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Do the decisions in Case 1,2,3 reflect a principled approach to constitutional interpretation or whether the cases are more demons

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Do the decisions in Case 1,2,3 reflect a principled approach to constitutional interpretation or whether the cases are more demonstrative of how a justice’s personal and/or ideological preferences permeate Supreme Court decision-making?

Question 2:


A.Do the decisions in Case 1,2,3 reflect a principled approach to constitutional interpretation or whether the cases are more demonstrative of how a justice’s personal and/or ideological preferences permeate Supreme Courtdecision-making?

B.If applicable, use concurring or dissenting opinions to support your argument

II.District of Columbia vs Heller


1.SCOTUS held 5-4 that 2ndAmendment applies to federal enclaves and protects an individual’s right to posses a firearm for traditionally lawful purposes (self-defense within the home)

a)Justice Scalia delivered the opinion of the court: we consider whether a district of columbia prohibition on the possession of usable handguns in the home violates the 2nd amendment to the constitution

2.SCOTUS struck down provision of the Firearms Control Regulation Act of 1975 as unconstitutional, determined handguns are “arms”, found that the Regulations Act was unconstitutional ban, and struck down the portion of the Act that requires all firearms including rifles and shotguns to be kept unloaded and disassembled or bound by trigger lock

3.Majority – SCALIA

a)Delivered by Scalia, joined by Roberts, Kennedy, Thomas, Alito

(1)“people” are same as in 4thand 5thamendment

(2)Heller must be able to have his handgun and he can have it at home

(a)2A protects individual’s right to possess firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes such as self-defense in the home

(i)2A has prefatory clause that does not limit/expand the operative clause

(a)pref: well-reg. Militia

(b)operative: right of people to bear arms shall not be infringed

(i)Operative clause: “right of the ppl”--> refers to individuals rights, not “collective” rights that may

be exercised only through participation in some corporate body

(ii)2A’s drafting history reveals 3 state 2A proposals that refer to individual right to bear arms, not just militia

(iii)no  precedent refute individual rights interpretation

(a)US v Miller just limits TYPE of weapon

(b)2A right is not unlimited

(i)still not okay for felons or mentally ill or sensitive places

(ii)sorts of weapons protected are those in common use at that time

(c)handgun ban and trigger lock requirement violate 2A

4.Dissent - STEVENS

a)Justice Stevens, joined by Souter, Ginsburg, Breyer

(1)Said court’s judgment was a strained and unpersuasive reading which overturned longstanding precedent

(a)4 main points:

(i)1) founders would have made individual rights aspect clear if intended

(ii)2)  militia preamble and phrase to keep and bear arms demands the conclusion that 2A touches on state militia service only

(iii)3)  SD for Miller

(iv)4) court has not considered gun-controllaws unconstitutional

(2)Breyer said DC’s handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right

(a)Argues public safety necessity of gun-control law

(b)Objects to common use distinction – because machine guns could become common and would be protected under 2A with this logic

(c)Precedents used or set:

(i)US v. Miller was precedent

(ii)Created newly defined 2A individual right

(iii)Lifted  handgun bans in DC



1.DC prohibits possession of handguns...crime to carry an unregistered firearm and the registration of handguns is prohibited

2.Lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device”

3.Respondent Dick Heller is a DC special police officer authorized to carry a handgun while on duty at the Federal Judicial Center

a)Applied for a registration certificate for a handgun but district refused

b)He filed a lawsuit

c)The district court dismissed respondent’s complaint but the court of appeals reversed it

4.Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service

5.Respondents argues that it protects an individual’s right to to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self defense within the home

6.District  level said no right to hold - DC court of appeals reversed opinion saying was individual right for handguns – DC decided to appeal and take to SCOTUS

7.In all 6 other provisions of the Constitution that mention “the ppl” the term unambiguously refers to all members of the political community

8.“Arms”- 18th century meaning is no different meaning today

a)1773 edition of samuel Johnson’s dictionary defined “arms” as “weapons” of offence or armour of defence

b)Term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity

c)Argument is we do not interpret constitutional rights that way...just as the 1st amendment protects modern forms of communication and the 4th amendment applies to modern forms of search, the 2nd amendment extends to all instruments that constitute bearable arms

-the right to self defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible

-Argue that to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use

III.Planned Parenthood of Southeastern Pennsylvania v. Casey 1992

A.Facts of the Case: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus (3209 Spousal Notice). These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.

1.Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?

a)Conclusion and Reasoning: 5-4 in favor of Planned Parenthood.

b)O’Connor writing for the majority. Kennedy, Souter, Stevens, Blackmun join at least in part.

(1)Concur/dissent Stevens

(2)Concur/dissent Blackmun

(3)Concur/dissent Rehnquist, joined by White, Scalia, Thomas

(4)Concur/dissent Scalia, joined by Rehnquist, White, Thomas

2.Legal provision: Due Process.

3.In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. 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." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices

4.Additional Notes:

a)The undue burden test combines the first and second trimesters, as it relates to state regulation on abortion.

b)Six of the nine justices on the Court at the time were Republican appointees.

c)Justice O’Connor wrote this opinion. Justice Kennedy joined it.

d)Justice Scalia thought O’Connor’s language was being pulled out of thin air.

e)This case is a great example of stare decisis. If the central holding of Roe were to be overturned, there would have been extreme uncertainty and trouble for society.

f)Parental notification, informed consent, reporting requirements, 24-hour waiting period stands.

IV. Lawrence v. Texas (2003)

A.Facts that triggered the dispute: Police officers were dispatched to a private residence in response to a reported weapons disturbance. They saw Lawrence and another man engaging in a sexual act. The two men were arrested, charged, and convicted.

B.Statute: The Texas “Homosexual Conduct” law criminalizes sexual intimacy by same-sex couples.

C.Provision of the Constitution: The 14th Amendment, Due Process Clause

D.Legal question:

Do the convictions under the TX law violate the Fourteenth Amendment guarantee of equal protection of laws?

Do the convictions for adult consensual sexual intimacy in the home violate their liberty and privacy protected the by Due Process Clause of the Fourteenth Amendment?

Outcome: The Court ruled in favor of Lawrence, and remanded the case “for further proceedings not inconsistent with this opinion.”

Legal reasoning of the majority: In delivering the opinion of the Court, Justice Kennedyconsidered:

Does the TX law violate the Equal Protection Clause of the 14th Amendment?

Is consenting adult sexual activity part of liberty and privacy protected by Due Process Clause of 14th Amendment?

Background case of Griswold v. Connecticut (1965): law prohibiting the use of contraceptives by married couples is unconstitutional because privacy = “right of the individual to be free from unwarranted govt intrusion into matters so fundamentally affecting a person as a decision whether to bear or beget a child”

Should Bowers v. Hardwick be overruled? → Yes

Liberty under due process clause!

Legal doctrine:

Overruled Bowers v. Hardwick which said that homosexual conduct is not a constitutional liberty

There’s a fundamental liberty to make personal decisions based on Due Process Clause of 14th Amendment

Liberty includes freedom of thought, belief, intimate conduct

Other POV:

Justice O’Connor concurred: Agrees with ruling, but bases conclusion on Equal Protection Clause-- not the due process clause

The law target homosexuals specifically, discriminated

Justice Scalia(joined by Chief Justice Roberts and Justice Thomas) dissented: there’s no right to privacy except the 4th + 6th Amendments (no general right)

It was a moral law, like those against incest, bigamy, bestiality, etc.

It doesn’t fail any rational basis test, doesn’t deny equal protection, doesn’t violate any fundamental right

There’s reliance on Bowers


V. Conclusion:

Question 4:

I.Intro: memorandum recommends an approach to the senator’s questioning of any nominee, whether or not they have prior judicial experience

II.Issues senator wants me to address the following:

A. Nominee’s views on Roe v. Wade in the right of privacy

1.Address whether questioning on these topics would be appropriate or productive

a)When Justice Clarence Thomas was nominated in 1991

(1)Senator Leahy rejected Thomas

(a)Not qualified enough

(b)He has never discussed merits of Roe v. Wade ???? → What kind of judge is he?! How does he view constitutional right to privacy?

b)Substantive Due Process: A principle allowing courts to protect

certain rights deemed fundamental from government interference.

(1)Courts derive the authority for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law."

(2)Governments can only interfere in the case of a legitimate/compelling state interest (ex. Roe v Wade and the trimestral analysis, government has compelling interest to intervene with woman’s decision to terminate pregnancy because the fetus can live outside the woman’s body in its third trimester, this is when the government becomes viable)


d)Roe V. Wade posed the Question: Does the Constitution embrace a woman`s right to terminate her pregnancy by abortion?

(1)The Court held that a woman`s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy

during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court`s ruling.

e)Facts that triggered the dispute: a 21 y/o was raped and got pregnant, wanted to get an abortion. Statute: TX law that made it illegal to get an abortion unless it’s to save the life of the mother

(1)Conclusion and Reasoning: 7-2 in favor of Roe.

(a)Justice Blackmun wrote the majority opinion

(i)Majority: Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell

(2)Legal provision: Due Process clause of 14th amendment

(a)Legal question: Is choosing an abortion a constitutionally protected right?

(b)Outcome: The Court struck down the law as unconstitutional. Abortion is part of the fundamental right to privacy.

(c)The legal reasoning of the majority: In delivering the opinion of the Court, Justice Blackmun established:

(i)Right to privacy from substantive due process

(ii)Trimester analysis

(a)(1) states have no right to regulate

(b)(2) the state does have an interest in the health of the mother + quality of care, so there can be some regulation in those terms

(c)(3) a fetus becomes viable, so there’s a compelling state interest + regulation is allowed

(iii)Legal doctrine:

(a)Right to privacy includes right to choose whether or not to terminate a pregnancy.

(b)State does have an interest in protectingneo-natal life

(d)Other POV:

(i)Rehnquist dissented: liberty is only defined by the BoR

(ii)Rejects substantive due process

(iii)They should just talk about rational basis → does the legislature have a reasonable basis to make that law?

B.Significance of judicial restraint and stare decisis to compare the nominee’s views on those topics with those of Chief Justice Roberts, who he admires

(1)Not original intent → Constitution was meant to endure

(2)Substantive due process + liberty

(3)Responses of Judge John G Roberts Jr


(i)During his testimony before the Committee, he claimed:

(a)Stare decisis provides continuity to our system, it provides predictability in our process of case-by-casedecision making, I think it is a very important and critical concept” (CR pg 550)

(i)YET “After saying that - and being confirmed - Justice Thomas has gone on, in more than 35 cases, to express a willingness to reexamine a breathtaking range ofwell-settled constitutional law. As we’ve come to learn and as Justice Scalia has explained recently, Justice Thomas ‘doesn’t believe in stare decisis, period.’” (CR p 313)

(b)Thomas also stated: “Stare decisis analysis takes into consideration a number of factors, including whether their precedent in question has proven workable over time, whether

it has been eroded by subsequent developments in the law, and the extent to which it has given rise to settled expectations” (CR pg 314)

(c)Justice Thomas “agrees with Justice Souter that stare decisishelps establish “reliance, fairness, predictability, and judicial integrity” (CR 314)

(b)When considering stare decisis, 2 impt factors

(a)1) reliance of private citizens

(b)2) reliance of legislatures

(c)Said stare decisis is stronger to certain cases: STATUTORY, not constitutional, decisions b/c Congress can change it

(d)“Any departure from stare decisis demands special justification”

(4)Practices more judicial restraint, respect for precedent

b)Didn’t really answer a lot of questions… vague answers, like during Thomas’s hearing

(1)When Biden asked him: What  is your opinion on the Casey decision on stare decisis?

(a)Roberts says that he would look at all SC cases that state an analysis of stare decisis and dodges giving a real answer by stating “for me to say whether i agree with the analysis of stare decisis in casey would plainly constitute a comment on the correctness of a decision in an area that could come before the court in the future”

c)Biden (against): doesn’t know if Roberts thinks Constitution is adaptable, will he uphold fundamental rights?

(1)Didn’t endorse general right to privacy

d)Reliance =

(1)who has relied on that precedent?

(2)what does that reliance count for today?

(3)have private citizens relied on it? would it burden then if we overruled it


e)Brown v. Board of Education

(1)Reliance isn’t the only factor!

(2)Is the precedent unworkable?

(3)Have new things happened?

(4)Have facts changed?

f)Statutory interpretation begins w/ the text, ends there if unambiguous

g)If text written broadly, then should be applied broadly + also consider congressional intent


C.Whether ideology alone is an appropriate ground on which to base his possible vote for or against a Supreme Court nominee

1.Kyl admits that he has hesitated from making ideology an important part of confirmation process but Biden and Obama rejected Roberts because of overarching judicial philosophy so he recognizes that Kagan’s liberal ideology will be a problem

2.From Course Reade“SYMPOSIUM: FEDERAL JUDICIAL SELECTION IN THE NEW MILLENNIUM: Ideology and the Selection of Federal Judges (pg 405-411)

a)“Every president in American history, to a greater or lesser extent, has chosen federal judges, in part, based on their ideology. Likewise, since the earliest days of the nation, the United states Senate also has looked to ideology in the confirmation process. This is exactly how it should be. An individual’s beliefs influence how he or she will decide cases once on the bench. Therefore, it is appropriate, and indeed essential, for the appointing and confirming authorities to consider ideology.” (pg 405)

(1)“During the nineteenth century, the Senate rejectedtwenty-one presidential nominations for the U.S. Supreme Court...vast majority...were defeated because of Senate disagreement with their ideology.” (pg 408)

(2)“Never has the selection or confirmation process focused solely on whether the candidate has sufficient professional credentials.” (pg 408)

b)His argument:

(a)“First...Ideology matters.” (pg 409)

(i)“A person’s ideology influences how he or she will vote on important issues.” (p 409)

(ii)“It is appropriate for an evaluator…[including] the Senate…- to pay careful attention to the likely consequences of an individual’s presence on the court. This seems so obvious as to hardly require elaboration” (p 409)

(a)Uses the example of a nominee with “impeccable professional qualifications but is an “active member of the Ku Klux Klan or the American Nazi Party” (p 409)

(iii)“On the Supreme Court, the decisions in a large proportion of cases are a product of the judges’ views” (p 409)

(a) “The federal decisions of recent years...almost all have been 5-4rulings that reflect ideology of the Justices.” (p 409)

(b)“Second, the Senate should use ideology precisely because the President uses it.” (p 409)

(i)“Under the Constitution, the Senate should not be a rubber-stamp and should not treat judicial selection as a presidential prerogative. The Senate owes no duty of deference to the president and, as explained above, never has shown such deference through American history.” (p 409)

(c)“Finally, ideology should be considered because the judicial selection process is the key majoritarian check on an anti-majoritarian institution.” (p 409)

(i)“Once confirmed, federal judges have life tenure. A crucial democratic check is the process of determining who will hold these appointments. (p 409)

(ii)“Selection by the President and confirmation by the Senate properly exists to have majoritarian control over the composition of the federal courts” (p 409)

Develop a line of questioning about the nominee’s views about statutory interpretation as he believes that is an equally important part of the Supreme Court’s work

A. Statutory cases - deciding the meaning or application of a federal statute

1.Congress fails to anticipate full range of situations, unclear language

2.Ex. American Disabilities Act - covered conditions that cannot be mitigated easily

3.These decisions can be overturned by new legislation

4.Two approaches to interpretation a) fitting the case to statute’s precise words b) taking into light congressional purpose of enacting the law


C.Senator Biden asked Roberts during his testimony before the Committee: Using Jackson v Birmingham Board of Ed majority and dissenting opinions, what is his approach to statutory interpretation?

1.Majority: emphasized interpretation of the word “discrimination” in Title IX “broadly”

2.dissenting: “Congress had not included causes of action for retaliation “unambiguously” in title ix” (CR p 318)

a)Roberts dodges by giving the same reason for not answering casey question, that it “would plainly constitute a comment on the correctness of a decision in an area that would come before the Court in the future” (CR 317)

3.Roberts say he can comment generally and quotes from BedRoc Ltd. v U.S. “statutory interpretation begins with the statutory text and ends there if the text is unambiguous.” (CR 318)`

4.Judges required to “presume that [the[ legislature says in a statute what it means and means in a statute what it says there” (CR 318)

5.“Statutes written in broad language should be given broad application” (CR p 318)

a)If text written broadly, then should be applied broadly + also consider congressional intent

b)Statutes should be interpreted broadly when a broad interpretation is consistent with congressional intent and interpreted narrowly when a narrow interpretation is consistent with congressional


IV. The senator’s view is that the Court’s decision in District of Columbia v. Heller leaves room for reasonable gun safety measures and he wants to know if this is correct

A.District of Columbia v. Heller

1.Yes, if he agrees with majority’s opinion (written by Justice Scalia)

a)“...the right secured by the Second Amendment is not unlimited...the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (CR p 212)

b)Justice Scalia provides a list of some examples of “presumptively lawful regulatory measures...that does not purport to be exhaustive” (CR p 213)...

(1)“...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (CR 212-213)

c)He also adds: “We also recognize another important limitation on the right to keep and carry arms”

(1)He cites US v Miller (1939) “that the sorts of weapons protected were those ‘in common use at the time.’...We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ (CR p 213)

2.NO, if you take the dissent’s argument into consideration:

a)Justice Breyer(joined by Stevens, Souter, and Ginsburg) dissented: (1) “the

Second Amendment protect militia-related, not self-defense-related,interests” and (2) “the protection the Amendment provides is not absolute.”

(1)DC’s regulation is fair because it responds to a serious problem, high crime in urban areas, and protects the general welfare. → Government has a legitimate public-safety interest.

(2)The Second Amendment, like other Amendments, is subject to government regulation, and has been regulated in the past.

(3)The DC law was democratically enacted by democratically elected officials, so it’s not the Court’s place to decide.

(4)The Second Amendment must be applied to modern situations because the Framers couldn’t have thought of these issues.

(5)*pragmatic concerns* the decision will create many problems → no clear standards/protection from gun violence

3.Additional info on this case

a)Involved 2nd amendment

b)Issue was whether the amendment bars the District of Columbia from enforcing its law prohibiting handgun possession against individuals who wish to keep handguns in their homes for self defense

4.Majority believed that the phrase “keep and bear arms” referred generally to the possession and use of weapons, including for hunting and individual self defense

5.Dissenters by contrast read the right of the ppl to protect individuals engaged in collection action through participation in the militia, akin to the first amendment which also protects a collective activity

a)It construed the phrase to keep and bear arms as a reference to militia use of weapons

b)Claimed that the purpose was to override concern about the potential threat to state sovereignty that a federal standing army would pose and a desire to protect the state’s militias as the means by which to guard against the dangers

6.Both sides referred to the case US vs Miller: a unanimous court held that possession of a sawed off shotgun is not protected by 2nd amendment

a)Dissenters understood miller to turn “on the basic difference between the military and nonmilitary use and possession of guns’ with latter falling outside the scope of 2nd amendment protection

b)Majority read Miller to say that the 2nd amendment right “extends only to certain types of weapons” namely those weapons typically possessed by law abiding citizens for lawful purposes

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