifth Amendment to the United States Constitution. In Bolling, the Court observed that the Fifth Amendment to the United States Constitution lacked an Equal Protection Clause, as in the Fourteenth Amendment to the United States Constitution. The Court held, however, that the concepts of Equal Protection and Due Process are not mutually exclusive.]

[Critique: leading law professors have pointed out that -- no matter how morally sound -- this decision is hard to reconcile with the text of the Constitution. Alternatively, Judge Michael McConnell has argued that the Court should have ruled that segregation had never been authorized by Congress.]

Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961)
brief by Dr. Jeremy Lewis, Spring 2009
  • Facts of the case:
  • Note of interest about the circumstances:
  • Constitutional issues raised:
  • May evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures", be used in criminal prosecutions in state courts, as well as federal courts?
  • Holding of the court:
  • Evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures", may not be used in criminal prosecutions in state courts, as well as federal courts.
  • This is known as the "exclusionary rule"
  • Constitutional analysis:
  • Federal precedent:
  • Weeks v. United States (1914) applied an exclusionary rule to the federal government only, but not the states, based on the Fourth amendment
  • Applied to federal only , not state, courts with Wolf v. Colorado (1949).
  • Majority Opinion:
  • Justice Clark overturned Wolf: right of privacy in Fourth amendment is already applied to states via Fourteenth amendment.  Exclusionary rule is an important part of privacy.
  • "it is the law that sets him [the criminal] free" and that "Nothing can destroy a government more quickly than its failure to observe its own laws."
  • Concurrences:
  • Justice Black concurred, but by combining the Fifth amendment with the Fourth, the exclusionary rule is actually required.
  • Dissents:
  • Justice Harlan's dissent: states rights issue; wrong question asked.  The real question that should have been asked was, "not with the desirability of that [exclusionary] rule, but only with the question whether states are Constitutionally free to follow it or not as they themselves determine."

  • Gideon v. Wainwright
    Krista Leachman Spring 2003
    -Clarence Earl Gideon was arrested in 1961, and charged with breaking and entering a pool hall with intent to commit petty  larceny (a felony).

    -He did not have a lawyer and asked that one be appointed to him by the court.

    -He was denied the right saying that under Florida state law, a lawyer was only appointed in a capital offense.

    -He was sentenced to 5 yrs. in prison and he appealed to the Supreme Court and they agreed to review his case.
      -Abe Fortas was appointed to represent him.

    -In 1963, the Supreme Court overturned his conviction and said that the right to counsel is guaranteed in federal trials in the sixth  amendment of the constitution.

    -State failure to provide counsel for a defendant charged with a felony violated the due process clause of the Fourteenth  Amendment to the Constitution.

    Miranda v. Arizona (1966)
    By: Steven Witt (2005)

    The Chief Justice in the case has had a very exciting life so to speak. Earl Warren has had a number of landmark rulings. Among them were, Brown v. Board of Education (1954) on desegregation in public schools, Mapp v. Ohio (1961) on search and seizure by police, and Gideon v. Wainwright (1963) on the right to counsel in criminal trials in state courts.

    In this particular case we have a suspect (Ernesto Miranda) who has been identified by the victim in a kidnapping and rape case. He was then interrogated but only after he signed a confession document stating that he was “with full knowledge of my legal rights, understanding that any statement I make may be used against me.” The trial proceeded and Miranda’s confession was entered as evidence, and despite the officer’s testimony that Miranda had not been told of his right to have an attorney present during interrogation, Miranda was found guilty.

  • The Supreme Court of Arizona upheld the conviction on the grounds that Miranda had not specifically requested an attorney. The ruling resulted in what we now know as the “Miranda rights”, a statement read to any suspect by law enforcement officers during an arrest.

  • The Fifth Amendment to the US Constitution states simply that an individual is not to be compelled to incriminate himself.
  • The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
  • Individuals must be warned prior to any questioning that they have the right to remain silent, that anything you say can be used against you in a court of law, that you have the right to the presence of an attorney and that if you cannot afford an attorney one will be appointed for you prior to any questioning if you so desire.
  • From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way appraised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible.



    Griswold v. Connecticut, 381 U.S. 479 (1965)
    Estelle T. Griswold and C. Lee Buxton v. Connecticut
    brief by Dr. Jeremy Lewis, spring 2009
    Recording of oral argument, at Oyez.org | Text at Oyez.org | Text at Enfacto.com

    Facts and Circumstances:

    Constitutional Issues: Is a Connecticut law, which bans contraceptive use, constitutional?
    Holding: The Connecticut law making criminal the use of contraceptives, violates the right to marital privacy. Connecticut Supreme Court reversed.


    Roe v. Wade, 410 U.S. 113 (1973)
    Doe v. Bolton, 410 U.S. 179 (1973)
    [Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County,  410 U.S. 113; 93 S. Ct. 705]
    [‘Mary Doe’ v. Arthur K. Bolton, Attorney General of Georgia, et al.]
    Oral argument recording at Oyez.org | text at Findlaw
    Facts and circumstances:
    [Consolidated] Two cases: Roe v Wade [Findlaw] from Texas, and Doe v Bolton [Findlaw], from Georgia.
  • Attorneys for Norma L. McCorvey ("Jane Roe") sought an injunction in 1970 against enforcement of a Texas state law against abortion.
  • McCorvey claimed her pregnancy was the result of rape, a claim later dropped.
  • The Texas law (unlike those in some other states) did not distinguish single from married females, nor consider the health of the mother
  • The district court ruled in her favor on the merits, but declined to grant an injunction.  The court cited the Ninth amendment and Arthur Goldberg's opinion in Griswold v CT (1965), upholding marital privacy against a state law banning contraception.
  • Harry Blackmun drafted an opinion upholding Roe on the basis of the Texas law's vagueness.
  • President Nixon's nominees, Rehnquist and Powell, were confirmed too late for the hearing, hence Chief Justice Burger ordered a reargument held in 1972 (Justice Douglas dissented from this order).
  • Doe v. Bolton followed a similar timetable and had a similar majority.  Plaintiff Sandra Cano ("Mary Doe") was nine weeks pregnant.
  • The Georgia law permitted abortion only in cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother.
  • Restrictions included the requirement prior approval in writing by three physicians and by committee of the hospital; non-residents of Georgia could not have an abortion at all.
  • The Doe opinion permitted abortion (in principle) even after viability, based on a broad definition of factors involving the mother's health.
  • Holding of the court:
  • The Supreme Court ruled 7-2 to overturn the Texas and Georgia statutes, thus overturning most abortion-banning laws in 46 states.
  • The three procedural conditions in 26-1202 (b) of Georgia's Criminal Code violate the Fourteenth Amendment.
  • Analysis:
  • Justiciability: Roe had given birth before the appellate process was exhausted.  The case was not declared moot, though, nor was Roe denied standing to assert the case for other pregnant women.  Instead, the Court found an established 1911 exception to mootness for a case "capable of repetition, yet evading review."
  • Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton.
  • Abortion is a fundamental constitutional right, hence restrictions are subject to strict scrutiny.
  • Blackmun founded the right on the due process clause, not the Ninth amendment:
  • Blackmun's opinion, Section VI, researched the history of abortion law since ancient Rome.
  • The opinion gave balanced recognition to the mother's right to privacy, the foetus's right to life if defined as a legal person, and the state's right to regulate:
  • The opinion left definition of when life begins to other disciplines, an concerned itself only with the legal right to abortion.
  • The balancing of rights established a system of trimesters:
  • the state cannot restrict a woman's right to an abortion during the first trimester
  • the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health"
  • the state can restrict or proscribe abortion during the third trimester when the fetus is viable, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".
  • Go to subsequent opinions modifying Roe v. Wade

    Roe v Wade (1973)
    Jonathan Lyons, Spring 2007

    -Texas -- an unmarried woman sought an abortion in a state where it was illegal unless the mother’s life was at risk
    -[Doe v. Bolton], Georgia -- a poor, married mother of three sought an abortion in a state where permission from a panel of doctors and hospital officials was necessary
     -A Texas statute made it illegal to “procure an abortion”
     -Ms. Norma McCorvey (using Roe was a pseudonym) of Texas challenged that the statute violated her right to privacy given in the Fourteenth Amendment.
    [-The TX district court gave judgment for plaintiffs, and denied an injunction.]
    Holding of the court:
    -The three-judge panel in Texas stated that the Texas statute indeed violated her right to privacy and ruled in favor of Roe.
    [A Texas law making it a crime to assist a woman to get an abortion, violated her due process rights. ]
     -Justice Blackmun’s opinion- stated that the Constitution does not see the fetus as a person as the state does. The Constitution does not make the choice to have an abortion moral, but does grant the right to choose
    -The Supreme Court furthered the decision by giving states the right to regulate abortions in certain circumstances but gave all women the right to an abortion in the First Trimester.
    -The court decided the states could regulate abortions according to which trimester the woman’s pregnancy was currently in.
    -States could not interfere with a woman’s right to an abortion during the first three months of a pregnancy.
    -In the Second Trimester, states could now regulate abortion only if it was reasonably related to the mother’s health.
    -In the Third Trimester states were given the authority to regulate and absolutely ban abortions.  In the Third Trimester the fetus has reached viability (the fetus can survive outside of the mother’s body)

    Roe v. Wade (1973)
    (Tegan Cole 2005)

    - Background:
    - Roe brought the case to the Supreme Court against the state of Texas and their laws that criminalized abortion.  Roe, a single parent, brought this case up because she wanted an abortion but she could not due to the fact that the Texas statute only allowed an abortion when it was needed to save the mother’s life.
    - The supreme court came to a 7-2 decision where they overturned the Texas statute and made abortion legal through out the United States.  They overturned the statute due to the fact that it violated the right to privacy that women had over the choices they have to make with their bodies.
    - Justice Blackmun wrote the opinion of the court:
    ~ The statute clearly violates the concept of personal liberty as held by the 14th Amendment’s
    due process clause and also personal life is protected by the Bill of Rights.
    ~ The laws are out of date and need to be updated to the 20th Century.  There were reasons in
    the 19th Century for having such laws but they are no longer needed due to the great
    advancement of medicine.
    ~ There are three reasons for these laws, one to discourage illicit sexual conduct, abortion being
    very unsafe as a medical procedure in the 19th Century, the state’s interest in protecting prenatal life.
    ~ The Constitution does not clearly define a right of privacy but the decisions of the court does
    and the statute is clearly a violation of the privacy ensured by the court.  The 9th amendment is
    broad enough to encompass a woman’s right to have an abortion or not.
    ~ The Constitution does not see the fetus as a person as the state does and therefore abortion is legal.
    ~ The Constitution does not make the right to have an abortion moral but it is the right to make a
    choice whether to have an abortion or not.  The practice of an abortion is legal and the
    stipulations on an abortion are left up to the state after the first trimester.
    - Justice White and Justice Rehnquist Dissent
    ~ The court has no right to place the scope of a woman’s choice under the 14th Amendment.

    Subsequent cases, modifying Roe v. Wade:

    Webster v. Reproductive Health Services, 492 U.S. 490  (1989)
    William L. Webster, Attorney General of Missouri, et al. v. Reproductive Health Services, et al.   492 U.S. 490; 109 S. Ct. 3040
    Text at Cornell Law School | Summary at Findlaw | Summary at Oyez  | Oyez page (includes votes)
    brief by Dr. Jeremy Lewis, spring 2009

    Facts and Circumstances: Holding: Analysis:
  • The Rehnquist opinion (with White and Kennedy; plus O'Connor and Scalia except for the viability issue) modified the Roe trimester system, and upheld several restrictions, but found that none of the Missouri Act's provisions conflicted with the constitution.

  • Rust v. Sullivan, 500 U.S. 173 (1991)
    By Devon Beaty, Spring 2009 (one by Dr. Lewis is below)

  • Facts and Circumstances
  • Constitutional Issue Before the Court Ruling of the Court Analysis
    Rust v. Sullivan, 500 U.S. 173 (1991)
    Irving Rust, et al., Petitioners v. Linus W. Sullivan, Secretary of Health and Human Services; New York, et al., Petitioners v. Linus W. Sullivan, Secretary of Health and Human Services,  500 U.S. 173; 111 S. Ct. 1759 [Oyez page, links to audio]
    notes by Dr. Jeremy Lewis, spring 2009
  • Facts and Circumstances:
  • Title X of the Public Health Service Act prohibited US funds from being "used in programs where abortion is a method of family planning."
  • In 1988, the Secretary of Health and Human Services issued new regulations that prohibited projects receiving these funds from not only providing abortions, but also counseling, advising, or promoting the idea that a woman seek an abortion. These regulations were challenged.
  • The district court gave summary judgment for the defendant, DHHS, and the circuit court affirmed.
  • Constitutional issues before the court: Holding of the court:
  • Opinion of the Court:
  • Analysis: Interesting context:

    Planned Parenthood v. Casey, 505 U.S. 833 [Pennsylvania] (1992)
    Casey, Governor of Pennsylvania, et al. v. Planned Parenthood of Southeastern Pennsylvania et al., No. 91-902
    brief by Dr. Jeremy Lewis, spring 2009 [Oyez page, links to audio]

    Facts and Circumstances:

    Constitutional issues before the court:
  • Are the following provisions of the Pennsylvania Abortion Control Act consistent with Roe v. Wade's rights?
  • A "informed consent" rule under the Act required doctors to provide women with information about the health risks and possible complications of having an abortion before one could be performed.
  • A "spousal notification" rule required women to give prior notice to their husbands.
  • A "parental consent" rule required minors to receive consent from a parent or guardian prior to an abortion.
  • A 24-hour waiting period was required before obtaining an abortion.
  • Reporting requirements were imposed on facilities providing abortion services.
  • Holding: Analysis:
  • The court permitted states to legislate in areas previously deemed off limits.
  • The unique plurality lead opinion (crafted and authored by O'Connor, Kennedy and Souter, with at least two other justices joining each part) lowered the scrutiny of restrictions on abortions, from strict scrutiny to a lesser "undue burden" standard
  • The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."
  • The opinion specifically upheld the precedential value of Roe, while accepting substantial modification
  • Additional notes of interest:
  • By this time, Byron White, a dissenter in Roe v. Wade, was the only remaining democratic-appointed justice
  • Third Circuit appellate Judge Samuel Alito had dissented from the invalidation of the spousal notification

  • Bowers v. Hardwick (1986)
    Brief by John Phillips, spring 2013 (another version is below)
     In August of 1982 Michael Hardwick was charged with public intoxication after leaving a bar for which he was given a court date. After failing to attend court Hardwick was issued a warrant by the arresting officer. Upon issuing the warrant, the officer searched his home premises only to find Mr. Hardwick engaging in consensual, mutual oral sex with another man for which both were arrested for violating the state’s anti sodomy laws. After the sodomy case was never taken to trial Hardwick then sued Michal Bowers, Attorney General for the state of Georgia, on the basis that the law was invalid. Hardwick’s attorneys argued that as an active homosexual he was bound to be brought up on similar charges in the future.
     The issue that was mainly addressed by the court was Hardwick’s right to privacy. Justice Byron White delivered the majority opinion based around the legal question: “a fundamental right for homosexuals to engage in sodomy”. For a right to become “Fundamental” it must be “deeply rooted in U.S. history”. Justice White responded to the prompt by stating “to claim that a right to engage in such conduct is ‘deeply rooted in rooted in this nation’s history and tradition’ or implicit in the concept of ordered liberty’ is, at best, facetious”. This ruling affirmed that the Georgia law was valid because there is no constitutional right that guarantees the right to engage in homosexuality.
     In the time since the decision, many states’ sodomy laws were rarely enforced in the privacy of one’s home. The Georgia law extended not only to homosexuals but also to heterosexuals as well. However, since Justice White focused primarily on the fact that the respondent was a homosexual the case has since been cited in cases with opposition to gay rights.
     Since the ruling of the case there have been multiple sodomy related cases that have led to the repeal of many states’ anti-sodomy laws. The Georgia law that the Hardwick case affirmed was later invalidated in Powell v. State of Georgia (1998) thus overruling the opinion [that gave rise to the] the previous opinion set forth by Justice White.

    Bowers v. Hardwick (1986)
    By Tegan Cole, 2005
    Background: The Ruling:
  • The court ruled 5-4 to reverse the 11th circuit court of appeals ruling, [and permit the state to enforce legislation on types of private, consensual sexual conduct]
  • Justice White delivered the opinion of the court:
  • The right to privacy was not invaded and the case has no legitimacy under the due process clause because it is not a Constitutional issue and majority belief still invalidates his claim because it is seen still by the majority as immoral.
  • The due process clause only protects life, liberty, and property to a person and their right to maintain and keep it.  The rights of homosexuality do not fall under these categories.
  • The idea of homosexuality was not provided for in the Constitution because at the time of the founding fathers there was a common law that made sodomy illegal and it was not meant to be in the Constitution’s jurisdiction.
  • The law, based on morality like many other laws, is Constitutional because it protects the rights of those who are not a part of it.  The basis for morality is that it keeps order and if laws that were based on morality were rejected then where would the courts be today?
  • Justice Burger in his concurring opinion:
  • Hardwick should not undermine the power of the state just because it suits his sexual preferences better.
  • Justice Blackmun delivered the dissenting opinion of the court:
  • Intrusion on a person’s privacy should not be biased according to sexual orientation.
  • The courts have focused too much on the fact of homosexuality and not on the fact whether the person’s rights were violated or not.
  • Sexual intimacy is part of life and should not be limited due to sexual orientation.
  • Aftermath:
  • The Georgia law was stuck down later in 1997 in Powell v. State [of Georgia].
  • The [case] law was also [reversed] by the Supreme Court in 2003 in Lawrence v. Texas.
  • [sorry, slight editing needed there by Dr. L]

  • Lawrence v. Texas (2003)
    By: Rick Riley, Spring 2009
    Text at Findlaw.com
  • Facts and Circumstances:
  •  Houston Police entered John Lawrence’s House responding to a weapons disturbance.  The police found Lawrence and Tyron Garner engaging in a private consensual sexual act.  This was in violation of a Texas statute that banned two persons of the same sex from engaging in sexual intercourse and sodomy.  The two men were arrested and convicted of deviate sexual Intercourse.  Lawrence and Garner challenged the Constitutionality of the statute.  The Texas State Court of appeals upheld the Statute Citing the Precedent of Bowers V. Hardwick.
  • Constitutional and Legal Issues:
  • Does the Texas Statute Violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment?  Should Bowers V. Hardwick be overturned?
  • Holding of the Court:
  • The Court ruled 6-3 in favor of Lawrence and Declared that the Texas statute violated the Due Process Clause of the Fourteenth Amendment.  The Ruling of the Texas Court of Appeals was reversed and remanded.  Justice Kennedy delivered the Opinion that was joined by Justices:  Stevens, Souter, Ginsburg, and Breyer.  Justice O’ Connor Filed a Concurring Opinion.  The Dissenting Opinion was written by Justice Scalia and was joined by Chief Justice Rehnquist and Justice Thomas who also filed a dissent.
  • Analysis:
  • Justice Kennedy said that Lawrence and Garner were free adults and that their right to engage in private conduct is protected by the Due Process Clause of Amendment XIV.  According to Kennedy, the Texas Statute violated this right.  Kennedy said that Bowers V. Hardwick had wrongly allowed regulation of very private relationships.  He said that Homosexuals had the right through the 14th Amendment to enter into relationships in the privacy of the home.
  • Kennedy then attacked the claim made by the court in Bowers, that there had been a tradition of laws against sodomy in the U.S.   Kennedy argued that these laws were meant to go after child predators that preyed on those that couldn't consent legally.  He said that laws like the Texas statute in this case unfairly attacked homosexuals.  He said that there was no precedent for laws singling out homosexual relationships (instead, these laws singled out unmarried relationships).   Kennedy cited the precedent of Romer V. Evans that struck down laws that singled out homosexuals.  He also cited precedent from a European Court of Human Rights case involving a Law in Northern Ireland.
  • The principle of stare decisis was also challenged.  Kennedy, citing Payne V. Tennessee, said that stare decisis was not inexorable.   Therefore, Kennedy overturned Bowers V. Hardwick even though the case had been decided only 17 years earlier.
  • He challenged Bowers with two points.
  • 1.  The fact that the governing majority of a state has viewed a particular practice as immoral is not sufficient reason to uphold a statute.
  • 2.  Individual decisions concerning physical relationships even if not procreative are a form of liberty.
  • Finally, Kennedy argued that the current state of the Laws was another reason to overturn Bowers.  He said that because fewer states had sodomy laws at the time the case was decided.
  • Dissent:
  • Scalia said that the court had overturned Bowers too early.  He said that it was unfair that the court dismissed stare decisis in this case yet made it had made it the main reason in reaffirming Roe V. Wade.   Scalia said this created great instability with the writ of stare decisis.  He said that this would also cause instability in society.
  • Scalia also said that the right of homosexuals to engage in sexual practices was not fundamental because there had been no precedent protecting the right to intimate sexual relations.  He noted that Sodomy was a criminal offense in the thirteen states at the time the Bill of Rights was written.  Therefore, the Texas statute was not subject to strict scrutiny.
  • Scalia said that Texas had an interest in communicating to its citizens that certain sexual acts were immoral.  He says that laws against fornication, bigamy, adultery, adult incest, and obscenity serve the same purpose.  He says that morals legislation has a purpose and a deep rooted tradition in America.  He says the ruling of the court  threatens the right of states to legislate morality.
  • Finally, he challenges the equal protection claim.  He says that men and women and all races are equally banned from committing deviant sex acts.  He also says that the law is attacking conduct not a group of people.  He says if we had to strike down this law, we would have to strike down public nudity bans because that is discriminatory against nudist. He also cites the prevalence of marriage laws.
  • In Conclusion, Scalia accuses the court of signing on to the homosexual agenda that promotes removing homosexuality from the ranks of immorality.  The court had taken sides in a culture war he says.   Scalia feared that the court had departed from its role as observer and that it was forcing people to be exposed to a lifestyle that they see as immoral and that they want to protect their families from.  He said that the homosexual agenda that the court pushed was not mainstream.  He said that it was not the job of the court to decide the results of the culture war.  He said this should be settled in the process of democracy.

  • Plyler v. Doe, 457 U.S. 202 (1982); 102 S. Ct. 2382
    James Plyler, Superintendent, Tyler Independent School District, et al. v. John Doe, et al.
    Notes by Dr. Jeremy Lewis, spring 2009
    Moved to Powerpoint slides, March 2015

    Template for case notes

    Plaintiff v. Respondent, Vol.# U.S. page; Vol.# S. Ct. page (year)
    notes by student author, Spring 2009

  • Facts of the case:
  • Constitutional issues raised:
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  • Holding of the court:
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  • Constitutional analysis:
  • Majority Opinion:
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  • Dissents and Concurrences:
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